Scottish Court of Session Decisions

On 18th September 1906 R. A. Rennie, writer, 136 Wellington Street, Glasgow, brought a note of suspension and interdict against William James, solicitor, Greenock. In it he craved suspension of a charge on a decree for expenses pronounced in the Sheriff Court at Dunoon against him and in favour of the respondent as agent-disburser.

The complainer pleaded, inter alia—“2. The said pretended decree is incompetent and ultra vires of the Sheriff-Substitute, and the charge following thereon is inept in respect—(1) That there was no motion made to the Sheriff asking for decree in name of the respondent as agent-disburser;

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(2) that the said decree is not in terms of the motion intimated to the complainer; (3) that the complainer was entitled to be heard before any decree was pronounced by the Sheriff, and his right in that regard was emphasised by the lodging of a caveat against such decree; (4) that the respondent was not agent-disburser in the said action; (5) ( added by amendment) that the respondent was not at the time the said motion was made entitled under the Law Agents Acts 1873 and 1891 to act as agent in the cause or to recover costs therein.”

The respondent pleaded, inter alia—“(2) The complainer's averments if and in so far as material being unfounded in fact, the note should be refused with expenses. (3) The prayer of the note should be refused, in respect that the interlocutor complained of is final, et separatim, is not reviewable. (5) The complainer is barred by the exception of competent and omitted from proposing the ground of suspension maintained in his minute of amendment.”

A proof was allowed.

The nature of the averments, the facts established, and the character of the evidence are given in the opinion of the Lord Ordinary ( Mackenzie), who on 1st June 1907 refused suspension.

Opinion.—“This is a suspension of a charge on an extract decree, dated 19th and 21st July 1906, pronounced by the Sheriff-Substitute in the Sheriff Court of Argyllshire at Dunoon. The charge is to make payment of the expenses of an action of declarator and removing brought by the complainer, who is a writer in Glasgow, against a Mr Duncan.

“The terms of the interlocutor of 19th July are as follows:—‘ Dunoon, 19 th July 1906.— Act. Rennie, Alt. James. The Sheriff-Substitute having heard parties on the objections to the Auditor's report on the defender's account of the expenses, and on the motion for the defender to allow the decree for expenses to go out and be extracted in name of Mr William James, solicitor, Greenock, the agent-disburser thereof, makes avizandum with the cause.—Scott Moncrieff Penny.’ By the interlocutor of 21st July the Sheriff-Substitute repelled the objections stated by the pursuer (the complainer in the present suspension) to the Auditor's report; approved of the report; found that the expenses due amounted to £43, 10s. 5 1 2 d., and for this sum, along with £1 of a debate fee, he granted decree against the pursuer and allowed ‘said decree to go out in name of the defender's agent (Mr James) as agent-disburser.’ The respondent in the present suspension is Mr James.

The grounds on which suspension is sought are (first) that no motion was made to the Sheriff-Substitute asking for decree in name of the respondent as agent-disburser; (second) that the decree is not in terms of the motion intimated to the complainer; (third) that the complainer was not heard and had no opportunity of being heard upon the motion; (fourth) that Messrs M'Ilwraith & Walker, writers, Greenock, were the agents for Mr Duncan, the defender in the action; that Mr James was merely in their employment and was not the agent-disburser. A further plea was added after the discussion in the procedure roll, and after proof had been allowed, that the respondent was not at the time he made the motion for expenses entitled under the Law Agents Acts 1873 and 1891 to act as agent in the cause or to recover costs therein.

The grounds of suspension originally stated disclosed objections of such a character that they appeared to go not merely to the regularity of the proceedings but to the justice of the case, and a proof by parole was accordingly allowed. The onus upon the suspender in such a case is of course heavy, because he requires to prove distinctly that the narrative of the interlocutor, which is the contemporaneous record of what passed in Court, is wrong, and that this has resulted in injustice being done. This as it appears to me is what the suspender has undertaken to do in the present case, and the question is whether he has succeeded.

The procedure in the case was as follows:—An account of defender's expenses was lodged and taxed by the Auditor on 16th July 1906. On the same day the complainer lodged objections to the taxed account. A copy of these objections was sent the same day to Messrs M'Ilwraith & Walker, writers, Greenock, as agents for Mr Duncan. Mr James is a qualified law-agent in the employment of Messrs M'Ilwraith & Walker. On the 16th of July, in the Sheriff Clerk's office, the complainer tendered a caveat to secure that intimation should be given to him of any motion for decree for expenses in the agent's name. The clerk in the Sheriff Clerk's office explains that he arranged with the complainer that the caveat was not to be lodged if the agents had to appear personally and move for decree. The caveat was not taken in, and the explanation is contained in a letter dated 17th July 1906 from the complainer to the Sheriff Clerk, saying that he had that day got notice of the motion referred to in his caveat lodged the day before, and that the Sheriff Clerk need not therefore trouble sending him notice. The motion of which the complainer had received notice on the 17th was in these terms—‘The defender respectfully moves the Court to approve of the Auditor's report on his account of expenses, and to allow the decree therefor to go out and be extracted in his name as agent-disburser thereof.— Wm. James, pror. for defender.’ On 19th July both the complainer and respondent appeared in Court. There is some evidence as to a conversation between them before the case was called, but this seems to come to nothing. As regards what happened when the case was called, it is common ground that the complainer led in the discussion on his objections to the Auditor's report, that the respondent answered, and that the complainer replied to him. The conflict of evidence is in regard to what followed. The complainer's evidence is that the Sheriff-Substitute

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then made avizandum, that he heard another case mentioned, and then left the Court. He states—‘There was not a single word said in my presence or in my hearing about a decree in the name of Mr James or in the name of anybody else.’ This is precise evidence to the effect that the interlocutor of 19th July was incorrect in stating (as I think it clearly does) that the Sheriff Substitute had heard parties on the motion for the defender to allow the decree for expenses to go out and be extracted in name of Mr James, the agent-disburser. When, however, one turns to the account given by the respondent, he is explicit in his contradiction of what the complainer says. He says that after the complainer had replied to him, he (the respondent) asked the Sheriff-Substitute for a special debate fee for the discussion, and also asked him for approval of the Auditor's report and decree, in terms of the motion in process. He says both motions were made together. ‘Mr Rennie was present in Court when I made the motion, because he objected to the first part, viz., the special fee.… (Q) Are you clear that Mr Rennie heard you make the motion?—(A) Yes. (Q) For approval of the Auditor's report and decree, in terms of the motion?—(A) Yes.’ In cross-examination he states he never heard the Sheriff-Substitute saying ‘avizandum,’ and that the complainer said nothing against his motion for decree in the agent's name, and that ‘silence means consent.’ The respondent says he mentioned the motion a second time, but that it is quite possible the complainer did not hear him then.

It is difficult to understand how in view of the fact that the complainer appeared anxious to be heard against such a motion, as is evidenced by his tendering the caveat, he should, when the motion was made in his presence, have refrained from opposing. This is the way the matter struck Mr Blue, the clerk, who says he was surprised when he did not hear Mr Rennie replying to the motion when it was made by Mr James. Even Mr Blue, however, cannot say positively that Mr Rennie was not in Court when the motion was made. He first states that Mr Rennie was not, so far as he could remember, in the Court, and that he was not sitting at the agents' bench. But the conclusion of his evidence is that he cannot say whether the complainer was in Court or not. The person who wrote the interlocutor of 19th July was the Sheriff Clerk Depute, Mr Campbell. His evidence is that the interlocutor was written and signed immediately after the discussion. ‘I thought at the time it was written out that it was a correct record of the procedure which took place on that date.’ His original opinion was that Mr Rennie was present when the interlocutor was written out, and it was not until Mr Rennie spoke to him in the month of September that he began to have doubts about the matter. He says that when he was thinking over it again he could not recollect that Mr Rennie was present. ‘As to whether the motion was made in presence of Mr Rennie, I cannot say one way or the other.’

It appears clear from the evidence of the Sheriff-Substitute, and also from that of the Sheriff Clerk, that there was no discussion on the motion for decree in the name of the agent-disburser. From the evidence of the Sheriff-Substitute, and from a letter he wrote, dated 21st February 1907, his impression seems to be that Mr Rennie had left the Court before Mr James made his motion, and that he understood that the motion was granted as a matter of course, there being no opposition. Here again, however, the evidence does not amount to a positive statement to the contrary effect of what the interlocutor of 19th July bears. As the Sheriff-Substitute puts it, if a witness says that Mr Rennie was in the Court at the time when the motion was made he cannot contradict him. The Sheriff-Substitute does not state at what stage of the proceedings he announced that he made avizandum. His view is expressed in the letter of 21st February 1907 to the complainer, and is that the motion was certainly made before he left the bench, and that if Mr Rennie wished to oppose it he should have remained in Court. The question whether the Sheriff-Substitute had made avizandum before the complainer left the Court is certainly important, and I do not think this is clearly proved. The only other witness is Mr Disselduff, the Auditor of Court, who was in Court on 19th July, and who says that he heard no motion made of any kind whatever. He admits that a motion might have been made for decree in name of the agent-disburser without his hearing it. He did not hear the Sheriff make avizandum. There is some evidence as to what passed as to the order in which the cases set down for the 19th should be taken, but I do not consider it necessary to go into this.

The decision in the case, in my opinion, depends on whether it is proved to demonstration that the statement in the interlocutor is wrong, and that there was such irregularity in the procedure as to lead to a denial of justice. It is obviously highly inexpedient that anything short of the clearest evidence should be considered sufficient to contradict what is contained in a judicial record. Upon the best consideration of the evidence led I have been unable to reach the conclusion that it is sufficient to negative the terms of the interlocutor of 19th July. The result of this is that I must hold that the complainer had on the 19th of July such an opportunity of being heard as to warrant the statement in the interlocutor that parties had been heard on the motion.

The complainer argued as a reason for suspension that the decree granted is not in terms of the motion intimated. It is plain that the motion is not properly drawn, but I think that the words ‘agent-disburser’ were sufficient warning to the complainer that the decree was not to go in the name of the client, Mr Duncan. The Sheriff-Substitute added the word ‘agent's’ so as

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to make the notice run ‘and be extracted in his agent's name.’ Even though the complainer knew nothing of this, I do not see how he was prejudiced. The interlocutor granting decree was pronounced on 21st July. The respondent says that on the 24th of July he wrote a letter explaining that the Sheriff-Substitute had issued a decree for expenses in the following terms, viz.—‘the Sheriff-Substitute has issued decree for expenses, fixing same at £43, 10s. 5d. with £1 for debate, in all £44, 10s. 5d., in my name as agent-disburser, and if it is to be unnecessary that I extract the decree, I shall be glad to have your cheque in course.’ The complainer denies that he ever received this letter, and I am bound to say that the evidence for the respondent was unsatisfactory, as he did not bring anyone who could prove the posting of the letter. The correspondence which is admitted commenced on 7th August, and the complainer says that the first suspicion he had that the decree was in Mr James’ name was conveyed in a letter of 3rd September. I think it is of importance to notice the position then taken up by the complainer in his letter of 4th September. This is his first challenge of the decree. In it he admits that he does not dispute that Mr Duncan, the client, was entitled as a matter of course to decree for expenses. He says that the only motion as to a decree for expenses brought under his notice was the motion of which the copy had been sent him. He says he never opposed this motion, and never intended to take any objections to a decree following on it. In this letter he maintains that before taking decree in his own name Mr James was bound (1) to lodge and intimate a motion at his own personal instance; (2) expressly crave in the motion for decree in his own name; and (3) to have the motion called and moved in open Court. As regards (1) and (2) the opinion already expressed is that the terms of the motion lodged were a sufficient warrant for the decree granted, and as regards (3) that the motion was called and moved in Court.

The letter of 4th September raises the question whether, even assuming there was any irregularity in the procedure, the complainer has led any evidence in the present proof to show that he has an interest to object to a decree in the terms granted. In my view, in order to succeed in the present suspension, he must not only show that there was irregularity in the procedure, but also that, in consequence thereof, injustice has been done. Upon averment he does disclose what in my opinion would have been a sufficient interest. His averment is—‘Had decree gone forth in name of Mr Duncan, the complainer would have set off against it a decree in his own favour for £14, 18s. 3d., and another liquid claim, both otherwise quite irrecoverable.’ The answer to this is ‘Denied.’ No evidence whatever has been led in support of this averment of the complainer, and in the absence of proof it is impossible to hold that the interest of the complainer has been established. The complainer explains in his evidence the points that he would have maintained if decree had been asked in the name of Mr Walker as agent-disburser. But if he had been successful in these, even then, on the evidence as it stands in the present case, he would just have had to pay the expenses to Mr Duncan, and would have been no better off.

I have left to the end two points which were strongly urged on behalf of the complainer. The first is that Mr James was not ‘the procurator who conducted the suit’ within the meaning of section 106 of the Act of Sederunt of 1839. It was maintained that the ‘procurator who conducted the suit’ meant the same thing as the agent-disburser, and that it was Mr Walker and not Mr James who disbursed all the expenses in connection with the case. The second point is contained in an amendment, viz., that the respondent is not, and was not at the time he obtained the decree, a certificated enrolled law agent, or at least that he had not paid the duties for the period then current entitling him to act as a law-agent, and that accordingly he was not entitled under the Law Agents Acts 1873 and 1891 to act as agent in the cause or to recover costs therein. I do not consider it necessary to express an opinion upon the merits of either of these pleas. I consider that the complainer is barred by the exception of competent and omitted from maintaining either of them as a reason for the present suspension. The decision in the case of Ewing v. Wallace, 6 W. & S. 222, seems to me a sufficient authority to cover both pleas.

I am accordingly of opinion that the reasons for suspension should be repelled and the note refused, with expenses.”

The complainer reclaimed, and argued—The procedure in the Sheriff Court has been so irregular as to amount to a denial of justice. The complainer had got no notice that decree was to be moved for in the name of the respondent. He was not given any opportunity of stating his objections to a decree in name of the agent-disburser being pronounced, and further to its being pronounced in the respondent's name. James was not the agent in the case, and he had disbursed nothing. To be entitled to decree as agent-disburser an agent must be (1) the agent actually employed; and (2) an actual disburser—Bell's Com. ii, pp. 36–38; Rennie and Playfair v. Aitken, June 8, 1811, F.C. The respondent was merely a clerk in his firm's employment, and he was not a disburser, for he had incurred no outlays. Moreover, he was not a duly qualified law agent, as he had not paid the stamp duty payable by agents under the Stamp Act 1891 (54 and 55 Vict. c. 39), secs. 43, 47. The A. S. of July 10, 1839, in providing (sec. 106) that the Sheriff might grant decree in name of the “procurator conducting the suit” did not confer any exceptional privilege on those practising in the Sheriff Court—“procurator” meant a duly qualified law agent. Esto

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that the complainer knew that decree in the name of the agent-disburser was to be moved for, he was not aware that James was the agent referred to. That being so, there was no bar to his stating now the personal objections against him above referred to. The defence of “competent and omitted” put forward by the respondent could not be pleaded where, as here, the complainer had no opportunity of being heard. In any event, that plea was not applicable quoad inferior court decrees—Ersk. Inst. iv, 3, 7; Act 1672, c. 16, sec. 19. The case of Ewing v. Wallace, August 13, 1832, 6 W. and S. 222, relied on by the respondent, did not apply to a case where, as here, the complainer was not aware of the motion that was to be made.

Argued for respondent—The complainer had got notice of the motion in question, for he had lodged a caveat. The interlocutor bore that he had been heard on the motion, and he had failed to prove that the interlocutor was not a correct recital of what happened; if he had failed to state all his objections to the motion made, sibi imputet. The objections came too late. He was barred from stating them now by the exception of “competent and omitted”— Ewing v. Wallace ( cit. supra). The complainer might have appealed to the Sheriff, and not having done so, had lost his remedy. As to the objection founded on the Stamp Act, this was clearly an afterthought. Moreover, the duty was not exigible for persons in the employment of a duly certificated law agent—Grierson on Stamp Duties (2nd ed.), p. 110, note to sec. 43 of Stamp Act 1891 ( cit. supra). In any event, if the duty were exigible the respondent was ready to pay it, and should be given an opportunity to do so.

At advising—