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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> London Steam Collier and Coal Co. v. Wingate and Co [1868] ScotLR 5_657_1 (14 July 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0657_1.html
Cite as: [1868] SLR 5_657_1, [1868] ScotLR 5_657_1
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SCOTTISH_SLR_Court_of_Session
Page: 657↓
Court of Session Inner House First Division.
v.
Facts:
Where witnesses had been precognosed in England, held that same fees must be charged as if the precognitions had been conducted in Scotland, and the higher fees usual in England disallowed. Expenses of precognoscing and bringing from England witnesses who were not examined in the cause disallowed. Expense of employing English counsel to attend on examination of havers in London disallowed. Question: Whether two senior and one junior, or one senior and two junior counsel should have been employed? referred to the judge who tried the cause. Question—Whether the expense of witnesses coming from England should be calculated on the footing that they travel by day only?
The pursuer objected to the Auditor's findings in regard to the following items:—(1) As to
Page: 658↓
charges incurred to English solicitors in Sunderland and London in connection with the precognitions of witnesses, the Auditor allowed only the drawing fees of precognitions usual in Scotland. The pursuers maintained that the higher fees usual in England should be charged. (2) The Auditor disallowed expenses of precognoscing and bringing from England certain witnesses who were not examined in the cause. (3) The expenses of English counsel for attending the examination of havers in London were also disallowed. (4) The Auditor had restricted the time allowed to English witnesses to travel from Sunderland and Hartlepool to Edinburgh. The pursuer objected, that witnesses should not be compelled to travel by night, and that their expenses should be calculated on the footing that they travelled by day only. There was further a question specially reserved by the Auditor for disposal by the Court, viz.: Whether this was a case where the expense of a third counsel should be allowed, and if so, whether the pursuer was entitled to two senior counsel and one junior, or one senior and two junior?
Gifford and Maclean for objectors.
Watson and Shand in reply.
At advising—
Lord President—The first question is, whether for precognoscing witnesses in England (and it would apply equally to any foreign country) we are to allow charges at a higher rate than in Scotland? Now, to introduce a difference of this sort would be anomalous in the highest degree. The charges must be the same wherever the witnesses are. As to the second objection I agree with the Auditor. The third objection involves a point of some importance. I can quite understand how the examination of havers might be attended with matters of some delicacy, and in such cases I should be very sorry to prevent the employment of counsel. It does not appear, however, that there were matters of delicacy involved here, or that the learned gentleman who attended contributed much either to the administration of justice or the facilitation of the proceedings. In fact, I don't see how he could. English counsel know nothing of our incident diligences. The fourth point is one on which I should not be inclined to disturb the Auditor's decision. I have only to say that I do not see why these witnesses, who are all in the prime of life, business men, and men accustomed to make the most of their time, should not travel for a few hours by night. As to the question specially reserved by the Auditor for the disposal of the Court, the judge who tried the cause is the best person to decide. We will ask Lord Ormidale (the judge in the cause) verbally whether in his opinion two senior counsel and one junior, or one senior and two junior were required?
Solicitors: Agent for Objectors— William Miller, S.S.C.
Agents for Respondents— Campbell & Smith, S.S.C.