Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tough's Trustees v. The Dumbarton Water Works Commissioners [1874] ScotLR 11_505 (13 May 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0505.html
Cite as: [1874] SLR 11_505, [1874] ScotLR 11_505
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 505↓
Court of Session Inner House First Division.
v.
(Ante, vol. x., p. 160.)
Expenses
Facts:
In a proof before the Lord Ordinary which lasted three days, and in which only one counsel was employed, and where it appeared that counsel was acting gratuitously unless expenses were recovered from opposite party, fees of £12, 12s. for the first day, and of £10, 10s. a-day for the second and third days, allowed.
Held that the Act of Sederunt of 10th July 1844, regulating the allowances to witnesses in jury trials, applied to proofs before the Lord Ordinary, in so far as it provides that charges in addition to the ordinary allowance for scientific persons qualifying themselves to give evidence shall be sustained, “provided the Judge shall certify that it was a fit case for such additional allowance.”
In an action brought by the trustees of George Tough, contractor, the original pursuer of the action, against The Dumbarton Water Wor
Page: 506↓
Commissioners, the Lord Ordinary gave judgment in favour of the pursuer, and the Inner House adhered. The case now came before the Court on the Auditor's report of the pursuer's account of expenses, and two objections were stated for the pursuer.
In the first place, the pursuer had charged fees to counsel for the proof before the Lord Ordinary, which lasted three days, and in which only one counsel was employed, at fifteen guineas for the first day, and twelve guineas a-day for the two following days. The Auditor allowed twelve guineas for the first day, and ten guineas a-day for the two other days. The pursuer objected to this decision.
In the second place, the pursuer had charged for two engineers, Messrs Martin and Dunlop, who had made certain measurements and calculations, and had been examined as witnesses, the sum of £216, and the Auditor allowed £10, 10s. or £5, 5s. for each of these witnesses. To this also the pursuer objected.
It appeared that on account of the bankruptcy of the pursuer, counsel had agreed to conduct the case gratuitously, fees to be recovered only in case of success, and that it was not a case involving difficult points of law or technical matters, although involving considerable detail. It further appeared that Messrs Martin and Dunlop had acted as advisers to the pursuer, and had been employed by him all through the proceedings, and that the £216 charged in the pursuer's account of expenses was their account for all work done. Further, there was no certificate from the Lord Ordinary in terms of the Act of Sederunt of 10th July 1844, certifying that it was a fit case for additional allowances to scientific witnesses for qualifying to give evidence.
In regard to the first point, the pursuer argued that the fees charged should be allowed, as they were only charged upon the scale fixed for junior counsel in jury trials by a series of decisions, and there was no good reason why the fees in proofs before the Lord Ordinary should not be as large as in jury trials. Even if it was otherwise, the fact that one counsel conducted the whole proof entitled him to full fees. As to the payment of the engineers, the full amount of their account was undoubtedly not chargeable against the opposite party. But they were entitled to remuneration for preparing to give evidence, as the evidence which they gave was such as necessarily presupposed preparation. The want of the Judge's certificate did not matter, as the Act of Sederunt only applied to jury trials.
Cooper & Wood v. North British Railway Co., Feb. 28, 1863, 2 Macph. 326; Hubback v. North British Railway Co., 2 Macph. 1291; Campbell v. Ord 4—Maddison, Nov. 28, 1873, 1 Rettie 154.
The defender argued that as the case had been conducted gratuitously, it was left for the auditor to fix the fees to counsel. He had done so fairly and reasonably, for it had been decided (Wilson v. The North British Railway Co., 13th Dec. 1873, ante, p. 155) that the remuneration to counsel in proofs before the Lord Ordinary was not to be so large as in jury trials. In regard to the allowance to the engineers, the Auditor had acted rightly. For, 1st, these witnesses had, in the course of their actings as agents for the pursuer, acquired all information as to the facts upon which they were required to give evidence, and so did not need any special preparation; and 2d, there was no certificate from the Lord Ordinary in terms of the Act of Sederunt of 1844, which, as construed by practice, applied to proof before the Lord Ordinary as well as to jury trials.
At advising—
The Lord President—The points which we have to consider in this case are, first, as to the fees allowed to counsel; and second, as to the charges made by Messrs Martin and Dunlop.
In regard to the counsels' fees, there are certain peculiarities in this case. In the first place—and this is in favour of the extension of the fees—there was only one counsel in the Outer-House; but, in the second place, there is the fact, pointed out by Mr Asher, and in support of his contention, that the fees were not actually paid at the time, but are now charged, and will be paid to the extent recovered. So the Auditor, in reducing the fees charged, does not interfere with the discretion of the agent in sending fees to counsel, which is always a delicate matter. For, as a general rule, the agent is the best judge of what fees he should send to counsel, and if he incurs risk for himself and his client by expending a sum of money in counsels' fees, it is to be presumed that the money so expended is only reasonable remuneration. But no fees were paid in this case, and so the Auditor in fixing now what is reasonable remuneration is not interfering with the agent's discretion. Then it was pointed out that the fees allowed are less than would have been allowed if the case had been tried by Jury. That is quite true, but we have already approved of that practice, for in the case of Wilson v. The North British Railway Company, Dec. 13, 1873, we remitted to the Auditor to report upon the matter.
The Auditor's report was as follows:—
“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 remuneration 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 counsels' 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.”
Page: 507↓
Now, in considering that Report, this Division expressed entire approval of the practice of the Auditor. That being so, I cannot think that the fees here fixed by the Auditor are unusually low, but, on the contrary, reasonable and fair.
As to the payment to the engineers, there is more difficulty; but it is my impression that this Court has held that the Act of Sederunt regulating jury practice in regard to scientific witnesses is also applicable to proofs before the Lord Ordinary. If that is so, then the absence of the Lord Ordinary's certificate is fatal to the contention of Mr Smith. Before determining anything judicially in this matter, however, I should like to know if I am right in supposing that there has been any such decision, and if there has not, what has been the practice followed.
As to the charge for the attendance of these engineers as witnesses, they were witnesses to fact, and could therefore have been compelled to attend and give that evidence, and so cannot be looked upon as experts, who cannot be compelled to attend. I therefore think that we should not interfere with the allowance of the Auditor in this respect.
If your Lordships are of the same opinion, we will allow the point as to payment of the engineers for qualifying to give evidence to stand over.
The other Judges concurred.
The case was adjourned until Thursday, the 14th May, in order that information might be obtained as to the applicability of the Act of Sederunt of 10th July 1844 to proofs before the Lord Ordinary.
The defender accordingly on that day produced the following Memorandum by the Auditor of Court:—
“ Memorandum by Auditor of Court as to Payment of Skilled Witnesses examined in Proofs.
The Act of Sederunt of 10th July 1844, regulating the allowances to witnesses in jury trials, provides, inter alia, that when it is necessary to employ scientific persons to make investigations previous to trial in order to qualify them to give evidence, then fair and reasonable charges for so qualifying, in addition to the ordinary allowance, shall be sustained, “provided that the Judge shall certify that it was a fit case for such additional allowance.” This rule has been uniformly applied by the Auditor to witnesses in proofs for a considerable time past, and, so far as he is aware, without appeal to the Court in a single case. It has been so applied in consequence of a judgment of the First Division of the Court (brought under the Auditor's notice at the time it was pronounced, but apparently not reported) to the effect that, in respect of allowance to witnesses for qualifying, proofs were not in a different position from jury trials. The Auditor regrets that he cannot fix the date of the decree referred to, but, to the best of his recollection, it was in 1871 or 1872. Prior to that decision, the practice of the Judges in the Outer-House had varied, some of their Lordships certifying scientific witnesses in proofs as in jury trials, and others leaving it to the Auditor to deal with the additional allowances claimed in proofs.
(Signed) Edmund Baxter.
14 th May 1874.”
The Court repelled the objections stated for the pursuer, and approved of the Auditor's Report.
Counsel for the Pursuer— Campbell Smith. Agent— Thomas Spalding, S.S.C.
Counsel for the Defender— Asher. Agent— Macandrew.