Scottish Court of Session Decisions

The Act of Sederunt, 15th July 1876, entitled “for regulating the fees and charges of enrolled law-agents practising before the Supreme Courts of Scotland,” in the table of fees thereto annexed, provides (under head V, “Jury Trials and Proofs,” sub-head iii, “Allowances to Witnesses,” sec. 2) that “in cases where it is found necessary to employ professional or scientific persons, such as physicians, surgeons, chemists, engineers, land surveyors, or accountants, to make investigations previous to a trial or proof in order to qualify them to give evidence thereat, such additional charges for the trouble and expenses of such persons shall be allowed as may be considered fair and reasonable, provided that the judge who tries the cause shall, on a motion made to him either at the trial or proof, or within eight days thereafter if in session, or if in vacation within the first eight days of the ensuing session, certify that it was a fit case for such additional allowance.”

James Clements brought an action against the Lord Provost, Magistrates, and Town Council of the city of Edinburgh, in which he sued them for £2000 sterling for damages for the death of his son. The defenders were taking down a bridge with a view to its reconstruction, and it fell upon the pursuer's son while he was passing underneath it and killed him. The pursuer averred that the operations were being carried out in an improper and careless manner and specified various defects in the apparatus employed. He also averred that both he and his wife, who was pregnant at the time, had suffered in health owing to grief and shock caused by their son's death. After the issues had been adjusted the case was settled by joint minute, the pursuer accepting a specified sum and his expenses.

In taxing the pursuer's account of expenses the Auditor disallowed fees amounting to £14, 9s. paid to certain skilled witnesses whom the pursuer had consulted—one civil engineer and two doctors—with a view to the preparation of his case. To his report the Auditor appended the following note:—“The Auditor has disallowed the fees to skilled witnesses simply because the witnesses have not been certified in terms of the Act of Sederunt. It is true that the case was settled before going to trial, but the Auditor understands the rule of the Court to be that even in that case a certificate is necessary, and that without it he has no discretion— Turnbull v. North British Railway Company, 5 F. 944. Had he had such discretion he would in the present case have allowed the fees as charged, as they seem to him moderate, both as to the number and class of the witnesses and the amounts charged.”

The pursuer lodged objections to the Auditor's report, contending that the fees to the skilled witnesses should have been allowed.

Argued for the pursuer—The Act of Sederunt applied only to cases which had gone to trial; in cases which did not go the length of trial there could be no “judge who tries the cause” to give a certificate, and in them the fees, if just and reasonable, being part of the expenses, must be allowed. This had hitherto been the Auditor's practice— M'Dougall v. Caledonian Railway Company, June 28, 1878, 5 R. 1011, 15 S.L.R. 603; Lord Elphinstone v. Monkland Iron and Coal Company, Limited, February 2, 1887, 14 R. 449, 24 S.L.R. 323; A B v. C D, July 20, 1894, 21 R. 1083, 31 S.L.R. 848; Mackay's Manual of Practice, p. 674; Smith on Expenses, p. 319. The case of Turnbull v. North British Railway Company, June 12, 1903, 5 F. 945, 40 S.L.R. 699, on which the defenders founded, contained only the adverse dicta of an English judge and was not authoritative.

Argued for the defenders— Turnbull v. North British Railway Company (cit. sup.) was the latest expression of opinion on the subject. The fees of expert witnesses were not by the common law part of the expenses of a case, from which it followed that it was only in the particular case where they were made so by the Act of Sederunt, i.e., where the witnesses were certified by the judge, that they could be allowed by the Auditor.