Scottish Court of Session Decisions

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Cite as: [1876] SLR 13_664, [1876] ScotLR 13_664

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SCOTTISH_SLR_Court_of_Session

Page: 664↓

Court of Session Inner House First Division.

Saturday, July 15. 1876.

Sheriff of Midlothian.

13 SLR 664

Batchelor

v.

Mackersy and Pattison.

(Ante, p. 589.)

Subject_1Expenses
Subject_2Act of Sederunt 19th Dec. 1835
Subject_3Fees to Counsel
Facts:

Circumstances in which held that the Auditor was entitled to allow fees to counsel although they had not been paid at the time.

Observations on the practice of declining fees except in the event of success.

Headnote:

The Auditor added the following note to his report on the accounts of expenses in this case: —“The appellant was neither present nor represented at the audit, but the Auditor had before him a letter from the appellant, with the copies of the accounts of the expenses of the respondents served upon him, on which he had noted his objections. These were considered by the Auditor. The agents of the respondents stated that the fees entered in both accounts as paid to counsel had in reality not been paid. The Act of Sederunt of 1835 provides that ‘a party shall not upon any account be allowed to pay or state higher or additional fees to counsel after he has been found entitled to expenses than were actually paid at the time. But this rule does not apply either to cases on the Poor's Roll, or to such as have been conducted gratuitously by the agent and counsel on account of the poverty of the party.’ The object of this provision, as understood by the Auditor, is to prevent
Page: 665↓
a successful party, after judgment in his favour, increasing the amount or adding to the number of the fees actually paid by him during the course of the process, and although the exceptions from the rule are in terms limited to cases on the Poor's Roll, and cases of gratuitous conduct of a cause ‘on account of the poverty of the party,’ the practice of the Auditor's office has been, where a case has been throughout conducted by counsel gratuitously on other grounds, to allow reasonable fees after decree has been pronounced. The fees stated in these accounts appear to the Auditor to be reasonable, and he has not disallowed them.”

For the respondents it was stated that the practice was well known, and in such a case as the present was perfectly reasonable. Reference was made to the case of Tough's Trustees v. Dumbarton Water Commissioners, 1 Rettie 879.

At advising—

Judgment:

Lord President—What the Auditor proposes to do in this case, viz., to allow a reasonable fee, although it was not actually paid at the time, is consistent with a practice of long standing—a practice with which I was quite familiar while at the bar, and of which your Lordships are, I have no doubt, well aware. The practice is reasonable in itself, and it is not inconsistent with the provisions of the Act of Sederunt. The principle is that counsel and agent may feel that the circumstances of a case are such that the agent cannot consent to make charges or the counsel to receive fees from their client; but they cannot have the same feeling to the client's opponent, and when he is found liable this feeling will therefore disappear. Accordingly it is quite reasonable that, when the client's opponent has to pay, such a charge should be allowed by the Auditor.

Lord Deas—It is perfectly natural that a counsel should not wish to accept fees from a brother counsel, or an agent from a brother agent; but that is no reason why they should not be entitled to receive them from the opposite party if he is found liable. I concur with your Lordship.

Lord Mure—I also concur with your Lordship. The practice was well known to me when at the bar.

The Court pronounced this interlocutor:—

“The Lords having considered the Auditor's reports on the accounts of expenses incurred by the respondents, Nos. 490 and 491 of process, and heard counsel for the respondents thereon and on the questions reserved for the determination of the Court, no appearance being made for the appellant, Allow the fees mentioned in said reports to be charged, approve of the Auditor's report on the account of expenses incurred by the respondent George Handasyde Pattison, No. 491 of process, and decern against the appellant for payment to the said respondent George Handasyde Pattison of the sum of Thirty-three pounds three shillings and one penny sterling of taxed expenses: Farther, approve of the Auditor's report on the account of expenses incurred by the respondent Robert Johnston, No. 490 of process, and decern against the appellant for payment of the sum of Twenty-three pounds sterling of taxed expenses to David Reid Grubb, solicitor, the agent-disburser thereof.”

Counsel:

Counsel and Agent for Pursuer (Appellant)—Party.

Counsel for Mackersy (Defender and Respondent)— Burnet. Agent— George Begg, S.S.C.

Counsel for Pattison (Defender and Respondent)— Dean of Faculty (Watson)— Black. Agent— William Saunders, S.S.C.
1876