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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sim v. The National Heritable Property Co. (Ltd) [1889] ScotLR 26_446 (12 March 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0446.html
Cite as: [1889] ScotLR 26_446, [1889] SLR 26_446
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SCOTTISH_SLR_Court_of_Session
Page: 446↓
Court of Session Inner House First Division.
[
v.
Facts:
The defenders of an action were represented at the closing of the record and at the discussion in the procedure roll both by senior and junior counsel, but at the proof which followed no fee was sent to junior counsel along with his instructions. In the defenders' account of expenses this fee was entered and claimed before the Auditor.
Held that this was not a “higher or additional” fee in the sense of section 6 of Act of Sederunt 1876, and the Auditor's report on the account, including this item, approved.
In an action by John Sim, 8 Balfour Street, Leith, against the Scottish National Heritable Property Company (Limited), the Court on 1st March 1889 assoilzied the defenders from the conclusions of the summons and remitted the accounts to the Auditor to tax and report.
When the Auditor's report of the account of expenses came up for approval a special report was submitted by the Auditor in which he stated that he had “taxed the defenders' expenses at £210, 19s. 3d., reserving for the determination of the Court the question of the right of the defenders to recover from the pursuer the fee stated in the account for junior counsel for attendance at the proof and previous consultation, amounting, with clerk's fees and agent's instruction fees, to £23, 16s. 8d.” …
The Auditor appended to this report the following note:—“At the audit the defenders' agent stated that while the fees entered in the account for junior counsel prior to 5th June 1888 had been paid, the fees entered under that date and on 7th and 21st June had not been paid. It is provided in the general regulations, No 6, appended to the table of fees 1876 that ‘a party shall not upon any account be allowed to pay a 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. Had the fees of counsel been wholly unpaid I should, in conformity with my practice, have passed the fees in question without remark but having regard to the terms of the regulation above quoted I think it best to reserve the question for the Court. If the Court shall be of opinion that the regulation is to be strictly interpreted, there will fall to be deducted from the taxed amount now reported £23, 16s. 8d., leaving £187, 2s. 7d. as the sum to be decerned for.”
Argued for the defenders—The regulation cited by the Auditor did not touch the present question; the fee to junior counsel for the proof was not sent at all, consequently it could not in any sense be termed a “higher or additional” fee. The Court ought to be guided by the following cases— Tough's Trustees v. The Dumbarton Water Commissioners, May 14, 1874, 1 R. 879; Batchelor v. Pattison, July 15, 1876, 3 R. 1086; Young v. Wright, May 19, 1880, 7 R. 760.
At advising—
When no fee is sent to counsel along with his instructions it may quite competently be forwarded at a later stage of the proceedings, but what the Act of Sederunt specially provides is that when a fee (and presumably a sufficient one) is sent along with instructions the successful party is not entitled, after obtaining a finding of expenses, to send an additional fee at the expense of the losing party.
In the present case no fee for the proof was sent to junior counsel and what we are now asked to pass is not a “higher or additional” fee but the fee which might at the time of the proof have been sent. I am therefore for allowing the fee upon the same grounds on which the fees were allowed in the cases of Batchelor and Young.
Page: 447↓
The Court approved of the Auditor's report of the account of expenses, and decerned.
Counsel for Defenders— Graham Murray. Agent— R. Ainslie Brown, S.S.C.