Scottish Court of Session Decisions

On 24th March 1908 Hurst, Nelson, & Company, Limited, waggon builders and repairers, Motherwell, brought an action against Spenser Whatley, Limited, London (against whom jurisdiction had been founded by arrestments), in which they sued for (1) a sum of £1933 odd, being the amount alleged to be due and unpaid in respect of their (the pursuers') maintenance and reconstruction of 583 waggons belonging to the defenders, and (2) a sum of £354 odd as damages for alleged breach of contract. A counter-action at Spenser Whatley's instance was brought on 22nd June 1908, in which he, inter alia, claimed £2751 as damages for imperfect work and undue detention of waggons. On 20th January 1909 the Lord Ordinary conjoined the actions and allowed a proof. The proof, which was a complicated and difficult one, lasted twelve days, there being two adjournments, viz., on the first occasion from 28th May till 19th October 1909, and on the second occasion from 23rd October 1909 till 18th January 1910. Thereafter on 22nd February 1910 his Lordship pronounced an interlocutor in which, after deciding the questions at issue between the parties, he found Hurst, Nelson, & Company, Limited, entitled to expenses in the separate actions, and also in the conjoined actions modified to three-fourths of the taxed amount thereof. Spenser Whatley having reclaimed, the First Division (Lords Kinnear, Johnston, and Mackenzie) on 8th March 1911 varied the Lord Ordinary's interlocutor in so far as it, inter alia, found Hurst, Nelson, & Company entitled to “three-fourths” of their taxed expenses in the Outer House, and substituted therefor the words “one-half” and quoad ultra adhered. No expenses were found due to or by either party in the Inner House.

On 16th October 1912 the defenders (Spenser Whatley, Limited) lodged a note of objections to the Auditor's report in so far as he had, in taxing the expenses found due to the pursuers, allowed the following items:—I. To senior counsel for the first day of the proof (besides a consultation fee of 10 guineas) a fee of 30 guineas, and similar fees for the first day of each of the two adjourned diets (20 guineas a day being allowed for the other days of the proof). To each of these three fees of 30 guineas the defenders objected on the ground that they were excessive to the extent of 5 guineas each. II. The cost of preparing the following items, viz.—“No. of process 153—Framing statement from Spenser Whatley's truck running books (Nos. 73 and 74 of pro.) and working railway waggon book showing when waggons at Spenser Whatley's depots in 1905, 1906, and 1907, and calculation, 29 shs. figs.; three copies thereof, 29 shs. figs. No. of process

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154—Framing statement of runnings of waggon No. 686 from 1st January 1904 to 15th April 1909, taken by Hurst Nelson from Spenser Whatley's working of running waggons book D and E (Nos. 77 and 78 of pro.) and from truck running books (Nos. 73 and 74 of pro.), 7 shs. figs.; three copies thereof, 7 shs. figs. No. of process 216—Framing history of repairs and re-painting of waggons belonging to Spenser Whatley, Limited, executed by Hurst Nelson & Co., Limited, during currency of the contracts for repairs, 356 large folio and figured; three copies thereof. Nos. of process 221 and 222—Framing (2) statements from invoices and Spenser Whatley's repair books showing repairs and paintings since December 1907 to April 1909—together 254 shs. figs.; three copies thereof, 254 shs. figs. No. of process 241—Framing statement of comparison of Bent's reports and Lovely's, Cox's, and others by Mr Crosbie Turner, Writer, Glasgow, 75 shs. figs.; three copies thereof, 75 shs. figs.”

With regard to these items (Head II) the note stated—“The said items are objected to in toto as not being necessary or competent evidence in the case—the books from which they were compiled being there to speak for themselves, and the documents charged for not having been competently proved—and as not being properly chargeable as judicial expenses against an opponent. These documents are spoken to only by Mr Crosbie Turner, the local solicitor in the case, who does not speak to them except as collated from other documents, and they are rather of the nature of criticisms on evidence or memoranda explanatory of evidence than themselves evidence.”

The remaining items to which objection was taken were set forth in the note as follows—“III. For his examination as a witness the Auditor has allowed Mr Andrew S. Nelson, Glasgow, who is one of the parties to the case, and who was examined on 19th and 20th January 1910, fees for four days at £1, Is. a-day. It is respectfully submitted that two of these days should be disallowed. IV. The Auditor has allowed to the pursuer's skilled witness, Mr Robert Macfarlane, C.A., Glasgow, who was examined on 19th January 1910, a fee for preparation of £105, besides £4, 4s. for ‘time of clerks assisting, etc.’, and also fees for five days at the proof at £2, 2s. a-day—£10, 10s., and also as ‘travelling and hotel expenses and miscellaneous outlays,’ £15, 15s. The defenders object to the above item of £10, 10s. to the extent of £8, 8s., and to the above item of £15, 15s. to the extent of £14, 14s. V. The Auditor has allowed to the pursuers' other skilled witness, E. J. M'Dermid (besides a fee of £105 for preparation and £20 for ‘travelling and personal expenses’) fees for seven days' attendance at the proof as a witness at £2, 2s. per day. He was examined on 21st and 22nd October 1909, and the defenders object to his being allowed more than four days' attendance as a witness, and therefore object to the above £14, 14s. to the extent of four days VI. The Auditor has allowed to Mr A. Crosbie Turner, Writer, Glasgow, pursuers' Glasgow agent, five days at £2, 2s., and expenses £2. Mr Turner was in attendance as the pursuers' law agent, and gave his evidence on 18th January 1910, and the defenders therefore object to more than one day being charged, and submit that the above £10, 10s. should be disallowed to the extent of £8, 8s., and also that the above £2 for expenses should be reduced to the first-class railway fare of 7s. 6d., and therefore disallowed to the extent of £1, 12s. 6d.”

Argued for defenders— Item I— Esto that the case was a heavy and complicated one, a fee of 25 guineas for the first day of each of the three diets would have been sufficient— Goodwins, Jardine, & Company, Limited v. Brand & Son, 1907 S.C. 965, 44 S.L.R. 788. There was no case where a fee of thirty guineas for the first day of a proof had been sustained upon objection. Reference was also made to Kintore v. Pirie, 11 S.L.T. 216, and to Boyd & Forrest v. Glasgow & South-Western Railway Company, 1911 S.C. 1050, 48 S.L.R. 876. Item II to VI—… [The defenders' argument with regard to these items sufficiently appears from the note of objections ( vide supra)].

Argued for pursuers— Item I—The Auditor had carefully considered the amount to be paid to counsel and had done so with special reference to what was said in the case of Caledonian Railway Company v. Glenboig Union Fireclay Company, 1912 S.C. 511, 49 S.L.R. 412. The amount at stake was heavy—the total sum involved being about £7000, and the period over which inquiries had to be made was some ten years. The number of the writs actually put in process was about 15,000. In these circumstances the Court would not readily interfere with what the Auditor had done. The cases of Boyd & Forrest and Goodwins, Jardine, & Company were distinguishable, for in neither was the proof so complicated as in the present case. Item II—The Auditor had made detailed inquiries about each of the documents objected to and had satisfied himself that their preparation was proper and necessary. He had also approved of the usual number of copies being prepared. That being so, the Court would not alter his decision unless on very good grounds. Items III to VI—These items were purely matters of taxation, as to which the Auditor was the best judge. No charge was made for Mr Turner's attendance as agent, and where, as here, the country agent had given evidence the Auditor had rightly dealt with the matter in treating him as an ordinary witness.

At advising—