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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boyd & Forrest v. Glasgow and South Western Railway Co. [1911] ScotLR 876 (20 June 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0876.html
Cite as: [1911] SLR 876, [1911] ScotLR 876
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SCOTTISH_SLR_Court_of_Session
Page: 876↓
Court of Session Inner House Second Division.
v.
(Reported ante, 48 S.L.R. 157, 1911 S.C. 33.)
Facts:
On a note of objections to the Auditor's taxation of a successful party's account, the Court, in view of the fact that the case involved difficult questions both of fact and law, approved of the allowance by the Auditor of fees to three counsel both in the Outer House and the Inner House, and refused to interfere with the Auditor's discretion in allowing fees of more than the normal amount in the Inner House.
Opinion ( per Lord Salvesen) that where fees to three counsel have been allowed in the Outer House, they ought also to be allowed when the case comes before the Inner House on a reclaiming note.
This case is reported ante ut supra.
On 20th January 1910 the Lord Ordinary
Page: 877↓
( Johnston), after sixteen days' proof and bearing on evidence, pronounced an interlocutor making findings and sustaining certain of the pursuers' pleas-in-law. After twelve days' hearing, the Second Division, on 10th November 1910, adhered to the Lord Ordinary's interlocutor except quoad one of the pursuers' pleas, found the defenders liable in expenses since the date of the closing of the record, and remitted to the Auditor to tax and report to Lord Cullen, to whom the cause was remitted, with power to decern for the taxed amount of the expenses. The Auditor having reported, the defenders presented a note of objections to his report. The objections were (1) against the allowance of fees to three counsel at the proof and hearing on evidence in the Outer House; (2) against the allowance of fees to three counsel at the hearing in the Inner House; (3) against the amount of the fees allowed for the hearing in the Inner House.
(1) The fees allowed in the Outer House were—
1909
Paid Counsel's
Feb. 23.
fee and clerk,
Consultation,
(1)
£6
13
6
Do.
(2)
4
9
0
Do.
(3)
4
9
0
Mar. 13.
Do.
Proof,
(1)
27
11
3
Do.
(2)
22
1
0
Do.
(3)
16
10
9
15.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
17.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
18.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
May 29.
Do.
(1)
27
11
3
Do.
(2)
16
10
9
Do.
(3)
13
4
7
June 1.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
2.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
3.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
Nov. 8.
Do.
(1)
27
11
3
Do.
(2)
16
10
9
Do.
(3)
13
4
7
9.
Do.
(1)
22
1
0
Do.
(2)
13
4
7
Do.
(3)
10
17
6
11.
Do.
(1)
22
1
0
Do.
(2)
16
10
9
Do.
(3)
10
17
6
12.
Do.
Half Day.
(1)
13
4
7
Do.
(2)
8
15
6
Do.
(3)
6
13
6
29.
Do.
Hearing on
(1)
16
10
9
Do.
Evidence,
(2)
10
17
6
Do.
Pursuers Speech
(3)
7
14
6
30.
Do.
(1)
16
10
9
Do.
(2)
10
17
6
Do.
(3)
7
14
6
Dec. 6.
Do.
Defenders'
(1)
2
7
0
Do.
Speech,
(2)
2
7
0
Do.
(3)
13
4
7
7.
Do.
Half
(1)
2
7
0
Do.
day.
(2)
2
7
0
(3)
8
15
6
£719
2
8
(2) and (3) The fees allowed in the Inner House were—
1910.
June 10.
Paid fee to Counsel and clerk,
(1)
£27
11
3
Do.
do.
(2)
22
1
0
Do.
do.
(3)
16
10
6
14.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
16
10
9
Do.
do.
(3)
10
17
6
15.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
16
10
9
Do.
do.
(3)
10
17
6
16.
Do.
do.
(1)
22 1
0
Do.
do.
(2)
16
10
9
Do.
do.
(3)
10
17
6
27.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
13 4
7
Do.
do.
(3)
13
4
7
28.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
13
4
7
Do.
do.
(3)
13
4
7
29.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
13
4
7
Do.
do.
(3)
13
4
7
30.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
13
4
7
Do.
do.
(3)
13
4
7
July 4.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
13
4
7
Do.
do.
(3)
13
4
7
5.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
8
15
6
Do.
do.
(3)
8
15
6
11.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
8
15
6
Do.
do.
(3)
8
15
6
12.
Do.
do.
(1)
22
1
0
Do.
do.
(2)
8
15
6
Do.
do.
(3)
8
15
6
£575
17
4
On 18th March 1911 the Lord Ordinary repelled the defenders' objections, and decerned against them for the taxed amount of the expenses, and on 23rd March he granted leave to reclaim.
Argued for the defenders (reclaimers)—(1) This was not a case in which three counsel should be allowed for the proof. When a case consisted of separate branches, fees to three counsel were allowed on the principle of sub-division of labour — Padwick v. Stewart, March 4, 1874, 1 R. 697, 11 S.L.R. 318. There could be no sub-division of labour here. Fees to three counsel had been allowed on this principle in Ogston & Tennant, Limited v. “The Daily Record,” 1910, 2 S.L.T. 230, and 1911, 1 S.L.T. 421. (2) Fees to three counsel were not allowed in the Inner House. There was no precedent for what the Auditor had done. The Court would only hear two counsel on either side. (3) The fees in the Inner House were larger than had ever been allowed before. They were clearly entitled to have them reduced on the present system of fees. The practice was to allow smaller fees in the Inner House than in the Outer House. Here they were of equal amount— Goodwins, Jardine & Company, Limited v. Brand & Son, 1907 S. C. 965, 44 S.L.R. 788; Burrell & Son v. Russell & Company, October 24, 1900, 3 F. 12, 38 S.L.R. 8.
Counsel for the pursuers was asked to reply on the question of the Inner House fees only. He argued — Fees to three counsel should be allowed in the Inner
Page: 878↓
House. If the pursuers were entitled to have three counsel in the Outer House, according to well-established practice they were entitled to have them in the Inner House. The case was one of great complexity, and the preparation for the debate involved much labour and research. The expense of three counsel had often been allowed in the Inner House in difficult cases— Christie v. Thomson, March 16, 1859, 21 D. 751; Lord Blantyre v. Dunn, February 15, 1848, 10 D. 706; Craigie v. Marshall, June 8, 1850, 12 D. 983. Moreover, this was a case in which the principle of subdivision of labour applied. The question as to the amount of the Inner House fees raised no principle, and was a matter that should be left to the discretion of the Auditor. There was no principle against allowing same fees in the Inner House as in the Outer House. The cases of Tannett, Walker, & Company v. Hannay & Sons, January 31, 1874, 1 R. 440, 11 S.L.R. 286, and Duke of Buccleuch v. Cowan, July 17, 1867, 5 Macph. 1054, 4 S.L.R. 190. were also referred to.
In this case the Auditor has exercised his discretion, and has found that certain fees were appropriate. The question then came before the Lord Ordinary, who saw no sufficient ground for interfering with the Auditor. I find myself in the same position. I think that this was a case in which it was proper to employ three counsel. The Auditor is a very good judge of that matter. He heard the parties, and in the circumstances decided that fees for three counsel ought to be allowed. I do not think that the Auditor's action is at all inconsistent with any of the cases quoted to us. It is perfectly plain, moreover, that while three counsel may be required for the proof, it may not be necessary to employ three counsel in the Inner House. But if a case be a very difficult one, containing a great amount of detail and involving a long debate, the Auditor may in the exercise of his discretion allow fees for three counsel in the Inner House. I see no reason for thinking that the Auditor's discretion was unwisely exercised in the present case, which was undoubtedly a very difficult one. Charges of fraud were made—not criminal fraud, but fraud in the sense of misleading, as often occurs in such cases — and the decision was laid on that ground.
The only remaining question is whether the fees in the Inner House should be as large as the Auditor has allowed. That is a matter for his discretion, and I have not seen anything in any of the cases quoted which would indicate that the Inner House fees in this case should not have been allowed.
I take a somewhat different view from my brother Lord Dundas as regards the expenses of the debate in the Inner House, because, in my opinion, where fees to three counsel have been allowed in the Outer House they ought also to be allowed when the case comes before the Inner House on a reclaiming note. The idea that one of the counsel should be given a nominal retaining fee in order to keep him in the case and to prevent the opposite side from instructing him, is not one that commends itself to my mind. I think that he should be allowed the ordinary fees given in the Inner House in such cases.
The only other point that was raised was in regard to the amount of the fees which the Auditor has allowed in the Inner House. On this matter I can see no ground for holding that the Auditor has exercised his discretion unwisely. It is true that no case was cited to us in which the Auditor had allowed and the Court sustained so large a fee as had been allowed in this case to senior counsel for the first day's hearing, but in the case of the Earl of Kintore v. Pirie, 1903, 11 S.L.T. 216, the
Page: 879↓
The Court adhered.
Counsel for Pursuers (Respondents)— MacRobert. Agents— Pringle & Clay, W. S.
Counsel for Defenders (Reclaimers) — D.-F. Dickson, K. C.— Macmillan. Agents— John C. Brodie & Sons, W.S.