Scottish Court of Session Decisions

21 June 2000

On 21 May 1999 I sustained certain objections made by the pursuers to the Auditor's taxation of this Account of Expenses. I ordained the Auditor to reconsider two items, leaving out of account the general considerations flowing from the fact that the pursuers were party litigants previously taken into account by him.

The Auditor reported with revised figures for both items. The pursuers tendered further Notes of Objection, which on 25 January 2000 I allowed to be received, under certain deletions from paragraphs 2 and 3 since these did not relate to the particular matters remitted to the Auditor for further consideration. I appointed the Auditor to state his reasons for determining his revised figures for the two items to which objection was still taken. The Auditor's Minute in response was the subject of discussion when the case came before me again on 15 March. I allowed a hearing on the Notes of Objection and gave the Auditor a further opportunity to respond to these Notes since there were matters raised therein on which the Auditor had made no comment. The Auditor responded in a supplementary Minute received on 15 May.

Before dealing with the argument before me on 24 May 2000 on the Auditor's further Report, the Notes of Objection and the two Minutes, which are nos. 61, 62, 63, 64 and 65 of process, I should correct various mistakes I made in recording the dates of some of the material events in my original opinion of 21 May 1999.

On page 4 the date "21 February" referred to was in 1997 and not 1998. On page 5, in the paragraph beginning one-third of the way into the page, a number of the dates are wrongly recorded. In the second line of that paragraph the date referred to should be "28 February" and not "21". Thereafter each of the references to "28 February" should be to "4 March". The reference in the fifth line to "25 February" should be "28 February". On page 6 the reference in the first line to "28 February" should be "4 March". In the next paragraph both references to "25 February" should be "28 February", and in the second last line of that paragraph the words "21 February, or at the latest" should be deleted. I cannot explain why I made these mistakes. I proceeded throughout on the basis that the pursuers' contention was that by early afternoon on the Friday it was clear to the defenders that the proof fixed for the following Tuesday would not proceed. I very much regret the confusion caused by these errors.

In light of them the first named pursuer moved on 25 January 2000 that I should decline further jurisdiction in the case since these errors demonstrated a lack of impartiality on my part. I could not understand the reasoning behind the argument and could find no basis in what was said to me to support the contention that there was in my written opinion evidence of lack of impartiality or even a basis for a perception of the possibility of impartiality. For these reasons I refused to decline to sit further in the case and also refused leave to reclaim that decision.

At the hearing on 24 May 2000 I permitted the first named pursuer to represent the second named pursuer, his wife. He then made three submissions which I shall deal with in turn.

The first submission related to the charge for October 11 1996 for attending a Summar Roll hearing. Mr Frost explained that he had written to those acting for the defenders asking them what would be their line of argument at the Summar Roll hearing and what cases they would rely upon. In reply the defenders' agents had said that they were making no detailed preparation for the hearing. It followed that the charge made was grossly inflated. Mr Frost further explained that he had searched at length in the General Department for this letter, of which he apparently did not have a copy, but had been unable to find it. Mr Nicoll, counsel for the defenders, explained that the response from those acting for the defenders had been that, since it was Mr Frost's appeal, they expected that he would be responsible for the line of argument, and that they would be relying on the cases which had been relied upon in the Outer House. It had been explained to the Auditor what preparation had been required. The hearing of the reclaiming motion had been concertinaed into a morning, rather than the three days set down at Mr Frost's request. Surprisingly this point is not mentioned in the Notes of Objection nos. 62 and 63. What is plain, however, is that it is a matter which was for the Auditor to deal with. It was not suggested to me that the point had been raised with the Auditor and not dealt with. The submission made does not, therefore, provide a basis for the Court to interfere with the Auditor's determination.

The second submission was in support of points made in paragraphs 1, 2, 4 and 5 of the Notes of Objection about the calculation of the modification of the two fees in issue. Because the Auditor had now fixed the fee of 11 October at a figure 10% less than that originally fixed having left out of account the items he was instructed by me to leave out of account, it should be assumed, according to Mr Frost, that the Auditor had originally uplifted the fee by a similar percentage. In that event his calculations were wrong, since an addition of 10% requires the deduction of a different percentage to bring it back to the same figure. In the Notes of Objection the percentage figure for the fee of 4 and 5 March is said to be 7%. Mr Frost made the same point in regard to that fee. However in his submission he referred to the percentage deduction being 15%. He made no submission to support the statement in paragraph 1 of the Notes of Objection that an uplift figure of 15% had been budgeted for in the submitted figures. In my opinion the Auditor has explained clearly in his Minute no. 64 the basis for his determination of the revised figures. There is no indication that a percentage uplift or percentage deduction was involved in his calculation. I, therefore, find in this point no basis for interfering with the Auditor's determination.

The third submission was in support of paragraph 6 of the Notes of Objection relating to additional material coming to light after the original hearing before the Auditor and indeed before me. That material is a report from the First Division Clerk to the Lord President dated 24 February 1997. That was the Monday following the Friday 21 February when the First Division refused the pursuers' reclaiming motion against the Lord Ordinary's decision to refuse their motion to sist the action. The note refers to two motions faxed on 23 February, one seeking leave to appeal to the House of Lords against the refusal of the reclaiming motion and the other seeking to abandon the proof on 4 March. The note says this:

Mr Frost submitted that by 28 February it must have been obvious to the defenders that the proof would not proceed. The Auditor has explained that he is unable to comment on this matter since it is new material to him. Mr Frost submitted that a proof was necessary to establish the point at which it was obvious to the defenders that the proof would not proceed. They had stood their witnesses down long before the proof and he wanted evidence to be led about that. Of course that in itself was not new material but information available at the time of taxation. The question for me is whether the new material makes any difference to the determination I have already made. I do not consider that it does. As at the original hearing before me, Mr Frost made various submissions about the fact that it was made plain to the defenders by 28 February that both pursuers intended to abandon, albeit there is no evidence that Mrs Frost had enrolled a motion to abandon. In dealing with this issue in my original opinion I assumed that it was plain by the Friday that Mrs Frost also intended to abandon. The additional material does not therefore affect the basis on which I arrived at my original opinion. I accordingly do not find in this point a basis for interfering with the Auditor's determination.

No submission was made in support of that part of paragraph 3 which relates to the position of a party litigant in relation to an assisted person.

For these reasons I repel the objections in the Notes of Objection nos. 62 and 63.