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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 166
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PD801/03
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OPINION OF LORD GLENNIE
in the cause
MR RICHARD HONER
First Named Pursuer;
And
MRS MANDY HONER as
individuals and as guardians of their children RICHARD HONER and COURTNEY
HONER
Second Named
Pursuer
against
MR JOHN OLIVER
WILSON
Defender:
________________
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Pursuers.: Webster; Drummond Miller
Defender.: Jones QC, Simpson
& Marwick;
Cullen QC for the
Auditor of Court
19 October 2006
Introduction
[1] This
hearing on a Note of Objections to the Report of the Auditor of Court ("the
auditor") on the pursuers' account of expenses raises an interesting and
potentially important question concerning the fees (known as the "fee fund
dues") charged by the auditor for taxing an account of expenses incurred in
judicial proceedings. More specifically,
and as the argument developed this became more apparent, it raises the question
whether the auditor, who calculates the fee fund dues in the main part as a
percentage of the amount claimed in the account of expenses submitted by the
entitled party, is entitled to include in the amount on which to make that
calculation a sum by way of an additional fee to which the pursuer has been
found entitled in terms of Rule 42.14; and, if he is so entitled in principle,
then in what circumstances and on what basis may he do so.
Background
[2] The
action between the pursuers and the defender settled extra judicially early in
about March 2005. On 31 March the court
pronounced an interlocutor in terms of which the Lord Ordinary, on the
unopposed motion of the pursuers and of consent, interponed authority to the
joint minute and in terms thereof certified a number of skilled witnesses,
"[Found] the defender
liable to the pursuers in the expenses of process; [Remitted] the account of
expenses, when lodged, to the Auditor of Court to tax"
and quoad ultra assoilzied the defender from the conclusions of the
summons. Further, in terms thereof, the
Lord Ordinary, on the motion of the pursuer (marked of consent), found the
pursuer
"entitled to charge an
additional fee in terms of Rule of Court 42.14(3) under reference to factors
(b), (e) and (g) thereof."
That is a reference to the factors
which, in terms of that Rule, the court is required to take into account in
determining whether to allow an additional fee.
[3] By
a separate interlocutor on the same interlocutor sheet (somewhat oddly bearing
an earlier date than that to which I have already referred, though nothing
turns on this), the Lord Ordinary
"[decerned] against the
defender for payment to the pursuers of the expenses referred to in the
foregoing interlocutor as the same shall be taxed by the Auditor of Court."
[4] For ease of reference, I shall refer to
the interlocutor decerning for payment simply as "the decerniture", to
distinguish it from the interlocutor determining the substantive and other
issues between the parties ("the principal interlocutor").
[5] In
terms of Rule of Court 42.1(2), the pursuers lodged an account of expenses in
process. A diet of taxation was held and
the auditor in his Report dated 10 November
2005 taxed the pursuers' expenses at £98,209.54.
Table of fees
[6] Before
looking in more detail at the breakdown of the taxed expenses, it is necessary
to refer to the Table of Fees which regulates inter alia the fee fund dues, i.e. the fees payable "in the office
of the auditor of the Court of Session" to the auditor: see Article 3 of the
Court of Session etc. Fees Order 1997.
As amended by the Court of Session etc. Fees Amendment Order 2002, the
Table of Fees provides, so far as material, as follows:
PART III - FEES IN THE OFFICE OF THE
AUDITOR OF THE COURT OF SESSION
I. OFFICE OF THE AUDITOR OF THE COURT
OF SESSION
Column
1
(Matters)
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Column
2
(Fee payable)
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Column 3
(Fee formerly
payable)
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1. Taxing accounts of
expenses incurred in judicial proceedings (including proceedings in the High
Court of Justiciary) remitted to the Auditor of the Court of Session for
taxation:
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(a) Auditor's fee on lodging
account for taxation
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£30.00
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£12.00
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(b) Auditor's fee for taxing
accounts for expenses etc.
(I) up to £400
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£16.00
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£12.00
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(ii) for every additional £100 or
part thereof
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£4.00
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£4.00
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Note: fee to be determined by the Auditor of the Court of Session
on amount of account as submitted
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2. Fee for assessing
account remitted to the Auditor to determine whether an additional fee should
be paid
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£200.00
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3. Fee for cancellation
of diet of taxation-
(a) where written notice of
cancellation received
within three working days of diet, half
of fee
that would have been payable under item
I1(b)
of this Table
(b) where written notice of cancellation received
on the working day before or the day of
the
diet, three-quarters of fee that would
have
been payable under item I1(b) of this
Table
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The text is set out at p.1207 of
the Parliament House Book. As this Table
makes clear, the auditor charges a fixed fee of £30 on the account being lodged
and a fee of, in effect, 4% on every £100 or part thereof claimed in the
account "as submitted" by the party entitled.
If the auditor is asked to determine under Rule of Court 42.14 whether
an additional fee should be paid, as opposed to merely determining the
appropriate percentage uplift, he is entitled to a fixed fee of £200 for doing
this.
The taxation and the fixing of the auditor's fees
[7] The
pursuers' account of expenses as lodged in process claimed £20,602.65 plus VAT
in respect of fees and £51, 853.84 in respect of "Outlays". These sums were totalled on p.15 of the
account in the sum of £76,061.95. The
account then claimed the following item at the bottom of that page:
"Allowance for additional
fee under heads (b), (e) and (g)
@ ....... % "
The percentage claimed for the
additional fee was left blank. A few
additional outlays were added to the claim on page 16 to bring the total
claimed for Outlays up to £52,523.59.
[8] A
diet of taxation was held at which both the pursuers and the defender were
represented. Before the diet, the
parties agreed the item for fees in the sum of £19,000 plus VAT. The auditor taxed £10,557.80 off the claimed
Outlays. He allowed an additional fee of
£25,650, which is equivalent to a percentage increase of 135% on the agreed
fees of £19,000.
[9] The
auditor fixed the fee fund dues as part of the overall assessment of the
expenses payable by the defender. He
added together the fees in the amount agreed (£19,000), VAT on those fees
(£3,325), the additional fee (£25,650), VAT on the additional fee (£4,488.75)
and the claimed Outlays (£52,523.59) to produce a total of £104,987.34. He rounded this up to the nearest £100 to
make £105,000, and then calculated the fee fund dues at 4% of £105,000, in the
sum of £4,200.
[10] It may be of interest to those who are unfamiliar with the
niceties of taxation to note that although the fee fund dues are meant to be
calculated on the amount claimed, the paying party is only required to
pay that part of the fee fund dues which is attributable to the expenses as
taxed and found due. This practice
dates back at least to the first part of the nineteenth century: see MacLaren
on Expenses at page 429 and Hogg v Balfour 1835 13S 451. In this way, the paying party is not
prejudiced by the entitled party having inflated his claim (if he has); and
indeed it acts as a disincentive to the entitled party to act in this way,
since he knows that he will be left with the liability for such part of the fee
fund dues as is attributable to the account of expenses submitted by him being
excessive. Thus, in the present case the
entitled party was left to bear part of the auditor's fee, in the sum of £420,
that being the sum referable to the taxed-off amount of £10,557.80.
The issue before the court
[11] In the Note of Objections the defender took two points. First, he criticised the percentage increase
representing the additional fee as excessive.
This point was not pursued before me.
Second, he objected that the fee fund dues charged by the auditor were
excessive. He submitted that the
additional fee awarded by the auditor should not have been included in the
amount on which the fee fund dues were calculated. The sum on the basis of which the fee fund
dues should have been calculated was the sum of the pursuers' fees (plus VAT)
and outlays as claimed in the account of expenses as lodged; but not also the
additional fee of £25,650 plus VAT.
[12] The difference in this case came to a sum of £1,200, but the
point was said to be important not only for this case but for the future.
Submissions
[13] For the defender, Mr. Jones QC submitted that the point was one
of construction of the Table of Fees.
The Note at the end of item 1.1 of Part III of the Table of Fees is
clear. It reads
"fee [i.e. fee fund dues]
to be determined by the Auditor of the Court of Session on amount of account as submitted" [emphasis added]
The auditor
had not done this. He had added to the
amount of the account as submitted the additional fee as taxed by him, and
determined the amount of the fee fund dues on the total amount including the
additional fees as taxed. The account as
submitted by the pursuers did not include a figure for the additional fee
claimed by them. The amount of the
account as submitted, therefore, was limited to the fees (plus VAT) and
outlays. That was the amount on which
the fee fund dues should be calculated.
This could be tested by reference to item 1.3(a) of the Table of Fees,
which provided that the fee fund dues payable in the event that the diet of
taxation was cancelled by the parties within three working days of the diet
would be fixed at half those that would have been payable under item 1.1(b) had
the diet not been cancelled. In other
words, they had in such a case to be calculated on the account as submitted,
since there never would be a diet of taxation in which to fix the additional
fee. The only alternative construction
was that the auditor, in the event of cancellation of the diet, would, before
fixing the level of the fee fund dues, proceed to make a notional assessment of
the additional fee, but this was unrealistic; and he would, in any event, be
acting contrary to natural justice if he were to do this in the absence of
submissions from the party affected by his decision (i.e. the paying
party). The two provisions ought to be
read consistently. Further, Mr. Jones
pointed to item 1.2 in the Table of Fees, in terms of which the auditor
was entitled to a fee of £200 if the question whether or not an additional fee should
be paid was decided by him, rather than by the Lord Ordinary. This task would be a demanding one. It would involve him carrying out much the
same sort of detailed assessment of the papers as he would have to do if he
were to assess the amount of the additional fee to which he or, in other
circumstances, a Lord Ordinary had found a party entitled. He referred me to Gray v Babcock 1990 SLT
693, which showed that even when the court found a party entitled to an
additional fee under reference to some of the factors listed in Rule 42.14, the
auditor was required in assessing the level of the additional fee to consider
all of the factors. It would be odd if
he were paid £200 for doing the work for the purpose of determining whether
there should be an additional fee; and then, if he decided that an additional
fee should be paid, be entitled to further payment (by fee fund dues calculated
at 4% on the amount of the additional fee which he assessed) for very little
more work.
[14] In support of his argument that the Table
of Fees should be construed as entitling the auditor to charge fee fund dues
only on the account as submitted and not on the final amount taxed, which in
this case included the additional fee, Mr. Jones referred me to section 3 of
the Human Rights Act 1998. That section
provides that, so far as it is possible to do so, primary and subordinate
legislation must be read and given effect in a way which is compatible with the
Convention rights. Article 6.1 of the
Convention provides that
"in the determination of
his civil rights and obligations ... everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal ..."
The case
law established that the auditor's function anent taxation of expenses formed
part of the determination of the defender's civil rights and obligations: see Robins v United Kingdom 1997 26 EHRR 527, Beer v Austria (ECHR, 6
February 2001), Ziegler v Switzerland (ECHR, 21 February 2002), McMullen v Ireland (ECHR, 29 July 2004), Cannell v Scottish Ministers
2002 SLT 634. Further, if a tribunal has
a financial or other interest in the outcome of the issue before it, that gives
rise to a doubt about its independence or impartiality: see e.g. Davidson v Scottish Ministers (No.2) 2005 SC (HL) 7, per Lord Hope at
paras.[46]-[47] and [49]. There was no
suggestion here that the auditor was actually biased, but if the proper
construction of the Table of Fees allowed the amount of the fee fund dues which
he charged to be calculated not upon the amount of the account submitted but
upon the result of his own taxation (the higher the taxed amount, the higher
the fees due to the auditor's office), that meant that he, or his office, had a
financial interest in the result of his decisions and gave rise to an appearance
of lack of impartiality. The Table of
Fees should be construed so as to avoid this.
Mr. Jones stressed that his Human Rights Act argument went only to the
question of construction. If I were
against him on construction, he was not taking a similar but separate point
under the Scotland Act 1998 as to the competence of the auditor assessing the
fee fund dues on the amount of the expenses as taxed by him.
[15] For the auditor, Mr. Cullen QC began his submissions by
questioning the competency of the defender taking a point on impartiality in a
hearing on a Note of Objections to the auditor's report. Under reference to Urquhart v Ayrshire and Arran
Health Board 2000 SLT 829, he submitted that the procedure on a Note of
Objections was designed to deal with specific items of objection to the
auditor's report. It was not
contemplated in the Note of Objections procedure that the auditor would be
represented at the hearing. This procedure
was not appropriate where, as here, there was a fundamental attack on the independence
and impartiality of the auditor and his functions.
[16] Addressing the substance of the argument, Mr. Cullen submitted
that on a proper construction the words "amount of account as submitted" in the
Note at the end of item 1.1 of that part of the Table of Fees meant "the amount
claimed by the party submitting the account of expenses for taxation". In the pursuers' account of expenses lodged
in this case, the amount claimed by way of an additional fee was left
blank. But there was no doubt that the
pursuers were claiming an additional fee, and from the auditor's Minute placed
before the court in answer to the Note of Objections it could be seen that in
submissions during the taxation process the pursuers' representative quantified
the amount of the additional fee claimed by the pursuers. He argued for a range of figures for
different parts of the account, which averaged out at an uplift on the whole
fees element of the account of between 180% and 240%. The auditor was entitled to treat this as supplementing
the written account of expenses and providing a sum claimed on which the fee
fund dues should be calculated. If that
submission was correct, there was no need for the court to have recourse to the
arguments presented under the Human Rights Act.
It was accepted that Article 6 of the Convention was engaged and it was
also accepted that if the amount of the fee fund dues depended upon the
auditor's own assessment of the fees payable (including the additional fee),
that would call into question the independence and impartiality of the
process. Mr. Cullen told me, on
instructions from the auditor who was in court throughout the hearing, that, in
practice, a figure for the additional fee was never inserted into the account
of expenses lodged in process by the entitled party. It might be that the correct course in future
would be for the auditor to insist that a figure for an additional fee were
filled in when the account was lodged.
[17] Under reference to the Act of Sederunt (Rules of Court Amendment
No.1) (Court Fees) 1979, Mr. Cullen showed me that there had been a time when
the fee fund dues were calculated on the "amount of account as taxed". This was changed in 1980 to the present
wording, the "amount of account as submitted": see the Act of Sederunt (Rules
of Court Amendment No.2) (Court Fees) 1980, bringing the position back to that
which had obtained since the early nineteenth century (see para.[10]
above). It was unlikely that that change
reflected an intention to deprive the auditor of fee fund dues on the
additional fee; yet, standing the practice of not specifying a figure for the
additional fee in the account as lodged, that would be the effect if Mr Jones
was right in his argument. Mr. Cullen
noted that at that time (i.e. 1979/1980) there was no fee specified for
the auditor determining whether an additional fee should be allowed, since he
did not then have that power. Nor was
there at that time any provision in the Table of Fees for payment of fees when
the diet of taxation was cancelled. Both
of these provisions were first introduced in 2002. It was not helpful to place too much reliance
on these recently introduced provisions when seeking to interpret the Note to
item 1.1, which predated their introduction.
[18] In a brief reply, Mr. Jones challenged Mr. Cullen's suggestion
that any perceived problem could be solved by the expedient of requiring the
party lodging the account of expenses to specify in that account the level of
the additional fee for which he was contending, a solution which I had earlier
understood him to accept. He referred to
the terms of the principal interlocutor.
The part of the interlocutor which remitted the account of expenses, when
lodged, to the auditor to tax was quite separate from that part finding the
pursuers entitled to an additional fee.
He showed me the relevant Rules of Court. Rule 42.1(2) requires a party found entitled
to expenses to lodge an account of expenses in process. The form of such an account is regulated by
Rule 42.1(9). An account of expenses
presented to the auditor requires to set out in chronological order all items
in respect of which fees are claimed.
Rule 42.1(10) deals with solicitors' fees and sets out the basis
for charging; "only such expenses as are reasonable for conducting the cause in
a proper manner shall be allowed". Rule
42.1(13) makes provision for charges to witnesses. The liability determined by the court in the
interlocutor is the liability of the paying party to pay the expenses incurred
by the entitled party. The additional
fee forms no part of this. It is, in
effect, an additional payment to the solicitors for the entitled party. It is never incurred by the entitled party
and therefore cannot properly be part of the account of expenses submitted for
taxation. It is dealt with by the
auditor as a separate exercise. If the
parties reach agreement on fees and outlays, the amount of an additional fee,
if it remains in dispute, does not go to the auditor as part of the account of
expenses to be taxed because, in those circumstances, there is nothing to be
taxed. Since the fee fund dues were
calculated on the amount of the account of expenses as submitted, and the
additional fee was not properly to be regarded as part of that account, it
followed that the auditor was not entitled to calculate the fee fund dues on an
amount which included an additional fee, whether or not a figure was inserted
into the account of expenses when lodged.
Discussion
[19] Both parties agree, correctly, that the fee fund dues should be
calculated on the amount of the account as submitted. This is what the Note to item 1.1 states in
terms. In light of this agreement -
albeit that there was disagreement both as to what "amount of account as
submitted" meant and as to whether the additional fee formed part of the
account of expenses - it is unnecessary to examine in detail the argument that
the independence and impartiality of the auditor would be called into question
under Article 6 of the Convention if the fee fund dues were calculated not on
the amount claimed but on the amount as assessed or taxed by him. On the hypothesis underlying the argument as
it was developed before me, namely that the claim for an additional fee was
left at large and the auditor could therefore select a figure and then
calculate the fee fund dues on that figure, I accept (as did Mr. Cullen) that
the auditor would have a direct financial interest in the decision made as to
the level of the additional fee and that this might give rise to an appearance
of bias. However, on one view that is
not this case. On the facts as presented
to me here, the auditor did not select the level of the additional fee in a
vacuum. He was presented with
submissions as to the appropriate level, and made an assessment significantly
below the range for which the entitled party contended. If, as Mr. Cullen submitted, the words
"amount of account as submitted" mean "the amount claimed by the party
submitting the account of expenses", and if, as he also submitted, the
additional fee is properly to be regarded as part of the account of expenses,
then the auditor could, perhaps should, have fixed the fee fund dues on the
whole claimed amount which included an additional fee of 240%. In so far as he calculated the fee fund dues
on the lower level of additional fee assessed by him, he recovered less by way
of fee fund dues than he could have recovered.
In the same way, as emerged from a consideration of the account of
expenses, he calculated fee fund dues on the agreed fees of £19,000 rather than
the fees originally claimed in the account in the sum of £20,602.65. In this respect, on any view, he charged less
by way of fee fund dues than he should have charged. Mr. Cullen told me that the auditor's
whole approach was to attempt to be reasonable.
It was not argued that a Convention point arose out of him fixing the
fee fund dues on an amount less than the claimed amount in such a case.
[20] I do not accept the argument that the Note
of Objections procedure was an unsuitable vehicle for the raising of the
Convention point in the way it was raised.
Mr. Jones relied upon it only in support of his argument on
construction. By that argument on
construction the defender challenged a specific item in the expenses taxed by
the auditor. That item was the amount
assessed by the auditor for fee fund dues.
In that respect this case differs markedly from Urquhart. The Note of
Objections was not only a proper way in which to raise this particular point;
it was the only proper and available procedure.
Accordingly, I reject Mr. Cullen's argument on the competency of the
present proceedings. I note that the
Note of Objections procedure does not in terms contemplate that the auditor
will appear or be represented. However,
I was not directed to any provision preventing him from appearing. There will be cases, of which this is one,
where the issue raised in the Note of Objections calls into question the
auditor's practice or his understanding of the rules. In those circumstances, I see no reason why
he should not appear and, if he so wishes, be represented. There may be other circumstances where it
would be appropriate, or helpful to the court, that he should do so. For example, Mr. Cullen told me that the
auditor wished to appear in this case because of what he perceived to be an
allegation of actual bias against him.
As the submissions developed, that point was clarified; but if that was
how he understood the challenge to the specific item I can understand why he
should wish to appear. In this case I
found it helpful to be informed by the auditor of certain matters of practice
in connection with taxation of an account of expenses and to have heard
submissions on his behalf. There is
always a risk in cases such as this that, because the amount at issue is small,
the other party to the litigation may not wish to incur the expense of
appearing to oppose the Note of Objections; so that in consequence, unless the
auditor is represented, the court may be called upon to decide a point of some
importance on a one-sided argument.
[21] Before turning to the point of construction, it is appropriate
here to consider the defender's more fundamental argument that the additional
fee forms no part of the account of expenses and cannot, therefore, be included
in the amount of the account on which the fee fund dues are calculated. In my opinion this argument is wrong. The argument proceeded upon the basis that in
the principal interlocutor the award of expenses and remit to the auditor was
quite separate from the finding that the pursuers were entitled to an
additional fee. It was said that the
Rules of Court dealt with taxation of accounts of expenses in such a way as to
make it clear that the additional fee was not strictly part of the account of
expenses to be taxed. However, if that
argument were correct, it would immediately raise the question of how the
auditor ever has the assessment of the additional fee before him; and by what
authority the paying party is required to pay the additional fee as assessed by
the auditor. In terms of the principal
interlocutor, it is only the account of expenses that is remitted to the
auditor for taxation. This reflects
Rules 42.1 - 42.3 of the Rules of Court.
The auditor's Report is a report "of the taxation of the account of expenses".
There is no equivalent remit to the auditor to assess the amount of the
additional fee. Similarly, in the
decerniture, the court decerns against the defender for payment of the expenses
as they shall be taxed by the auditor.
If the claimed additional fee is not part of the account of expenses,
and the assessment of the additional fee is not carried out as part of the
taxation of the account of expenses, then there is nothing in either the Rules
of Court or the interlocutors enabling the finding that the pursuers are
entitled to charge an additional fee to be quantified or enforced against the
defender. I would be reluctant to come
to that conclusion.
[22] The defenders argue that the claim for an additional fee in the
account of expenses does not fit easily into the language of Rule of Court 42.9
or 42.10. If that is so, I suspect that
this is simply because the Rules were amended only relatively recently (1970)
to include provision for an additional fee, and the particular Rule dealing with
it (Rule 42.14) was tacked onto an existing structure. However, in reality, I do not think that
there is any great difficulty in fitting the additional fee provisions into the
Rules. An additional fee will, as I
understand it, be assessed as a percentage uplift on solicitors fees reasonably
incurred on behalf of the entitled party.
The fact that an additional fee is claimed and has to be assessed does
not in any way lessen the requirement that the account of expenses should set
out in chronological order all items in respect of which fees are claimed. The additional fee simply operates so as to
give the entitled party (or his solicitor) a greater fee for such work, albeit
that in practice the uplift is not assessed item by item. The finding of entitlement operates as a
qualification to the basis of charging in Rule 42.10, in that the entitled
party or his solicitor recovers the reasonable expenses plus the uplift
determined by the auditor.
[23] I am confirmed in my view that the claim for an additional fee
forms part of the account of expenses put before the auditor for taxation by
the decision of the Inner House in UCB
Bank plc v Dundas & Wilson
1991 SLT 90. In that case, to which I
was not referred in the course of argument, a question of competency arose when
the party entitled to expenses did not move for an additional fee until some
time after both the interlocutor awarding expenses and the decerniture had been
pronounced, albeit before taxation. The
court held that the motion for additional fee did not imply any alteration or
recall of the decerniture, since the additional fee was simply part of the
expenses to be assessed by the auditor as part of the process of taxation. As Lord Hope put it at p.94C:
"... an allowance
of an additional fee does not imply any alteration or recall of the
decerniture. On the contrary, it is
entirely consistent with what has been decerned, because the fixing of the
additional fee is a matter for the auditor.
It is in his discretion whether, and if so how, to give effect to an
interlocutor awarding the additional fee as
part of the process of taxation. The
fee as fixed by him then becomes part of
the expenses as taxed by him, which is then recoverable under the decree."
That analysis was cited with
approval and applied to the case of a late motion for certification of expert
witnesses in Mains v Uniroyal Englebert Tyres Ltd. (No.2)
1995 SLT 1127. It is of some interest
that the court in Mains thought that
the two matters should be treated in the same way. It is entirely consistent with this analysis
to regard the claim for an additional fee as a part of the account of expenses
put before the auditor for taxation and, therefore, in principle, as part of
the amount of the account as submitted for the purpose of calculating the fee
fund dues.
[24] Accordingly I reject the more fundamental argument for the
defender that the auditor can never include the claimed additional fee in the
amount of the claimed expenses on which to calculate the fee fund dues. I turn, therefore, to consider the position
in this case - which reflects the general practice - where the account of
expenses as lodged contains no figure for that additional fee.
[25] The question at issue in this regard is simply whether, in the
context of item 1.1 of Part III of the Table of Fees ("fee to be
determined ... on amount of account as submitted"), the expression "amount of
account as submitted" means "amount of account as lodged" or has some wider
meaning. Rule 42.1(2) requires a party
found entitled to expenses to "lodge" an account of expenses in process. That clearly refers to the written
account. In terms of Rule 42.3, the
auditor prepares a report of the taxation of the "account of expenses", which
presumably refers to the written document lodged in process. But the word used in the Note to item 1.1 of
Part III of the Table of Fees is not "lodged" but "submitted". Whilst the former is a word which must refer
to some written document, the act of lodging being a physical act, the latter
is capable of a wider meaning. It makes
sense to talk of "the amount as submitted" or "the amount of the account as
submitted" even if reference is intended to a statement of account made partly
in writing and partly orally. It is
important, to my mind, in interpreting the Table of Fees to have regard to the
practice in the office of the auditor.
The practice is that, as was done in this case, the entitled party will
refer to the additional fee in his account of expenses without inserting a
figure, and will make submissions at the diet of taxation as to the amount of
the uplift sought by him. Without in any
way derogating from the requirement in the Rules of Court that the entitled
party must lodge a written account in process, I see no reason why this oral
submission, if permitted by the auditor in accordance with his practice and
that of his predecessors, should not be regarded as supplementing the account
of expenses already lodged, in the same way as it would if the auditor were to
deal with the matter more formally and require the entitled party to amend his
account of expenses at the diet of taxation to incorporate in the written
document the figure for the amount of the uplift he was seeking. In the latter case, there could be no doubt
that the amount of the additional fee claimed would be part of the "amount of
the account as submitted". I do not
consider that the different way of proceeding should affect the substance of
the matter.
[26] In my opinion, in a case such as the present, "the amount of
the account as submitted", for the purpose of calculating the fee fund dues,
includes the amount of the additional fee for which the entitled party made
oral submissions at the diet of taxation.
It would, however, be desirable in the future if the entitled party were
required to specify in the account of expenses the figure for which he is
contending.
[27] In support of this conclusion, I think there is some force in
Mr. Cullen's submission that the change in 1979/1980 from "as taxed" to "as
submitted", brought in against the background of the practice whereby the
amount of the uplift sought was never written into the account of expenses
lodged in process, cannot have been intended to remove the right of the auditor
to receive, and the obligation of the parties to pay, fee fund dues calculated
on the amount of the additional fee. I
also consider that he was right in submitting that the possible difficulties
suggested by Mr. Jones under reference to items 1.2 and 1.3 should not be
afforded great weight. Those items were
introduced in 2002 and it is not a proper canon of construction to allow them
to alter the meaning of other items that had been in place long before that
unless, of course, it is clear that that was the intention. I do not, in fact, consider that those two
items do give rise to great difficulties.
So far as concerns item 1.3, the cancellation fee, in a case such as the
present, will be calculated on the basis that the additional fee, being
unquantified at the time of cancellation of the diet, does not at that stage
form part of the amount of the account as submitted. So far as concerns item 1.2, the fee for the
auditor determining whether an additional fee should be paid is a fixed fee of
£200. In the case where he determines
that no additional fee should be paid, he will have carried out most of the
work but will be limited to a sum which may not cover the time spent. In the case where he determines that there
should be an additional fee, he will get the fixed fee of £200 and also 4% of
the additional fee claimed. It is wrong,
in my opinion, to regard the existence of the fixed fee as a pointer to the
interpretation of any other item. The
figure chosen may simply reflect a broad brush approach to remunerating the
auditor in these two rather different situations.
[28] For these reasons I shall repel the objections in the Note of
Objections. I shall put the matter out
By Order for consideration of the question of expenses. This will be fixed at a time when all three
counsel are available, Mr. Webster for the pursuers having expressed an
interest in that matter. If, in the
meantime, parties are able to agree an appropriate order, the matter can be
dealt with of consent without the need for further attendance.
