Caledonian Railway Company v Greenock Corporation
| Jurisdiction | Scotland |
| Judgment Date | 25 February 1922 |
| Docket Number | No. 44. |
| Date | 25 February 1922 |
| Court | Court of Session |
Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
Expenses—Taxation—Fees to counsel—‘Normal’ fees—Fees in long and difficult cases.
Two railway companies brought separate actions against the corporation of a burgh for damages in respect of injury by flooding, during an unprecedented rainfall, to their embankments and works, due to the corporation having enclosed a stream above the railways in a culvert and having otherwise obstructed its flow. The two actions raised the same questions as to the run-off from the watershed of the stream and as to the capacity of the culvert, but the damage suffered and its proximate causes were different in the two cases. The actions were heard together in both the Outer and the Inner House, and it was agreed by joint minute between the parties in each action that the evidence in the one action should, so far as it was relevant, be held to be evidence in the other. In the Inner House one counsel acted as junior for both sets of pursuers. The proof lasted thirteen days, there being an adjournment of three and a half months after the first four days; and the hearing on evidence lasted a day and a half. The debate in the Inner House was heard on fourteen days, two of which were half days. After an appeal to the House of Lords the pursuers in each action were successful, and the interlocutors of the Court of Session allowing them expenses in the Outer and Inner House were affirmed.
On notes of objections by the pursuers and the defenders in both actions to the Auditor's taxation of the pursuers' accounts of expenses, the Court allowed fees to senior counsel in each action of 25 guineas for the first day of the proof and for the first day after the adjournment and 20 guineas for each other day, and 15 and 8 guineas for the day and the half day of the hearing; and in the Inner House 15 guineas for the first day and 12 guineas for each subsequent day, except for the two half days for which 6 guineas were allowed; allowed fees to junior counsel in each action of 19 guineas for the first day of the proof, 20 guineas for the first day after the adjournment and 15 guineas for the other days, and 10 and 5 guineas for the hearing; and allowed fees to the junior counsel who represented both pursuers in the Inner House of 18 guineas for the first day of the debate, and 15 guineas for the subsequent days, except the two half days for which 7 guineas were allowed, one-half of these fees to be charged in each account.
Observed, per the Lord President: ‘Both the “normal” fee in an ordinary case, and the “proper” fee in a big and difficult one, are just such fees as a practising law-agent finds sufficient in order to command the services of competent counsel in cases of a similar character.’
Expenses—Taxation—Fees to skilled witnesses—Fees for consultation as to intended line of evidence—Fees for assistance to counsel during proof or hearing—C. A. S., 1913, K, IV., Table of Fees, V., 3 (2).
The Codifying Act of Sederunt, 1913, enacts, K, IV., Table of Fees, V., 3 (2);—‘In cases where it is found necessary to employ professional or scientific persons, such as physicians, surgeons, chemists, engineers, land-surveyors, or accountants, to make investigations previous to a trial or proof, in order to qualify them to give evidence thereat, such additional charges for the trouble and expenses of such persons shall be allowed as may be considered fair and reasonable.’
On a note of objections to the Auditor's taxation of a successful party's account of expenses in an action involving difficult engineering questions, the Court directed the Auditor to consider whether fees should be allowed to the skilled witnesses for consultations with counsel as to the intended line of evidence, but sustained the Auditor's decision disallowing fees to these witnesses for assistance given to counsel in Court during the proof, the hearing on evidence, and the debate in the Inner House.
(See previous report—1917 S. C. (H. L.) 56.)
On 20th January 1913 the Caledonian Railway Company brought an action against the Corporation of Greenock for payment of the sum of £5000. On 3rd February 1913 the Glasgow and South-Western Railway Company also brought an action against the same defenders for payment of the sum of £1500.
In each action the pursuers averred that, on 5th August 1912, a heavy rainfall took place in the neighbourhood of Greenock, and that, during this rainfall, their railways and works were damaged by flooding, in consequence of the overflow of a burn, known as the West Burn; that in the years 1908 and 1909 the defenders had effected certain operations in the channel of the West Burn which interfered with its flow; and that the overflow of the burn, and the consequent damage sustained by the pursuers, were the result of the defenders' operations.
In the action at their instance the Caledonian Railway Co. pleaded, inter alia;—‘(2) The operations and works of the defenders having, as condescended on, been so executed and constructed as to materially interfere with the natural drainage of the West Burn, and the pursuers having in consequence suffered loss and damage, the pursuers are entitled to reparation.’ A similar plea was stated for the Glasgow and South-Western Railway Co. in the action at their instance.
In both actions the defenders pleaded, inter alia;—‘(1) The pursuers” averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (3) The damage complained of not having been due to the operations or fault of the defenders, the defenders should be assoilzied from the conclusions of the summons. (6) The damage complained of having been caused by vis major, the defenders are entitled to absolvitor.’
The two actions were set down for proof on the same day.
By a joint minute in the action at the instance of the Caledonian Railway Co. it was agreed that the evidence to be led by the defenders in that action should be led concurrently with the evidence to be led by the defenders in the action at the instance of the Glasgow and South-Western Railway Co., and that the parties should be entitled to found on the evidence of the defenders' witnesses in cross-examination by counsel for the pursuers in the last-mentioned action as evidence in the Caledonian Railway action.
By joint minute in the action at the instance of the Glasgow and South-Western Railway Co. it was, inter alia, agreed that the evidence, oral and documentary, in the Caledonian Railway action should, in so far as relevant and applicable to the averments on record in the action at the instance of the Glasgow and South-western Railway, be held as evidence in that action, and that the parties to that action should be entitled to refer to and to found upon the said evidence; and further, that the evidence to be led by the defenders in the action at the instance of the Glasgow and South-western Railway should be led concurrently with the evidence to be led by the defenders in the Caledonian Railway action in the same manner as if the two actions had been conjoined.
The proof in the two actions was led upon the following dates:—
Proof for the Caledonian Railway.
Tuesday, 28th October 1913.
Wednesday, 29th October 1913.
Thursday, 30th October 1913.
Friday, 31st October 1913.
Tuesday, 17th February 1914.
Wednesday, 18th February 1914 (less than half of the day).
Proof for the Glasgow and South-Western Railway.
Wednesday, 18th February 1914 (more than half of the day).
Thursday, 19th February 1914 (more than half of the day).
Proof for the Defenders.
Thursday, 19th February 1914 (less than half of the day).
Friday, 20th February 1914 (less than half of the day).
Tuesday, 24th February 1914 (less than half of the day).
Wednesday, 25th February 1914 (less than half of the day).
Thursday, 26th February 1914 (less than half of the day).
Friday, 27th February 1914 (less than half of the day).
The hearing on evidence occupied a day and a half.
On 14th May 1914 the Lord Ordinary (Dewar) decerned against the defenders for payment to the Caledonian Railway Co. of £4136, 7s. 2d., and found the defenders liable in expenses. On the same day his Lordship decerned against the defenders for payment to the Glasgow and South-Western Railway Co. of £998, 5s. 8d., and found the defenders liable in expenses.
The defenders reclaimed in each case, and the hearing before the First Division occupied fourteen days, including a Saturday and the last day when the hearing finished after two and a half hours' debate.
The Caledonian Railway Co. instructed three counsel for the hearing in the Inner House, two seniors and one junior. The Glasgow and South-Western Railway Co. instructed as their counsel one of these senior counsel and the same junior counsel; so that the two Companies were represented at the hearing by three counsel in all. The opening speech for the Caledonian Railway Co. was made by the senior counsel who was instructed in both cases. The opening speech for the Glasgow and South-Western Railway Co. was made by the junior counsel who was instructed in both cases. The second speech for the Caledonian Railway Co. was made by the senior counsel who was instructed by them only, and the second speech for the Glasgow and South-Western Railway Co. was made by the senior counsel who was instructed in both cases.
Thereafter the First Division ordered the parties to lodge minutes of debate, and appointed the minutes of debate to be laid before the whole Court. On 8th July 1916 the First Division, in conformity with the opinions of a majority of the whole Judges, adhered to the Lord Ordinary's interlocutor in each action, and found the defenders liable in the expenses in the Inner House.
The defenders appealed to the House of Lords in each action, and on 23rd July 1917 the judgments appealed from were affirmed, and...
To continue reading
Request your trial
-
A Care Of Balfour & Manson V. British Broadcasting Corporation+saltire Film And Television Productions Limited
...from the following authorities. Cooper and Wood v North British Railway Co. (1863) 2M. 346; Caledonian Railway Co. v Greenock Corporation 1922 S.C. 299; Macnaughton, 1949 S.S.C. 42; Wood v Miller 1960 S.C. 86 at pp97-98; Ahmed's Trustees v Ahmed (No. 1), 1993 S.L.T. 390 at 394; City of Aber......
-
Nicholas Dingley (ap) V. The Chief Constable Of Strathclyde Police
...Counsel further referred to the passage in the opinion of the Lord President (Clyde) in Caledonian Railway Company v Greenock Corporation 1922 S.C. 299, 311: "The principle underlying the many decisions which have been pronounced on this subject is that neither the 'normal' fee nor the 'pro......
-
The City Of Aberdeen Council V. W. A. Fairhurst And Others
...S.C. 42; Gorrie v Ciba Geigy Ltd. 25 June, 1996; Kenny v Lord Advocate 1993 S.L.T. 372; Caledonian Railway Co. v Greenock Corporation 1922 S.C. 299 and Ahmed's Trustee v Ahmed (No1) 1993 S.L.T. 390. He was referred to Rule of Court 42.10.(1) and Practice Note No 5 of 1996, which was issued ......
-
Ap (on Behalf Of Rp) Against (first) Dr Janice A Duncan, Dr J S Bumbra, Dr K J Thompson, And Dr A Crosby, And (second) Dr Pauline Fleming
...challenge his decision to reduce the daily rate. He referred me to a number of authorities. Caledonian Railway Co v Greenock Corporation 1922 SC 299 at 310-312 was authority for the proposition that a reasonable fee should be one which was in line with the general practice of agents in inst......