Scottish Court of Session Decisions

In this case (reported, supra, 23 S.L.R. 870) a reclaiming-note was presented to the Second Division against Lord Lee's judgment in the Outer House. The Second Division having remitted to Lord Rutherfurd Clark to take evidence, the proof was taken by his Lordship on 2d December 1884. On 20th March 1885 the pursuer applied to his Lordship and obtained from him a certificate for an additional allowance of expenses in respect of investigations made previous to the proof by four skilled witnesses. Provision for such certificate is made by the Act of Sederunt of 15th July 1876, quoted below. On 27th May 1885 the Court after having heard counsel on the proof and reclaiming-note dismissed the action and found the defender entitled to expenses. The pursuer appealed to the House of Lords, and on 29th June 1886 the judgment of the Court of Session was reversed and the pursuer found entitled to expenses. The Auditor taxed the pursuer's account of expenses at £309, 3s. 6d., reserving a sum of £85, 0s. 3d, as the expenses of the additional allowance to the skilled witnesses. The grounds of this reservation were stated by him in a note to his report in the following terms—“the reserved question is of importance, first, as involving a matter of general practice, and second as affecting a considerable amount of expenses in the present case. The table of fees of 1876 in the section dealing with allowances to witnesses, provides, that ‘in cases where it is found necessary to employ professional or scientific persons such as physicians, surgeons, chemists, engineers, land surveyors, or accountants to make investigations previous to a trial or proof in order to qualify them to give evidence thereat, such additional charges for the trouble and expenses of such persons shall be allowed as may be considered fair and reasonable, provided that the judge who tries the cause shall, on a motion made to him either at the trial or proof, or within eight days thereafter if in Session, or, if in vacation, within the first eight days of the ensuing session, certify that it was a fit case for such additional allowance.’ The terms of this rule are very precise, and so far as my experience goes it has been strictly applied. I may add that in cases where skilled witnesses are engaged, the practice appears to be that the agents arrange for a meeting with the judge, when they are heard on their respective applications for certificates, and (if necessary) against the crave of the opposite party in whole or in part. At the audit in the present case it was objected on the part of the defenders that the pursuer was not entitled to any allowance for his skilled witnesses, in respect, first, that the application for certificate was not made within the time allowed by the regulation by the Court, and second, that it was made in absence of the defenders’ agent and without any previous intimation. With regard to the first ground of objection, I have to state that the proof was taken before Lord Rutherfurd Clark on 2d December 1884 (when as appears from the account it occupied 4 hours), that the certificate was applied for and granted on 20th March 1885 and that the judgment of the Court, after hearing counsel on the proof, was pronounced on 27th May 1885. With regard to the second ground of objection, it is not disputed that the application was made without notice and in absence. The expenses of the defenders were taxed by me under the judgment of 27th May 1885, before the case was appealed to the House of Lords, and I then disallowed the claim of the defenders for an additional allowance to their only skilled witness on the ground that they had not obtained the necessary certificate.”

The case having been enrolled for approval of the report, counsel for the pursuer submitted that the sum reserved by the Auditor ought to be included in his amount of expenses. He argued—If the Act of Sederunt applied, which was doubtful, the analogy must be followed of Outer House practice, where the hearing of counsel on the evidence was part of the proof in the sense of the Act of Sederunt. Now the certificate had been applied for and obtained before the hearing. But alternatively, the Act of Sederunt did not apply at all, and this was a question for the discretion of the Court. (2) There was no provision in the Act of Sederunt, assuming its application, nor was it usual in the practice of the Court for a party applying for such a certificate to give notice of motion to the other party.

At advising—