Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0105.html
Cite as: [1873] ScotLR 11_105, [1873] SLR 11_105

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SCOTTISH_SLR_Court_of_Session

Page: 105↓

Court of Session Inner House Second Division.

Wednesday, November 28. 1873.

11 SLR 105

Campbell

v.

Ord and Maddison.

(See ante, p. 54.)

Subject_1Expenses
Subject_2Fees of Counsel
Subject_3Auditor's Report.
Facts:

Where a jury trial lasted one day only, a fee of twenty guineas to senior counsel, and fifteen guineas to junior counsel, allowed to be charged against the losing party.

Headnote:

This case (reported ante, p. 54), in which the pursuer had been found entitled to expenses, came up upon two objections to the auditor's report. The account of expenses submitted by the pursuer's agent had amounted to £188, 9s. 8d., but the taxed amount came to £164, 5s. 5d. Objection was taken by the pursuer's agent to two items disallowed by the auditor—(1) A fee of one guinea and relative fees for the agent and clerk for moving the Lord Ordinary to fix a diet for trial; and (2) a sum of £11, 6s. in respect of deduction of five guineas each from the fees given to senior and junior counsel for the trial. The fee, as stated, given to senior counsel was twenty guineas, and to junior counsel fifteen guineas. As taxed, the fees allowed were fifteen guineas and ten guineas respectively. The trial lasted one day, during which eighteen witnesses were examined.

Cases cited— Cooper, 2 Macph. 346; Hubbuck, 2 Macph. 1291; Duke of Buccleuch, 5 Macph. 1054.

At advising,

Judgment:

Lord Cowan said—I am clear, on the first objection, that we ought not to interfere with the discretion of the auditor. The second objection involves delicate consideration. As a general rule the auditor ought not to interfere with the agent's discretion unless a clear and specific objection is stated, and if there is excessive exuberance of fees he should report the matter to the Court. In this case it does not appear he ought to have interfered. This was a case requiring great consideration, where important questions of law were involved, and I do not think that because it was finished in one day the fees should be cut down. The case of Cowper required great investigation, and the Court took into account the time the trial lasted, and the refreshers given to counsel. I cannot acquiesce in any general rule that no less a fee than twenty guineas to senior counsel and fifteen to junior should be given for a trial lasting one day only. The auditor must exercise his discretion in each case.

Lord Benholme—I agree very much. Where a case lasts only one day we cannot argue from a case lasting more than one day.

Lord Neaves—I concur. This was not a simple assessment of damages, but various intricate facts had to be cleared up in order to bring out the point of law.

Lord Justice-Clerk—I am prepared to acquiesce, although my first impression had been not to interfere with the auditor; but I think it of great importance to keep in mind that the trial lasted only one day, and cannot acquiesce in the principle that each day after the first is to count as a separate

Page: 106↓

day. I think a great reason of the unpopularity of jury trials has been the practice of continuing the trial over the one day, and thus increasing the expense against the losing party.

The Court dismissed the first objection, and sustained the second.

Counsel:

Counsel for Objector— C. Smith. Agent— A. Shiell, S.S.C.

Counsel for Respondent— Trayner. Agents— Horne, Horne, & Lyell, W.S.
1873

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