A Care Of Balfour & Manson V. British Broadcasting Corporation+saltire Film And Television Productions Limited
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2009] CSOH 18 |
| Court | Court of Session |
| Docket Number | A111/07 |
| Published date | 11 February 2009 |
| Date | 11 February 2009 |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 18 | |
| A111/07 | OPINION OF LADY CLARK OF CALTON in the cause 'A', c/o Balfour & Manson, Solicitors, 54-56 Frederick Street, Edinburgh, EH2 1LS Pursuer; against (FIRST) British Broadcasting Corporation, a corporation established by Royal Charter and having a place of business at Broadcasting House, Queen Margaret Drive, Glasgow, G12 8DG; and (SECOND) Saltire Film and Television Productions Limited, a company incorporated under the Companies Acts with its Registered Office at the Yacht Harbour, Inverkip, Greenock, Renfrewshire, PA16 0AS Defenders: |
Pursuer: A Clark; Balfour and Manson LLP
Defenders: Hamilton; Burness
11 February 2009
Introduction
[1] The pursuer raised an action of interdict against the defenders following upon intimation of the first defenders' intention to broadcast a television programme containing footage of the pursuer. The second defenders edited the film footage and produced a series, in three programmes, to be broadcast by the first defenders. The first programme of the series was screened on 19 February 2007. At the end, a trailer for the second part briefly showed the pursuer. The second part was due to be broadcast on 26 February 2007. Following upon urgent consultation with counsel, the summons was lodged for signet on 23 February 2007. A hearing on the pursuer's motion for interdict ad interim was arranged to take place on 23 February. My understanding is that the first defenders alone took an active part in opposing the motion. The first defenders provided an appropriate undertaking, following upon which a continued hearing was arranged to take place on 27 February 2007. After further discussions on 26 February 2007, the hearing of the motion was further continued to 13 March 2007. Following upon negotiation and adjustment of a suitable undertaking on 12 March 2007, the continued hearing was restricted to the issue of expenses. The first defenders were found liable to the pursuer for the expenses of process, including the expenses of the hearing on 13 March, by interlocutor dated 13 March 2007.
[2] Thereafter a judicial account of expenses was prepared and a diet of taxation took place on 9 October 2007 before the Auditor of the Court of Session (hereinafter referred to as "The Auditor"). The Auditor heard detailed submissions. Thereafter the Auditor taxed the pursuer's judicial account of expenses (no 10 of process) and made abatements totalling £12,196.96.
[3] On 20 December 2007, the note of objections for the pursuer (13 of process) was allowed. The Auditor was ordained to state by minute, the reasons for his decision in relation to items to which objection is taken in the note. The minute by the Auditor is 14 of process. The account of expenses is 10 of process.
[4] At the hearing in respect of the pursuer's note of objections the pursuer and first defenders were represented. There was no appearance on behalf of the second defenders.
Note of objections and minute by the Auditor in response thereto
[5] The note of objections listed ten objections (a) - (j). At the hearing counsel for the pursuer did not insist in objections (a) and (c). The objections which were maintained by counsel for the pursuer relate to some of the fees claimed by junior and senior counsel. I list the items in the order set out in the note of objections.
[6] Objection (b) relates to:
Paid junior counsel, "considering additional papers and commencing drafting of detailed summons - engaged 5 hours (Voucher 2) - £1,000 plus VAT."
In response, the minute by the Auditor stated:
"On 12 February junior counsel sought a fee of £1,000.00 for discussions with senior counsel, considering additional papers and commencing a draft detailed summons. On the same date, junior counsel was allowed by the Auditor £850.00 for preparation for and attendance at a consultation. Junior counsel sought a further fee on 22 February 2007 of £1,400.00 for considering further papers, discussions with senior counsel and continuing preparation of detailed summons. The Auditor allowed fees of £850.00 for the consultation, £1,000.00 for framing the summons and £2,000.00 for preparing for and attending the hearing on 23 February. It is unreasonable to burden the paying party with charges for "his discussions with senior counsel". A fee for consultation has been allowed at which all matters would have been canvassed. The charges allowed are reasonable on a party and party basis."
[7] Objection (d) relates to:
Paid senior counsel, "re extensive preparation for Interim Interdict and Hearing including revisal of lengthy draft Summons, engaged all day to 7.30 pm (Voucher 1) - £2,750 plus VAT."
In response thereto the Auditor of the Court of Session stated:
"Senior counsel sought a fee of £2,750.00 on 22 February 2007 for preparation for an interim interdict hearing the following day and revising the summons drafted by junior. A further fee of £3,000.00 is sought for further preparation and attendance at the hearing on 23 February 2007. The hearing lasted no more than one and a half hours when the defenders provided an undertaking and the hearing was continued to a later date. The Auditor allowed a fee of £3,000.00 for the hearing on 23 February. This is a substantial fee to reflect the difficulties, complexities and urgency of the case. It subsumes preparation undertaken by senior counsel. In Jarvie (supra) para [37] Lord Carloway states, "If preparation is charged separately, that is a factor which ought, it should follow, to be taken into account in determining the daily rate....". The Auditor has allowed senior a fee of £2,250.00 for a consultation three days before the hearing. A daily rate of £3,000.00 is awarded only in the most complex and valuable cases. The total fee of £5,250.00 for the consultation, preparation and conduct of the hearing is wholly reasonable on a party and party basis. It is unreasonable to burden the paying party with the cost of revising the draft summons."
[8] The remaining objections are dealt with together by the Auditor and include:
(e) Paid senior counsel, "re preparation for Continued Motion - engaged 5 hours (Voucher 1) - £1,500.00 plus VAT."
(f) Paid junior counsel "re preparation for Continued Hearing - engaged 2 1/2 hours (Voucher 2) - £500 plus VAT."
(g) Paid senior counsel, "advising re Undertaking (Voucher 1) - £150.00 plus VAT."
(h) Paid senior counsel "considering proposed Undertaking and discussions with defenders' Counsel regarding same (Voucher 1) - £300 plus VAT."
(i) Paid senior counsel "attending Continued Interdict Hearing including all preparation and revisal of draft Undertaking - Diet set down for three days and concluded in one - 1.5 days charged (Voucher 1) - £1,500.00 plus VAT."
(j) Paid junior counsel "preparing for and attending Continued Hearing (Voucher 2) - £1,000.00 plus VAT."
In response the Auditor stated:
"On 26 February 2007 senior counsel sought a fee of £1,500.00 and junior counsel of £500.00 for preparation for a continued hearing set down for 27 February 2007. This continued hearing followed the initial calling of the case on 23 February. At the hearing on 23 February 2007 the defender had given an undertaking to the court that for all time coming subject to any order of the court, they would not broadcast any film or videotape of the pursuer. From the minute of proceedings it is clear that this hearing on the 27 February 2007 did not call but a hearing did take place on 13 March 2007. Both senior and junior counsel had already been allowed significant fees by way of preparation and attendance at the hearing on 23 February 2007, namely £3,000.00 for senior counsel and £2,000.00 for junior counsel. On the 26 February 2007 the defender had approached the pursuer indicating they wished the hearing continued until a later date in order that they could fully consider the position. As a result, the case did not call on 27 February 2007. On 2 March the defence was withdrawn but the undertaking was not produced until the day before the continued hearing. The only live issue on 13 March was expenses. The Auditor has approached counsels' fees for the hearing in the same way as the hearing on 23 February. The fees awarded of £3,000.00 to senior and £2,000.00 to junior are reasonable to cover all the work done on a party and party basis from the hearing on 23 February until the close of the hearing on 13 March. In taxing the account the Auditor was fully aware of the complexity and urgency of the proceedings. The fees allowed to counsel fully reflect this and are reasonable on a party and party basis."
[9] The Auditor dealt separately with items (b) and (d) and gave a cumulative response to items (e) - (j). In his minute, the Auditor stated that he referred to and received guidance 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 Aberdeen Council v W.A. Fairhurst and Others 2000 C.L.R. 392 and Kathryn Jane Jarvie v Greater Glasgow Primary Care NHS Trust 2006 CSOH 41. The Auditor did not give further explanation about what guidance he relied on from the authorities cited.
The submissions on behalf of the pursuer
[10] Counsel for the pursuer explained that the background to the case was unusual. The case involved complex issues at the interface of freedom of expression and privacy relating to a child aged 13. Counsel required to deal with the matter urgently. The summons involved difficult issues and urgent preparation was required for the hearing which was due to be held on 23 February. An undertaking by the first defenders was given when the motion for interim interdict was continued until 27 February and this involved further work by counsel for the pursuer. On 26 February, it...
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Mrs Joan Pentland-clarkfor Judicial Review
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