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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Padwick v. Stewart [1874] ScotLR 11_318 (4 March 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0318.html
Cite as: [1874] ScotLR 11_318, [1874] SLR 11_318
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SCOTTISH_SLR_Court_of_Session
Page: 318↓
Court of Session Inner House First Division.
v.
(Ante, p. 262.)
Facts:
In a case involving difficult points of law and a longthened argument—(1) Fee to third counsel in Inner House disallowed; (2) Fee “to counsel with joint print of documents, and to consider whether other documents should be printed,” disallowed; (3) Consultation fee before debate in procedure roll, disallowed; (4) Consultation fee before debate in debate roll disallowed, in respect that the fees during the continuance of the debate were sufficient; (5) Fee to counsel for attending examination of havers, disallowed; (6) Fee to Scotch agent for attending examination of havers in London, disallowed.
This case, which related to the validity of an entail and an alleged sale of the entailed estate, involved difficult questions in point of law. The Court decided in favour of the defender, and the case now came up upon the Auditor's report.
The defender had stated a charge for fees to third counsel in the Inner House debate, and this charge the Auditor reserved for the determination of the Court. It appeared that the defender was only represented by two counsel in the Outer House, and the senior counsel was only taken in when the case went to the Inner House.
The Auditor had disallowed the following charges:—(1) Fee of £2, 2s. to counsel “with proof of joint print of documents, and to consider as to whether other documents should be printed.” (2) Fee to senior and junior counsel respectively of £4, 4s. and £3, 3s. for consultation before the debate in the procedure roll. (3) Fee to counsel respectively of £4, 4s. and £3, 3s. for consultation before debate in the debate roll. It appeared that counsel had received’ £6, 6s. and £5, 5s. with instructions for debate, £8, 8s. and £6, 6s. for a short proof during the currency of the debate, and continuance fees of £4, 4s. and £3, 3s. (4) Fee to counsel of £2, 2s. for attending examination of havers; (5) Charge of £10, 10s. for agent going to London to attend examination of havers. The Auditor in this case, although disallowing the fee charged, allowed £2, 2s.
The defender contended that the fee for third counsel should be allowed in the Inner House on account of the length and difficulty of the case, which involved very intricate questions of law, and the debate in which continued for nearly seven whole days. The other charges should be allowed considering the difficulty of the case and the interests at stake. In regard to the fee for the agent attending the examination in London, at all events the Auditor's allowance should be sustained.
The pursuer contended that the third counsel in this case should not be allowed, as it was not one of those cases in which different parts of the work could be done by different counsel.
At advising—
First, in regard to the objections applicable to the Outer House.
The fee to counsel for revising the joint print with the view of considering what documents should be printed in addition, and also the fee to counsel at the examination of havers, are both points particularly for the examination of the Auditor, who has had all the procedure in the case before him, and it would be improper to interfere with his discretion.
As to the consultation fees of 20th November 1871, before the debate in the procedure roll, it is important to remember that counsel considered the case carefully at the adjustment of record, and received adequate remuneration. The debate in the procedure roll could lead to nothing but an order putting the case in shape, and I do not see that
Page: 319↓
Again, there was a consultation on 12th May 1873 with a view to the debate in the debate roll. The propriety of this fee depends very much upon the fees which counsel received during the course of the debate. We see six guineas and five guineas were sent with instructions for debate. The debate led to a sort of parenthetical proceeding in the shape of a proof, and for this eight guineas and six guineas were sent to counsel, and then there were continuance fees of four guineas and three guineas. So the fees appear to have been ample without the additional charge for consultation fees. The Auditor has come to this conclusion, and I think that we should approve of his decision.
The only other point in the Outer House is the proposal to charge for the agent going to London to the examination of havers. That charge is inadmissible. Such a charge is never allowed except where there are very peculiar circumstances, and there are no such circumstances here.
In the second place, as to the objections applicable to the Inner House.
There are many cases in which it is quite proper that three counsel should be employed, but not just that the unsuccessful party should pay for the three counsel. This is such a case. It was a heavy and difficult case, and the agent was quite right to employ three counsel, especially as the leading counsel was absent in the Outer House. If, when the case came to the Inner House the agent had dropped out one of the two counsel employed in the Outer House he would have acted injudiciously. That however is not the question, but, is this the kind of case in which the unsuccessful party must pay for three counsel? This was a difficult case in point of law, but in a case, however difficult, which turns upon matters of law, the counsel who actually conducts the argument must apply himself to every point in the case. The kind of case in which three counsel are chargeable against the unsuccessful party are cases in which there may be a sub-division of labour, as in the case of a heavy trial by jury, when the labour of preparing may be divided among the counsel, and in many other cases, such as the deathbed case between the parties to this case, where it is easy to see that there may be sub-division of labour. But there could be none here, for the same labour must have been gone through by each of the three counsel. I am therefore for disallowing the charge for three counsel.
The other Judges concurred.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel for the parties on the Auditor's report on the defender Sir Archibald Douglas Stewart's amount of expenses, No. 209 of process, and also on the notes of objections for the defender and pursuer respectively, Nos. 211 and 210 of process,—Repel all the said objections, but disallow the charge of £43, 12s. 4d. for a third counsel, reserved by the Auditor for the determination of the Court: Approve of the Auditor's report subject to the disallowance aforesaid, and decern accordingly against the pursuer for payment to the defender of £503, 17s. 6d., being the balance of the said amount as taxed which remains after deduction of the sum now disallowed.”
Counsel for Pursuer— Keir. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for Defender— Mackay. Agents— Dundas & Wilson, C.S.