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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Arthur v. Lindsay and Others [1895] ScotLR 32_680 (13 July 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0680.html Cite as: [1895] SLR 32_680, [1895] ScotLR 32_680 |
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Page: 680↓
(Ante, vol. xxxii. p. 335.)
On objections to a report of the Auditor, held (1) that a fee to senior counsel at the adjustment of the record fell to be allowed; (2) that, where the Court allowed a party “two-thirds of the expenses as the same shall be taxed,” the duty of the Auditor was first to tax the account, and then deduct one—third from the taxed amount; and (3) that, where three defenders were represented by the same agent, though by separate counsel, and one only was found entitled to expenses, the successful defender was only entitled to one—third of the agent's charges for work done by him on behalf of all the defenders jointly.
In this action which was an action of damages for slander at the instance of Dr Hugh Arthur, Airdrie, against Alexander Lindsay, William Jameson, and Robert Shanks, Airdrie, the jury awarded the pursuer damages against the defenders Lindsay and Shanks, but returned a verdict for the defender Jameson. The Court, on being subsequently moved to apply the verdict, pronounced the following interlocutor;— “On pursuer's motion apply the verdict, and in respect thereof decern against the defender Alexander Deuchar Lindsay to make payment to the pursuer of £250, being the damages assessed by the jury upon the first issue, and decern against the defender Robert Shanks to make payment to the pursuer of £25, being the damages assessed by the jury on the first issue applicable to the said defender, and on the motion of the defender William Glasgow Jameson apply the verdict, and in respect thereof assoilzie him from the conclusions of the action, and find him entitled to expenses against the pursuer, and decern; Find the pursuer entitled to two-thirds of the expenses against the defenders Alexander Deuchar Lindsay and Robert Shanks, as the same shall be taxed: Remit the accounts of expenses now found due, when lodged, to the Auditor to tax and to report.”
Upon the Auditor's report coming before the Court the pursuer took objection to it, in respect (1) that the Auditor had disallowed a fee paid to senior counsel for adjustment of the record.
Argued for the pursuer—This was an important stage of the case, and one where a senior counsel might be reasonably called in. Moreover, it was a case of great importance, involving as it did the professional character of the pursuer. There were precedents for allowing the fee — Stott v. M' William, March 1, 1856, 18 D. 716; Clay v. Home, June 7, 1838, 16 S. 1125.
The Court sustained the objection.
The pursuer objected (2) that the Auditor had taxed the account on a wrong principle. By the interlocutor of the Court it had been found that the pursuer was entitled to two-thirds of the expenses against the defenders Lindsay and Shanks, as the same should be taxed. The Auditor had first disallowed the whole items upon which the pursuer had been unsuccessful, and had then struck one-third off the remainder, following the principles adopted in M'Elroy v. Thar sis Copper Company, June 28,1879, 6 R. 1119. But this should not have been done in the present case, for the Court by striking one-third off the pursuer's expenses had intended roughly to deduct that amount for his non-success on certain of the issues. The Auditor, therefore, should have gone on the assumption that the pursuer was entitled to the whole expenses, and simply struck of one-third of that amount— Strang v. Brown & Son, July 19, 1882, 19 S. L.R. 890; Rigley v. Downie, July 16, 1872, 9 S.L.R. 627.
The Court repelled the objection, holding that the meaning of the interlocutor was, that the account should be taxed in the ordinary way, and thereafter one-third deducted.
(3) The defender Jameson objected that the Auditor had struck off two-thirds of certain of the items in his account. The three defenders had employed the same agent, but each of them had been represented by different counsel. Where the agent had discharged a duty which might be held applicable to all three defenders, the Auditor, following the case of Robertson v. Stewart, July 15, 1875, 2 R. 970, had allowed this defender only one-third of the agent's fees. But this ease was distinguishable, for there was really only one case in Robertson v. Steuart, and the two
Page: 681↓
defenders gave joint instructions, and the successful defender was entitled to relief from the other; here there was no joint defence, and this defender was not entitled to relief. Accordingly, he was entitled to the whole of his agent's fees. The Court repelled the objection, on the ground that the real test was the amount the defender would be out of pocket, and that he would only be liable to pay one—third of the charges in question, the other two defenders being respectively liable each for one-third.
The Lord President was absent.
Counsel for the Pursuer — Salvesen — Clyde. Agents— Drummond & Reid, W.S.
Counsel for the Defender— Lindsay — Younger. Agents— Menzies, Bruce Low, & Thomson, W.S.
Counsel for the Defender— Jameson — Glegg. Agents— Menzies, Bruce Low, & Thomson, W.S.
