Scottish Court of Session Decisions

In this action the Lord Ordinary ( Kinnear) on 6th November 1888 allowed the parties a proof of their averments on the question of jurisdiction.

The defenders having reclaimed, the Court on 24th November refused the reclaiming-note and reserved the question of expenses.

The case then went back to the Lord Ordinary, and the proof, which lasted one day, was taken, and on 5th February 1889 the Lord Ordinary sustained the first plea-in-law for the defenders, dismissed the action, and decerned; found the defenders entitled to expenses, allowed an account thereof to be lodged, and remitted the same to the Auditor to tax and report.

The pursuer reclaimed, but did not insist in his reclaiming-note, and on 26th February 1889 the Court, in respect that the reclaimer did not insist in his reclaiming-note, refused the same, found him liable in additional expenses, and remitted the account thereof to the Auditor to tax and report.

The Auditor taxed the defender's account at £439, 19s. 10d. sterling, “reserving for the determination of the Court the question of liability of the pursuer for the expenses of the reclaiming-note by the defenders against Lord Kinnear's interlocutor of 6th November 1888, amounting (after taxation) to £18, 16s. 2d. included in the taxed amount now reported.”…

“ Note.—The reclaiming-note referred to was wholly unsuccessful, but the interlocutor of the Court refusing it reserved the question of expenses. The final interlocutor of the Court, pronounced on 26th February 1889, refusing the pursuer's reclaiming-note against Lord Kinnear's interlocutor of 5th February 1889, and finding him liable in additional expenses, takes no notice of the

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reserved expenses; but at the audit of this account it was stated by the pursuer's agent, and admitted by the agent of the defenders, that the question as to these expenses was brought under the notice of the Court when the remit to me to tax under that interlocutor was pronounced, and that parties were informed that the question would be dealt with when my report was submitted to the Court… .

The payments to witnesses include fees to two English counsel for attendance at the proof before Lord Kinnear, giving evidence as to the law of England on certain questions. The proof occupied one day. The payments to the English counsel are thus stated (exclusive of consultation fees and travelling expenses):—Senior, £322, 17s. 6d.; junior, £275—£597, 17s. 6d.

I have felt considerable difficulty in dealing with these items. As a charge against the unsuccessful party in the litigation, they are clearly inadmissible as stated. Although in a case in the Court of Session English law may be regarded as a fact to be proved by witnesses, it was out of the question to deal with the witnesses simply as witnesses to fact in respect that their attendance to speak to the fact could not be compelled. On the other hand they were not certified, and could not be certified, as skilled witnesses, who required to make investigation to qualify them to give evidence. After careful consideration, it appeared to me that I might with propriety follow the rule adopted by me in the case of Douglas Stewart v. Padwick and Steuart, February 26, 1873, Session Cases, 3rd series, vol. 11, p. 467. There the witnesses were not lawyers but medical men of eminence, and the fees paid to them were £126 to each. These I sustained only to the extent of £10, 10s. for each day the proof lasted. In giving judgment in that case the Lord President is reported to have said—‘Mr. Grainger Stewart and Mr Watson were called merely as experts, and I do not think it safe to exceed the allowance fixed by the Auditor. There is no doubt that the highest class of evidence cannot be got at this rate, and in a case of such importance as this is parties will have the best evidence; and it is desirable that it should be so. But is the winning party entitled to charge the whole of his expenses against the loser? It is against the spirit and practice of the Court that he should. If we exceed the sum fixed by the Auditor I do not see where we are to find a limit to such charges.’ Following the rule adopted in that case I have sustained for the Senior English Counsel—1. Fee entered in the account, under date 18th December 1888, £10,17s. 6d.; 2. Three days' travelling and attendance at proof, at £10, 10s. £31, 10s.; 3. Travelling expenses, £7–£49, 7s. 6d. And for the Junior, £8, 15s. 6d. £31, 10s., and £7, together £47, 5s. 6d.

I have thought it necessary to state these details, understanding that the defenders are to object to what I have done.”

The defenders objected to the amount taxed off the fees paid to the English counsel employed by them.

The pursuers objected to the following items being allowed the defenders—(1) The £18, 16s. 2d. of reserved expenses referred to. (2) The fees charged for instructing English counsel, and the consultation fee paid them. (3) The witnesses' fees in so far as £10, 10s. per day for three days was allowed to each of the English counsel employed.

The defenders argued—(1) That it was settled by the case of The Caledonian Railway Company v. Chisholm, March, 19, 1889, 16 R. 622, that a general finding of expenses carried reserved expenses, and that the Auditor had no power to deal with these reserved expenses. It was too late to move for these expenses after the abandonment of the reclaiming-note. (2) The case of Stewart v. Padwick and Steuart, relied on by the Auditor, did not support the taxation he had made. A larger proportion of the fees paid had been there allowed, and the skilled witnesses were in that case both resident in Edinburgh, so that there private business was not necessarily so much interfered with.

The pursuer argued—(1) That this case was taken out of the rule laid down in Chisholm's case by the fact that counsel for the pursuer had only refrained from arguing the question of the reserved expenses under the last reclaiming-note on an intimation from the bench that that question might be argued after the account had been reported on. (2) The payments to the English counsel should be taxed at the usual rate of payments allowed to ordinary witnesses under the Act of Sederunt. The only reported case in which the Court had dealt with such fees to counsel was Whitehaven and Furness Junction Railway Company v. Bain, March 11, 1851, 13 D. 944.

At advising—