Scottish Court of Session Decisions

On 14th April 1905 Shaw & Shaw, cotton spinners, Britannia Mills, Huddersfield, and the individual partners thereof, raised an action against J. & T. Boyd, Limited, machine makers, Shettleston, Glasgow, in which they sued for £186, 2s. 6d. as damages for breach of contract. The pursuers agreed to purchase from the defenders a machine for twisting cotton yarn and it was duly delivered to them at their mills. The machine, however, proved unsatisfactory and was ultimately rejected. [A cross-action at the instance of Messrs Boyd for payment of £208, 9s. 1d., the balance of the price, was heard and disposed of at the same time, the defenders in it being assoilzied.] The Lord Ordinary ( Ardwall) after a proof which lasted three days awarded damages and found the pursuers entitled to expenses. The defenders reclaimed to the First Division but subsequently withdrew the reclaiming-note.

The case now appeared in the Single Bills on a Note of Objections by the pursuers to the Auditor's report on their account of expenses. [ Lord Ardwall, before whom the case was tried, was present in the Division at the hearing on the note, but did not take part in the advising.]

In his report the Auditor had (1) disallowed in toto the expense of a third copy of the correspondence for the use of the pursuers' agents at the proof; (2) he had reduced a fee of five guineas, charged for junior counsel for a consultation on the eve of the proof, to three guineas; and had also reduced the fees of thirty and fifteen guineas a day charged for senior and junior counsel respectively throughout the proof to fees of twenty and fifteen guineas for the first day, and fifteen and twelve guineas for the other two days; (3) he had reduced the sums of £72, 5s. and £84 paid to two skilled witnesses, Eli Hiles, engineer, and Joseph Shaw Gaunt, machinery expert, both of Manchester, to sums of £30, 5s. and £29, 8s. respectively. [These witnesses had been engaged in connection with the case six and seven days respectively, and in addition to attending the proof had had to travel to Huddersfield and Glasgow.]

Argued for pursuers—(1) The expense of a third copy correspondence was a necessary expense, for without it the agent would have been unable to follow the case properly. The process copy was for the use of and was in fact used by the Judge at the trial. (2) The Auditor was not entitled to cut down the fees sent to counsel unless they were clearly exorbitant — Rees v. Henderson, May 28, 1902, 4 F. 813, 39 S.L.R. 640. The agent was the best judge as to the proper fee to send, looking to the nature of the case. In any event they ought not to be lower than twenty-five and fifteen guineas for the first day, and twenty and fifteen for the remaining days, which were now asked for. (3) The Auditor had dealt much too strictly with the sums paid to the expert witnesses. The witness Hiles had travelled from Manchester to Huddersfield and Glasgow to inspect the machine, and had also attended the proof, and had been engaged for six days. He was entitled to ten guineas a day in addition to £9, 5s. for expenses, in all £72, 5s., the sum paid. The Auditor had only allowed him, in addition to his out-of-pocket expenses, twenty guineas. The witness Gaunt, also from Manchester, had been similarly engaged for seven days and was entitled to ten guineas a day in addition to his expenses (£10, 10s.), viz., £84. The Auditor, however, had only allowed him, in addition to his expenses, eighteen guineas. The sums allowed were much too small.

Argued for defenders—(1) It was the usual practice to allow, as against an opponent, the expense of two copies of the correspondence only. These were for the use of counsel. The agent was not entitled to a third copy. (2) The fees allowed to counsel were ample. The sum at stake was not more than £220. (3) Expert witnesses were entitled, in addition to the fee of two guineas a day for actual testimony allowed by the table of fees, to ( a) their “out-of-pocket” expenses, and ( b) a fee for their trouble, the amount of which was entirely in the discretion of the Auditor. Reference was made to Ebbw Vale Steel, &c. Company, Limited v. Wood's Trustee, June 2, 1898, 25 R 925, 35 S.L.R. 759; Burrell & Son v. Russell & Company, October 24, 1900, 3 F. 12, 38 S.L.R. 8.