Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wood's Trustees v. Wood [1900] ScotLR 37_671 (16 May 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0671.html
Cite as: [1900] ScotLR 37_671, [1900] SLR 37_671

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 671↓

Court of Session Inner House First Division.

Wednesday, May 16. 1900.

37 SLR 671

Wood's Trustees

v.

Wood.

Subject_1Expenses
Subject_2Employment of Counsel in Sheriff Court
Subject_3A.S., December 4, 1878.
Facts:

In the table of fees annexed to the general regulations in the Act of Sederunt of 4th December 1878 “regulating the fees of agents practising in the Sheriff Courts of Scotland,” the following entry occurs—“4 instructing counsel. — Where the employment of counsel is authorised or subsequently sanctioned.”

Held that where the employment of counsel in the Sheriff Court had not been expressly authorised or subsequently sanctioned by the Sheriff, fees paid to them could not be recovered from the party found liable in expenses, and that such authority or sanction could not be implied from a note on the process by the Sheriff-Clerk, to the effect that the case was to be put out for hearing on a particular day to enable counsel to attend.

Headnote:

In this appeal from the Sheriff Court of Perth the appellants (Wood's Trustees) were found liable in expenses both in the Court of Session and Sheriff Court. The Auditor allowed a fee to counsel for attendance on the debate in the Sheriff Court. On the motion for the approval of the Auditor's report counsel for the appellants objected to the charge in respect that the employment of counsel had neither been authorised nor subsequently sanctioned by the Sheriff, as required by Act of Sederunt, December 4, 1878. No such authority or sanction appeared in any interlocutor by the Sheriff, but there was a note on the process by the Sheriff-Clerk, to the effect that the case was put out for a certain day to enable counsel to attend.

The respondent argued that this was sufficient to infer the Sheriff's sanction.

Judgment:

Lord President—Looking to the terms of the regulations regarding the employment of counsel in the Sheriff Court, which require that the employment should be either antecedently authorised or subsequently sanctioned by the Sheriff before the expense can be charged against the opposing party, I do not think that we can grant that part of the respondent's claim, inasmuch as there was neither antecedent authority or subsequent sanction given to the employment of counsel in the present case. It does not appear to me that the interlocutor or order signed by the Sheriff-Clerk can be regarded as giving the requisite authority, seeing that the Sheriff was not asked to apply and did not apply his mind to the question whether the employment of counsel was proper, and although we may think that the case was a proper one for the employment of counsel, we are not entitled to substitute our judgment or the judgment of the Auditor for that of the Sheriff in this matter.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court approved of the Auditor's report with the exception of the fee in question.

Counsel:

Counsel for the Appellant— A. M. Anderson. Agent— W. R. Mackay, W.S.

Counsel for the Respondent— Wilson. Agent— Henry Wakelin, S.S.C.
1900

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010