Scottish Court of Session Decisions

(The case is reported, at a preliminary stage, ante ut supra.)

The Law Agents and Notaries Public (Scotland) Act 1891 (54 and 55 Vict. cap. 30), section 6, provides:—“ Payment of law agent's costs out of property recovered or preserved.—In every case in which a law agent shall be employed to pursue or defend any action or proceeding in any court, it shall be lawful for the court or judge before whom any such action or proceeding has been heard or shall be depending to declare such law agent entitled to a charge upon and against, and a right to payment out of, the property, of whatsoever nature, tenure, or kind the same may be, which shall have been recovered or preserved on behalf of his client by such law agent in such action or proceeding, for the taxed expenses of or in reference to such action or proceeding, and it shall be lawful for such court or judge to make such order or orders for taxation of, and for raising and payment of, such expenses out of the said property as to such court or judge shall appear just and proper; and all acts done or deeds granted by the client after the date of the declaration, except acts or deeds in favour of a bona fide purchaser, shall be absolutely void and of no effect as against such charge or right.”

On 24th October 1902 Goodwins, Jardine, & Company, Limited, 19 St Swithin's Lane, London, in liquidation, and James Watson Stewart, C.A., Glasgow, the liquidator thereof, raised an action against Charles Brand & Son, contractors, 172 Buchanan Street, Glasgow, in which they sued for a balance alleged to be due by the defenders on a settlement of accounts relating to the supply of material for certain contracts incidental to the formation of the Glasgow Central Railway. On 26th March 1906 the Lord Ordinary ( Dundas) after a proof pronounced findings, and on a reclaiming note the Division adhered, varying one finding.

Messrs Bannatyne, Kirkwood, France, & Company, writers, Glasgow, now (15th March 1907) presented a minute in the cause, — it being in the roll for the adjustment of the sum found due—seeking a charging order for their expenses as law agents.

The cause had been one of considerable magnitude, involving a great deal of procedure, there being two reclaiming notes, a proof before one of the Judges of the First Division, and an extensive proof on the merits before the Lord Ordinary, the questions at issue being mainly as to the rates which the pursuers were entitled to charge, and as to whether the work done was or was not to be paid for as extra work. The inquiry had extended over a series of years. The liquidation of Goodwins, Jardine, & Company had been placed under the supervision of the High Court of Justice in England. The accounts of the liquidator therefore had had to be submitted to the registrar in London. These accounts included the business accounts of the minuters as law agents in the liquidation.

Page: 554↓

The minute was in these terms—“Black for the above-named minuters stated that they had been employed by the pursuers and by the liquidator as law agents throughout the whole course of the liquidation which commenced in the year 1891; that they had advised the liquidator in regard to the carrying out of the contract which was the subject of dispute in the present action; that upon the liquidator's express instructions and by reason of the special knowledge and information they had acquired in relation to the matters in dispute, which involved numerous details, they had attended the proof which was allowed by your Lordships' interlocutor of 2nd July 1904 and subsequent hearing before your Lordships, and also the proof and hearing on evidence before the Lord Ordinary and the recent hearing before your Lordships; that the Auditor of the Court of Session, to whom the registrar in London had recently remitted the business accounts of the minuters for taxation as between agent and client, had disallowed the charges for the minuters' attendances at the proof and hearing before your Lordships, and also at the proof and hearing before the Lord Ordinary, and, the minuters were apprehensive, would also disallow their charges for attendance at the hearing before your Lordships, and he accordingly craved the Court to declare the minuters entitled to a charge upon and against and a right of payment out of the sum decerned for in the action for their taxed expenses of or in reference to the action, including their attendances at the two separate diets of proof before mentioned and subsequent hearings in the Outer House and before your Lordships, as well as the hearing upon the reclaiming note which has just been disposed of by your Lordships.…”

There was no opposition to the minute.

Argued for the minuters—(1) The Auditor was clearly wrong in disallowing the expense of the local agent's attendance. This was not a question between party and party but between agent and client. The attendance of the local agent was absolutely necessary for the proper conduct of the case. The decision of the Auditor could not be brought up directly, as he was taxing accounts in an English liquidation, and the minuters had accordingly made this application under section 6 of the Law Agents and Notaries Public (Scotland) Act 1891. (2) Under the Law Agents Acts the position of the local agents and the Edinburgh agents was practically the same. The statute was equally applicable to both.