Scottish Court of Session Decisions

This was a note of objections to the auditor's report on the pursuer's account of expenses incurred in consequence of the delay of the trial by the defender. The case was set down for trial on 8th April 1867. It was called on 12th April, on which day this interlocutor was pronounced:—

“The Lord President having heard counsel for the parties on the defender's motion to postpone the trial in this cause, in respect the defender, from the absence of a material witness for him, cannot go on with the trial this day—Of consent of the pursuer's counsel postpones the trial, and discharges the notice of trial for the present sittings, upon payment by the defender to the pursuer of such expenses as shall have been incurred by him in consequence of the delay of the trial, in terms of the 25th section of the Act of Sederunt, 16th February 1841.”

An account of expenses was given in by the pursuer, and was taxed by the Auditor. The pursuer gave in a note of objections to the Auditor's report in so far as he had taxed off and disallowed—(1) a charge of 10s. on 26th February and 6th and 8th of March for informing the local agents of the notice of trial, &c.; (2) signed copy of the letters of first and second diligence to cite witnesses, 3s.; (3) letters to local agents and attendance on counsel as to consultation previous to trial, 10s.; (4) borrowing process, to prepare for trial, and agent's fee for preparing for trial on 5th April, £3, 7s.; (5) the fees for instructing counsel for consultation with a view to trial, the fees sent them for consultation, and relative letters to local agents, £17, 9s. 8d.; (6) the fees for attending consultation, 13s. 4s., attendance in Court on 8th April and subsequent days, &c., in all, £2, 3s. 4d; (7) fees to counsel for second consultation in respect of counsel returning papers and new counsel having to be instructed £16, 17s. 8d.; and (8) sums struck off fees sent to counsel for trial, £7, 14s. 3d. Objections were also taken to the disallowing of items connected with certain letters and payments to witnesses.

The Court, after hearing counsel for the pursuer on his note of objections, remitted to the Auditor to consider the note of objections and to report thereon, particularly with regard to any practice of allowing or disallowing such charges as are therein set forth.

The Auditor reported, inter alia, as follows:—

“4. Agent's fee for preparing for trial, including borrowing process, £3 7 0

This charge has been disallowed in toto, on the ground that it must (according to the practice which has prevailed) be regarded as still available for the trial when that shall take place. It may be that if the trial be long delayed, the agent may require to some extent to renew his preparation; but were the Auditor taxing the expenses of process under a general finding of expenses, he could allow only one charge for preparing for trial at whatever stage the same might be entered. The charge in the table is:—“Perusing record, productions, and precognitions, &c., before trial, and preparing for same from 13s. 4d. to £3, 3s., according to the time occupied and importance of the case.” As a matter of taxation, the Auditor may remark that he does not regard this as a case for the highest charge which the agents have adopted.

5. Consultation fees, including counsel's and agents' fees, and communications with Glasgow agents, … £17 9 8

It is not usual to allow as against the unsuccessful party more than one consultation with counsel

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as a preparation for trial. There may be room for some modification of this rule where, as in the present case, after the completion of preparation, a trial is put off for a considerable period, and at the taxation of this account the Auditor felt some difficuty in regard to this. In disposing of the matter, the Auditor had in view that to some extent both the consultation fees and the trial fees charged in this account should affect the amount of the fees for consultation (assuming an additional consultation to be necessary and allowable) and trial to be hereafter paid, and that only a portion of the fees paid at this stage of the cause should be regarded as not available for the actual trial. Having regard to the doubt whether a second consultation fee is allowable to any extent as against an unsuccessful party, it appeared to the Auditor to be his best course not to attempt to apportion the fees, but to allow full fees for the first day of trial without any deduction, and to disallow wholly the expense of the preparatory consultation. He has accordingly sustained the trial fees to counsel to the extent of £21 and £15, 15s., with corresponding allowances to the lawyers' clerks and agents' fees—in all, £39, 5s. Id. The expense of the consultation disallowed is, £17, 19s. 8d. It is for the Court to determine whether the allowance made is sufficiently liberal or not.

6. Agent's fees for attending consultation, and for attendances in Court, £2 3 4

As to the charge for attending consultation, being 13s. 4d., the Auditor refers to his remarks under the preceding head.

The other charges for attending in Court on 8th, 9th, 10th April, and writing Glasgow agents as to position of prior cases (amounting to £1, 10s.), were certainly not expenses caused by the defender's motion for postponement on 12th April, but were incurred in consequence of the protraction of the prior cases, and are ordinary expenses of process.”

Counsel were heard on the report.

A. Moncreiff, for pusuer, insisted principally on the 4th and 5th objections.