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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackellar v. Mackellar [1898] ScotLR 35_695 (19 May 1898) URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0695.html Cite as: [1898] ScotLR 35_695, [1898] SLR 35_695 |
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Page: 695↓
(Ante, p. 483.)
Expenses
In support of a note of objections to the Auditor's report taxing a successful litigant's account, the party found liable in expenses took exception to a number of items allowed by the Auditor, and at the same time suggested that the Court, instead of reviewing the account in detail, should modify a lump sum as reasonably representing the amount of the successful party's expenses, The Court, holding that there was no precedent for the course suggested, sustained the note of objections quoad certain of the specific charges objected to.
A fee of eight guineas and four guineas to senior counsel for a debate in the summar roll on the relevancy of a summary petition— the debate
Page: 696↓
occupying a Saturday forenoon and an hour on the following Tuesday— disallowed as excessive.
The Court in this case remitted back to the Auditor to tax the petitioner's account as between party and party.
Upon the Auditor's report coming up of new for approval, the respondent presented a note of objections thereto, taking exception to certain items allowed by the Auditor as excessive or extrajudicial.
Objection was taken, inter alia, to fees of eight guineas and four guineas allowed to senior counsel, and of five guineas and three guineas allowed to junior counsel, for a debate in the summar roll on the relevancy of the petition on 5th and 8th November 1897; and charges amounting to £16 for copying certain correspondence relating to the subject of a previous action between the parties and certain other correspondence were also objected to.
The respondent argued that the fees allowed to counsel were grossly excessive. The discussion on relevancy had only occupied a Saturday forenoon and one hour on the following Tuesday morning. The correspondence, for copies of which a charge had been allowed, had nothing to do with the present action. The whole account was excessive, and the simplest method of dealing with it would be for the Court to fix a lump sum which would reasonably represent that portion of the expenses of the petition to which the petitioner had been found entitled. [ Lord President— Can you give us any authority, Mr Hunter, in support of a proposal which prima facie seems not unreasonable? Hunter, for the respondent, replied that he had been unable to find any authority for his suggestion.]
Counsel for the petitioner having been heard in answer to the note of objections,
But the next point which I observe upon is that if, passing from the aggregate sum which I say is startling, you look at the items, it does not strike one as very like an account taxed as between party and party. There are a latitude and indulgence in dealing with the items which I confess rather startle me. There stand out two items on which I think the charges are excessive in one and inadmissible in another. I have no doubt that learned counsel frequently, or at least occasionally, receive twelve guineas from their own clients on a debate on the relevancy of a petition and answers. But it certainly strikes one as clearly over the line of what can be allowed as a legitimate charge between party and party, and I have no doubt Mr Hunter was right in saying that there was no precedent for it. The other item which I think is inadmissible is where there are copies allowed of some long and stale correspondence relating to a previous litigation.
The question is, how can we deal with this account? and I own that I think the taxation is scarcely in accordance with the spirit and terms of the interlocutor. But then the Auditor has authority to deal with those subjects, and it is extremely difficult as a practical matter for the Court to tax an account over again. It seems to me, therefore, that we must do the best we can for Mr Hunter's client by striking out and modifying those items which are clearly appreciable by ourselves. I think we should strike out the allowance of those copies of the correspondence which has been in dispute, and that we should reduce the fees allowed at the debate. Your Lordships will probably have your own views as to the proper amount.
The Court sustained the objections quoad the fees to counsel under dates 5th and 6th November 1897, and the fees for copying correspondence, amounting in all to £26, 7s. 6d., and decerned in favour of the petitioner for £106, 3s. 5d., being the taxed amount of the petitioner's account less the above sum.
Counsel for the Petitioner— C. K. Mackenzie. Agent— Alexander Campbell, S.S.C.
Counsel for the Respondent— Hunter. Agents— Menzies, Bruce-Low, & Thomson, W.S.