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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Dougall and Mandatory v. Girdwood. (Ante iv. 140, iii. 367.) [1867] ScotLR 5_127_1 (19 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0127_1.html Cite as: [1867] SLR 5_127_1, [1867] ScotLR 5_127_1 |
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Page: 127↓
(Ante iv. 140, iii. 367.)
Circumstances in which the Court (1) allowed the expense of a third counsel at the trial, and also at the discussion on a rule (discharged) and a bill of exceptions (refused): (2) allowed fees to counsel only on the scale sanctioned in Cooper and Wood; allowed expense of certain chemical analyses; (4) disallowed expense of attendance
Page: 128↓
of scientific witnesses resident in Edinburgh and Glasgow, except for the actual days of trial.
This was a note of objections for the pursuers to the auditor's report on their account of expenses.
The pursuer M'Dougall, manufacturing chemist, had sued Robert Girdwood, wool-broker, for damages on account of infringement of patent. The pursuer described his invention as consisting in the “use of heavy oil of tar, or dead oil, or crude carbolic acid, or creosote, obtained in the destructive distillation of carbonaceous substances. These materials I heat with an alkali, and add a saponifiable fatty substance.” The object of the composition was to destroy the vermin on sheep. The defence was that the “Improved Melossoon, or Sheep Protecting Dip,” sold by the defender was not substantially the same as the pursuer's invention, but was different in composition. The case was set down for trial on 4th April last, and was called on Monday, 8th April. Several chemists were examined on either side. The jury, on 10th April, returned a verdict for the pursuer. The defender presented a bill of exceptions. which was discussed on 25th June last, along with a rule for a new trial. The Court disallowed the exceptions, and discharged the rule. The pursuer's account of expenses was given in and taxed by the auditor. In taxing the account the auditor taxed off—From 110 guineas, paid to the pursuer's senior counsel for the trial, a sum of 55 guineas; from 80 guineas, paid to a second counsel, he taxed off 40 guineas; and from 30 guineas, paid to a third counsel, he taxed off 13 guineas. The pursuer had charged for 61 analyses of different runnings of pitch oil, of different samples of oil of tar, of samples of Girdwood's Original Melossoon Dip, &c., by chemists called by the pursuer to give evidence as to the infringement of his patent by the defender. The charge made for each analysis was three guineas. The auditor only allowed the expense of 18 analyses.
The pursuer had charged for six days' attendance of Dr Stevenson Macadam, Edinburgh, as witness at the trial, from 4th to 10th April, 12 guineas—the auditor struck off six guineas; for seven days' attendance by Professor Penney, Glasgow, the pursuer charged 14 guineas—the auditor struck off six guineas.
The pursuer also charged for the attendance at the trial of two witnesses, to prove samples of the Original Melossoon Dip. The auditor disallowed the charge.
The auditor reserved for the consideration of the Court the question whether this was a case for allowing the expense of a third counsel at the trial, and at the discussion on the rule. With regard to the rate of fees allowed to counsel, he thought that the higher rate of fees allowed in Duke of Buccleuch v. Cowan and others, 17th July 1867, 5 Macph. 1054, and here claimed by the pursuer, ought only to be allowed in cases of the greatest magnitude and difficulty, and that the present case fell rather under the rule sanctioned in Cooper and Wood v. N. B. Railway Company, 2 Macph. 346, and Hubback v. N. B. Railway Company, 2 Macph. 1291.
The pursuer objected to the auditor's report, in so far as he had taxed off the items mentioned, amounting to £291.
Balfour, for pursuer, cited Duke of Buccleuch v. Cowan and Others, and also Steven v. M'Dowall's Trustees, 19th March 1867; 3 Scot. Law Rep., 320.
Watson in reply.
Lord President—As I tried this case, and as I had also the misfortune to try the Banchory-Devenick case, I may as well at once state my impression. First, as regards the propriety of having three counsel, I do not entertain any doubt that the case was such as fairly to justify either party in having the benefit of three counsel. The only point on that head attended with any difficulty is, whether the expense of the third counsel should go beyond the actual trial, for the auditor's report brings up the question whether that expense should be allowed in the discussion on the motion for a new trial, and on the bill of exceptions. I am rather inclined to take the more liberal view in this particular case, because, if this case had gone to a second trial, on the ground of miscarriage in law or unsatisfactory evidence, it would have been of great importance to the pursuer that his counsel, who were to conduct his case at the second trial, should have heard the discussion on the motion and bill of exceptions. I am therefore disposed to allow the expense of the third counsel at the discussion as well as at the trial.
But as regards the charges for counsel at the trial and for consultation, I have a great disinclination to disturb what the auditor has done. The rule laid down by the late Lord President in Cooper and Wood is a very salutary and just rule. It recognises that in many cases a party may have an interest and a very proper inclination to pay his counsel a larger fee than he can charge against his opponent; and we know well that such things often occur in practice. The question determined in that case was a general question. It was what, in ordinary circumstances, is a fair charge as between party and party. And when that case was brought under our notice in the Second Division, while I sat there, in the case of Hubback, we adopted it; and, therefore, it may be taken as settling the general practice. No doubt, there are exceptional cases where it is fair to allow larger fees, but these are rare. One of these is the case which has been referred to, the Esk Pollution case. Now, I think that case may be said to be almost a singular case. I do not remember any case involving so many points of difficulty, and requiring so much professional work, as that case. And no one who is practically acquainted with that case would compare it with the present in the matter of chemical analysis, for that case required more analyses than any other I ever knew. The state of the water required to be ascertained at different seasons of the year, and not only so, but on different days, and in different weeks, and months, and at a hundred different points of the river, so that the amount of analyses there required was enormous. And that was only one element in the case. And while the Second Division did what I think was quite right in allowing double fees in that case, there is no reason why we should here depart from the ordinary rule. When three counsel are allowed 112 guineas for a case lasting a little over two days, that is as much as the losing party can be called on to pay.
As to the analyses, some of them are distinguishable from others. There was one analysis of Girdwood's Original Melossoon Dip. Now, no doubt it was part of the pursuer's case, and a formidable part, to show that the defender was making a mere colourable departure from the patent preparation, and using a mixture which, though distinguishable, was substantially the same. In making that out, it was not unimportant to show that on previous
Page: 129↓
As to the evidence of the chemists about the specific gravity of oil of tar at different stages of running off, that matter is perfectly well known to the scientific and commercial world, and there is no reason to differ from the auditor.
Next, as to the expenses of witnesses waiting at the trial. The scientific witnesses resident in Edinburgh cannot be allowed to charge for attendance on days when the trial is not going on. With regard to a scientific witness from Glasgow, it is pretty plain that it is time enough to summon that witness when the trial comes on, unless he is to be the first, or one of the first, witnesses. The pursuer here must have known that the chemical part of his case would not be gone on with until a late stage.
The only other matter is the charge for the witnesses Paul and M'Dougall. As to the former, it seems to follow, from allowing the analysis of the sample of the Original Melossoon Dip, that this charge must be allowed, for Paul was necessary to prove the sample; and for a similar reason, the charge for M'Dougall must be sustained, there being no admission until the trial had begun so as to dispense with his attendance.
The result will be to allow the expense of a third counsel, the charge for the analysis of the Original Melossoon Dip by Drs Odling and Millar, and the charges for Paul and M'Dougall.
The other judges concurred.
Solicitors: Agents for Pursuer— Macnaughton & Finlay, W.S.
Agent for Defender— Andrew Webster, S.S.C.
