Scottish Court of Session Decisions

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 22, enacts that “Where a defender shall not enter appearance on or before the second day after the summons has been called in Court, the cause may immediately be enrolled in the Lord Ordinary's motion roll as an undefended cause for decree in absence”; and section 23 enacts “when any cause is enrolled as an undefended cause before the Lord Ordinary, the Lord Ordinary shall without any attendance of counsel or agent grant decree in absence in common form in terms of the conclusions of the summons, or subject to such restrictions as may be set forth in a minute written on the summons by the agent for the pursuer.”

It is enacted by the Act of Sederunt, 6th February 1806, in regard to actions by law agents for payment of a business account, “The Lord Ordinary before whom the process may come shall remit the account to the Auditor of Court, and no decree shall be pronounced, either in absence or after having heard parties, without a report having been made by the Auditor.”

Andrew Newlands, S.S.C., in Edinburgh, brought an action against Dr Ian L. G. Gillanders and Euphemia S. Barclay or Gillanders, his wife, residing at Wynberg, South Africa, but formerly of London, to recover payment of a business account due him by them. The action was undefended, and decree in absence was pronounced. On the pursuer's motion the account sued for was remitted to the Auditor to tax, along with the account of expenses of obtaining decree in absence. In this latter account there were charged a fee to counsel for moving the Court to approve of the Auditor's report, and also a fee of 6s. 8d. to the agent for instructing counsel and attending the motion. The former fee the Auditor disallowed; the latter fee he reduced to 5s.

The pursuer lodged a note of objections to the Auditor's report, and argued—The present case was governed by that of Hunters v. Alexander, May 20, 1882, 19 S.L.R. 619. He also cited Begg on Law-Agents, p. 170; Smith on Expenses, p. 301; Coldstream's Procedure, p. 35.