Goodwins Jardine & Company v Brand & Son
| Jurisdiction | Scotland |
| Judgment Date | 30 May 1907 |
| Date | 30 May 1907 |
| Docket Number | No. 178.,No. 141. |
| Court | Court of Session (Inner House - First Division) |
Lord President, Lord M'Laren, Lord Kinnear, Lord Pearson.
ExpensesTaxationFees to Counsel.
On a note of objections to the Auditor's taxation of a successful party's account, the Court, in view of the large sum at stake in the action, and the complicated technical questions that arose for decision, increased the sums allowed for counsel's fees in the Outer-House to more than the normal fees allowed by the Auditor, and approved of the fees fixed by the Auditor for the Inner-House.
(Reportedante, July 19, 1905, 7 F. 995; and sub voce Bannatyne, Kirkwood, France, & Co., supra, p. 705).
Goodwins, Jardine, & Company, Limited, in Liquidation, and the Liquidator, brought an action against Charles Brand & Son, contractors, Glasgow. The sum at stake in the action, which related to a contract for the supply of material for a large railway contract, exceeded 10,000, and the case involved the determination of a number of complicated technical questions.
On 26th March 1906 the Lord Ordinary (Dundas), after a four days' proof (March 5th to 8th), and a two days' hearing (March 14th and 15th), pronounced an interlocutor making certain findings.
The defenders reclaimed, and after a four days' hearing (February 18th to 21st 1907), the First Division, on 15th March 1907, adhered to the Lord Ordinary's interlocutor, except quoad two of his findings, found the defenders liable to the pursuers under the first conclusion of the action in the sum of 3486, 4s. 3d., and under the second conclusion in the sum of 3724, 4s. 7d., both with interest; found the pursuers entitled to expenses both in the Outer and Inner-House, subject to deduction of one-fourth of the taxed amount thereof as modification, and remitted the account of said expenses to the Auditor to tax and to report.
The Auditor having reported, the pursuers (respondents) presented a note objecting to his report in so far as he had taxed off the sum of 154, 3s. 6d., being the difference between the fees charged by the pursuers and the fees allowed by the Auditor as specified in the first and second columns in note infra, p. 967.
Argued for the pursuers (objectors);The fees charged should be allowed. In disallowing the sums set out in the note the Auditor had failed to take into account the large sum at stake in the action and the amount of preparation necessary to master the complicated figures and technical details involved.1 Fees of 25 and 15 guineas a day had been allowed in a jury trial to senior and junior counsel respectively.2
Argued for the defenders;The facts founded on as justifying an appeal for higher fees in this case were all present, even in a more pronounced form, in the case of Burrell & Son v. Russell & Co.SC3 The sum sued for there was 40,000, nearly four times the sum at stake here, the proof and hearing in the Outer-House lasted twelve days, and the hearing in the Inner-House nine days, while here the case lasted only six days in the Outer and four days in the Inner-House. Further, in Burrell'sSC case3 complicated technical questions of naval construction were involved. Yet in that case the Court upheld the Auditor's allowance of fees of 20 and 15 guineas to senior counsel and 15 and 10 guineas to junior counsel. Rees v. HendersonSC2 had no bearing here, for it was a jury trial, and counsel were allowed higher fees in jury trials.4
Lord President.The question raised in this note of objections is as to fees to counsel. Taking the fees of senior counsel in the case I find that thirty guineas and twenty guineas were paid, and that twenty guineas and fifteen guineas have been allowed by the Auditor. Now, I have nothing more to say than what I said in the case of Shaw v. Boyd5 which was quoted to us. My observations in that case were concurred in by your Lordships. In the case of Shaw v. Boyd5 I indicated quite clearly that there were cases where what may be looked upon as a normal fee might fairly be exceeded. I said that I did so as a guidance for the Auditor in future. I have no doubt this case which we have before us is a fortiori of Shaw v. Boyd.5 In this case your Lordships have the advantage of having heard the whole argument and read the proof, so that you are quite familiar with the circumstances of the case. The two considerations which I put before your Lordships in Shaw v. Boyd5 for fixing what is a proper fee were, first, the trouble involved in the preparation of the case, and, second, the amount at stake. The amount at stake here is very large, very much larger than in the case of Shaw v. Boyd.5 Then as regards trouble in preparation, the trouble in preparation in this case must have been very considerable, because the case was complicated, and there was the necessity for anterior preparation in connection with a great many technical drawings. That being so, I think that the fee here ought to have been allowed on a larger scale than the ordinary one. Therefore I propose that the fees of the senior counsel should be twenty-five guineas for the first day of the proof and twenty guineas for the other days, and that the fees for junior counsel should be altered in the same proportion.
Lord M'Laren, Lord Kinnear, and Lord Pearson concurred.
The Court sustained the pursuers' note of objections to the extent of 41, 6s. 2d.*
1 Shaw & Shaw v. J. & T. Boyd, Limited, March 7, 1907, supra, p. 646.
2 Rees v. Henderson, May 28, 1902, 4 F. 813.
3 Burrell & Son v. Russell & Co., Oct. 24, 1900, 3 F. 12.
4 Wilson v. North British Railway Co., Dec. 13, 1873, 1 R. 304.
5 March 7, 1907, supra, p. 646.
| * | Fees charged. | Fees allowed by Auditor. | Fees allowed by Court. | |||||||
| March 5, 19061st day's proof, | 33 | 1 | 6 | 22 | 1 | 0 | 27 | 11 | 3 | Senior counsel. |
| 22 | 1 | 0 | 16 | 10 | 9 | 19 | 16 | 10 | Junior counsel. | |
| March 6, 19062d 1st day's proof, | 33 | 1 | 6 | 16 | 10 | 9 | 22 | 1 | 0 | Senior counsel. |
| 22 | 1 | 0 | 13 | 4 | 7 | 16 | 10 | 9 | Junior counsel. | |
| March 7, 19063d 1st day's proof, | 33 | 1 | 6 | 16 | 10 | 9 | 22 | 1 | 0 | Senior counsel. |
| 22 | 1 | 0 | 13 | 4 | 7 | 16 | 10 | 9 | Junior counsel. | |
| March 8, 19064th1st day's proof, | 33 | 1 | 6 | 16 | 10 | 9 | 22 | 1 | 0 | Senior counsel. |
| 22 | 1 | 0 | 13 | 4 | 7 | 16 | 10 | 9 | Junior counsel. | |
| March 14, 1906Hearing on evidence, | 16 | 10 | 9 | 13 | 4 | 7 | 16 | 10 | 9 | Senior counsel. |
| 10 | 17 | 6 | 4 | 9 | 0 | 10 | 17 | 6 | Junior counsel. | |
| 1 | 13 | 4 | 1 | 10 | 0 | 1 | 13 | 4 | Agent. | |
| 16 | 10 | 9 | 13 | 4 | 7 | 16 | 10 | 9 | Senior counsel. | |
| March 15, 1906Hearing on evidence | 10 | 17 | 6 | 4 | 9 | 0 | 10 | 17 | 6 | Junior counsel. |
| 1 | 13 | 4 | 1 | 10 | 0 | 1 | 13 | 4 | Agent. | |
| Feb. 18,1907Hearing in Inner-House, | 22 | 1 | 0 | 16 | 10 | 9 | 16 | 10 | 9 | Senior counsel. |
| 16 | 10 | 9 | 13 | 4 | 7 | 13 | 4 | 7 | Junior counsel. | |
| 22 | 1 | 0 | 13 | 4 | 7 | 13 | 4 | 7 | Senior counsel. | |
| Feb.19, 1907Hearing in Inner House, | 16 | 10 | 9 | 10 | 17 | 6 | 10 | 17 | 6 | Junior counsel. |
| 2 | 0 | 0 | 1 | 13 | 4 | 1 | 13 | 4 | Agent. | |
| 22 | 1 | 0 | 13 | 4 | 7 | 13 | 4 | 7 | Senior counsel. | |
| Feb.20. 1907Hearing in Inner-House, | 16 | 10 | 9 | 10 | 17 | 6 | 10 | 17 | 6 | Junior counsel. |
| 2 | 0 | 0 | 1 | 13 | 4 | 1 | 13 | 4 | Agent. | |
| Feb. 21, 1907Hearing in Inner-House, | 16 | 10 | 9 | 13 | 4 | 7 | 13 | 4 | 7 | Senior counsel. |
| 414 | 19 | 2 | 260 | 15 | 8 | 315 | 17 | 3 |
The fees allowed by the Court exceeded the fees allowed by the Auditor by 55, 1s. 7d., but, in accordance with the interlocutor of the First Division on 15th March 1907, there fell to be deducted from this sum the one-fourth of modification, viz., 13, 15s. 5d., leaving 41, 6s. 2d. as the extent to which the Court sustained the pursuers' note of objections.
Lord Kincairney, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
ContractArbitration ClauseArbitration Clause in Principal Contract incorporated in Subcontract.
A contractor, who had contracted with a railway company for the construction of certain works, entered into a...
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