A v British Broadcasting Corporation & Ors [2009] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2009] CSOH 18

A111/07

OPINION OF

LADY CLARK OF CALTON

in the cause

'A', c/o Balfour & Manson, Solicitors, 54-56 Frederick Street, Edinburgh, EH2 1LS

Pursuer;

against

(FIRST) British Broadcasting Corporation, a corporation established by Royal Charter and having a place of business at Broadcasting House, Queen Margaret Drive, Glasgow, G12 8DG; and (SECOND) Saltire Film and Television Productions Limited, a company incorporated under the Companies Acts with its Registered Office at the Yacht Harbour, Inverkip, Greenock, Renfrewshire, PA16 0AS

Defenders:

Pursuer: A Clark; Balfour and Manson LLP

Defenders: Hamilton; Burness

11 February 2009

Introduction

[1] The pursuer raised an action of interdict against the defenders following upon intimation of the first defenders' intention to broadcast a television programme containing footage of the pursuer. The second defenders edited the film footage and produced a series, in three programmes, to be broadcast by the first defenders. The first programme of the series was screened on 19 February 2007. At the end, a trailer for the second part briefly showed the pursuer. The second part was due to be broadcast on 26 February 2007. Following upon urgent consultation with counsel, the summons was lodged for signet on 23 February 2007. A hearing on the pursuer's motion for interdict ad interim was arranged to take place on 23 February. My understanding is that the first defenders alone took an active part in opposing the motion. The first defenders provided an appropriate undertaking, following upon which a continued hearing was arranged to take place on 27 February 2007. After further discussions on 26 February 2007, the hearing of the motion was further continued to 13 March 2007. Following upon negotiation and adjustment of a suitable undertaking on 12 March 2007, the continued hearing was restricted to the issue of expenses. The first defenders were found liable to the pursuer for the expenses of process, including the expenses of the hearing on 13 March, by interlocutor dated 13 March 2007.

[2] Thereafter a judicial account of expenses was prepared and a diet of taxation took place on 9 October 2007 before the Auditor of the Court of Session (hereinafter referred to as "The Auditor"). The Auditor heard detailed submissions. Thereafter the Auditor taxed the pursuer's judicial account of expenses (no 10 of process) and made abatements totalling £12,196.96.

[3] On 20 December 2007, the note of objections for the pursuer (13 of process) was allowed. The Auditor was ordained to state by minute, the reasons for his decision in relation to items to which objection is taken in the note. The minute by the Auditor is 14 of process. The account of expenses is 10 of process.

[4] At the hearing in respect of the pursuer's note of objections the pursuer and first defenders were represented. There was no appearance on behalf of the second defenders.

Note of objections and minute by the Auditor in response thereto

[5] The note of objections listed ten objections (a) - (j). At the hearing counsel for the pursuer did not insist in objections (a) and (c). The objections which were maintained by counsel for the pursuer relate to some of the fees claimed by junior and senior counsel. I list the items in the order set out in the note of objections.

[6] Objection (b) relates to:

Paid junior counsel, "considering additional papers and commencing drafting of detailed summons - engaged 5 hours (Voucher 2) - £1,000 plus VAT."

In response, the minute by the Auditor stated:

"On 12 February junior counsel sought a fee of £1,000.00 for discussions with senior counsel, considering additional papers and commencing a draft detailed summons. On the same date, junior counsel was allowed by the Auditor £850.00 for preparation for and attendance at a consultation. Junior counsel sought a further fee on 22 February 2007 of £1,400.00 for considering further papers, discussions with senior counsel and continuing preparation of detailed summons. The Auditor allowed fees of £850.00 for the consultation, £1,000.00 for framing the summons and £2,000.00 for preparing for and attending the hearing on 23 February. It is unreasonable to burden the paying party with charges for "his discussions with senior counsel". A fee for consultation has been allowed at which all matters would have been canvassed. The charges allowed are reasonable on a party and party basis."

[7] Objection (d) relates to:

Paid senior counsel, "re extensive preparation for Interim Interdict and Hearing including revisal of lengthy draft Summons, engaged all day to 7.30 pm (Voucher 1) - £2,750 plus VAT."

In response thereto the Auditor of the Court of Session stated:

"Senior counsel sought a fee of £2,750.00 on 22 February 2007 for preparation for an interim interdict hearing the following day and revising the summons drafted by junior. A further fee of £3,000.00 is sought for further preparation and attendance at the hearing on 23 February 2007. The hearing lasted no more than one and a half hours when the defenders provided an undertaking and the hearing was continued to a later date. The Auditor allowed a fee of £3,000.00 for the hearing on 23 February. This is a substantial fee to reflect the difficulties, complexities and urgency of the case. It subsumes preparation undertaken by senior counsel. In Jarvie (supra) para [37] Lord Carloway states, "If preparation is charged separately, that is a factor which ought, it should follow, to be taken into account in determining the daily rate....". The Auditor has allowed senior a fee of £2,250.00 for a consultation three days before the hearing. A daily rate of £3,000.00 is awarded only in the most complex and valuable cases. The total fee of £5,250.00 for the consultation, preparation and conduct of the hearing is wholly reasonable on a party and party basis. It is unreasonable to burden the paying party with the cost of revising the draft summons."

[8] The remaining objections are dealt with together by the Auditor and include:

(e) Paid senior counsel, "re preparation for Continued Motion - engaged 5 hours (Voucher 1) - £1,500.00 plus VAT."

(f) Paid junior counsel "re preparation for Continued Hearing - engaged 2 1/2 hours (Voucher 2) - £500 plus VAT."

(g) Paid senior counsel, "advising re Undertaking (Voucher 1) - £150.00 plus VAT."

(h) Paid senior counsel "considering proposed Undertaking and discussions with defenders' Counsel regarding same (Voucher 1) - £300 plus VAT."

(i) Paid senior counsel "attending Continued Interdict Hearing including all preparation and revisal of draft Undertaking - Diet set down for three days and concluded in one - 1.5 days charged (Voucher 1) - £1,500.00 plus VAT."

(j) Paid junior counsel "preparing for and attending Continued Hearing (Voucher 2) - £1,000.00 plus VAT."

In response the Auditor stated:

"On 26 February 2007 senior counsel sought a fee of £1,500.00 and junior counsel of £500.00 for preparation for a continued hearing set down for 27 February 2007. This continued hearing followed the initial calling of the case on 23 February. At the hearing on 23 February 2007 the defender had given an undertaking to the court that for all time coming subject to any order of the court, they would not broadcast any film or videotape of the pursuer. From the minute of proceedings it is clear that this hearing on the 27 February 2007 did not call but a hearing did take place on 13 March 2007. Both senior and junior counsel had already been allowed significant fees by way of preparation and attendance at the hearing on 23 February 2007, namely £3,000.00 for senior counsel and £2,000.00 for junior counsel. On the 26 February 2007 the defender had approached the pursuer indicating they wished the hearing continued until a later date in order that they could fully consider the position. As a result, the case did not call on 27 February 2007. On 2 March the defence was withdrawn but the undertaking was not produced until the day before the continued hearing. The only live issue on 13 March was expenses. The Auditor has approached counsels' fees for the hearing in the same way as the hearing on 23 February. The fees awarded of £3,000.00 to senior and £2,000.00 to junior are reasonable to cover all the work done on a party and party basis from the hearing on 23 February until the close of the hearing on 13 March. In taxing the account the Auditor was fully aware of the complexity and urgency of the proceedings. The fees allowed to counsel fully reflect this and are reasonable on a party and party basis."

[9] The Auditor dealt separately with items (b) and (d) and gave a cumulative response to items (e) - (j). In his minute, the Auditor stated that he referred to and received guidance from the following authorities. Cooper and Wood v North British Railway Co. (1863) 2M. 346; Caledonian Railway Co. v Greenock Corporation 1922 S.C. 299; Macnaughton, 1949 S.S.C. 42; Wood v Miller 1960 S.C. 86 at pp97-98; Ahmed's Trustees v Ahmed (No. 1), 1993 S.L.T. 390 at 394; City of Aberdeen Council v W.A. Fairhurst and Others 2000 C.L.R. 392 and Kathryn Jane Jarvie v Greater Glasgow Primary Care NHS Trust 2006 CSOH 41. The Auditor did not give further explanation about what guidance he relied on from the authorities cited.

The submissions on behalf of the pursuer

[10] Counsel for the pursuer explained that the background to the case was unusual. The case involved complex issues at the interface of freedom of expression and privacy relating to a child aged 13. Counsel required to deal with the matter urgently. The summons involved difficult issues and urgent preparation was required for the hearing which was due to be held on 23 February. An undertaking by the first defenders was given when the motion for interim interdict was continued until 27 February and this involved further work by counsel for the pursuer. On 26 February, it was agreed that there would be no appearance on 27 February and there was a continuation to a three day hearing on 13, 14 and 15 March. That three day diet was marked in the diary of both junior and senior counsel for the pursuer. On 3 March an undertaking in the appropriate terms was requested from the first defenders. There was no response from the first defenders during the period 2-12 March. On 12 March the matter was resolved and an undertaking in acceptable terms to the pursuer was made available by the first defenders. The outstanding matter of expenses was to be dealt with on the 13March. Counsel for the pursuers had been instructed for the three day hearing throughout the period up to 12 March. At that date, it became clear that a proof would not be necessary and that a hearing on expenses only would take place on 13 March.

[11] Counsel for the pursuer made some reference to the cases referred to by the Auditor in particular Ahmed's Trustees v Ahmed and City of Aberdeen Council v W A Fairhurst &c. In relation to the former case he submitted that the Court is entitled to interfere if after scrutiny of the reasons given by the Auditor, it clearly appears that he has misstated, mistaken or misunderstood the material put before him. That is different from a criticism of the relative weight to be attached to the various elements involved. On the facts of the case, the Auditor did misdirect himself in failing to consider the question of counsel's entitlement to remuneration for work of preparation properly instructed. The Auditor expected that prior to and at the pre-proof consultation, counsel would have reviewed all the evidence to be led at the proof and discussed it. This was not the correct approach. If work was properly instructed and carried out and was reasonable for the proper conduct of the case, the work will qualify for appropriate remuneration. Referring to the City of Aberdeen Council v W A Fairhurst, counsel for the pursuer submitted that unlike the present case, that case contained a comprehensive statement of the reasons for the Auditor's decision. That case concerned specialities about commitment fee which did not arise in the present case. Under reference to Magee v Glasgow City Council 2003 SLT 777, he emphasised that it is necessary to examine the detail of each individual item claimed as a fee in order to identify whether the Auditor had truly erred in the exercise of his discretion. Magee v Glasgow City Council illustrated a situation in which the Auditor had erred in taxing off the whole of senior counsel's fee for revising the summons. Such revision was a well established practice in appropriate circumstances which included cases of importance to the client, cases of complexity and difficulty and with a higher potential value. Counsel emphasised that the Auditor had to give relevant reasons for his decisions about individual claims. In the present case counsel for the pursuer submitted that the reasoning of the Auditor was not clear. In his submission, some of the reasoning appeared to be background narrative and there was a failure to give reasons as required by the relevant Rule of Court 42.4(2)(b)(ii). Counsel for the pursuer referred to Jarvie v Greater Glasgow Primary Care NHS Trust which the Lord Ordinary considers Ahmed's Trustees v Ahmed in paragraphs 36 to 39 in relation to fees for preparation for a proof and instructions to appear at the proof. The Lord Ordinary was of the opinion that it is not necessary for the Auditor to provide a detailed analysis of his reasoning about how he reached the particular figure, for days of preparation. It was submitted that the Auditor was applying his knowledge and experience to the case as disclosed on record and in the account and supporting voucher. There is no need for the Auditor to repeat the content of these documents to set out what the parties already know about the nature of the case and the work carried out in connection with it. The Auditor is expressing a view, based on his knowledge and experience, that he considers that a particular number of days is reasonable for a case of the particular type and complexity. That view will normally be respected by the court, unless some misunderstanding or other defect in reasoning is apparent."

In paragraph 42 the Lord Ordinary expressed some disagreement with the approach adopted by the temporary judge in Magee v Glasgow City Council. The Lord Ordinary stated that the task of the Auditor is not to assess "compensation" for counsel. The task of the Auditor is to decide what in all the circumstances is reasonable to have charged as an outlay by agents against an unsuccessful opposing party in respect of the instruction of counsel.

[12] Turning to the particular items, various points of detailed criticism were made by counsel for the pursuer. In summary it was submitted that the problem was the absence of any detailed explanation given by the Auditor. The Auditor dealt with the various claims in such a broad and brief way that it was not possible to work out clear reasons for a particular decision. As a result the pursuer is unable to understand what approach has been adopted and whether the approach of the Auditor is justified.

[13] In relation to objection (b), it was submitted that the reasons given were not clear.

[14] In relation to objection (d), it was submitted that the length of the hearing on 23 February was shortened because the defenders provided an undertaking in the course of the hearing. The Auditor does not explain why he excludes the preparation fee for 22 February and the fee for revising the summons bearing in mind he accepts that this is a complex case. It was submitted that his approach does not make sense.

[15] In relation to items (e) and (f), it was submitted that the Auditor should have accepted that there had been further developments in the case up to the 27 February. Counsel had to prepare to run the case on 27 February. In so far as the reasoning can be understood, the Auditor appears to give a fee for preparation for the earlier hearing on 23February. That does not explain the Auditor's refusal to accept that further preparation thereafter required to be done. The Auditor should have been slow to reach the conclusion that senior counsel spent 5 hours on completely unnecessary work. It was plain that there were telephone calls and other matters occurring and that further information was being gathered. In relation to objection (g), the Auditor does not deal with this as a separate item and no specific reason is given for excluding this work. The same applied to objection (h). In relation to objection (i) and (j), the Auditor requires to address whether one day is a reasonable fee for a three day hearing that was discharged the day before. The Auditor has not considered the question whether a competent solicitor would have engaged and instructed senior and junior counsel for the three day hearing and whether payment is due.

Submissions on behalf of the first defenders

[16] Counsel for the first defenders set out some general propositions to this effect. He submitted that it is not the function of the Court of Session to review an exercise of a discretion by the Auditor to substitute its own view of the material or come to a different view about the relative weight to be attached to the various elements. The Court should always be slow to intervene. The Court is not engaging in a re-hearing of the debate in front of the Auditor. The Court may legitimately interfere with the Auditor's decision in the following circumstances. If the Auditor has (a) proceeded on the basis of irrelevant material; (b) left relevant material out of account; (c) misunderstood the material; (d) misdirected himself on that material or the law or (e) made an unreasonable decision. The exercise of reasonableness in the Auditor's judgment is informed by his skill and experience and reference to case law. The central function of the Auditor's role is to moderate fees which it would be excessive for one party to pay another. In support of the general propositions, the first defenders prayed in aid Wood v Miller 1960 SC 86 at 98; Malpas v Fife Council 1999 SLT 499 at 500; The City of Aberdeen Council v W A Fairhurst [1999] Scot CS 176; Macnaughton v Macnaughton 1949 SC 42 at 46; Cooper Wood v North British Railway Co (1863) 2M 346 at 347; Kathryn Jane Jarvie v Greater Glasgow Primary Care NHS Trust 2006 CSOH 41 para 34-37.

[17] Having dealt with the general context in which the Auditor operates and the limited circumstances in which the Court of Session was entitled to interfere with the Auditor's decision, counsel for the first defenders made submissions in relation to the specific items.

[18] In relation to objection (b), counsel for the first defenders submitted that the present case is different from Ahmed's Trustees v Ahmed. In the present case the Auditor had plainly allowed for preparation in a variety of different ways. In relation to objection (d), it was submitted that there was no authority that revision of a summons by senior counsel must be reflected in the fee. The approach of the Auditor was to look at the matter generally and at the overall fees. The Auditor has not left preparation out of account. He has approached the matter broadly as he is entitled to do.

[19] In relation to objections (e) and (f), it was submitted that parties knew the day before that the hearing on 27 February would not take place. The fee note submitted contains sums for preparation. There is no fee note in which a cancellation fee is sought. Similarly in relation to objection (g) and (h), it was fair for the Auditor to wrap up these small matters. The consideration and revising of the undertaking was central to the continued hearing. In relation to objections (i) and (j) which are the fees in respect of senior and junior counsel for the 13 March, it was submitted that on 2 March it was plain that the case would not proceed to proof. The questions for discussion at the hearing on 13 March were the content of the undertaking and expenses. There was an e-mail from the agents of the first defenders to the pursuer's agents to the effect that they need do no more preparation. The Auditor had allowed a second fee for all the work up to 13 March. Counsel for the defenders referred to the approach of the Lord Ordinary in Jarvie v Greater Glasgow Primary Care NHS Trust at paragraphs 34 to 39. That explained what it is reasonable for the Auditor to do.

In conclusion it was submitted that the pursuer's motion to remit back to the Auditor should be rejected. It is for the Auditor to use his skill and experience to set an appropriate fee according to the Rules of Court. The Auditor did so and gave reasons for that in his minute. The reasoning of the Auditor may be brief but the matter was fully explored and considered at taxation.

Further submissions in response on behalf of the pursuer

[20] Counsel for the pursuer submitted that the Lord Ordinary's opinion expressed in Jarvie v Greater Glasgow Primary Care NHS Trust requires to be put in context. The Auditor had given detailed reasons at some length in that case. It was the absence of such detailed reasoning in the present case that caused the problem. It was not sufficient for the Auditor to repeat the words of the Rule of Court and claim reasonableness. Counsel referred to Helen McLean McIntosh or Petrie &c v North Co-operative Limited 24 March 2005 paragraph 25. In that case the Lord Ordinary stated

"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...."

[21] Counsel for the pursuer submitted that the pursuer's account of expenses should be remitted to the Auditor for further consideration and explanation in the light of the objections lodged.

Discussion

[22] I am satisfied that the appropriate test to be applied by the Court in considering the reasons of the Auditor is reflected in Wood v Miller 1960 SC at page 98 and Malpas v Fife Council at pages 500-501. The Auditor is required to apply the terms of Rule of Court 42.10(1) to consider in an objective manner whether the relevant expense was "reasonably incurred for conducting the cause in a proper manner". The Auditor is also required to give reasons for his decision in terms of Rule of Court 42.4 (2)(b)(ii). That does not mean that every individual item of work or preparation done by a reasonable counsel anxious to best present his case is an expense which must be borne by the opposing unsuccessful litigant. It was accepted by counsel for the parties that the Auditor when exercising his function requires to exercise his own judgement and that the Court would be slow to interfere with the Auditor's decision bearing in mind his specialist role and expertise.

[23] I do not consider that any significant point of principle arises in this case in relation to the approach of the Auditor. Counsel for the pursuer criticised the adequacy of the reasons given by the Auditor in response to the note of objections. I accept in some cases the Auditor has given more extensive and detailed reasoning than in the present case but that does not mean that the reasons given are insufficient in the context of the present case. I accept that it is appropriate to consider the reasons given by the Auditor in respect of each item of expense which is in dispute.

[24] In relation to objection (b), I do not consider that the submissions on behalf of the pursuer are well founded. In my opinion, the reasons given by the Auditor are clear. He has approached the matter broadly as I consider that he was entitled to do. The Auditor has allowed a substantial fee for the drafting of the summons which involves consideration of papers against the background of discussions which have taken place. He has considered all the items of work claimed and applied his judgement. In my opinion the same applies to objection (d). The Auditor has approached the matter, as is plain from his response, on the basis that he has included preparation in the fee allowed for the hearing on 23 February. I accept that in some cases it may be reasonable to allow a fee to senior counsel for revising the draft summons. I consider that in this case the Auditor is approaching the matter broadly, as he is entitled to do. On that broad approach he excludes certain items including the cost of revising the draft summons. I do not read his response as indicating that he excludes any item because it could never be properly chargeable on a party and party basis. If that was his approach, I accept that his decision might be subject to challenge.

[25] I summarise the remaining objections (e) - (j) and the response of the Auditor thereto in paragraph 8. I do have some difficulty with the reasoning of the Auditor in relation to the said items. The Auditor takes a broad approach in relation to the items feed and concludes "the fees awarded of £3,000 to senior and £2,000 to junior are reasonable to cover all the work done on a party and party basis from the hearing on 23 February until the close of the hearing on 13 March". My difficulty with this is that it is plain that the fees rendered relate to two separate hearings in respect of which counsel were instructed, namely the continued hearing of 27 February 2007 and the hearing on 13 March. The hearing on 27 February did not take place, following discussions on 26 February 2007, when the hearing was continued for the three days until 13 March 2007. The Auditor in dealing with this does not express any view as to whether or not he considers that the pursuer's solicitor was justified in maintaining instructions for counsel for three days commencing 13 March. On one reading of the Auditor's response, the Auditor does not appear to accept that counsel for the pursuer were properly continually instructed for a three day hearing until 12 March. If there was proper instruction until 12 March for a three day hearing, issues about a "disappointment fee" arise and that may have an impact on the way in which the other fees claimed are dealt with by the Auditor. To that extent therefore I consider that there is merit in the criticisms of counsel for the pursuer which I have summarised in paragraph 15. It is plain from the submissions on behalf of the defenders which I have summarised in paragraph 19 that the defenders' position in relation to expenses is that from 2 March it was clear that a three day hearing on the merits would not be required on 13 March. That is not accepted on behalf of the pursuer. It is an issue which requires in my opinion to be resolved by the Auditor and in respect of which reasons should be given by him. As it is unclear from the general way in which the Auditor has dealt with objections (e) - (j) to what extent his views about the disputed issue may affect his approach to the other items claimed, I consider that also requires to be clarified.

[26] For these reasons, I conclude that the pursuer's account of expenses should be remitted to the Auditor for further consideration and explanation in respect of objections (e) - (j). I reserve the question of expenses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A v British Broadcasting Corporation & Ors [2009] ScotCS CSOH_18 (11 February 2009) URL: http://www.bailii.org/scot/cases/ScotCS/2009/2009CSOH18.html Cite as: [2009] CSOH 18, [2009] ScotCS CSOH_18

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