Scottish Court of Session Decisions

Ali v. Khosla & Ors [2003] ScotCS 145 (16 May 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Johnston Lord Weir	XA37/01 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL From the Sheriffdom of Grampian, Highlands and Islands at Banff by ASLAM MOHAMMED ALI Pursuer and Appellant; against SARV MITTER KHOSLA and MRS PAULINE KHOSLA First Defenders and Respondents: and DAVID W. FRANCIS and MRS SANDRA A.. FRANCIS Second Defenders and Respondents: for SUSPENSION and INTERDICT _______

 

 

Act: Party

Alt: No appearance

16 May 2003

1. The pursuer and appellant in this appeal raised an action for declarator of tenancy, removing, interdict and damages in Banff Sheriff Court. By an interlocutor dated 21 June 1999, the sheriff assoilzied the defenders. The pursuer then appealed to the Court of Session. By an interlocutor dated 20 July 2001, an Extra Division of this court refused that appeal. Subsequently, on 10 August 2001, the court dealt with the expenses of the appeal. Two interlocutors were pronounced, the first finding the pursuer and appellant liable to the first-named defenders and respondents in the expenses of the appeal and remitting the account thereof, when lodged, to the Auditor of Court to tax and to report, the second containing a decerniture against the pursuer and appellant for payment of those expenses. The first defenders and respondents' account of expenses was duly made up and went before the Auditor for taxation. Thereafter, on 12 July 2002, the Auditor of Court taxed at the sum of £4,720.25, the expenses incurred by the first defenders and respondents, as set out in the Account of Expenses No. 39 of process, as appears from the Report by the Auditor of Court. Following that, the pursuer and appellant formulated a Note of Objection to the report of the Auditor, in terms of Rule of Court 42.4(1). By an interlocutor dated 23 August 2002 the court, on the unopposed motion of the pursuer and appellant, allowed that Note of Objections to be received late and appointed the Auditor of Court, within 14 days of the after-mentioned intimation, to lodge a Minute by virtue of Rule of Court 42.4; it appointed the pursuer and appellant forthwith to intimate a copy of that interlocutor to the Auditor of Court.
2. The Note of Objection lodged by the pursuer and appellant is in the following terms:

"the petitioner/pursuer Aslam M. Ali is objecting to the account as taxed by the Auditor of the Court in so far as the receiving party failed to intimate the account properly, and did not send said account until after decree had been extracted, the paying party having requested a copy of said account. The sum is excessive and is inconsistent of (sic) what would be a true representative cost of counsel's true participation and cost, no indication is given as to what the increase from the account of expenses as lodged in court (£4,536.25) and the account as taxed by the Auditor (£4,720.25), neither is an explanation given as to what 'outlays' are. Breach of Rule of Court 42.3(5) invalidates the account to nil."

Following upon the lodging of this Note of Objection, we understood that at the Inner House By Order Roll hearing, the reference to Rule of Court 42.3(5) was amended by the pursuer and appellant at the invitation of the court so as to read 42.3(2). A Minute was duly lodged in response to the pursuer and appellant's Note of Objections by the Auditor of Court. He reported to the court that, after considering the information given and submissions made to him at the diet of taxation, he was of the opinion that the charges, as allowed were reasonable and proper. He narrated that, at the diet of taxation on 26 February 2002 the first defenders and respondents were represented by a law accountant, while the pursuer and appellant appeared personally. The Auditor explained that he had no knowledge of what might have taken place after the completion of his report and so could make no comment on the first sentence of the Note of Objection. He went on to explain that counsel's fees were reasonable for the work carried out in this case. The increase in the taxed account was explained by the addition of the dues of taxation. The outlays were the dues payable to the court and counsel's fees and were clearly specified as such within the account. The fees were properly charged in accordance with the Table of Fees and reflected the work done in the case. The Auditor explains that he took into account the written submissions lodged by the pursuer and appellant and his representations at the taxation. Only such expenses as were reasonable for conducting the cause in a proper manner had been allowed.

3. When the matter came before us, the pursuer and appellant explained the basis of his Note of Objection in a speech which he had committed to writing. He made reference to a number of authorities. He accepted that the reference in the original Note of Objections and indeed in his written speech to a Rule of Court 42.3(5) was erroneous; there was no such Rule. The proper reference was to Rule of Court 42.3(2) which, in the annotations to the Rules of Court, is the subject of comment in paragraph 42.3.5, a circumstance which may explain the erroneous reference originally made by the pursuer and appellant. In the course of elaboration of his position, the pursuer and appellant made it clear that he was not criticising the Auditor in respect of the decision to tax the account at the sum of £4,720.25. The point which he advanced was that raised in the first and last sentences of his Note of Objection, that is to say, that the receiving party had failed to obtemper the provisions of Rule of Court 42.3(2) which provides:

"The party found entitled to expenses shall, within 7 days after the date of the report prepared under paragraph (1), exhibit the taxed account, or send a copy of it, to the party found liable to pay the expenses."

The pursuer and appellant contended that the failure to obtemper this Rule "invalidates the account to nil".

4. We should explain that the first defenders and respondents were not represented at the hearing before us. However, there was put before the court a letter written on their behalf by their solicitors in which it is stated, inter alia: "... in this case due to an oversight here, the account was not intimated to Mr Ali timeously and in fact the decree for expenses was extracted."
5. Against the foregoing background, it appears to us quite clear that we must repel the objections of the pursuer and appellant, but only in so far as they are competent, in terms of Rule of Court 42.4(4)(a), since the only competent objections to the Auditor's report were not supported by the pursuer and appellant at the hearing. We consider that the point raised concerning the failure of the first defenders and respondents to obtemper the provisions of Rule of Court 42.3(2) cannot be regarded as a competent "objection to the report of the Auditor", within the meaning of Rule of Court 42.4(1), since Rule of Court 42.3(2) is concerned with action which must be taken after the completion of the Auditor's report of the taxation. Accordingly, there can be no question of the court either sustaining or repelling that objection in the present process.
6. It appears to be common ground between the parties that the provisions of Rule of Court 42.3(2) were not obtempered. The consequences which that failure may have may require to be considered in another process, should the pursuer and appellant decide to initiate appropriate proceedings.