Scottish Court of Session Decisions

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Cite as: [1880] SLR 17_645, [1880] ScotLR 17_645

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SCOTTISH_SLR_Court_of_Session

Page: 645↓

Court of Session Inner House First Division.

Friday, June 11. 1880.

[ Lord Craighill, Ordinary.

17 SLR 645

Young

v.

Johnson and Wright.

Subject_1Process
Subject_2Expenses
Subject_3Objections to Auditor's Report
Subject_4Fees to Counsel.
Facts:

Held that fees which by indulgence of counsel, and owing to a client's poverty, have not been paid at the time, may subsequently be recovered from an unsuccessful opponent.

Headnote:

Wright, one of the unsuccessful defenders in the action reported ante, p. 545, objected to the Auditor's report, inter alia, that charges to the extent of £78, 8s. had been allowed for fees to pursuer's counsel, no such fees having been admittedly lent at the time. It was stated for the pursuer that the fees had not been paid owing to the pursuer's inability to advance money at the time.

Authority— Tough's Trustees v. Dumbarton Water Commissioners, May 14, 1874, 1 R. 879.

At advising—

Judgment:

Lord President—Mr Wright's first objection is founded merely on the fact that fees to counsel have not been paid. That is plainly a bad objection. The fees were not paid originally because the pursuer was in a poor condition in life and could not advance the money; and it has been sanctioned more than once as a rule of practice that an agent may in such circumstances, if counsel extend such indulgence, send the fees afterwards when the account of expenses has been paid by the opposite party. Mr Wright suggested that in such a case the agent might not send on the fees to counsel, having received them; I can only say that if an agent were found to have so acted, his name would not long remain on the rolls of Court, and that is the best security against such conduct.

Mr Wright's other objections are objections to detail, of which the Auditor is the best, and indeed the only judge.

Lord Deas, Lord Mure, and Lord Shand concurred.

The Court refused the objections for defender Wright.

Counsel:

Counsel for Pursuer— J. M. Gibson. Agent— D. Howard Smith, L.A.

Counsel and Agent for Wright—Party.
1880

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