Scottish Court of Session Decisions

This case came before the Court on a note of objections by the Railway Company to the Auditor's report. Exception was taken to the Auditor haying reduced the fees paid by the defenders to counsel and counsels' clerk to the extent of £4, 14s. 9d. The Auditor explained the grounds of disallowance in the following Note appended to his report:—“In this case the defenders have been represented by three counsel—two seniors and a junior. One senior and the junior have been instructed throughout, the other senior not continuously, in consequence of occasional absence from Edinburgh. The case is certainly not one for three counsel, and the defenders do not claim fees for more than two, but the fees in the account are stated sometimes as paid to the two seniors and sometimes as paid to the senior who was continuously instructed and to the junior. The Auditor is humbly of opinion that in a question with the pursuer this is not a proper or convenient course, and he has therefore dealt with the fees of counsel as if the senior not continuously instructed had not appeared for the defenders in the case.” It having been stated at the bar that it had been the practice of the Auditor to allow in proofs the fees of £21 to senior and £15,15s. to junior counsel, sanctioned by the Court in jury trials in the cases of Cooper v. North British Railway Company, December 19, 1863, 2 Macph. 346, and Hubback v. North British Railway Company, June 25, 1864, 2 Macph. 1291, the Court remitted to the Auditor to report specially whether “in his practice he has followed the rule laid down as to the fees of senior counsel in jury trials” in these cases “as being applicable to proofs before the Lords Ordinary, and if not what other rule he has followed.”

The Auditor reported in the following terms:—“In obedience to the remit of the Court, the Auditor begs to report that in dealing with the fees of counsel in proofs before the Lords Ordinary he has kept in view the rules laid down by the Court in the cases of Cooper and Hubback, as regulating the maximum fees to be sustained as against a losing party in cases which are not exceptional. There are from time to time proofs in which it humbly appears to the Auditor that the maximum fees are not more than adequate for the proper re muneration of the counsel who conduct them, and he has in such cases sustained the maximum fees, but in the great majority of cases he holds that fees in proofs should be sustained at rates somewhat lower than in jury trials. It seems to him that in jury trials the strain and responsibility upon those who conduct them are greater than in proofs. In a trial, any omission in preparation or absence of evidence may be fatal—the proceedings going on continuously to the verdict, while in a proof the danger is not so great, as adjournment may be and is occasionally permitted. Holding these views, the practice of the Auditor in regard to counsel's fees in proofs, when senior and junior are engaged, has been to sustain jury trial fees somewhat modified. He endeavours, in regard both to trials and to proofs, to satisfy himself, by examination of the record, precognitions, and productions, as to the nature and difficulty of each case, and, keeping in view the ruling of the Court in Cooper and Hubback and other cases, to fix the fees accordingly. He feels the delicacy of the duty committed to him, and anxiously endeavours to avoid undue interference with the discretion of the agents. With regard to this particular case, the Auditor may state that he limited the fees in the manner objected to by the defenders only after full consideration, and he may add that, even had the case been tried by a jury, he could not have regarded it as one for allowance of the maximum fees,”

At advising—