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Cite as: [2005] ScotCS CSOH_45, [2005] CSOH 45, 2005 SCLR 841
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MacKintosh v. North Mile Co-Operative Ltd [2005] ScotCS CSOH_45 (24 March 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 45 |
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A123/00
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OPINION OF LORD REED in the cause HELEN McLEAN MACKINTOSH or PETRIE and OTHERS Pursuers; against NORTH MILK CO-OPERATIVE LIMITED Defenders:
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Pursuers: Stevenson, Solicitor Advocate; Thompsons
Defenders: Milligan; Simpson & Marwick
24 March 2005
Introduction
[1] This action of damages, arising out of the death of the first pursuer's husband as a result of mesothelioma, was settled by agreement. On 20 March 2003 the court found the defenders liable to the pursuers in the expenses of process, and remitted the account of expenses, when lodged, to the Auditor of the Court of Session for taxation. The pursuers' motion for an additional fee under rule of court 42.14 was also remitted to the Auditor of Court, in accordance with rule 42.14(2)(b). The additional fee was sought under reference to factors (a), (b) and (c) in paragraph (3) of rule 42.14. [2] The pursuers' solicitors then lodged an account of expenses, which included the item "Add Additional Fee", with the amount left blank. In accordance with Practice Note No. 3 of 1995, there was lodged with the account of expenses a statement of reasons in support of the particular factors which were considered to justify the allowance of an additional fee. The statement was as follows:-"This case has been remitted to the Auditor to consider whether an additional fee should be awarded under heads A, B & C of Rule 42.14(3).
General
This was a case involving three pursuers. Instructions required to be taken separately from each pursuer throughout this litigation. The additional correspondence and advice this entailed is not reflected in the account in any way.
A): Complexity
The pursuer was employed by the North of Scotland Milk Marketing Board from 1952-1968.
There was considerable correspondence with Scottish Office attempting to discover whether the Department of Agriculture & Fisheries had responsibility for the Board. They were able to advise that Board had been founded as a body corporate under the Agriculture Marketing Act of 1931. The Agriculture Act of 1993 had then transferred the property, rights and liabilities of the Board to its successor, the North of Scotland Milk Co-operative Limited.
It transpired that the North of Scotland Milk Co-operative Limited was a Friendly Society, registered in 1994. By 1997, the Society had changed its name to Claymore Dairies Limited.
After further substantial investigations, it became known that Claymore Dairies Limited had separated its milk business and this was transferred to another company: Tweedmount Limited. Tweedmount Ltd then became known as Claymore Dairies Limited and the original Claymore Dairies Limited once again became known as North Milk Co-operative Limited. Some of the milk business' liabilities remained with the North Milk Co-operative Limited whilst others were transferred to the new company.
The defenders' agents acknowledged in correspondence that tracing the correct defenders had been 'torturous' (sic) (their letter 06/02/03).
The deceased carried out business in his own right as a car mechanic. The issue of material contribution from non-negligent asbestos exposure was raised by the defenders. In addition to raising considerable problems regarding proving foreseeability, this also had an impact on settlement in light of contributory negligence arguments and required to be investigated with all experts. (See also comments in relation to head C).
The issue of pre-existing heart condition and its potential effect on the life-expectancy of the deceased was raised at a late stage in the proceedings (by amendment intimated on 12 February 2003 with proof being fixed for 25 February).
B) Novelty
The main issue under this head was in respect of foreseeability - whether at the relevant dates of exposure the employers would have implied knowledge of the risk of mesothelioma in respect of such short exposure.
This had never been tested in a mesothelioma case before and was not an issue in the Fairchild case.
C) Number of Documents
Documents had to be located and perused to identify the correct defenders and trace the transfer of liabilities. This included consideration of extensive microfiche documentation supplied by the archivist from Highland Council in an attempt to identify the nature of the defenders as a potential quasi-Government body, which may have increased the likelihood of foreseeability being established.
Medical records (200+ pages) and relevant asbestos knowledge documents (200 pages) also had to be considered."
"A. Mr Quinn replied that this case was indistinguishable from other cases. Whilst he acknowledged the pursuers' agents expertise and specialised knowledge they had been fully remunerated through the Account. He did not accept that there was any extra complexity. The dispute was on the matter of exposure and guilty knowledge and in particular whether the deceased was exposed to asbestos while working in a dairy. Should a body in the position of the defenders have been aware of the potential risk posed by asbestos as early as 1958. The witness, King, was relied on to prove exposure and the date of knowledge was the only significant matter. This was common in all cases of this type. There was nothing out of the ordinary about this case and settlement at £45,000.00 reflected settlement at 50% of the full value. In answer 1 page 7 A-B of the Closed Record (as amended), the defenders admit that they are successors to the deceased's employers.
B. He accepted the pursuers' agents expertise and the need to apply that knowledge to the particular circumstances of the case. Mr Petrie was 77 when he died and quantum was not complicated.
C. The number of documents considered was not exceptional in any way. There were medical reports produced by the defenders and a pathology report. 200 pages of medical records is not out of the ordinary and there was nothing novel or complex in the documentation to establish guilty knowledge. He referred to Keystone Properties Limited v Sun Alliance and London Insurance plc unreported 7 June 1994. In particular, he referred to Lord Johnston where he states,
'In my opinion, the Rule of Court is designed primarily to reward solicitors upon whom special responsibilities are imposed qua solicitor in the conduct of the case.'
There were no special responsibilities here and no additional fee should be allowed."
"The Auditor respectfully reports to the court that his reasons for his decision in the taxation to which objection was taken are that, after considering the information given and submissions made at the diet of taxation, he was of the opinion that the charges, as allowed, are reasonable and proper."
The Auditor amplified that statement in a note appended to his minute:
"A. The Auditor refused to grant an additional fee as the circumstances of this case do not justify it. Whilst the identification of the correct defenders had been tortuous the Auditor is not satisfied that the work involved satisfies the criteria in Rule of Court 42.14(3)(a). The complexity of the cause related to the short period of exposure and the state of knowledge of the then employers at that time. Whilst this may be novel it does not, in the Auditor's view, raise any questions of difficulty.
B. The Auditor is not satisfied that in the circumstances of this case the question of foreseeability and the short exposure justifies an additional fee.
C. The description of the documentation does not satisfy any additional fee being granted under 42.14(3)(c). The Auditor is not satisfied the number or importance of any documents prepared or perused is any more than in a case of a similar nature.
In reaching this conclusion, the Auditor was guided by the court's decision in Keystone Properties Limited (supra). Although this is a commercial matter, the principle applies to all applications for an additional fee."
The Legislation
[8] The taxation of accounts of expenses is carried out in accordance with Part I of Chapter 42 of the Act of Sederunt (Rules of the Court of Session 1994) 1994, SI 1994 No. 1443, as amended. So far as relevant, the rules provide:"Remit to the Auditor
42.1.- (1) Where expenses are found due to a party in any cause, the court shall -
(a) Pronounce an interlocutor finding that party entitled to expenses and ...
remitting to the Auditor for taxation ...
(2) Any party found entitled to expenses shall -
(a) lodge an account of expenses in process ...
(b) give written intimation of the lodging of the account, and send a copy of it, to the party found liable to pay those expenses.
Diet of taxation
42.2.- (1) On receipt of the process of the cause, the Auditor shall -
(a) fix a diet for taxation; and
(b) intimate the diet to -
(i) the party found entitled to expenses; and
(ii) the party found liable in expenses.
(1A) The party found liable in expenses shall, not later than 3 working days prior to the diet of taxation, intimate to the Auditor and to the party found entitled to expenses, specific points of objection, setting out each item objected to and stating concisely the nature and ground of objection in each case.
(1B) Subject to paragraph (1C), if the party found liable in expenses fails to intimate points of objection under paragraph (1A) within the time limit set out there, the Auditor shall not take account of them at the diet of taxation.
(1C) The Auditor may relieve a party from the consequences of a failure to comply with the requirement contained in paragraph (1B) because of mistake, oversight or other excusable cause on such conditions, if any, as the Auditor thinks fit.
(2) At the diet of taxation, the party found entitled to expenses shall make available to the Auditor all vouchers, documents, drafts or copies of documents sought by the Auditor and relevant to the taxation.
Report of taxation
42.3.- (1) The Auditor shall -
(a) prepare a report of the taxation of the account of expenses, stating the
amount of expenses as taxed;
(b) transmit the process of the cause and the report to the appropriate
Department of the Office of Court; and
(c) on the day on which the transmits the process, intimate that fact and
the date of his report to each party to whom he intimated the diet of taxation.
(2) The party found entitled to expenses shall, within seven 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.
Objections to report of the Auditor
42.4.- (1) Any party to a cause who has appeared or been represented at the diet of taxation may state any objection to the report of the Auditor by lodging in process a note of objection within 14 days after the date of the report.
(2) A party lodging a note of objection shall -
(a) intimate a copy of the note to any other party who appeared or was
represented at the diet of taxation and to the Auditor;
(b) apply by motion for an order -
(i) allowing the note to be received; and
(ii) ordaining the Auditor to state by minute, within 14 days after
intimation under sub-paragraph (c), the reasons for his decision in relation to the items to which objection is taken in the note;
and
(c) intimate forthwith to the Auditor a copy of the interlocutor
pronounced on a motion under sub-paragraph (b).
(3) After the minute of the Auditor has been lodged in process, the party who lodged the note of objection shall, in consultation with any other party wishing to be heard, arrange with the Keeper of the Rolls for a diet of hearing before the appropriate court.
(4) At the hearing on the note of objection, the court may -
(a) sustain or repel any objection in the note or remit the account of expenses to the Auditor for further consideration; and
(b) find any party liable in the expenses of the procedure on the note.
(5) In the event of an objection being sustained, the court shall ordain the Auditor to amend his report to give effect to the decision of the court."
"Additional fee
42.14.-(1) An application for the allowance of an additional fee shall be made by motion to the court.
(2) The court may, on such an application to it -
(a) determine the application itself; or
(b) remit the application to the Auditor for him to determine whether an additional fee should be allowed.
(3) In determining whether to allow an additional fee under paragraph (2), the court or the Auditor, as the case may be, shall take into account any of the following factors:-
(a) the complexity of the cause and the number, difficulty or novelty of the questions raised;
(b) the skill, time and labour, and specialised knowledge required, of the solicitor or the exceptional urgency of the steps taken by him;
(c) the number or importance of any documents prepared or perused;
(d) the place and circumstances of the cause or in which the work of the solicitor in preparation for, and conduct of, the cause has been carried out;
(e) the importance of the cause or the subject-matter of it to the client;
(f) the amount or value of money or property involved in the cause;
(g) the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.
(4) In fixing an additional fee, the Auditor shall take into account any of the factors mentioned in paragraph (3)."
The Parties' Submissions
[10] On behalf of the pursuers, Mr Stevenson submitted that it was implied in rule 42.14(2)(b) that an application for the allowance of an additional fee, if it were remitted to the Auditor, would be determined by him in the course of the taxation of the account of expenses. His determination was recorded in his report, and could therefore be the subject of a note of objection. [11] The reasons which the Auditor had given for his decision indicated that he had erred in law in his interpretation of rule 42.14 and had failed to have regard to a material consideration. [12] First, in the paragraph of his note which began with the letter "A", the Auditor seemingly considered factor (a) mentioned in rule 42.14(3). He referred expressly to "the criteria in Rule of Court 42.14(3)(a)", and to "the complexity of the cause", but then concluded:"Whilst this may be novel it does not, in the Auditor's view, raise any questions of difficulty."
It appeared therefore that the Auditor had construed rule 42.14(3)(a) as imposing three "criteria" (to use the Auditor's term) - complexity, novelty and difficulty - each of which had to be "satisfied". The pursuers had apparently fallen at the final hurdle. This approach was however mistaken. The complexity of the cause, and the number, difficulty or novelty of the questions raised, were not cumulative criteria, each of which had to be satisfied, but individual factors to be taken into account.
[13] Secondly, factor (b) mentioned in rule 42.14(3) - "the skill, time and labour, and specialised knowledge required, of the solicitor or the exceptional urgency of the steps taken by him" - did not appear to have been considered by the Auditor. The pursuers had sought the allowance of an additional fee on the basis that it was justified by factor (b), amongst others. At the diet of taxation, the expertise of the pursuers' solicitors had been accepted on behalf of the defenders. [14] Thirdly, in considering factor (c) mentioned in rule 42.14(3) - "the number or importance of any documents prepared or perused" - the Auditor had said that the documentation did not "satisfy any additional fee being granted under rule 42.14(3)(c)" because he was not satisfied that the number or importance of the documents was "any more than in a case of a similar nature". That however was not the correct approach. Factor (c) did not stipulate that, before the number or importance of the documents could be relevant, it must be more than in other cases of a similar nature. [15] In these circumstances, Mr Stevenson submitted that the court should remit the account of expenses to the Auditor for further consideration on the correct legal basis, in accordance with rule 42.4(4)(a). Reference was made to Wood v Miller 1960 SC 86. [16] Finally, Mr Stevenson said that the procedure followed in the present case, whereby the Auditor did not determine the application for an additional fee at the diet of taxation, but issued a decision, unsupported by reasons, in his report, had been introduced by the present Auditor. The previous practice had been for the Auditor to append to his report a statement of his reasons for disallowing items such as an additional fee. If that had been done in the present case, the pursuers would have known the reasons for the refusal of their application when they received the report. If that were not done, however, the pursuers had no means of ascertaining the reasons, other than by lodging a note of objection. The procedure by way of note of objection involved further expense, which might prove to be needless if the Auditor's reasons, once provided, proved to be satisfactory. Mr Stevenson submitted that the Auditor should give reasons for his decision on an application for an additional fee, at latest, at the time when he issued his report. [17] On behalf of the defenders, Mr Milligan accepted that the Auditor's determination of an application for an additional fee could be the subject of a note of objection. The additional fee was an item in the pursuers' account of expenses, which the Auditor had disallowed. Reference was made to Urquhart v Ayrshire and Arran Health Board 2000 SLT 829 and to Gupta v Ross [2005] CSIH1. [18] In relation to the Auditor's reasons, Mr Milligan accepted that factor (a) did not lay down criteria which required to be satisfied, but rather mentioned a number of factors, any of which would be relevant. He submitted, however, that the Auditor had approached factor (a) correctly: all that the Auditor meant was that it did not follow automatically that, because a cause was complex and raised a novel question, an additional fee must therefore be allowed. Reference was made to Wood v Miller and to Gray v Babcock Power Ltd 1990 SLT 693. Factor (b) was a discretionary matter. Although it was not clearly dealt with in the Auditor's reasoning, that was in all likelihood due to the time which had elapsed before the Auditor was asked for his reasons. Reference was made to McAdam v Shell UK Ltd 1991 SLT 881. In relation to factor (c), and also (as I understood) factors (a) and (b), Mr Milligan conceded that the Auditor's reasoning was not wholly satisfactory, but submitted that it was capable of being read in such a way as to support his decision.Discussion
[19] Considering first the nature of the present proceedings, I note that the 1994 Act of Sederunt enabled the court to remit to the Auditor an application for the allowance of an additional fee. Until then, any such application was determined by the court, and the court's determination could be brought under review by means of the ordinary processes of appeal. When the power to remit such applications to the Auditor was introduced, no provision was made in the relevant rule of court (rule 42.14) as to the review of the Auditor's determination. It cannot have been intended that the Auditor's determination should be unreviewable; and it is unlikely to have been intended that the mode of review, in default of any other, should be by way of judicial review, requiring the commencement of fresh proceedings to which the Auditor was himself a respondent. The intention must have been that the Auditor should determine the application in the course of the taxation of the account, and therefore that he would be addressed on the application at the diet of taxation. The procedure followed in the present case, whereby the application was formally determined by means of an item for an additional fee being included in the account (in an amount which, of necessity, was indeterminate) and then disallowed in the Auditor's report, would therefore appear to me to have been appropriate. The item having been disallowed, objection could therefore be taken to the Auditor's decision in relation to that item, in accordance with rule 42.4(1) and (2). The note of objection is admittedly of a somewhat unusual nature, in that the party whose application for an additional fee has been refused cannot usefully specify the amount of the alteration sought in the account, as would ordinarily be appropriate (Crossan v Caledonian Railway Co (1902) 5F 187, 190 per Lord Trayner; Urquhart v Ayrshire and Arran Health Board at paragraph 9, approved in Gupta v Ross). Rule 42.4(4)(a) however permits the court to remit the account to the Auditor for further consideration; and, in the event that he had refused an application for an additional fee on a basis which was erroneous in law, it would appear to me to be appropriate to adopt that course and remit the account to him so that the application could be further considered on the correct basis, as explained in the opinion of the court. [20] Considering next the objection on its merits, it is necessary to begin by examining the terms of rule 42.14. Paragraph (3) imposes a duty upon the Auditor: in determining whether to allow an additional fee he "shall take into account any of the following factors". The import of the words "any of" is not perhaps immediately apparent. They were absent from the predecessor of rule 42.14, namely rule 347(d) of the 1965 Rules of Court:"In all cases an additional fee may be allowed at the discretion of the court to cover the responsibility undertaken by the solicitor in the conduct of the case. The court in deciding whether to allow such a fee and if it is allowed the Auditor in fixing it shall take into account the following factors ..."
The effect of rule 347(d) was to require the court (and the Auditor) to take account of all the factors mentioned and to make an overall assessment of whether an additional fee was appropriate "to cover the responsibility undertaken by the solicitor in the conduct of the case". As was stated in the opinion of the court, delivered by Lord President Hope, in Gray v Babcock Power Ltd, at page 695:
"The proper approach to the application of the rule is to examine the facts and circumstances of each case under reference to the various factors to which the rule refers and to assess their weight".
The Lord President however also said, at page 696:
"One other point was raised in the course of argument before us on which we should express an opinion. Counsel for the pursuers suggested that the wording of the preamble to rule 347(d) had given rise to doubt and some divergence of practice in the Outer House as to how it should be applied. The particular words to which our attention was directed were those which introduce the list of factors, namely, 'The court in deciding whether to allow such a fee and if it is allowed the Auditor in fixing it shall take into account the following'. The suggestion was that the relative functions of the court and of the auditor in these matters was (sic) not clear, and that if the court were to record its decision to allow an additional fee by making reference to particular factors in this list the effect would be to fetter the discretion of the auditor when the matter came before him for the fee to be fixed. We understand that, although it was at one time the normal practice for the particular factors to be mentioned in the interlocutor, this is not now always done. The reason for this change in practice may well be a desire to ensure that the auditor is free to have regard to such of the factors in the list as he thinks appropriate. In our opinion a decision by the Lord Ordinary to have regard to one or more particular factors only in allowing an additional fee does not fetter the discretion of the auditor to examine the matter afresh when the case is brought before him. The auditor will almost always be in a better position than the court to consider what weight should be attached to the matters mentioned in para. (7), that is any other fees and allowances payable to the solicitor in respect of other items in the same litigation and otherwise charged for in the account. However that may be, the auditor is required by the rule to have regard to all the factors in the list in all cases in which an additional fee has been allowed by the court, irrespective of the particular paragraphs on which the Lord Ordinary has relied in deciding that an additional fee is appropriate. On the other hand the views which have been formed by the Lord Ordinary are likely to be of assistance to the auditor, especially if the case has gone to proof and the Lord Ordinary has had the advantage of hearing all the evidence and examining in detail the questions which the litigation has raised. So we consider that the proper practice, irrespective of whether the matter has been dealt with after proof or following an extrajudical settlement, is for the Lord Ordinary's decision to be recorded in the interlocutor with particular reference to the factors which he considers appropriate. This can be done by including a statement in the interlocutor that the Lord Ordinary has found the party entitled to an additional fee in terms of the rule having regard to paras. (1) and (2) or otherwise as the case may be".
Although this passage refers to "a decision by the Lord Ordinary to have regard to one or more particular factors only in allowing an additional fee", it is apparent from the passage as a whole that those words were not intended to qualify the stipulation that the court, like the Auditor, was "required by the rule to have regard to all the factors in the list in all cases". Although the court was required to have regard to all the factors in the list, it was nevertheless envisaged, in the passage quoted, that there would be "particular paragraphs on which the Lord Ordinary has relied in deciding an additional fee is appropriate". For the assistance of the Auditor in quantifying the additional fee, it was therefore decided that, as a matter of practice, the Lord Ordinary's decision should be recorded "with particular reference to the factors which he considers appropriate".
[21] The introduction of the words "any of", in rule 42.14(3) and (4), implies that the court and the Auditor are no longer required to have regard to all the factors listed. The court (or the Auditor, as the case may be) is required to take into account at least one of the factors listed, since it cannot determine to allow an additional fee without taking into account any of those factors. It can therefore decide to allow an additional fee taking into account only one factor, or a number of factors. [22] Considering factor (a) in particular, the court can decide to allow an additional fee taking into account "the complexity of the cause and the number, difficulty or novelty of the questions raised". The word "or", in factor (a), appears to me to be used disjunctively. There are not a number of criteria - the number of questions raised, their difficulty and their novelty - all of which require to be satisfied in order for factor (a) to justify the allowance of an additional fee. [23] As regard factor (c) - "the number or importance of any documents prepared or perused" - it seems to me that those words do not require the court to identify a category of cases to which the instant case belongs and then consider whether the documents involved in the instant case are unusual or exceptional within the context of that category. If that approach were to be followed, then whether an additional fee was appropriate in a particular case would not only depend on the circumstances of that case, but also, crucially, upon how widely or narrowly one defined the category to which it belonged. As was made clear in Gray v Babcock Power Ltd, however, the proper approach is to examine the facts and circumstances of each case under reference to the various factors. In that case, Lord President Hope observed, at page 695:"[T]he wording of the rule ... directs attention to the particular circumstances of the case and makes no attempt to generalise or to encourage the placing of cases into pre-arranged categories."
That observation was made in relation to the old rule 347(d), but appears to me to be equally apposite in respect of rule 42.14.
[24] Considering the reasons given by the Auditor for his decision in the present case, in the light of the foregoing observations, the first point which needs to be made is that the Auditor was not requested to give his reasons until eight months after the decision had been issued. No explanation has been advanced for that delay. After such a lapse of time, the Auditor is liable to have had greater difficulty recollecting in detail the circumstances of the case, the submissions which he heard, and the reasons underlying his decision, than he would have had if the matter had been raised more promptly. I would refer to the observations made by the court, in relation to delay in the requesting of an opinion from a Lord Ordinary, in McAdam v Shell UK Ltd. Mutatis mutandis, those observations appear to me to be applicable also to the Auditor. [25] Notwithstanding the delay, however, the Auditor has been able to provide an account of the submissions and of his reasons. Those reasons appear to me to give rise to uncertainty as to whether he directed himself properly as to the interpretation of rule 42.14. The reasons which he gives, in accordance with rule 42.4(2)(b), should enable the court to be satisfied that he reached his decision on a proper basis (Albyn Properties Ltd v Knox 1977 SC 108, 112 per Lord President Emslie). In the present case, it is not clear to me that the Auditor directed himself properly as to factor (a). What he said is reasonably capable of being interpreted as implying that factor (a) contained a number of criteria, including those of novelty and difficulty, all of which had to be satisfied. For the reasons which I have explained, such an approach would in my opinion be incorrect. In addition, it appears that the Auditor may have interpreted factor (c) as requiring him to carry out a comparison of the documentation in the instant case with the documentation in other cases "of a similar nature". For the reasons which I have explained, that approach is in my opinion incorrect. So far as factor (b) is concerned, the criticisms made of the Auditor's reasoning, although perhaps not entirely without foundation, appear to me to be less compelling. It is true that factor (b) was referred to in the pursuers' application, and that no mention is made of it in the Auditor's account of his reasons. On the other hand, given that factor (b) was not addressed in the pursuers' statement of the reasons why an additional fee should be allowed (reference was made to "head B", but the matter was not developed), or apparently in the submissions made on behalf of the pursuers at the diet of taxation, the Auditor's failure to mention it is unsurprising. [26] In the circumstances, the appropriate course is to remit the pursuers' account of expenses to the Auditor for further consideration of the pursuers' application for the allowance of an additional fee in the light of the foregoing observations. [27] As I have mentioned, I was invited by Mr Stevenson to hold that the Auditor should give reasons for his decision on an application for an additional fee, at latest at the time when he issues his report. Reference was made in that connection to the practical problems said to ensue if reasons are only issued in response to a note of objection. I was not however referred to any authority bearing on the point, or addressed on the circumstances in which the court should issue directions to the Auditor. [28] There can be no doubt that the Auditor, like other officials, is subject to direction by the court on questions of law. I am not however persuaded, at least as presently advised, that the Auditor is under a legal obligation to give reasons for his decision on an application for an additional fee prior to being ordered to do so by the court under rule 42.4(2)(b). There is nothing in the provisions relating to the taxation of accounts which requires the Auditor to give a reasoned decision on points of objection either at the diet of taxation or in his report. It is only if objection is taken to his report that he then comes under an obligation to state his reasons by minute, on being ordained to do so by the court. This is broadly analogous to the position of a Lord Ordinary deciding an application made by motion: he is not obliged to give the reasons for his decision at the time, but must (in general) issue a note or opinion explaining his reasons if a reclaiming motion is enrolled. It is true that, if a Lord Ordinary were to reserve his decision and issue it in writing, the written decision would normally include an explanation of the reasons for the decision. The rules of court relating to taxation do not however require that the Auditor's report should include a statement of his reasons, and no such requirement is in my view implied, since it would render redundant the obligation under rule 42.4(2)(b) to state the reasons at a later stage in the form of a minute. [29] Whether it would be desirable, as a matter of practice, for reasons to be given by the Auditor for his decision on an application for an additional fee, at latest at the time when he issues his report, is a matter on which I do not consider that it would be appropriate for me to express an opinion. In general, matters of practice relating to taxation can appropriately be regulated by the Auditor himself, who is the holder of an important and long-established office. If it is necessary for the court to intervene, that can be done by Practice Note or, if need be, by the amendment of the rules of court, after consideration on a wider basis than is possible in the context of the present proceedings. [30] Finally, it is necessary for me to deal with the expenses of the procedure on the note of objection. Mr Stevenson submitted that expenses should follow success, and that, if the objection were held to be well-founded, the defenders should therefore be found liable in expenses. Mr Milligan, on the other hand, moved that the expenses should be reserved until the outcome of the Auditor's reconsideration of the application was known. He submitted that the problem had been created by the Auditor, not by the defenders. The note of objection could not be granted unopposed: there required to be a hearing. The pursuers would therefore have incurred the same expense whether the defenders had taken part in that hearing or not. [31] The procedure on the note is consequential upon the Auditor's refusal of the pursuers' application for an additional fee, which had been opposed by the defenders. The note was not withdrawn, but proceeded to a hearing, because the reasons given by the Auditor in his minute suggested that he might have misdirected himself. In a case of this kind, where the Auditor is said to have misdirected himself, and a remit is sought to have the Auditor reconsider the application, a hearing on the note is necessary even if the remit is not opposed. In the present case, the defenders' participation in the hearing, to oppose the note, did not materially increase the length of the hearing. In these circumstances, it would not in my opinion be equitable to require the defenders to bear the entire expense of the procedure on the note. Although it is unfortunate that the pursuers have been put to expense, the responsibility does not lie with the defenders. I shall therefore make no award of expenses.Conclusion
[32] In the circumstances, I shall remit the pursuers' account of expenses to the Auditor for further consideration of the pursuers' application for the allowance of an additional fee in the light of the observations in the present opinion, and make no award in respect of the expenses of the procedure on the note.