Scottish Court of Session Decisions

[1] In this consistorial action I granted decree of divorce on 7 December 1999. The decree also awarded the pursuer a capital sum. On 21 February 2000, having heard counsel for both parties on the question of expenses, I made a limited award of expenses in favour of the pursuer. The terms of the interlocutor containing that award are these:

[2] Although I believed that I had made clear in the oral expression of my decision and its reasons that the award was restricted to the expenses of those three actual days in court, it appeared that a difference of view arose between the parties' respective solicitors. I was asked to, and did, provide a note setting forth the reasons for my decision. The note contains the history of the relevant negotiations of the parties, so far as put before me, up to and including the first day of the six day diet of proof allocated by the court to commence on 19 October 1999. As is set out in the note, at the stage which matters had reached on 19 October 1999 the pursuer's position was that of willingness to settle her claim for a capital sum only at a figure higher than that which was ultimately awarded. The defender's position was that of offering to settle only at a figure lower than that which was ultimately awarded. In other words, the ultimate award fell between the parties' ultimate negotiating positions. The case did not proceed to proof on 19 October 1999 because there was no judge available to hear it. However, it is plain that the parties continued their discussions during that day. The proof resumed on 26 October 1999 - within the period originally allocated - but no settlement was reached at that time.

[3] The last two paragraphs of the note which I provided are in these terms:

The pursuer's account of expenses was the subject of taxation and report by the Auditor, following which a note of objection was lodged on behalf of the defender. The note of objection thereafter came before me for a hearing in terms of RC 42.4.

[4] The entries in the pursuer's account of expenses which were allowed by the Auditor, but to which objection is taken are these:

"1998 Nov 13	Paid Court dues appointment of Diet of Proof (voucher 1)	25.00
1999
Aug 25	Paid fee to Counsel for lengthy Joint Consultation (see later entry) Allowance for VAT at 171/2% (see later entry)
Sept 2	Paid Junior Counsel for Note on Preparation for Proof (Note on Line - see later entry) Allowance for VAT at 171/2% (see later entry)
30	Fee for precognition of Sarah Innes - 3 sheets		116.10

Oct 5	Fee attending pre-Proof consultation with Counsel - engaged 1 hour 50 mins		172.00
	Paid fee to Junior Counsel for long Joint Consultation with Pursuers opposing agent (25/8/99); Note on Preparation for Proof (2/9/99) and preparing for and attending consultation with Pursuer (5/10/99) (voucher 3)	1,500.00
	Allowance for VAT at 171/2%	262.50
Oct 7	Paid dues of Extract Marriage and Birth Certificates (voucher 4)	22.00
13	Fee for report by Michael Thomas, Davidson & Robertson, Chartered Surveyors - 2 sheets - 1/2 thereof		38.70
21	Fee for precognition of Pirjo Cobby - 2 sheets		77.40
	Hearing Limitation Fee (as per Joint Minute of Admissions)		423.30
	Paid Xpress Print for colour copying photographic evidence lodged as Productions (voucher 6)	47.47	"

[5] It should also be noted that the pursuer's account of expenses contained this entry:

"Oct 19

Fee attending at first day of Proof when same continued to 26 October, 1999 in view of non availability of Lord Ordinary - engaged 7 hours 50 mins

688.00"

That entry was taxed off by the Auditor. It was not suggested by either party that, by reason of the unavailability of a judge, counsel and agents would not be entitled to be paid for their attendance at court or that charges for such attendance when a judge was not available would not form part of the ordinary expenses of the litigation.

[6] It is, I think, evident that the items to which objection is taken are essentially items incurred in the general preparation for the proof set down to start on 19 October 1999.

[7] The submission by counsel for the defender was, put shortly, that the terms of the interlocutor of 21 February 2000 itself were clearly intended to confine the award of expenses in favour of the pursuer to those expenses incurred simply by the resumption of the allocated diet of proof on 26 October 1999. If, said counsel, there were any doubt about that, matters had been made abundantly clear in the note which I had provided. The Auditor had therefore erred in allowing expenses incurred in the general preparation for the proof, including, for example, counsel's fee for attending the long joint consultation on 25 August 1999 (albeit that he had excluded the solicitor's fee for attendance at the same consultation).

[8] Counsel for the pursuer, as I understood her, submitted that the allowance to the pursuer of the three days of the diet of proof on 26, 27 and 28 October necessarily attracted the preparatory expenses for the whole diet of proof. She stated that the allowance of the expenses of a proof normally carried the expenses of preparation and that those instructing her had thought the interlocutor to be simply the allowance of a three day proof.

[9] In his Minute, provided in terms of RC 42.4, the Auditor, having quoted the final paragraph of my note, states in his third paragraph:

Counsel for the pursuers did not seek to support that particular textual reasoning. I have to say that, in the context of this case, I do not discern any material difference between the phrase "occasioned by" and the preposition "of". And, far from having the expansive effect seen by the Auditor, the use of the phrase "directly attributable to" in paragraph 4 of the note, when properly read in the context of what preceded was plainly intended to have a limitating effect.

[10] It is, in my view, necessary for any interlocutor awarding expenses to be read in the context of all the preceding interlocutors and the general procedural history of the action. It is also necessary, in my view, that such an interlocutor be read in terms of any note or opinion provided by the judge of the considerations and reasons prompting his decision.

[11] In all of these circumstances I consider that the Auditor has erred in his reading of my decision. In so saying, I of course recognise that I am construing my own language. But I am in no doubt as to what was intended. In the search for objective support of that intention I would point to the fact, the significance of which may perhaps not have been fully appreciated by the Auditor, that I did not award the expenses of the first day of the proof (19 October 1999) to the pursuer. Had it been my intention to award the whole expenses of the proof, including preparation therefor, an award of the expenses of that day would have been inherent in such a decision.

[12] I accordingly consider that the objections taken by the defender are sound and I shall accordingly direct the Auditor to amend his report by deleting from the account of allowable expenses the items set out in paragraph [4] of this Opinion. That will entail consequential alterations to other matters in the account, such as the Value Added Tax payable.