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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackie & Co. v. Gibb [1899] ScotLR 37_36 (26 October 1899)
URL: http://www.bailii.org/scot/cases/ScotCS/1899/37SLR0036.html
Cite as: [1899] SLR 37_36, [1899] ScotLR 37_36

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SCOTTISH_SLR_Court_of_Session

Page: 36↓

Court of Session Inner House Second Division.

Tuesday, October 26. 1899.

[ Lord Stormonth Darling.

37 SLR 36

Mackie & Company

v.

Gibb.

Subject_1Expenses
Subject_2Fees to Counsel
Subject_3Jury Trial
Subject_4Case Settled before Trial Begun.
Facts:

An action of damages for slander. which stood second upon the roll of cases set down for trial upon a particular day, was settled upon the day of the trial, while the case before it upon the roll was proceeding, and in conseequence the trial did not go on. By the terms of settlement the defenders agreed to pay the pursuers' expenses. Upon taxation of the account the Auditor reduced the counsel's fees for the trial from twenty and fifteen guineas to fifteen and twelve guineas respectively. The pursuers objected to this reduction, and the defenders did not appear to support it. Held ( diss. Lord Young) that the Auditor ought not to have reduced the fees in

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respect of the trials not having gone on under the circumstances stated, and that accordingly the objection must be sustained, and fees allowed as originally charged.

Observations upon the propriety of interfering with the Auditor's decisions upon such matters.

Headnote:

This was an action at the instance of Richard Mackie & Company, steamship owners, Leith, and the individual partners of that firm, against Robert Shirra Gibb, the registered proprietor of the Scottish Critic Journal, and Hay, Nisbet & Company, Limited, Glasgow, printers and publishers of the said journal, in which the pursuers concluded for payment of the sum of £1000 as damages for slander.

The case was set down for trial by jury on Monday, 17th July, and it was No. 2 in the roll of cases for that day. Counsel were instructed for the trial. The case which stood No. 1 upon the roll lasted until about twelve o'clock noon. While it was proceeding negotiations took place with regard to the present case, the result of which was that the defenders agreed, inter alia, to retract the allegations complained of, to pay a sum in name of damages, and to pay the pursuers' expenses. The case was accordingly settled upon these terms, and consequently did not go to trial. The defenders had not previously made any offers of settlement. The statement complained of by the pursuers contained allegations seriously affecting the pursuers' commercial reputation, and the defender pleaded veritas.

In taxing the pursuers' account the Auditor reduced the fees to senior and junior counsel for the trial from twenty and fifteen guineas respectively to fifteen and twelve guineas respectively. The pursuers lodged a note of objections against this reduction.

The defenders did not appear to support what the Auditor had done.

Argued for the pursuers— The fees charged were the ordinary and usual fees for a jury trial lasting one day, and in the circumstances of this case were not excessive. The only ground which could be suggested for the reduction was that the case did not in fact go on owing to the settlement, and that was not sufficient to justify it, because here counsel had prepared for the trial, and had made their arrangements upon the understanding that this case was to go on.

 Judgment:

Lord Justice-Clerk— As an ordinary rule we would not interfere with the discretion exercised by the Auditor; but here I think the Auditor was plainly wrong. This case, which was to have been tried before me, was certainly an important one for the pursuers, and required care and skill in handling. Only the usual and customary fees for a jury trial were sent. There was nothing here to take the case out of the ordinary rule as to jury trial fees except that the case did not go on. If that is the ground upon which the Auditor has made the deduction objected to, and no other has been suggested, I think it is a wrong ground. When counsel are instructed they have to prepare, and they have to practically give up all other work. Whether the trial goes on or not their professional day is gone. The fees sent here were not extravagant, and as no sufficient ground has been stated for reducing them, I think we should restore the fees originally charged, and give decree for the amount of the account as taxed, with the addition of the sums taxed off their fees by the Auditor.

Lord Young—The only specialty in this case is, that notice of their objections was given to the other side, and that they have notified the objectors that they will not appear. Even in view of that I am not inclined to interfere with the Auditor's decision. We know nothing of the case or its circumstances. The Auditor is the proper person to inquire. We have usually followed the rule observed in England, where they have infinitely more experience of such matters than we have, of never interfering with the decision of a taxing-officer. I think we ought to follow that rule here. What the Auditor has done here is to reduce the counsels' fees for the trial from twenty guineas and fifteen guineas to fifteen guineas and twelve guineas. We do not know what were the circumstances. We have had no communication with the Auditor. I do not think we ought to have communicated with him as to such a case as this. The only specialty here is that there is no opposition to the objections; but I think a party is entitled to rely upon our following the rule that the Court will not interfere with what the Auditor has done in such matters, and not to incur the expense of appearing. I think, therefore, that there is no reason for interfering here, and that we should refuse to sustain the objections.

Lord Trayner—I agree with your Lordship in the chair. I think the action of the Auditor now objected to was quite wrong, and I have no hesitation in saying so, and I would add that we are just as able to judge of this matter as the Auditor, who could know nothing more about the case than we have now learned from the statement of the objectors' counsel. The Auditor has struck off part of the fees sent to counsel— fees quite warranted by the practice and the decisions of the Court— because the case was settled by the parties before the jury were empanelled, and the counsel was accordingly not engaged in the case for the whole day as had been expected. But the Auditor overlooks or disregards the fact that counsel had arranged to devote their day to the case, and in all probability had given up other engagements to enable them to do so. There is no principle to justify what the Auditor has done. If he strikes off so much of a fee because the cause is settled before the jury is empanelled, how much will he strike off if the case goes to the jury but is settled after the examination of the first or second witness? The whole day (for which the fee is given when

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sent by the agent) is not occupied in the one case more than the other. I have now, and have always had, the view that the Auditor should not interfere with the fees actually sent to counsel, unless in very exceptional cases. The agent who sends the fee knows better than any other person can, what is a proper honorarium to send— he best knows the amount of labour involved in preparing for and conducting the case.

I have no such feeling as has been expressed as to the inexpediency or impropriety of interfering with the Auditor. After all, the Auditor is an officer of Court, and if he errs the Court is bound to put him right, as it would any other officer. It is not without significance that the party pecuniarily interested in maintaining the Auditor's view had not appeared to support it. I suppose he felt satisfied (as he well might) that the Auditor's view could not be maintained

Lord Moncreiff—I entirely agree with the majority of your Lordships. The objection is one which is easily stated and as easily understood, and it is so formidable that the losing party whose interest it was to support the view of the Auditor does not appear to oppose.

The Court pronounced this interlocutor—

“The Lords sustain the objections by the pursuers to the Auditor's report on their account of expenses to the effect of adding £8, 16s. 6d. to the taxed amount thereof: Quoad ultra, approve of said report and decern against the defenders for the sum of £179, 18s. 9d., being the taxed amount of said account with the addition foresaid: Find the pursuers entitled to two guineas of expenses for discussing said objections, for which also decern.”

 Counsel:

Counsel for the Pursuers— Salvesen. Agents—Beveridge, Sutherland, & Smith, S.S.C.

 1899

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