Scottish Court of Session Decisions

Balfour, for the pursuer, argued—(1) this objection is withdrawn; (2) the print of documents was unnecessary, and was not used at the trial. All the necessary documents were contained in the pursuer's print. Besides, by Act of Sederunt, 18th July 1850, the Lords “declare that in future they will allow, under the conditions aftermentioned, to the successful party the expense of printing the documents actually produced and used at the trial; but in order to check undue expense, direct the clerk at the trial to mark on the margin of the print, for the use of the auditor, the documents actually produced, and the auditor to examine such print with a view to see whether deeds have been unnecessarily printed at length, or accounts and other papers unnecessarily printed when nothing turned on the terms of the same; and, further, the Lords direct the party who means to claim such expense to apply for and obtain from the judge trying the cause, a certificate as to the extent to which such print was necessary, and direct the auditor to tax the account according to such certificate, so far as he finds that it rules the matter.” The conditions here prescribed had not been complied with by the defenders; (3 and 4) these fees are excessive; (5) the witness referred to was not examined; (6) this charge is excessive; (7) the expense of three counsel should not be allowed against the pursuer ( Campbell's Exrs, v. Campbell's Trs., 19th June 1866, vol. ii. p. 89); (8) the expense of precognoscing and paying witnesses not examined is not a fair charge against the pursuer; (9) the copies referred to were unnecessary.

Shand, for the defender, replied—The print, though not used at trial, was necessary for instructing counsel, and is chargeable ( Forbes v. Dunbar, 22 S. J. 582). The Act of Sederunt was not pleaded at the audit. If it had been, the diet would have been adjourned, that the necessary certificate might be obtained. The sums referred to in the 6th objection were all actually disbursed; the documents were very numerous. There is no absolute rule that three counsel are never to be allowed at a trial (Walker, 19th July 1862, 24 D., 1441). In this case three were necessary, and the pursuer himself had three. The expenses of witnesses not examined should be allowed. Although the only issue taken was fraudulent impetration, yet the record contained also averments of facility which the pursuer might have proposed to prove, and which it was necessary that the defender should have evidence to rebut. These averments were only withdrawn at the trial.

The Lord President—The first objection is not insisted in. The next is to the charge of £66, 1s. for a print. It is said this is not to be charged at all, the print for the pursuer having been sufficient, but there was no communication made to the defender of the pursuer's print. Then it is said the print is longer than was necessary. Lastly, it is said it was not submitted to the judge. The words of the Act of Sederunt no doubt make this a condition precedent to the expense being allowed, but it has not been the practice. I have only done it once. At all events, I don't think it is too late to look into the matter yet, and I will do so. The next objection is that the fees for consultation are too large. In such a matter there must be some discretion left with agents. I think we cannot sustain that objection. Then there is the account in regard to the execution of the diligence for recovering documents. The sum no doubt seems large; but the auditor has not interfered with the details. We are asked to allow a slump sum of £100; but assuming Mr Kerr's charge of £76 to be correct, that would leave only £24 for the other expenses. I don't think we can deal with the charges in that way. I think there is a great deal in the observation that there was an allegation of facility on record. I don't think, although this was not put in issue, that the defender could well have objected to it being made an element in the investigation; and if so, he was entitled to prepare to meet it in his defence. The next question is as to the expense of a third counsel. I hold it be a general rule that only two counsel are to be allowed as against the opposite party, and that it is always necessary to make an exceptional case in order to justify the expense of three. It is said that here there were three on each side. I don't think there is anything in that. In another branch of this case, I think I have seen five counsel on one side, but this expense of course cannot be charged. The question is, whether this was a case in which it was reasonable, looking to the nature of the allegations on record, to have three counsel; and I am of opinion that it cannot be regarded as otherwise than an exceptional case. Lastly, as to the witnesses not examined, it is the fact that their examination was rendered unnecessary by the course the pursuer took with his case, and I don't think we can sustain that objection either.

The other Judges concurred, and the case was continued till Tuesday, when

The Lord President stated that he had examined the print, and he was of opinion that the charge for it should be allowed.

The objections were therefore all repelled, with expenses.