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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Delhi and London Bank v. Loch [1895] ScotLR 32_202 (15 January 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0202.html Cite as: [1895] ScotLR 32_202, [1895] SLR 32_202 |
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Page: 202↓
Lord Low, Ordinary.
The pursuers in a petitory action were allowed to amend their record, under condition of paying the defender's expenses subsequent to the date of closing. The pursuers' amendments contained certain new averments as to Indian law, and, in order to get information to enable her to answer these averments, the defender employed Indian solicitors and took the opinion of Indian counsel. When the defender's account of expenses was submitted to the Auditor he disallowed the expenses connected with the inquiries made in India, on the ground that they were covered by the session fee, provided for in the second general regulation of the Act of Sederunt of 15th July 1876. Objections having been lodged by the defender to the Auditor's report, held that the pursuer's amendments having raised fresh questions of facts, the defender's inquiries into Indian law were legitimate expenses to be charged against the pursuer, and were not covered by the session fee.
An action was raised on 31st May 1893 by the Delhi and London Bank against Mrs Ann Loch concluding for payment of £6000, as executrix of her deceased husband John Adam Loch.
The pursuers averred that in 1847 they had lent John Adam Loch, who had been in the Bengal Civil Service, a sum of £1400; that in 1859 they had instituted legal proceedings against him for recovery of their debt in the Courts at Delhi, and had obtained decree for payment of 18,869 rupees, which with interest, and less certain payments made to account, made the sum now sued for.
On 17th February 1894 the Lord Ordinary allowed the parties a proof before answer. The defender reclaimed against this interlocutor.
On 16th March 1894, after counsel had been heard on the reclaiming-note, the pursuers were allowed to lodge a minute containing proposed amendments, and these were subsequently, on 26th October 1894, allowed on condition that the pursuers should pay the defender's expenses subsequent to the closing of the record.
The pursuers' amendments contained averments as to the rules and practice of the Delhi Courts, which did not appear in the record as originally framed.
To meet these averments the defender obtained the opinion of Indian counsel, and instituted an inquiry in India as to the practice of the district courts. When the defender's account was submitted to the Auditor for taxation he disallowed all expenses incurred by the defender in this inquiry, and, inter alia, struck out an item of £30, being the “account incurred to the defender's Indian solicitors for procuring information at Delhi and elsewhere, necessary for preparation of answers.” His ground for disallowing these items was that they were covered by the session fee, as provided by the Act of Sederunt of 15th July 1876.
The second general regulation of that Act provides that “The session fee provided in the table shall be held to cover all communications, written or verbal, between the agent or client, and also between the different agents who may be employed for the client.”
The defender objected to the report on the ground that the items struck out did not fall under the rule of session fees.
The pursuer maintained that the rule did apply —Consolidated Copper Company v. Peddie, January 17, 1878, 5 R. 531.
At advising—
We have to consider what were proper expenses to be allowed since the closing of the record. The Auditor has solved the difficulty in a simple way by considering that all these expenses fall within the rule of sessional fees.
That rule seems to me to be quite inapplicable. We have to consider what course could he legitimately pursued in consequence of the amendment. There was necessarily an inquiry into questions of facts, because the pursuers' averments as to Indian law constituted fresh questions of facts, and such an inquiry does not fall under the rule of sessional fees. We are not in a position to go into details. The case must go back to the Auditor, for he has not considered the details, thinking that they were covered by the general sessional order.
The Court pronounced the following interlocutor:—
“The Lords having considered the Auditor's report upon the defender's account of expenses, along with the note of objections to said report for the defender, and heard counsel for the parties, Remit to the Auditor to report of new: Find the defender entitled to the expenses of this discussion: Modify the sum to three guineas, for which decern.”
Counsel for the Pursuers — Cooper. Agents— Henry & Scott, W.S.
Counsel for the Defender— W. Campbell. Agents— Boyd Jameson, & Kelly, W.S.
