Scottish Court of Session Decisions

[The Case is reported ante ut supra.]

The Caledonian Railway Company brought an action of suspension and interdict against the Glenboig Union Fireclay Company, Limited, in which they craved the Court to interdict the respondents from working certain beds or seams of fireclay underneath the complainers' railway in the parish of Old Monkland, Lanarkshire, the question at issue being whether the fireclay worked by the respondents was or was not a mineral within the meaning of section 70 of the Railways Clauses Consolidation (Scotland) Act 1845.

On 28th November 1908 the Lord Ordinary ( Skerrington) refused the prayer of the note and found the complainers liable in expenses.

The complainers reclaimed to the First Division, who on 15th July 1910 adhered to his Lordship's interlocutor, and found the complainers liable in additional expenses.

The complainers appealed to the House of Lords, who on 28th April 1911 dismissed the appeal with costs.

The Auditor having lodged his report, the complainers objected thereto in so far as he had allowed the following fees to senior and junior counsel respectively for the second, third, and fourth days of the proof, viz., for the second and third days, twenty guineas and fifteen guineas; and for the fourth day (which was a short one) fifteen guineas and twelve guineas. In place thereof they submitted that the Auditor should have allowed, for the second and third day, fees of fifteen guineas and ten guineas to senior and junior counsel respectively, and for the fourth day ten guineas and seven guineas respectively.

They also objected to the fees allowed for the second day of the hearing on evidence, viz., to senior counsel a fee of fifteen guineas, and a fee of ten guineas to his junior. In place thereof they submitted that fees of ten and seven guineas respectively would have been appropriate.

The complainers further objected to the fees allowed for the hearing in the Inner House, viz., for the first day a fee of twenty-five guineas to senior counsel, and a fee of twenty guineas to his junior; and for the second day, fees of fifteen guineas and ten guineas respectively. They submitted that fees of fifteen guineas and ten guineas respectively for the first day, and ten guineas and seven guineas respectively for the second day, would have been suitable.

Page: 413↓

[A further objection to a fee of seven guineas to senior counsel for the third day, and a fee of four guineas to his junior (the time occupied being only three hours) was not pressed].

Objection was also taken by the complainers to the following fees allowed by the Auditor to skilled witnesses, viz.—

1. James Hamilton, C E., Glasgow	£18 10 0
2. Joseph Dickinson, Manchester	28 3 0
3. Professor Gregory, Glasgow	163 3 6
4. Professor Kendall, Leeds	88 5 0
5. R. R. Tatlock, Glasgow	52 12 0
6. Dr Fawsitt, Glasgow	68 16 0
7. Dr Mellor, Stoke-on-Trent	85 19 6
8. W. Wade, Burslem	38 16 9

in respect of the number of days which the Auditor had allowed to these witnesses to prepare themselves for giving evidence, and the rate per day (viz., 6 gns.), and in the case of Professor Gregory also in respect of the sum (included in the above figure) allowed for his time occupied in consulting authorities in London. In place thereof they submitted that the witnesses ought not to have been allowed more than two days each for preparation, and that the rate should not have exceeded two guineas per day in addition to time occupied by travelling and attendance at Court.

Argued for respondents—Where, as here, the question was really one of taxation, the Court would not readily interfere with the Auditor's discretion, which had in this case been carefully exercised. The fees allowed were not excessive, for the case was both difficult and complicated, and involved an extensive acquaintance with its geological and mineralogical aspects. A knowledge of these conditions was vital, as each case now depended on its own facts— North British Railway Company v. Budhill Coal and Sandstone Company, 1910 S.C. (H.L.) 1, 47 S.L.R. 23. In the somewhat similar case of Boyd & Forrest v. Glasgow and South-Western Railway Company, 1911 S.C. 1050, 48 S.L.R. 876, larger fees had been allowed both for the proof and for the hearing on evidence and to three counsel. The fees allowed to the skilled witnesses had been fixed after careful consideration by the Auditor, who had taxed off £576 from the fees as originally charged. The value of these witnesses' testimony was in no way to be measured by the length of their evidence in Court, as much time and research had been expended by them in preparation.

At advising—