Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0035.html
Cite as: [1893] ScotLR 31_35, [1893] SLR 31_35

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SCOTTISH_SLR_Court_of_Session

Page: 35↓

Court of Session Inner House Second Division.

Thursday, October 26. 1893.

31 SLR 35

Blair

v.

The Caledonian Railway Company.

Subject_1Expenses
Subject_2Fees to Counsel
Subject_3Jury Trial
Subject_4Discretion of Auditor.
Facts:

In an account of expenses of a jury trial for damages for personal injury which lasted one day at the sittings, the Auditor reduced the fee of senior counsel from £21 to £13, 13s., and of junior counsel from £15, 15s. to £8, 8s.

Objections were lodged, on the ground that the Auditor had reduced counsel's fee below the sums which had been fixed to be the proper fees by decisions of the Court.

The Court refused to interfere with the Auditor's discretion.

Headnote:

This was an action for damages for personal injury. The case was tried at the July sittings 1893. The verdict was in favour of the pursuer. The defenders were found liable in expenses. When the case
Page: 36↓
came before the Court on the pursuer's account of expenses, the pursuer objected thereto, on the ground that the Auditor had reduced the fees of senior counsel from £21 to £13, 13s., and of junior counsel from £15, 15s. to £8, 8s.

He argued—A series of decisions fixed the proper fees to be paid to counsel for an ordinary jury trial, and the Auditor had no discretion in reducing them except in exceptional circumstances, which did not arise here. If the Auditor had affixed a note to the account stating on what ground he had reduced the fees, his position would have been more intelligible. He had not done so, but had arbitrarily reduced the fees without stating any ground. The Court ought to restore the fees as originally given— Cooper & Wood v. North British Railway Company, December 19, 1863, 2 Macph. 316; Campbell v. Ord & Maddison, November 5, 1873, 1 R. 149; Black v. Mason, March 18, 1881, 8 R. 666.

At advising—

Judgment:

Lord Justice-Clerk—The Auditor is an officer of Court, and necessarily he has before him the decisions of the Court in cases of this kind, and having these decisions before him, he considers whether any particular fee ought to be charged in a particular case. I should have been surprised if any decision had laid down that it was part of the Auditor's duty to give any particular fee in any particular class of cases, because in each case he must consider the whole circumstances of the case. The Auditor has considered the circumstances of this case, and thought that these circumstances justified him in cutting down this fee. Unless in very strong and exceptional circumstances I should not be inclined to interfere with the Auditor's discretion as to what a particular fee ought to be in any particular case.

Lord Young—I admit I am surprised at this objection. Since I have sat in this Division we have always refused to interfere with the discretion of the Auditor in taxing these accounts of expenses. Not on the ground that we could not interfere, but on the footing that under no ordinary circumstances would we interfere with his discretion. It may be possible to imagine some case in which we would, but I think it would be only a fancy case. It is obvious—and most of us know it from experience—that the fees sent to counsel vary in different cases and for different reasons. We have now got as Auditor a gentleman who has had longer experience in such matters as this than anyone else, and whose good sense we all know, and it would require a very strong and exceptional case to make me interfere with his decision in any particular case. Here we have no ground for interference stated at all except it be this, that the Court ought to lay down a general table of fees for the guidance of the Auditor, and that we ought to revise his decisions in each case. That is not the kind of work for which the Court is fitted. I think we ought to dismiss these objections.

Lord Rutherfurd clark—I think we ought not to interfere with the discretion of the Auditor in this case.

The Court repelled the objections and approved of the Auditor's report.

Counsel:

Counsel for the Pursuer— Salvesen. Agent— W. B. Rainnie, S.S.C.

Connsel for the Defenders — Guthrie. Agents— Hope, Mann, & Kirk, W.S.
1893

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