Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (50 and 57 Vict. cap. 61) is entituled “An Act to generalise and amend certain statutory provisions for the protection of persons acting in the execution of statutory and other public duties.”

Section 1 enacts—“Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect:— (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of … (b) Wherever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client, (c)…”

This was a note to the Lord President for (1) the Banff District Committee of the County Council of the County of Banff, and (2) James Campbell, LL.D., Old Cullen, and others, the County Road Board of the County of Banff, defenders and respondents in an action against them at the instance of the Provost, Magistrates, and Councillors of the Police Burgh of Aberchirder, pursuers and reclaimers.

The action had concluded for (1) reduction of certain minutes or resolutions of the defenders the Banff District Committee and the Road Board, and (2) declarator that the District Committee was bound to maintain and repair the roads, streets, and lanes of the Burgh of Aberchirder.

On 13th January 1905 the Lord Ordinary (Low) had assoilzied the defenders from the conclusions of the action and had found them entitled to expenses except those incurred for a discussion in the Procedure Roll.

The pursuers had reclaimed, and on 20th October 1905 the First Division had pronounced this interlocutor—“Adhere to the said interlocutor, refuse the reclaiming note, and decern; Find the defenders entitled to additional expenses since the date of the interlocutor reclaimed against, and remit the account thereof, together with the account of the expenses found due by the interlocutor reclaimed against, to the Auditor to tax and to report.”

The note, after narrating the provision as to expenses of the Public Authorities Protection Act 1893, sec. 1 ( supra), stated—“The defenders have lodged in process their account of expenses made up in accordance with said statute as between solicitor and client, but on the same being submitted to the Auditor of this date (27th February 1906) he refused to receive or consider the same, on the ground, as he alleges, that he has no warrant to tax the account otherwise than as between party and party. The defenders are therefore under the necessity of presenting this note.

“May it therefore please your Lordship to move the Court to pronounce an interlocutor directing the Auditor of Court to proceed with the taxation of the said account … as an account of expenses between solicitor and client.”

On the note appearing in the Single Bills counsel for the Burgh of Aberchirder (the pursuers in the action) argued that the note was incompetent and should be refused on the ground that it was too late now to move for expenses as between agent and client. The motion now made was doubly belated as the Lord Ordinary had only allowed ordinary expenses. An award of expenses in ordinary form carried only expenses as between party and party, and such award could not be altered after the interlocutor granting it was signed— Wilson's Trustees v. Wilson's Factor, February 2,1869, 7 Macph. 457, 6 S.L.R. 285; Fletcher's Trustees v. Fletcher, July 7, 1888, 15 R. 862, 25 S.L.R. 606. The Auditor was not to be made a judge of whether the Act applied; the Court must decide that and intimate its decision in the interlocutor.

Argued for defenders—The case of Fletcher (cit. supra) was inapplicable, as there the Court had applied its mind specially to the question of expenses; that was not so here. In England the practice was to tax such an account as between agent and client without a specific finding to that effect. The words of the statute were imperative; that being so, the words “as between agent and client” should be read in— Shaw v. Hertfordshire County Council, [1899] 2 QB 282. All that was asked here was a direction to the auditor. No alteration of the interlocutor awarding the expenses in question was necessary. The motion was therefore competent.