Scottish Court of Session Decisions

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Cite as: [1874] SLR 11_358, [1874] ScotLR 11_358

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SCOTTISH_SLR_Court_of_Session

Page: 358↓

Court of Session Inner House First Division.

Tuesday, March 17. 1874.

11 SLR 358

Duncan and others,

v.

Salmond and Others.

(Ante, p. 169.)

Subject_1Expenses
Subject_2Fees of Counsel and Agent.

Facts:

Where there were a number of defenders to an action whose interest was identical with reference to the conclusions of that action:— Held that from the date of the case being heard in the procedure roll, at which date the identity of their interest was ascertained, the defenders were entitled to the expense of only one set of counsel and agent. Opinion as to the stage at which such a question ought to be raised.

Headnote:

In an action of multiplepoinding certain of the claimants were found entitled to the fund in medio in preference to the present pursuers. Thereupon the latter raised an action of reduction of the judgment of the Lord Ordinary (which had been allowed to become final) against the present defenders, who were the successful claimants, and the judicial factor, the holder of the fund—in which action the pursuers were unsuccessful, and the defenders found entitled to expenses.

The present question arose on the motion of the defenders to approve of the Auditor's report.

The pursuers objected to the report in so far as it allowed fees of counsel and agent to each of four different sets of defenders, and argued that the interest of all the defenders in the present
Page: 359↓
action being identical, they could all have been sufficiently represented by, and were therefore only entitled to the expense of, one set of counsel and agent. Argued for one of the parties (defenders)—(1) The objection came too late. It ought to have been taken at the time when expenses were moved for. (2) Charges of fraud had been made against the present defender, who was therefore not bound to trust her defence to other parties. (3) The present defender did not admit that the claims of the other defenders ought to have been admitted; and they might dispute that question again.

At advising—

Judgment:

Lord President—The first question which arises here is, whether or not the objection comes too late. No authority has been given to that effect, and I can see no good ground for holding that it does. At the same time, a question of this kind ought as an ordinary rule to be raised at the time when the finding on the merits is pronounced, because at that time the Court are more fully and practically acquainted with the case. As to the merits of this objection, it seems to me that a distinction must be drawn between the expenses at different stages of the case. The manner in which the pursuer stated his case on record justified the defenders in stating separate defences. The discussion in the procedure roll might have ended very differently to what it did; and though it ended in the Lord Ordinary assoilizing all the defenders, still that was not an inevitable result; and so it is impossible to say that up to that stage all the defenders had only one interest, which could have been represented by one set of counsel and agent. But the Lord Ordinary held that the reasons of reduction were irrelevant, and he came to that conclusion on the pursuer's own statement, so that afterwards one defender would have been sufficient; and I think we can only allow the expense of one set of counsel and agent in the discussion of the reclaiming note.

The other Judges concurred.

The Court pronounced the following interlocutor:—

“The Lords having heard counsel on the Note of Objections, No. 31 of process, for the pursuers, to the Auditor's reports on the accounts of expenses of the several defenders other than the judicial factor, Find that the defenders, other than the judicial factor, are not entitled to the expenses of separate appearances as respondents in the Reclaiming Note of 28th August 1873, but ought to have all appeared by one set of counsel and agent to defend the interlocutor reclaimed against, and remit to the Auditor to give effect to this finding.”

Counsel:

Counsel for Pursuers— Campbell Smith and Reid. Agent— A. Clark, S.S.C.

Counsel for Defenders— Rhind, W. A. Brown, R. V. Campbell, and Asher. Agents— A. K. Morison, S.S.C., A. Morrison, S.S.C., D. Cook, S.S.C., Millar, Allardice, & Robson, W.S., and Leburn, Henderson, & Wilson, S.S.C.
1874

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