Scottish Court of Session Decisions

The Auditor of Court in reporting his taxation of the pursuer's account of expenses, reserved for the consideration of the Court the two points referred to in the following special report by him:—

“The Auditor has reserved two points for the consideration of the Court—1st, The liability of the defenders for the expenses incurred in the employment of a third counsel on the part of the pursuer at various stages of the case, subsequent to the conclusion the debate on the closed record; and 2d, The of fees paid the pursuer's counsel for the trial chargeable against the defenders.

I. In regard to the first point, the Auditor has only to state that it was admitted by the defenders' agent at the audit that throughout the case his clients had taken the assistance of three counsel. It appears from the process and account that the case was one of importance, and involving considerable detail, the documents produced and recovered being numerous. If the Court shall decide against the liability of the defenders for the expenses of a third counsel, there will fall to be deducted from the amount above reported the sum of £68, 18s. 6d., being the amount of these expenses as taxed.

II. The Auditor has had some difficulty in forming an opinion on the second point, and he is desirous to have the directions of the Court in regard to it for his guidance in other cases. The fees paid by the pursuer for the trial are stated in the account at fifty guineas for the senior counsel, and thirty guineas for each of the juniors. In taxing the account, the Auditor has allowed forty-five guineas for the senior counsel, and thirty guineas for each of the juniors. In allowing the sums, he has had in view the cases of Cooper and Wood v. North British Railway Company, 19th Dec. 1863, Session Cases, 3d Series, vol. ii. p. 346, and Hubback v. North British Railway Company, 25th June 1864, Session Cases, 3d Series, vol. ii. p. 1291. Had the trial in this case lasted three days, the fees allowed would not have exceeded the amount indicated by the Court in the cases referred to as proper fees to be stated against the losing party. The peculiarity of the present case is, that the trial lasted only a few hours of one day, the defenders having consented, after the examination of the pursuer's first witness (the pursuer himself), to a settlement of the case, but without a verdict in his favour. The Auditor has no doubt that had the trial lasted for three days, fees for the second and third days would have been paid by the pursuer to his counsel in addition to those charged in the account. But the question remains, whether, when a trial is brought to a termination unexpectedly by the surrender of one of the parties, the other is not entitled to recover from him fees actually paid, at least to the extent of reasonable fees, for the whole trial. Although it be the present practice in jury causes, where a trial cannot be brought to a dose at one sitting, to remunerate counsel by continuation fees day after day, it is to be presumed that before the commencement of the trial counsel have prepared themselves upon the whole case. The Auditor believes that the earlier practice in the Jury Court was to instruct counsel by a single fee for the whole trial, and not by continuation fees Cases of course did occur where a

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trial was much and unexpectedly prolonged, and in such cases it may have been found necessary to supplement the original fee. It is for the Court to determine whether in the present case any, and if so, what, deduction should be made from the fees which have been allowed.— Edmund Baxter.”

In reference to the first matter reserved by the Auditor, the Court were of opinion that this was an exceptional case, and that the pursuer was entitle to charge as part of his expenses against the defenders the expense of three counsel at the trial; but that he was not entitled to the expense of a third counsel at any stage of the cause previous to the consultation before the trial. There was therefore deduoted from the account as taxed the sum of £11, 13s. 6d., which was charged for a third counsel at previous stages of the cause.

In reference to the second matter reserved, they were of opinion that in the circumstances of this case the fees given to counsel at the trial, and allowed by the Auditor, were reasonable charges against the defenders. The trial was one which, considering the magnitude of the case and the time usually occupied in jury trials, was likely to last for two or three days. If the trial had gone on and not been brought to an unexpected conclusion on the first day, refreshers would have been, according to the present practice, sent to the counsel: and if this had been the case, the Court would then have considered the whole matter, as in the cases referred to by the Auditor. But this case was peculiar, and the fees sent were thought to be in the circumstances a fair charge against the defenders.