Scottish Court of Session Decisions

This is an action of damages for personal injury in which, having heard proof in February 1997, I pronounced an interlocutor on 26 March 1997 granting decree for payment by the defenders to the pursuer of the sum of £51,850, with interest. I continued the cause in respect of expenses. The pursuer had, on 24 September 1996, lodged a Minute containing an offer to settle the action, made in terms of the subsequently revoked provisions of Chapter 34A of the Rules of Court. On 27 May 1997 the pursuer enrolled inter alia for expenses, and for an additional award of expenses under Rule 34A.6. Having heard counsel on that motion on 30 May 1997, I found the defenders liable to the pursuer in the expenses of process in so far as not already dealt with, and remitted the account thereof, when lodged, to the Auditor of Court to tax and to report. I also, in terms of Rule of Court 42.1(1)(b), pronounced an interlocutor decerning against the defenders for payment to the pursuer of those expenses "as the same shall be taxed by the Auditor of Court". I continued consideration of the motion for an additional award of expenses. Having heard counsel further on that motion on 6 June 1997, I reported the issue to the Inner House on 26 June 1997. The matter was heard by the First Division in June 1998, and on 26 June the motion for an additional award of expenses was refused.

After I reported the cause to the Inner House, the view was taken by those representing the pursuer that it would be of assistance for the purpose of the Inner House hearing if the taxed amount of the ordinary expenses was known. An account of expenses was accordingly made up, and a diet of taxation proceeded, and the Auditor reported on the taxed amount of the expenses in February 1998.

The pursuer has now enrolled for inter alia the allowance of an additional fee in terms of Rule 42.14(1), relying on the factor mentioned in Rule 42.14(3)(g). The defenders opposed that motion, and I heard argument on its competency.

The defenders accepted that it was competent for a motion for an additional fee to be granted after the award of expenses, and the relative remit to the Auditor, had been made, and indeed (following the change in practice reflected in Rule 42.1(1)(b)) after the anticipatory interlocutor decerning for payment of the expenses as taxed had been pronounced (Marks and Spencer Ltd v British Gas Corporation 1985 SLT 17 per Lord Justice Clerk Wheatley at 18; UCB Bank v Dundas & Wilson CS 1991 SLT 90). It was submitted, however, that once the account in question had been taxed and the Auditor had issued his report, it was too late to seek the allowance of an additional fee.

Mr Stevenson for the pursuer pointed out that at the time when it was decided to proceed to taxation of the account the cause was in the Inner House by virtue of my interlocutor of 26 June 1997, but he accepted that it would have been possible to enrol for remit to the Outer House for the purpose of enabling me to entertain a motion for the allowance of an additional fee at that stage. There was thus no compelling procedural obstacle in the way of bringing the motion for an additional fee before me prior to taxation of the account by the Auditor.

Mr Stevenson's submission was that there was nothing in Rule 42.1 or in Rule 42.14 which precluded me from entertaining and granting a motion for an additional fee after the account had been taxed. Nor was it said in UCB Bank that such a course was incompetent. There was no practical obstacle in the way of a supplementary remit to the Auditor to assess the amount of the additional fee and to issue a supplementary report thereon. He drew my attention to the fact that in practice it is not uncommon for the Auditor in a case where an additional fee has been allowed, to hear parties' representatives on the detail of the account at one diet of taxation and then to continue to a later hearing the question of the assessment of the additional fee. He accepted, however, that in such cases the Auditor made a single report, after the continued hearing, stating the taxed amount of the expenses including the additional fee.

Mr Jones for the defenders submitted that the scheme of the Rules was that the assessment of an additional fee was an aspect of the taxation (UCB Bank at 94C - "It is in [the Auditor's] discretion whether, and if so how, to give effect to an interlocutor awarding the additional fee as part of the process of taxation" (emphasis added)). The court has power to make a single remit to the Auditor to tax the account of expenses. Once the Auditor has reported, the process of taxation is at an end, and his report fits together with the interlocutor previously pronounced decerning for payment of the taxed expenses so as to make a single decree which, save by the objection procedure provided for in Rule 42.4, the Lord Ordinary cannot competently modify.

In my opinion the defenders' submissions are correct. As the decision in UCB Bank shows, it is competent, while the remit to the auditor is outstanding, to supplement the remit by allowing an additional fee and thus, in effect, to give the auditor an additional power to be exercised by him in discharging the remit. Until the Auditor reports on the taxation, the interlocutor decerning for the expenses "as the same shall be taxed" is inchoate. But once the Auditor has issued his report, that interlocutor takes effect, and the matter of expenses has (subject to the objection procedure under Rule 42.4) been finally determined. It is in my opinion too late to enrol at that stage for an additional fee. So to hold involves no hardship for the party in whose favour the award of expenses has been made. Even in the unusual circumstances of this case, there was no insuperable procedural obstacle in the way of having an application for an additional fee dealt with before the taxation took place.

I have accordingly refused as incompetent the pursuer' motion for an additional fee.