Scottish Court of Session Decisions

This is an action at the instance of Mr Richard Wilson, chartered accountant in Edinburgh, against Mr Edward William Nightingale, clothier there, in which he concludes for the sum of £97, 15s. 11d., conform to account rendered for professional business done by him on account of and under the employment of the defender. The defender does not dispute the employment of Mr Wilson, but maintains that his charges are quite exorbitant, and that the understanding between them was that Mr Wilson was not to charge the full fees of an accountant. After the Lord Ordinary had repelled a preliminary plea stated by the defender, to the effect that the pursuer had not relevantly set forth the grounds of his claim by specific accounts, the parties agreed to refer the matter to Mr John Hunter, Auditor of the Court of Session, qua accountant, whereupon the Lord Ordinary (Jerviswoode) pronounced the following interlocutor:—

“The Lord Ordinary, having heard counsel and made avizandum, repels the first plea in law stated for the defender, and of consent remits to the Auditor of Court, qua accountant, to examine into the nature and extent of the services rendered by the pursuer which are set forth on the record as the ground of the claim made by him under the conclusions of the present action, with power to the said Auditor to call for documents and explanations from the parties, and take such probation by examination of havers and witnesses as may be necessary to enable him to carry out this remit; and grants commission to him, and diligence against said witnesses and havers accordingly; and thereafter to report what sum in his opinion would amount to adequate remuneration to the pursuer for work done by him on behalf of the defender.”

Upon this a long proof followed before the Auditor, in the course of which several objections were taken by the defender, and brought by him, by appeal, under review of the Lord Ordinary. Mr Hunter reported that the work which Mr Wilson had been employed to do for the defender was of such a nature as to be suitable only for a professional accountant, and that his charges were extremely moderate, and ought to be sustained in full. Against this report the defender lodged a number of objections, and a full discussion took place before the Lord Ordinary both upon these objections and on the objections that were raised in the course of the proof. The Lord Ordinary repelled all the objections, sustained Mr Hunter's report, and found the defender liable. To-day the Court concurred in the result of this judgment, but held that they could not enter on the objections which were taken in the proceedings before the reporter. The parties had preferred that manner of ascertaining their rights to going, in the usual way, through the courts of law, and they must be held bound by their own acts. The remit to Mr Hunter was not a judicial reference, but a private arrangement among the parties, and Mr Hunter had thereby conferred upon him a discretionary power with which the Court could not interfere, and which they were not by any means prepared to say he had exceeded.