Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0411.html
Cite as: [1911] SLR 411, [1911] ScotLR 411

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SCOTTISH_SLR_Court_of_Session

Page: 411↓

Court of Session Inner House First Division.

Saturday, February 10. 1911.

49 SLR 411

Smith

v.

Watson.

Subject_1Expenses
Subject_2Proof
Subject_3Hearing on Evidence
Subject_4Expenses of Copy of Notes of Evidence.
Facts:

Where a litigant wishes the Lord Ordinary's notes of evidence, and proposes to charge their cost, if he is successful, against the opponent, he must intimate, in asking for them, that he so proposes, and get the Lord Ordinary's leave to that effect. If he simply asks for them without that intimation, then it will be held that he asks them simply for his own convenience, and he must pay for what he gets.

Coppack v. Miller, 1911, 2 S.L.T. 65, commented on.

Headnote:

Robert Bain Smith, Lochee, raised an action against Hugh Hayes Watson, accountant, Dundee, for the reduction of an agreement between them. Proof was allowed, and was led on 17th and 18th November, and 2nd December 1910. The hearing on evidence was taken on 8th December 1910. On 9th January 1911 the Lord Ordinary ( Ormidale) assoilzied the defender from the conclusions of the action and found him entitled to expenses. The pursuer reclaimed to the First Division, who on 6th December 1911 adhered.

The defender objected to the Auditor's report on his account of expenses in respect that there had been taxed off the following item:—

Paid Lord Ordinary's clerk for notes of evidence

£15 13 6

Agency settling same

0 3 4

£15 16 10

At the hearing on the objections on 17th January 1912, argued for the defender—The Auditor would have allowed the charge had it not been for the case of Coppack v. Miller, 1911, 2 S.L.T. 65. They maintained that Coppack was wrongly decided, and that as the evidence here was of considerable length, and the hearing was taken after an interval, it was necessary to have the notes, and the charge therefor was reasonable and proper. They referred to Gunn v. Muirhead, October 19, 1899, 2 F. 10, 37 S.L.R. 9; Birrell v. Beveridge, February 15, 1868, 6 Macph. 421, 5 S.L.R. 252.

Counsel for the pursuer referred to Coppack ( cit. sup.), and to Girvin, Roper, & Company v. Monteith, December 6, 1895, 3 S.L.T. 192.

The opinion of the Court (the Lord President, Lord Kinnear, and Lord Mackenzie) was delivered by

Judgment:

Lord President—In this case the Auditor had originally allowed—or rather was inclined to allow—this charge paid to the Lord Ordinary's clerk for notes of evidence, but felt himself bound to disallow it upon a judgment of Lord Ormidale in the case of Coppack v. Miller ( 1911, 2 S.L.T. 65) in the Outer House. That judgment seems to us to lay down a general rule which we cannot approve of. The question whether there should be an allowance for getting the notes of evidence must always be a question of circumstances. There is no doubt that if a case proceeds in the way in which it ought ideally always to proceed, the speech is taken immediately at the conclusion of the proof, and there is no opportunity and no right to get notes of evidence. Counsel ought to take such notes as they think necessary for themselves as they go along. But, then, ideal progress of a case is not always possible.

Page: 412↓

Cases have to be continued in quite unavoidable circumstances. The case may take longer than was expected, or the Lord Ordinary's other work may prevent him giving continuous sittings, and sometimes he may not have time for the hearing immediately at the conclusion of the evidence for the same reason. Now when a case is complicated and much depends on the facts, it would be putting more than it is possible to put upon the human memory to expect that counsel could in such circumstances properly debate the case without the notes of evidence.

It is, therefore, really a question of circumstances in each case, and I think it would be quite improper to lay down that a certain number of days must elapse before which it was impossible to get the notes and after which it was. We think that that can be judged of in each case, and as the Auditor was originally of opinion in this case that it ought to have been allowed, we propose to sustain the objection and allow the charge.

But we propose to say this as a general rule—the profession will take note of it, and we shall communicate it to the Lords Ordinary—in future where the litigant wishes the Lord Ordinary's notes of evidence, and proposes to charge their cost, if he is successful, against the opponent, he must get the Lord Ordinary's leave to that effect. Of course he could never get the notes of evidence at all without the Lord Ordinary's leave; but he must intimate, in asking for them, that he proposes to charge the cost of them against an opponent; and then, if the Lord Ordinary chooses to allow it upon that footing, well and good. If he simply asks for them without that intimation, then it will be held that he asks for them simply for his own convenience and must pay for what he gets.

That is the judgment of the Court.

Lord Johnston was absent.

The Court sustained the objection.

Counsel:

Counsel for the Pursuer— Garson. Agent— William Douglas, S.S.C.

Counsel for the Defender— Paton. Agents— Gill & Pringle, W.S.
1911