Scottish Court of Session Decisions

Lord Adam—In this case objections have been lodged to the Auditor's taxation of the accounts relating to the fees given to counsel for consideration of a tender of £100 which was made by the defender. That tender after consultation was rejected, with the result that the case went to jury trial, and the jury returned a verdict finding the pursuer entitled to £300. The Auditor has struck off the expenses of the consultation held to consider the tender, and the question is whether he was right in doing so. I should have thought that there was a settled practice as to such matters, but we were informed that counsel was not aware of any existing, and were referred to the case of M'Dougall, where the Auditor had allowed the fees for two consultations. In the first of these the tender was rejected, and in the second it was accepted, and the Court approved of the allowance by the Auditor of the fees in both cases. I must say that if it be the case, as Mr Munro has told us, that the Auditor allows expenses of a consultation when a tender is accepted, and does not when it is rejected, there is no principle in his method, as consultation with reference to the tender is equally necessary in both cases. In the present case I am of opinion that the objections should be sustained, following the case of M'Dougall, because the tender was made, and it was proper to consider it, and for senior counsel to attend, and that being so I cannot see why expenses should not be allowed. As regards the amount of the fees to be allowed it is argued that the fees allowed by the Auditor for the consultations, viz., £3,3s. to senior and £2, 2s. to junior counsel, are too much, and that only £1, 1s. to each should be allowed, as in the case of M'Dougall. It appears to me, however, to be a question of circumstances depending upon what counsel have to consider. Here the consultation took place at a stage when the precognitions had been taken, and were before counsel for the first time. Accordingly, both time and care would be required to enable them to arrive at their decision, and I therefore see no reason for reducing the fees to be allowed to them.

Lord M'Laren—When a defender, after issues have been adjusted, tenders a sum in lieu of damages, this is an invitation to the pursuer to consider whether he will settle amicably, and avoid the expense of a jury trial, and it is in a manner due to the defender that the pursuer should take legal advice as to acceptance of the offer. If this be so, and the result is that the case is settled, it is agreed on all hands that the expenses of considering the offer form a proper charge against the defender, the tender including expenses up to the date of its being made and accepted. But it is impossible to hold that the validity of the charge against the defender depends on the result of the consultation. If a pursuer is unable or unwilling to incur extrajudicial expenses, he is entitled to instruct his agent only to incur such expenses as can be charged against the other party should be be successful in the cause, and it seems reasonable to include in these the expenses of a consultation at which counsel advise either the acceptance or rejection of a tender. That being so, I am unable to give effect to Mr Moncrieff's view that because there have been three consultations in this not very important case the Auditor is right in not allowing the expenses of one of them. I do not think that a system of averaging is admissible in taxation; each consultation must stand on its own merits, and if each constitutes separately a good charge, it is not legitimate to reject one of them.

Lord Kinnear—This is a question which must be of perpetual occurrence in the Auditor's office, and I should have thought that there must be some general rule according to which he allowed or disallowed the expenses of consultations before trial, but the defender in this case says there is no such rule to which he can appeal. It appears to me that when a tender is made and rejected, it is not in the mouth of the party making such tender to say that it did not require consideration. Accordingly, it was perfectly right for the pursuer to give careful consideration to this tender, and the result of the trial shows that he was justified in rejecting it.

I am therefore unable to differ from the opinion of your Lordships. But if the expenses of the consultation are to be allowed at all I do not see that the question of the amount is properly before us. We are not told that it was considered excessive by the Auditor in his taxation, and I therefore see no reason why we should not allow the amount claimed.

The Lord President was absent.