Scottish Court of Session Decisions

A B brought an action of declarator of nullity of marriage against her husband C D, which she was afterwards allowed to abandon two days before the diet fixed for the proof upon payment of expenses.

In the course of the proceedings preparatory to proof the defender had agreed to submit to medical examination, but had stipulated that it should be in London and conducted by gentlemen of standing in their profession. She declined to accede to the suggestion that she should come to Scotland, and accordingly Dr Heron Watson, Edinburgh, and Dr Renton, Glasgow, were sent to London so that they might be able to give evidence in Edinburgh subsequently if required. These medical men charged £315 and £323, 8s. respectively for their professional services.

The Auditor taxed the fees payable by the pursuer at £15, 15s. and £10, 10s. respectively. Objection having been taken to the Auditor's report, the Lord Ordinary ( Wellwood) fixed the fees chargeable against the pursuer at £131, 5s. and £105 respectively.

“ Opinion.—At the previous hearing on 14th July I heard a full argument, not only on the competency, but also on the merits of the objections. The competency of the objections having now been sustained, I am of opinion, on the merits, that the Auditor has not allowed sufficiently large

Page: 149↓

sums in respect of the fees paid to Dr Heron Watson and Dr Renton. The sums allowed by the Auditor, viz., £15, 15s. and £10, 10s., were fixed on the footing of what would have been paid to medical men resident in London. The examination of the pursuer in London was rendered necessary by her declining to come to Scotland for this purpose, and I think that in the circumstances the defender was entitled to employ medical men resident in Scotland, who would be available as witnesses when the trial took place. If the defender had employed London doctors of equal eminence, he would have required to pay them on the same scale if he had asked them to attend the trial. I therefore think that the fees allowed by the Auditor are inadequate, but I am not prepared to allow as against the pursuer the whole of the fees paid to Dr Heron Watson and Dr Renton. I shall allow in all a fee of 125 guineas for Dr Heron Watson, and a fee of 100 guineas for Dr Renton.”

The pursuer reclaimed, and argued—The Auditor was right. As between party and party only £10, 10s. a day was to be allowed for medical expert evidence— Stewart v. Padwick, February 26, 1873, 11 Macph. 467. The defender should have employed medical men in London, and not sent doctors from Scotland. It was not certain that they would be required in the witness-box, and as a fact they had not been. Cases as to the fees payable to English counsel, e.g., Whitehaven and Furness Junction Railway Company v. Bain, March 11, 1851, 13 D. 944, and Parnell v. Walter, March 5, 1890, 17 R. 552, were not in point. Counsel were not included among the experts referred to in the Acts of Sederunt of 1844 and 1876.

Argued for respondent—The Auditor had allowed quite inadequate fees. The pursuer had herself rendered the incurring of these fees necessary by refusing to come to Scotland. Had London doctors been employed they would have had to be brought to Edinburgh for the trial. The defender was entitled to contemplate that when making the preliminary inquiries. In this case the doctors would have been feed to come down from London, because the case was only abandoned on the eve of the trial.

At advising—

Lord President—I do not think that this case raises any general question as to the proper scale of remuneration for medical experts employed in a preliminary inquiry of this kind. I am prepared to decide the case upon the conduct of the reclaimer, who compelled exceptional measures to be adopted in the way of expenditure. She could have raised the general question of the scale of charges by coming down to Edinburgh and being examined there, but instead she prescribes by letter of 15th March 1894 the terms on which she will submit to be examined, and these are that the examination shall be in London, and conducted by two medical practitioners who must be men of standing in their profession.

Upon 27th April the opposite side wrote suggesting that Mrs Smith should come to Edinburgh for examination, but this suggestion was not acceded to. In consequence it became necessary to consider what a litigant, having due regard to economy in expenditure, was entitled to do, and I think the course adopted was quite reasonable. In coming to a conclusion, the defender was entitled to consider the whole aggregate expenses he would have to incur, including that of ultimately bringing the witnesses to the witness-box. It was necessary for the defender to incur extra expense, and I agree with the Lord Ordinary when he says “the defender was entitled to medical men resident in Scotland, who would be available as witnesses when the trial took place. If the defender had employed London doctors of equal eminence he would have required to pay them on the same scale if he had asked them to attend the trial.” I think the Lord Ordinary has allowed a reasonable amount, taking all the circumstances into account, and I am of opinion that his judgment should be affirmed.