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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell & Others v. Burness [1878] ScotLR 15_739 (20 July 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0739.html
Cite as: [1878] ScotLR 15_739, [1878] SLR 15_739

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SCOTTISH_SLR_Court_of_Session

Page: 739↓

Court of Session Inner House First Division.

Saturday, July 20. 1878.

15 SLR 739

Mitchell & Others

v.

Burness.

Subject_1Judicial Factor
Subject_2Law Agent
Subject_3Fees
Subject_4Judicial Factor not Entitled to Act as Agent for the Estate.
Facts:

A judicial factor, who was partner of a legal firm, employed that firm to conduct his defence to an action raised for division of the funds under his charge. Held that the firm were not entitled to any business charges against the estate in the factor's hands beyond those of outlay.

Headnote:

This was the sequel of the case reported ante, June 19, 1878, p. 640, and came before the Court now upon the report of the Auditor, who desired the Court to say whether he was to allow Mr Burness, the judicial factor, whose legal firm, Messrs W. & J. Burness, W.S., had acted as his agents, to charge the expenses incurred by him in defending the action against the fund. The Auditor doubted the competency of doing so, on the authority of Lord Gray Others, Nov. 12, 1856, 19 D. 1.

It was submitted for Mr Burness that on the authority of Scott v. Handyside's Trustees, March 30, 1868, 6 M. 753 (Lord Deas’ opinion ad fin.) there was an exception in favour of the factor in the case of process business.

At advising—

 Judgment:

Lord President—The Auditor has not disposed of the question whether Mr Burness as law agent is entitled to make certain charges against the trust-estate, but has reported that point to us.

The state of the facts is this—Mr Burness was judicial factor, and while holding that office the firm of which he was a partner acted for him in the judicial proceedings connected with the

Page: 740↓

estate under his management. The question is, Whether his firm is entitled to charge for their services in conducting these proceedings? I am sorry for the operation of the rule of law in this particular case, but the rule we must follow is that which was laid down in the class of cases which were all decided under the name of Lord Gray. We cannot go back upon that decision. The mere fact that Mr Burness had left that part of the country where the factory business was conducted and had devolved the management of it on another gentleman can make no difference.

I am therefore of opinion that we must remit to the Auditor to disallow all the charges except those by which Mr Burness has been out of pocket.

Lord Deas—I had some hope that the charges here would fall under an exception. We were referred to the case of. Scott v. Handyside's Trustees, in which I made a reference to the case of Findlay's Trustees and to Lord Colonsay's note in that case. The effect of that was said to be, that while a party in the position of judicial factor or trustee was excluded from making ordinary law charges against the estate under his charge, an exception was allowed in the case of process business. That question was not at issue in Scott's case. It was a very troublesome case to decide, as the whole papers required to be examined in order to see whether the party making objection to the charges was barred from doing so. What is said there about process business is merely incidental. It takes a very careful examination of Lord Gray's case in order to discover that process business was included in the accounts there. I have examined the accounts, and I see that process business was comprehended in several of them. It is impossible after the decision of the whole Court in that case to say there is any such exception, and accordingly I am of the same opinion as your Lordship.

Lord Mure—The principle of Lord Gray's case applies here. The rule laid down there and in the two English cases quoted in the Lord Justice-Clerk's opinion in that case must be applied to the case before us, although I must say I regret it in the circumstances of this case.

Lord Shand—I am, like all your Lordships, quite satisfied that in this case all the expenses charged by the firm to which Mr Burness belongs were necessarily and properly incurred; for Mr Burness, who was judicial factor on the estate, only did his duty in defending the fund against the claim that was made for its division. But at the same time the Court has no choice but to apply the broad rule that was laid down in the case referred to by your Lordships in the full consciousness that it might in some case press hardly. The principle of that rule is directly applicable, viz., that one holding the office of factor and occupying therefore a position of trust cannot receive any remuneration for his services as law agent.

The Court therefore remitted the account back to the Auditor to tax on the principle of allowing only costs out of pocket, and to report.

 Counsel:

Counsel for Factor— Thorburn, Agents— W. & J. Burness, W.S.

 1878

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URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0739.html