Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
A448/93	OPINION OF LORD EASSIE respecting a NOTE OF OBJECTIONS to a REPORT BY THE AUDITOR in the cause NICHOLAS DINGLEY (A.P.) Pursuer; against THE CHIEF CONSTABLE OF STRATHCLYDE POLICE Defender:   ________________

 

 

For the Objectors: Cullen, Q.C.

For the respondent counsel for the Pursuer: Brailsford, Q.C.

 

9 October 2002

1. This matter came before me for a hearing on a Note of Objections to a Report by the Auditor of the Court of Session on a matter of expenses in this action.
2. The action was brought by a former police constable. He was injured in a road traffic accident when a police van in which he was travelling as a passenger overturned. In addition to his immediate injuries, some time after the accident the pursuer was diagnosed as suffering from multiple sclerosis and in his action for reparation also sought compensation for that condition from the defender, the Chief Constable. Liability for the driver's fault was admitted and the issue between the parties was whether the multiple sclerosis from which the pursuer was suffering was caused by the accident. The pursuer was awarded damages for multiple sclerosis at first instance but the Lord Ordinary's decision was successfully reclaimed by the defender. The proceedings in the Inner House are reported at 1998 S.C. 548. Until that stage the pursuer's action had been financially supported by the Police Federation. It appears that the Federation were not prepared to support a further appeal to the House of Lords. The pursuer therefore sought legal aid for such an appeal from the Scottish Legal Aid Board - "the Board". His application was granted by the Board. In the event his appeal to the House of Lords was unsuccessful. The speeches delivered in the House of Lords are reported at 2000 S.C. (H.L.) 77. The House of Lords awarded costs against the Board. The issue now arising, however, concerns the amounts of the fees sought from the Board by senior and junior counsel for the pursuer, who, it may be noted, acted for the pursuer at all stages of this litigation against the Chief Constable. The Auditor having taxed counsels' fees, the Board objected to the report of that taxation. Prior to the hearing on the Board's Note of Objections the Auditor provided a minute in terms of Rule of Court 42.4. At the hearing on the Note of Objections counsel who had appeared in the House of Lords were jointly represented by Mr Brailsford, Q.C.
3. Costs awarded by the House of Lords in respect of proceedings before it in Scottish appeals are normally taxed by the House of Lords' taxing officer appointed by the Clerk of the Parliaments and are not within the province of the Auditor of the Court of Session. Thus, in the present case, the House of Lords having made an award of costs in favour of the defender against the Board, the fees of counsel instructed for the defender respecting which the Board is liable have been taxed by the taxing officer. Where, however, the legally aided party in a Scottish appeal to House of Lords has been unsuccessful with the consequence that the Board is responsible for paying the fees of counsel for that party, the terms of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 have the consequence that the taxing authority is the Auditor of the Court of Session. The relevant provisions of the 1989 Regulations are Regulation 12, read with the definition of Auditor contained in Regulation 2.
4. Regulations 9 and 10 of the 1989 Regulations deal with the fees allowable to counsel. Regulation 9 is in these terms:

"9 Subject to the provisions of Regulation 10 regarding calculation of fees, counsel may be allowed such fees as are reasonable for conducting the proceedings in a proper manner, as between solicitor and client, third party paying."

Regulation 10(1) provides that in the case of the Court of Session fees for counsel are to be calculated in accordance with Schedule 4. For other tribunals, including the House of Lords, Regulation 10(2) stipulates that counsel's fees shall be 90% of the amount of fees which would be allowed for that work on a taxation of expenses between solicitor and client, third party paying, if the work done were not legal aid.

5. Before turning to the detailed issues of the Auditor's treatment of the fees claimed by counsel from the Board it is convenient to mention briefly some further features of the litigation. Firstly, as already indicated, liability for the negligence of the driver was never in issue and before the Inner House it was agreed that if the causal link between the accident and the multiple sclerosis were not established a certain sum should be awarded for the other, minor injuries. Secondly, on the question whether the multiple sclerosis from which the pursuer was suffering was causally related to the accident, two principal issues were raised. The first was the general question whether the onset of multiple sclerosis can ever be triggered by a traumatic incident such as that suffered by the pursuer in the accident. The second question, which depended on a positive answer to that general proposition, was whether in the pursuer's particular case his succumbing to multiple sclerosis could be so related. The issues were essentially issues of fact, albeit involving complicated medical evidence, and it is not suggested that any significant points of legal principle were raised. A considerable amount of expert testimony was adduced at first instance. It appears that the transcript of evidence extended to some twelve volumes. The Lord Ordinary's treatment of that evidence was eventually regarded by the Inner House as unsatisfactory, enabling and obliging the Division to review the transcript of the evidence. Having carried out that review the court decided in favour of the defender but on the varying grounds evident from their reported opinions.
6. The issues raised in the appeal to the House of Lords were similarly questions of fact. For the reason narrated by Lord Hope of Craighead at p. 82D of the report of his speech, the House took the unusual step of holding a procedural hearing to discuss the procedure to be followed in the preparation of the appeal. The procedural hearing took place on 13 July 1999 and I was told that it lasted for less than one hour. The results of that hearing are described by Lord Hope (82P) as follows:

"An essential element in that procedure was the exchange between the parties of their written cases prior to the lodging of the final written cases in the Judicial Office. Both sides were asked to ensure, when preparing their written cases, that they set out not merely the heads of argument but also an outline of the argument to be advanced under each head and that the parts of the judges' opinions which were under challenge were clearly identified by page number. They were also asked to provide cross-references to the particular passages in the evidence or the medical reports on which they proposed to rely in support of any submission that the judges' treatment of the facts was materially incomplete, inaccurate or otherwise in need of supplementing by reference to the words used by the witnesses. Counsel on both sides are to be commended for the care and attention which they have given to these details and to the fact that their cases gave identical paragraph numbers to the competing arguments on each point. Their Lordships were greatly assisted by the quality of the written cases in their preparation for the hearing of the appeal and in their consideration of the case after the conclusion of the oral argument."

In presenting his submissions to me, counsel for the Board acknowledged at the outset that the task of analysing the opinions delivered by the Division was a substantial one, particularly since each of the judges followed different reasoning in reaching a result adverse to the pursuer, and it was accepted by the Board that a substantial amount of time and effort was expended by counsel on both sides in the preparation of the written cases for the House of Lords. The hearing in the House of Lords lasted for three days between 14 and 16 February 2000.

7. With that background description I turn now to the fees proposed by counsel for the pursuer. The actual notes of proposed fee issued on behalf of counsel by Faculty Services Ltd, were produced for the purposes of the hearing on the Note of Objections but were, I understand, not physically before the Auditor. However virtually all of the details in those fee notes were transcribed or translated on to a separate record (51/1 of process) which was before him.
8. Six separate fee notes were submitted on behalf of junior counsel and they may be summarised as follows:

(a)	Petitions for extension of time	£200.00
(b)	Framing statement of facts and issues	£3,000.00
(c)	Advising on contents of appendix	£600.00
(d)	Preparation for and attendance at procedural hearing on 13 July 1999	£3,350.00
(e)	Preparation of written case and preparation for the hearing	£35,000.00
(f)	Hearing in the House of Lords	£6,500.00

It appears that at some subsequent stage an offer was made to reduce the fee note (e) to £26,250 whereby the total claim, with that reduction amounted to £39,900.

9. The fee note submitted on behalf of senior counsel may be summarised as follows:

(a)	Considering (sic) draft statement of facts and issues	£1,500.00
(b)	Considering (sic) appendix	£350.00
(c)	Procedural hearing on 13 July 1999	£8,000.00
(d)	Preparation and revisal of case for the appellant and preparation for the hearing	£53,000.00
(e)	Appeal hearing	£10,000.00

It appears that at some point a reduction in the fee claimed under fee note (d) was also suggested, the reduction being to £40,000 thereby making the total figure claimed by senior counsel £59,850. The foregoing summary is only a very brief indication of the content of the fee notes, which contain much more detail, including in particular details of the hours stated as having been spent on preparation on particular dates.

10. The first diet of taxation before the Auditor was held on 16 January 2001. The written points of objection taken by the solicitor for the Board are set out in Appendix A to the Auditor's Minute. In essence, the solicitor made two principal points. First, since the amount of the fees to counsel for the defending Chief Constable recoverable from the Board was the subject of imminent taxation in Westminster, the Auditor should await the taxing officer's determination. Secondly, in any event, the fees claimed by counsel in this case were wholly excessive and quite extraordinary when compared with the level of fees claimed and paid in other House of Lords' cases with which the Board had recent experience. Additionally, the solicitor questioned some detailed matters such as how a brief fee (of £3,000) and a refresher fee (£5,000) could ever be claimed by senior counsel in respect of the procedural hearing on 13 July 1999 when the hearing simply addressed procedural matters and lasted less than one hour.
11. The Auditor acceded to the motion that the taxation be continued to a date after the defender's costs in the House of Lords had been taxed in London. The continued diet took place on 23 April 2001 at which time the taxing officer's report was available and before the Auditor. The taxing officer had assessed the total amount of fees payable by the Board respecting fees for senior counsel for the defender in the sum of £20,350 and as regards junior counsel, £17,750. Of those sums the taxing officer allowed brief fees of £8,000 and £12,000 for junior and senior counsel respectively and two days' refresher fees at £500 and £1,000 per diem respectively. The remainder of the taxed fees related to the written work, with the exception of a figure of £750 allowed in respect of the procedural hearing. Apart from the work entailed on behalf of the pursuer in framing a petition for extension of time within which to appeal, it was not suggested in argument that there was any substantial difference in the amount of work to be carried out by, or the responsibility imposed on, counsel for an appellant, as compared with the work and responsibility of counsel for a respondent.
12. It should however be noted that, whereas senior and junior counsel for the pursuer proposed that they be paid £59,850 and £39,900, respectively senior and junior counsel for the Chief Constable had respectively proposed fees payable by the Chief Constable in total sums of £46,850 and £59,500.
13. Having thus had the benefit of the taxing officer's adjudication on the proper fees payable to counsel in this case on a party and party basis, having heard further detailed submissions on behalf of parties, and having been supplied with a copy of a letter dated 23 May 2001 from Mr James Vallance White in the Judicial Office of the House of Lords, which is included as Appendix B to the Auditor's Minute, the Auditor issued his report on 21 June 2001. The report is extremely brief. So far as counsels' fees are concerned, it simply states that the Auditor taxed the fees payable to senior counsel in the sum of £45,398.25 and the sum payable to junior counsel in the sum of £30,265.50. No breakdown or specification of how the sums were assessed was provided. In his Minute which he provided following the Board's Note of Objection to his report, the Auditor sets out a summary of the arguments and authorities to which he was referred by the solicitor for the Board and a law accountant acting on behalf of the counsel for the pursuer who appeared in the House of Lords. The Auditor's reasoning is then to be found in the following passage, commencing on page 8 of his Minute:

"In reaching the level of Counsels' remuneration the Auditor took into account the principles set out in Mr Shearer's [the Board's solicitor] Line of Authorities. This matter attracts a 'proper' fee and there is no doubt Counsel are 'competent'. The fees are not 'extravagant' and are charged on the correct basis, civil rather than criminal. The documentation produced by Mr Shearer relates to Criminal Legal Aid fees or Party and Party expenses. It would be wrong simply to reject these and the Auditor has given them consideration for what they may be worth. The account taxed by the Taxing Master has the two elements which the Auditor needs to reach a reasonable fee. The fees rendered by Senior Counsel for the Defender to his client and the abatement to those fees made by the Taxing Master on a party and party taxation. The reasonable fees for Counsel in this case must lie between them. On determining the level of remuneration the Auditor has not considered a Brief Fee but has adopted the approach that would be taken in taxing Counsels' Fees under an Interlocutor of a Scottish Court with due consideration to the additional responsibility of a matter before the House of Lords. The Auditor notes the comments of Lord Hope on the submission of the written case of the Appellant and Counsels' view that this had reduced significantly the time needed for oral hearing. Bearing all these factors in mind, the Auditor allowed Senior Counsel £13,000.00 for Court appearances and £37,442.50 for preparation over 25 days; which sum includes travelling time incurred in attending the House of Lords. Junior counsel was allowed £33,628.33. (A 10% deduction was applied to both Senior and Junior Counsels' fees, in terms of Regulation 10(2) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989. The total fees allowed to Senior & Junior Counsel are £45,398.25 and £30,265.50 respectively). The Auditor is satisfied these are reasonable fees 'which a prudent man of business, without special instructions from his client, would incur in the knowledge that his Account would be taxed."

No further specification was provided by the Auditor as to the basis upon which he arrived at those figures and it is not suggested that the total figure allowed may be reconciled with any particular items in the Notes of Proposed Fee issued by Faculty Services Ltd and translated to the Auditor in the document of which No.51/1 of process is a copy. In particular, there is no attempt by the Auditor to indicate the way in which he allowed £13,000 for "court appearances" or how that allowance was distributed between the appearances in question. His pronouncement on fees in respect of junior counsel does not attempt any breakdown or subdivision whatever. Plainly the recipients of his decision and his Minute, and the court, are left in ignorance of how the Auditor, in a contested matter, has actually reached his determination. Counsel for the Board pointed out, that in McKay v Her Majesty's Advocate 1999 S.C.C.R. 679, 686 the court stressed the need for the Auditor to give reasons for his decision on contested matters. The absence of any explanation or elementary breakdown of the figures, or indeed an explanation of how the Auditor has arrived at the figures ultimately taxed, was thus unsatisfactory.

14. Apart from that criticism of the absence of adequate reasoning, counsel for the Board advanced three principal submissions by way of challenge to the Auditor's Report. Those submissions were prefaced firstly by a reference to the test whereby the Court might interfere in the Auditor's discretion described by the Lord Justice Clerk (Thomson) in Wood v Miller 1960 S.C. 86, 97-98. While thus recognising the width of the Auditor's discretion Mr Cullen, who appeared for the Board, nonetheless observed that the Auditor's experience of fees and expenses in Court of Session proceedings was not necessarily matched by equivalent experience of the fees and expenses payable in House of Lords' appeals. Mr Cullen made the further preliminary submission that while the court would normally be slow to interfere with an Auditor's exercise of his discretion, the court had a duty to protect unsuccessful litigants against excessive charges and in that regard reference was made to Macnaughton v Macnaughton 1949 S.C. 42 in which the Lord President (Cooper), at 46, said:

"It is well to begin by restating the governing principles. The concern of the court is to decide not what fees a particular counsel was justly entitled to receive from his client for his services under the conditions under which he gave them, but what fees can properly be made a charge against an unsuccessful opponent. There is no objection to the employment by a client of any counsel, however eminent, in any case, however small, or to the payment of any fee, however large. But we have a plain duty to protect unsuccessful litigants against excessive charges, and not to permit the unavoidable risks of litigation to be enhanced by the added peril of possible liability for extravagant or unreasonable expenses."

There was, said counsel, an analogous duty on the court of protecting the Board from claims for excessive fees. Counsel further referred to the passage in the opinion of the Lord President (Clyde) in Caledonian Railway Company v Greenock Corporation 1922 S.C. 299, 311:

"The principle underlying the many decisions which have been pronounced on this subject is that neither the 'normal' fee nor the 'proper' fee is ascertainable by any arbitrary valuation of our reference to any abstract standard but in accordance with the general practice of agents in instructing counsel. To state the principle more particularly, both the 'normal fee' in an ordinary case and the 'proper' fee in a big and difficult one, are just such fees as a practising law agent finds sufficient in order to command the services of competent counsel in cases of a similar character."

15. The first submission advanced by counsel for the Board was to the effect that the Auditor had failed properly to appreciate that taxation of fees to counsel in a legal aid case, being on the "agent and client third party paying" basis entailed much closer proximity to the inter-party basis than to the taxation of expenses on the agent and client, client paying basis. Mr Cullen referred to Maclaren on Expenses, p.509-510 and particularly the author's conclusion at 510 that in the light of the cases to which he had referred -

"it is obvious from these taxations that the Auditor's opinion was that the taxation of an account as between agent and client to be paid by the unsuccessful party should approach more nearly the taxation of party and party then the taxation of an account between an agent and his own client. The court sustained the Auditor's report."

Reference was also made to Park v Colvilles Limited 1960 S.C. 143. Whatever might be the Auditor's reasoning, it was evident from the sums allowed by him that he had effectively taxed on something closely approaching an agent and client, client-paying basis and had ignored the House of Lords' taxation. Thus, whereas the taxing officer had assessed the proper amount payable on a party and party basis respecting senior counsel's fees in the sum of £20,350 the Auditor had allowed for senior counsel for the pursuer, ostensibly on a third party paying basis, the sum of £50,442.50 (before the 10% reduction), which compared with the sum of £46,850 claimed by senior counsel for the defending Chief Constable which might perhaps be sustainable on a purely agent and client, client-paying basis, but as to which no concession was made.

16. The second principal submission for the Board was that the Auditor had failed to have proper regard to the materials placed before him respecting the proper fees payable to counsel in legally aided cases in the House of Lords. Mr Cullen referred to the Note by the present Auditor's predecessor in office in D v Grampian Council (No.52 of process). That appeal involved a two day hearing in the House of Lords. The expenses payable by the Board were related to the fees taxed on a party and party basis. The fees in that case were but one-third of the sums allowed by the Auditor in the present case. The decision in D v Grampian Regional Council was thus evidence of the "market" rate. Further, there was before the Auditor the Report [HL 145] from the Appeal Committee of the House of Lords on the Clerk of the Parliaments' Reference regarding Criminal Legal Aid Taxation ("the Reference Report"). While directly concerned with the taxation of counsels' fees in criminal appeals - in fact, cases involving major issues of principle and three day hearings before the House of Lords - the Reference Report provided general guidance for civil cases, as was confirmed by the letter from the taxing officer included as Appendix B to the Minute by the Auditor. Counsel referred in particular to paragraph 38 of the Reference Report in which it was pointed out that the fact that the case was in the House of Lords did not in itself justify any higher fee than in the court below. The issues in the Lords might be narrower. In para.41 of the Reference Report their Lordships pointed to the danger of paying attention to the number of hours claimed to have been spent in preparation and concluded, in para.42, that: - "...the policy that hours spent by counsel in preparation are not generally of assistance is a sound one and should be re-affirmed."
17. The fee notes submitted by counsel in the present case in support of a claim for preparation for the hearing included a detailed narration of hours expended on that task. However the brief fees allowed in those substantial criminal cases with which the Reference Report was concerned indicated a range, for senior counsel, of brief fees from £10,000 to £18,000 and a refresher for the second and third days of £1,000 per diem. The brief and refresher fees for counsel for the defending Chief Constable, as taxed, were in the same sort of range. The letter from the taxing officer contained in Appendix B of the Auditor's Minute indicated that for a two or three day hearing in the House of Lords a brief fee of £10,000 to £15,000 might be expected. That range was entirely consistent with the Board's previous experience of fees in the House of Lords. The document No.50/4 of process set out fees agreed and paid to counsel by the Board in House of Lords appeals since 1993 and the same information had been given orally to the Auditor. It was therefore apparent that the Auditor's assessment in the present case was wholly different from the market level in two or three day House of Lords' appeals. While it was recognised that the present case involved a scrutiny of the evidence and an additional procedural hearing in London to discuss the arrangements for the presentation of the results of that scrutiny, the work of analysing the evidence must have been done by way of preparation for the reclaiming motion. There was, put shortly, no reason to believe that a "prudent man of business" would pay vastly more than the "going rate" evidenced by previous experience in House of Lords cases and importantly, there was no explanation from the Auditor as to how he reached such a contrary conclusion.
18. The third branch of the submission advanced by counsel for the Board was that the Auditor had misdirected himself by ignoring the standard basis upon which fees to counsel were charged in Scottish appeals to the House of Lords, namely by a fee or fees directed to the written work; a brief fee, which included preparation for the appeal; and, in the event of the hearing lasting beyond the first day, a daily refresher fee for the succeeding days. A brief fee encompassed all the preparatory work for the first day's hearing - Loveday v Renton (No.2) 1992 3 All. E.R. 190 B-C. The Auditor had departed from that practice and had adopted some other, seemingly hybrid, approach the basis for which he failed to explain. By so departing the Auditor deprived himself, and parties, of a meaningful comparison with the fees normally allowed and paid in House of Lords' cases.
19. In his response Mr Brailsford, on behalf of the counsel for the pursuer who had appeared in the House of Lords, indicated that he accepted the legal framework as set out by Mr Cullen for the Board. In particular he accepted that the basis of taxation should be agent and client, third party paying, without regard being had to the fact that the case was one in which legal aid had been allowed and would be subject to the 10% reduction. The question was, what was meant by agent and client, third party paying?
20. Mr Brailsford went on to refer what was said in Maclaren at p.431 regarding party and party expenses -

"In order that the expense of litigation may be kept within proper and reasonable limits, only such expenses shall be allowed, in taxing accounts between party and party, as are absolutely necessary for conducting it in a proper manner, with due regard to economy."

While it was recognised that the agent and client, third party paying basis lay somewhere between on the one hand party and party expenses and on the other hand agent and client, client paying, there was no clear guide as to where that intermediate point fell to be located. Maclaren's narration at p.510 that the agent and client, third party paying, taxation was closer to party and party was simply an observation drawn from the Auditor's decision in the one case to which Maclaren referred. It could not be interpreted as laying down a principle that agent and client, third party paying, should be closer to party and party expenses than agent and client, client paying. Counsel referred to Hood v Gordon (1896) 23 R. 675 in which Lord Kyllachy made reference to the scale being not identical with that between party and party but yet different from that applied in the ordinary case of agent and client. However Lord McLaren referred to that which is given being the "expenses which a prudent man of business, without special instruction from his client, would incur in the knowledge that his account would be taxed". More recent guidance was obtained in Macnaughton. That case was concerned with an award of expenses on the consistorial scale but as was evident from the observations of the Lord President (Cooper) at 47-48 the consistorial scale is also a scale intermediate between a party and party award and expenses taxed as between agent and client, client paying. What was said in that case did not support the view that agent and client, third party paying, must be closer to party and party expenses than to agent and client, client paying. Where the scale lies in relation to the other two scales must therefore be entirely a matter for the Auditor's discretion and his experience. The court should therefore be slow to interfere with the Auditor's exercise of that very wide discretion.

21. In relation to the Auditor's approach, which counsel for the Board had described as "hybrid", Mr Brailsford accepted that the practice in Scottish House of Lords' appeals was for counsel to charge (other than as respects the written work) on the basis of a brief fee and a refresher fee for days beyond the first day's hearing. While that was the practice, Mr Brailsford did not accede to the view that such was the only basis upon which fees might be claimed. In other cases, in which there might be a basis for charging a preparation fee, the Board usually expected to be given details of the number of hours spent in preparation. Hence the narration of hours expended which was to be found in the fee notes. As respects the Reference Report, Mr Brailsford pointed out that it was concerned with fees in English criminal cases, governed by different regulatory provisions. It therefore had to be approached with caution. It was accordingly understandable that the Auditor, in his Minute, referred to the report and the letter as calling simply for "consideration for what they may be worth".
22. Mr Brailsford next drew attention to the fees actually claimed by counsel for the defender, the Chief Constable. The total fees so claimed by both junior and senior counsel amounted to approximately £107,000. The total fees claimed by both counsel for the pursuer amounted to £99,550 (after the restriction). So the "spread" between the total taxed fees of counsel for the defender (£38,100) and the fees claimed on each side, approximating to £100,000, was a wide one. The Auditor's total assessment (£75,663.75) was thus within that spread and it was evident that the Auditor had not simply picked a figure arithmetically precisely in the middle. The factual issues in the case were difficult. While counsel for the pursuer had conducted the proceedings both in the Outer House and the Inner House they would nonetheless require to review the transcript of evidence afresh. The Auditor required to have that work in mind. Although he had details of the fees agreed in earlier House of Lords' cases involving the Board, those cases were different cases and without precise details of the work and responsibility involved not much could be taken from them. The case of D v Grampian Council also had its own circumstances. In short, the matter was entirely one for the Auditor's discretion and the Note of Objection should be repelled. Were the Auditor's reasons insufficient the matter should be remitted to him for reconsideration.
23. I regret to have to say at the outset that the terms of the Auditor's report and his Minute are unsatisfactory if only in the respect that the Auditor makes little or no endeavour to break down or explain the amount which he has allowed respecting fees to each counsel. His report gives but a single figure for each counsel's total fees and the only division to be found is in the Minute and is the short statement that, of senior counsels' fees, the sum of £13,000 was attributed to "court appearances". In McKay v H M Advocate 1999 S.C.C.R. 679 the court observed (686) that the Auditor

"was required to adjudicate between the parties and he had a general duty to give reasons, at least by the stage of his minute. Fairness required that the parties, especially the losing party, should be left in no doubt why they had won or lost. Without reasons the losing party would not know whether he has a case to pursue on appeal. We would add that where there are substantial matters in dispute between the parties to a taxation, it is appropriate, as well as helpful to them, if the Auditor's reasons for his decision on those matters are set out in his report...".

In the present case it is impossible to know what amounts have been allowed for particular categories or items of work. The need to know the particular amounts allowed for particular items was especially important in this case when, as counsel for the Board pointed out, the fee notes themselves contained many peculiarities. To take but two examples, in addition to charging a brief fee for the substantive hearing senior counsel claimed four refresher fees although the hearing had lasted only three days. In junior counsel's fee notes one finds proposed a single sum as being both a brief and a refresher fee. Indeed, it is generally unclear as to the basis or principles upon which the Auditor has proceeded, other than that he has disclaimed the customary method of approach to the remuneration of counsel in Scottish House of Lords' appeals, which method, I would add, is reflected in the forms of Bill of Costs in Scottish appeals contained in the House of Lords Directions for the Taxation of Bills of Costs.

24. In my view, by thus dismissing the normal, customary approach to the charging of fees to counsel in the House of Lords, the Auditor has erred. I will advert more closely to the agent and client, third party paying scale at a later point, but proceeding for the moment on Lord McLaren's description in Hood v Gordon of the expenses being those which a "prudent man of business, without special instructions from his client, would incur in the knowledge that his account would be taxed" - a passage quoted by the Auditor at the end of his Minute - it is in my view difficult, if not impossible, meaningfully to apply that test if one discounts the customary charging structure. If the customary charging structure is put aside there is no ready basis whereon the third party charged with an ultimate responsibility for meeting some of counsel's fees can test or question whether the amounts allowed by the Auditor accord with what the prudent solicitor would normally have paid. The prudent solicitor would normally adhere to the recognised fee charging structure, in the knowledge that his account is to be taxed. The Auditor's decision thus to depart from the practice followed by his predecessor has the drawback that he deprives himself of convenient comparison - like item by like item - with the fees allowed or agreed in earlier Scottish House of Lords' cases, to which he was referred; with the fees allowed in other cases in which costs have been taxed by the taxing officer in Westminster, including the cases in which the fees payable to counsel in legally aided criminal appeals involving important points of law had prompted the Reference Report; and with the fees allowed in the taxing officer's decision on the costs payable by the Board on a party and party basis respecting counsel's fees in the present case. In that regard it is to be noted that the brief fee comprehends all the necessary preparatory work for the hearing plus the first day of the oral hearing - see Loveday v Renton (No.2) - and, for the reasons explained in the Reference Report, normally the assessment of the appropriate brief fee should not be approached on an hourly charging basis, since that risks remunerating the inefficient worker more generously than the efficient worker.
25. While the foregoing grounds are sufficient, in my view, to require that the Board's objection to the Auditor's report be upheld and the matter remitted to the Auditor for further consideration and a further report, it is appropriate that I give some expression to my views on the submissions of counsel concerning the import of the regulatory reference to taxation on a "agent and client, third party paying" basis and the relationship of that scale of taxation to an award of party and party expenses.
26. It is convenient, I think, to begin by looking at the principles underlying an award of party and party expenses, which is of course the normal basis upon which expenses are allowed. In his submission Mr Brailsford referred to Maclaren 431 and contended, if I understood him correctly, that party and party expenses were essentially confined to those that were absolutely necessary. The passage to which Mr Brailsford referred and which I have already quoted is itself substantially a quotation of the then prevailing provision of the relevant Act of Sederunt. The current, broadly equivalent provision is Rule of Court 42.10, which derives from S.I. 1974/1686 and which is in these terms:

"(1) Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed."

Fees for solicitors are, and were in Maclaren's time, subject to a table of fees. No table of fees has ever been laid down by the court respecting the amount of the fees paid to counsel which might be recovered on a party and party award of expenses. As respects fees to counsel recoverable on an award of party and party expenses Maclaren, 447, writes thus:

"The employment of counsel in a cause, the number to be instructed at its several stages, and the amount of their fees have not been fixed by any statutory enactment. While this is so, it by no means follows that, when a successful party is awarded his expenses, his unsuccessful opponents must pay whatever the former has disbursed in the way of counsel's fees. There is indeed no limit to the number of counsel that a party may choose to employ or the fees that he may send them, but if he 'shall think proper to employ an unnecessary number of counsel or to pay higher fees than are warranted by ordinary practice, the extra expense thereby occasioned shall not be allowed against the opposite party'. It is therefore of the first importance to ascertain correctly the 'ordinary practice' of the profession as recognised and sanctioned by the court."

The words within single quotation marks are taken from the relevant Act of Sederunt. Accordingly, even on the arguably more restrictive recovery envisaged by the 1876 Act of Sederunt, fees to counsel were recoverable on a party and party taxation on the basis of the "ordinary" practice, both as to instruction and the quantum of the fee tendered by a solicitor at the time of his issuing the instruction in question. Thus, assuming the instruction to be appropriate, the amount allowed towards the fees to counsel on the party and party taxation would be that of the ordinary or usual fee which a solicitor would send as an enclosure to his letter of instruction to counsel of appropriate seniority and experience. So the taxed amount of counsels' fee, i.e. the amount appropriate for recovery from the losing party, having naturally no control over the fee actually tendered to counsel on behalf of the winning party, was assessed as being the ordinary or usual fee which a solicitor would enclose with his instruction. The current test of an expense being "reasonable for conducting the cause in a proper manner" is, if anything, perhaps arguably more favourable to the extent of recovery by the litigant in whose favour an award of party and party expenses has been made. But at all events, so far as fees to counsel are concerned, it appears to me that, given the propriety and reasonableness of the particular instruction to counsel in question, the amount found on taxation on a party and party basis to be recoverable should equiparate with what someone who is not in control of the amount of the fee payable would consider to be reasonable remuneration to counsel for the work encompassed by the instruction.

27. While Maclaren observes at 510 that, from the taxations in the election petition cases to which he specifically referred, the Auditor obviously considered that "taxation of an account as between agent and client to be paid by the unsuccessful party should approach more nearly the taxation of party and party than the taxation of an account between an agent and his own client", the basis of an "agent and client, third party paying" award receives some explanation in Park v Colvilles Ltd. In his opinion Lord Patrick, with whom the other three members of the Division concurred, said at p.153:

"Now, for nearly a century a distinction has been enforced, according as the taxation was between agent and client, client paying, or between agent and client, third party paying. If the taxation is between agent and client, third party paying, all expenses are allowed which would be incurred by a prudent man of business without special instruction from his client in the knowledge that the account would be taxed - Hood v Gordon per Lord McLaren at p.676. The rule has good sense behind it. The common instances of such a taxation are where parties to a multiplepoinding are allowed expenses as between agent and client out of the fund in medio, or where parties to a special case are allowed such expenses out of the trust estate. In these instances, the parties controlling the fund or trust estate have had no voice in controlling the scale on which the expenses were incurred. It would be unfair to saddle them with expenses, save such as would have been incurred by a prudent man of business."

I would observe in passing that the term "man of business", little used today, simply refers to a solicitor and that at that time, in distinction to the system now in operation, the law agent tendered to counsel his fee with his letter of instruction. At all events, it appears to me that, given the appropriateness of the particular instruction to counsel, there should be little difference between the "ordinary" or "reasonable" fee which the unsuccessful opponent is required to pay and the fee which a prudent solicitor would tender or agree for the same instruction. A prudent solicitor would presumably not pay an extraordinary or unreasonable fee. For that reason it appears to me that, for similar work performed pursuant to the same instruction, the amount of the fee to counsel recoverable under a party and party award ought not to diverge markedly from that recoverable on an agent and client, third party paying basis.

28. In expressing that view it is important to note that I have under consideration the liability of the paying party respecting counsel's fee for a given item of instruction admissible under both scales of taxation. In my opinion, general observations about the generosity of one basis of taxation as opposed to another have a capacity to mislead. There are different ways in which comparative generosity may arise. Items of work or expenditure may be eligible under the one, but not under the other, scale of taxation. But that does not mean that as respects the recoverable amount of items eligible under both scales a more generous remuneration must be allowed in the amount recoverable for those common items in the one account as opposed to the other. The allowance of remuneration to the local as well as the Edinburgh agent is, for example, an area in which the differing scales may produce differing but important practical results. The existence of such a difference would, however, not be pertinent to the assessment of the amount of the fees to counsel for which the non-client paying party is responsible when the item of work instructed is a proper charge under both scales. Put in another way, I have difficulty with Mr Brailsford's submission that because as a generality, expenses awarded on an agent and client basis, third party paying, are sometimes described as being intermediate in terms of generosity between party and party expenses and full expenses on an agent and client, client paying basis, the total amount of counsel's fees on the intermediate scale becomes a matter of global assessment at the Auditor's discretion. Where the particular task required of counsel is eligible in a party and party taxation for recovery against the losing party there is, in my view, prima facie no good ground whereon the reasonable, ordinary fee recoverable from the losing opponent should differ to any significant extent from the fee payable by the third party who likewise has no direct control over the bargain eventually struck between the client's solicitor and counsel. In each case the measure is the ordinary or reasonable fee. That is not to say that fees respecting particular items of work instructed of and performed by counsel might be recoverable under the agent and client, third party paying award, which would not be recoverable under the party and party basis. However, apart from the minor, undisputed item of the fees to junior counsel for the petitions for extension of time to lodge an appeal, it was not suggested that the burden and responsibility or the amount of work imposed on the pursuer's counsel in the present case were materially different from that which required to be discharged by counsel for the Chief Constable. Having given no reasons for his decision, it cannot be said that the Auditor had good grounds for reaching a different view. There is therefore, in my view, force in the first principal submission advanced by counsel for the Board.
29. In these circumstances I shall sustain the objection by the Board to the Auditor's report to the extent which counsel for the Board invited, namely that of remitting matters to the Auditor for reconsideration. Counsel were agreed that on the matter being so remitted the Auditor should be directed to receive and consider further written and oral submissions. I shall therefore make that direction.