This lamentable litigation concerns a distance of 380 millimetres, although even on that measurement there were a few minutes of debate between the parties' solicitors, before a consensus was reached, as to whether it might be 375mm or 400mm. The proof lasted 12 days and took over a year to complete.

It concerns the boundary between two plots of ground close to the centre of Inverness. There is a modest dwe1linghouse on each plot.

The bare bones of the facts in the dispute are straightforward. The pursuer owned a dwellinghouse and garden ground. She decided to build a house for her son on a plot in the garden. She applied for and obtained planning permission. She chose not to proceed, but decided instead to sell the plot. The defenders purchased it. They applied for and obtained planning permission to build a house different in character to the one for which the pursuer had permission. In the course of clearing the site, the defenders used a digger to dig out ground along what they maintain is the boundary between the plot and the ground retained by the pursuer. She objected that the digging had encroached upon her ground. She obtained an interim interdict against the defenders. There has been no further encroachment. She no longer seeks a final interdict. The purpose of the proof is for the court to decide upon whom the expense of the action should fall, notwithstanding that, on any view, the expense of the proof must have been far more than the expense of the action to that point.

The court may, on a motion made on or after the date of any interlocutor disposing of expenses, pronounce a further interlocutor regarding those expenses allowing a percentage increase in the fees authorised by the Table of Fees to cover the responsibility undertaken by the solicitor in the conduct of the cause. In fixing the amount of the percentage increase the following factors shall be taken into account -

(i)                  the complexity of the cause and the number, difficulty or novelty of the questions raised;

(ii)                the skill, time and labour, and specialised knowledge required, of the solicitor,

(iii)               the number and importance of any documents prepared or perused;

(iv)              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;

(v)                the importance of the cause or the subject-matter of it to the client;

(vi)              the amount or value of money or property involved in the cause;

(vii)             the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.

2.                  Importance to the client etc

The pursuer's solicitor pointed out, in support of this ground, that the pursuer is a private individual with limited resources. On that ground alone, the action was plainly of great importance to her, given the financial risks involved. The subject-matter of itself would inevitably - and did in reality - cause her considerable anxiety. The action involved her home; the defenders were claiming nearly a half metre of her garden ground; she might lose a patio which was important to her. Because of these factors, the solicitor had been involved in a lot of ''handholding'', with much agent/client contact which would be taxed off by the Auditor. The importance of the matter to the pursuer was not to be tested objectively, but by her actual state of anxiety.

The defenders' solicitor submitted that the importance to the client must be tested objectively; just because the pursuer was excitable does not mean that the action is objectively important. Every court action is likely to be important to a litigant.

It is clear that what the court must do is to decide whether a percentage increase of fees is appropriate to cover the responsibility undertaken by the solicitor in the conduct of the action. The rule then goes on to specify the factors (often colloquially referred to as "the seven pillars of wisdom'') which the court must take into account. It is obvious that in almost all actions, the factors will apply to some or other extent. It is therefore a question of degree in each case as to whether an additional fee is appropriate. I was not referred to any authorities, but I respectfully agree with the dictum of Lord Johnston in Keystone Properties Limited v Sun Alliance and London Insurance plc, unreported 7 June 1994, in which he stated, "In my opinion, the Rule of Court is designed primarily to reward solicitors upon whom special (my italics) responsibilities are imposed qua solicitor in the conduct of the case".

2.      Importance to the client etc

In describing this litigation in my judgment as 'lamentable', it is obvious that I did not think it to be important at all, even recognising, as I did, that feelings can run high where there are disputes about boundaries between heritable properties.

Nevertheless, I can accept that the factor as set out in the rule does not in express terms rule out the possibility of an uplift in fees because only the client sees the cause or the subject-matter as especially important. At the end of the day, the rule requires the court to consider an uplift of fees from the point of view of the solicitor, not the client. An anxious client may well increase the solicitor's responsibility.

In my opinion, the court should be slow to award an increase simply because a litigant is having to take a risk with his own funds. Expenses are an important factor in ensuring parties look to compromising a dispute and it would be unfortunate if the court simply as a matter of course awarded an uplift to the privately funded litigant and thereby, if only in a small way, discouraged settlement. That is not to rule out such an award in appropriate cases, but I do not think that this is one of them.

I consider that different considerations apply to the importance of the subject-matter. It is well known that owners of heritable property, particularly when it is their home, can become very anxious indeed about an alleged encroachment. That doubtless often reflects badly on them, but it is rarely the fault of the solicitor who acts on their behalf. It seems to me that such cases - and this is a very good (or bad!) example - can often result in a special responsibility being placed upon the solicitor, such that an uplift of fees is appropriate.

I therefore conclude that the motion ought to be granted but only in respect of the second factor relied upon, being number (v) in the rule, and that only to the extent of the importance of the subject-matter of the cause to the pursuer.

I will allow a percentage increase of ten per cent in the fees authorised by the Table of Fees in respect of the expenses awarded to the pursuer.

The Sheriff has misdirected himself in allowing an increase in circumstances where "only the client sees the cause or the subject-matter as especially important." While the Rule does not, in express terms, rule out the possibility of an uplift in fees on such a basis, it does not, nevertheless, allow of such an interpretation.