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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Forbes v. Whyte [1891] ScotLR 28_486 (17 March 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0486.html Cite as: [1891] ScotLR 28_486, [1891] SLR 28_486 |
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Page: 486↓
A successful litigant in the Court of Session, who lived at a distance from Edinburgh, and who had conducted his own case in its various stages, lodged an account of expenses including railway fares, personal expenses while in Edinburgh, and a daily allowance for detention from business.
The Auditor taxed his account on the principle that he was not entitled to professional fees but only to a reasonable allowance for his trouble.
The Court, while of opinion that a litigant who conducted his own case was not entitled to remuneration for time and trouble, in respect of no objections by the other party, decerned for the sum found due by the Auditor.
On 30th September 1890 a petition was presented in the Court of Session by Simon Forbes, distiller, Peterhead, praying for the sequestration of the estates of George Whyte, at one time a distiller in Aberdeen, and latterly a commercial traveller in London.
On 21st October the Lord Ordinary, after hearing parties, refused the petition.
Page: 487↓
The petitioner reclaimed, and on 29th November their Lordships of the First Division refused the reclaiming-note, with expenses.
The respondent lodged with the Auditor an account of his expenses, amounting in all to £55, 6s. 4d., and including railway fares between Edinburgh and London and Aberdeen, personal expenses at £1, 11s. 6d., and an allowance of £3, 3s. per day for detention from business.
The Auditor taxed off £43, 4s. 10d., leaving as the amount of the account £12, 1s. 6d.
In a note the Auditor stated that he had been informed that the respondent was a commercial traveller in London, that he (the respondent) “states his expenses on this footing, that he is entitled to charge his travelling expenses to and from his place of residence for the time, with personal expenses at 31s. 6d. per day, and an allowance of £3, 3s. per day for time detained from business. My view is that he is not entitled to professional fees, but only to a reasonable allowance for his trouble, and that having elected to conduct his case personally, in place of employing counsel and agent in the usual way, he is not entitled to charge more than if he were resident at the seat of the Court.” …
The respondent lodged objections to the Auditor's report in respect of the items disallowed.
The reclaimer did not object to the sum brought out as due to the respondent.
At advising—
In his report the Auditor explains the principle upon which he has proceeded—[ His Lordship here read the passage in the report quoted above].
Mr Whyte's objection practically comes to this—He says that he is entitled to all of what he calls outlays and other charges, his railway fares and other expenses in coming to Edinburgh from Aberdeen and from London, his personal expenses while in Edinburgh during the discussions, at the rate of £1, 11s. 6d. per day, and a sum of 3 guineas a day for the time when he was detained from business in consequence of his attendance in the Court.
Now, for myself, I should require further consideration before I could hold that when a person conducts his own case he is entitled to any remuneration at all for his trouble in the matter. If he is entitled to anything in name of outlay, I think it must be of the most moderate description, but for a party who is living at a distance to come here each time the case is in the roll and conduct his own case personally, and then charge substantial sums for outlay, personal expenses, and loss of time, is absurd. The Auditor has allowed about £12 as being a reasonable allowance to Mr Whyte. As I have said, I doubt whether anything at all should be allowed, but we cannot consider that from the way in which the matter comes before the Court, the other party not having lodged a note of objections. All we can do is to repel Mr Whyte's objections, which I am of opinion we ought to do.
Nor as at present advised am I prepared to allow a person conducting his own case anything for his personal expenses, railway fares, hotel bills, and so on.
But as no objection is taken by the other party to the Auditor's report, we may give decree for the sum which the Auditor has allowed.
But, in any case, I am clear that such litigant is not entitled to more than a reasonable allowance for his outlays, judicial and extrajudicial. And it seems to me that in the whole circumstances of this case the sum here allowed by the Auditor fairly represents such reasonable allowance.
The Court repelled the objections, and decerned for the sum found due by the Auditor.
Counsel for the Petitioner— Sym. Agent— A. Morison, S.S.C.
Counsel and Agent for the Respondent—Party.
