Scottish Court of Session Decisions

Lord President—The condition under which the present note of objections comes before us is that the Auditor has allowed fees to five doctors, and the question is whether any ground has been stated to us for adding to the number or amount of these fees.

We had occasion in the case of Watson v. The Caledonian Railway Company ( 3 F. 999) to consider carefully the question of the fees which should be allowed to medical men in accident cases, as the number and the amount of such fees had been growing in a manner it was impossible to approve of.

It was our intention in that case to place a reasonable limit to the amount which a litigant could be called on to pay for medical men, either as witnesses for his opponent or for services rendered by them prior to the trial.

In the present case it appears to me that the fees allowed are quite adequate, and that to allow more would be inconsistent with the decision in the case of Watson, which we intended should form the rule of practice.

Lord Adam—I am of the same opinion.

With regard to the objections to the charge for the precognitions of Dr Boyd and Dr Knox, I think the Auditor has followed accurately the decision in the case of Watson ( 3 F. 999).

With regard to the charges which the Auditor has allowed for the attendance at the trial of the medical witnesses a little explanation is necessary.

The Auditor has disallowed in toto the charge of £10, 10s. for Dr Knox and £7, 7s. for Dr Boyd. Now, these were the two doctors who attended the pursuer after the accident, and they were proper witnesses of fact in the case, and in ordinary circumstances the pursuer would be entitled to charge a fee for their attendance at the trial. But in this case a fee is allowed for the attendance of two other surgeons, viz., Professor Annandale and Dr Murray, at the trial, and these fees are allowed in place of those asked for Drs Knox and Boyd, as I understand by the desire of the pursuer.

Lord M'Laren—When a case has been compromised before trial or during the course of the trial it is necessary to distinguish between evidence as to matters of fact and evidence of opinion for the purposes of taxation of expenses. Now, when a medical man or a lawyer is called as a witness to speak to matters of fact he is in no more favoured position than any other citizen. He may be compelled to attend the trial, and he is entitled to receive no more and no less than the fees allowed by the Act of Sederunt. In his case they may be an altogether inadequate recompense for his time and trouble in connection with giving evidence; but that is just one of the burdens which the duties of citizenship impose upon him, and the Court can allow no higher standard of remuneration in his case. But when a medical man is desired to give evidence as to matters of opinion he is not a compellable witness, and as it is open to him to refuse to attend unless he gets what he considers an adequate fee he is enabled to make his own bargain as to his remuneration. Now as far as I know there are no provisions in the Act of Sederunt as to charging against the opposite party the fees of expert witnesses, except that the presiding judge may certify that expenses have been rightly incurred to an expert witness for his trouble in preparing himself to give evidence at the trial. But as in this case a compromise was arrived at before any expert evidence had been adduced, the judge was not asked to certify the expenses of the experts who were in attendance, and I do not see how in these circumstances he could have certified. I am therefore of opinion that the fees for the expert witnesses cannot properly be allowed in this case.

But I agree with Lord Adam in his view that the fees for attendance at the trial to the other two doctors who treated the pursuer in the hospital, and who were therefore witnesses to facts, are proper charges in this case, and no doubt the Auditor's reason for disallowing them was that he thought the pursuer would prefer that the fees should be allowed to his expert witnesses. Although, as I have said, these fees would more properly have been allowed to the two medical witnesses who attended the pursuer at the hospital, I see no reason to interfere with the Auditor's taxation, as in a re-audit the pecuniary result would be the same.

When a case is compromised before the trial is concluded the parties will no doubt take into consideration in determining the amount of the compromise that certain charges incurred in preparation for the trial cannot be recovered from the other party, and there is therefore no hardship in applying the strict rule of taxation.

Lord Kinnear concurred.