Wilkie v Scottish Aviation Ltd
| Jurisdiction | Scotland |
| Judgment Date | 24 February 1956 |
| Date | 24 February 1956 |
| Docket Number | No. 19. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Justice-Clerk.
ContractImplied termsCustom of tradeProfessional feesSchedule of Professional Charges for Royal Institution of Chartered SurveyorsChartered surveyor employed as valuer and witness in arbitration proceedingsWhether remuneration on basis of Schedule implied.
A chartered surveyor was employed professionally as a valuer, adviser and witness in arbitration proceedings regarding the compulsory purchase of an airport and its buildings. No specific arrangement was made as to his remuneration. After he had performed his services he prepared and rendered an account, which was made up in accordance with the Schedule of Professional Charges of the Royal Institution of Chartered Surveyors. Under the Schedule the scale fee is based on the sum awarded in the arbitration, and the account amounted to more than 3000. The employers having refused to pay more than 1000, the surveyor brought an action for payment of the balance, in which he averred that remuneration on the basis of the Schedule was customary and accordingly was an implied condition of the contract between the parties.
Held that, in the absence of express agreement regarding his remuneration, the pursuer was entitled to remuneration at the customary rate if he could prove the existence of a custom which was reasonable, certain and notorious; that, if no such custom were established, it would be for the Court to fix a reasonable remuneration; that accordingly, if the Schedule were shown to be the basis in practice upon which the profession operated, the Court, while entitled to take it into account, would not be bound rigidly to apply it unless satisfied that the resulting fee was reasonable in the circumstances; and a proof before answer allowed.
John Macdougall Wilkie, chartered surveyor, brought an action against Scottish Aviation Limited for payment of 2009, 10s. 9d. as the balance of professional fees due to him in respect of his services as a valuer, adviser and witness in arbitration proceedings relating to the compulsory purchase of Prestwick Airport.
The pursuer averred, inter alia:(Cond. 2) "In December 1951 the defenders asked the pursuer to act for them as an expert valuer, adviser and witness in arbitration proceedings which the defenders at that time were conducting with the Ministry of Civil Aviation in regard to the valuation of Prestwick Airport and buildings thereon, which was being compulsorily acquired by the Ministry. The pursuer agreed to act and thereafter carried out certain professional work on behalf of the defenders. An account of the pursuer's charges for his services to the defenders in connexion with such proceedings was rendered to the defenders on 18th March 1954. A copy of the account then sent to the defenders' solicitors, Messrs Baillie & Gifford, is produced and referred to for details of the work done by the pursuer. The pursuer's professional charges in connexion with said work amounted to 3009, 10s. 9d. Explained and averred that by engaging the pursuer to act for them the defenders became bound to pay to him the remuneration and charges for his services customarily paid to members of his profession for such services. Further explained and averred that the remuneration to which a chartered surveyor is entitled and which he customarily receives is contained in a Schedule of Professional Charges for the Royal Institution of Chartered Surveyors, effective from 1st September 1948. Copies of the said Schedule are available from members of the said Institution to be examined by any person having a reasonable interest to do so.1 Under Scale 5 of the said Schedule provision is made for professional charges for "Work under the Lands Clauses Consolidation Act or other Acts for the compulsory acquisition of property." The work done by the pursuer for the defenders was work to which the said scale applied. It is a custom of trade which is reasonable, well-known and regularly observed that surveyors who are employed to carry out work such as that performed by the pursuer for the defenders are paid in accordance with the said Scale 5.1 The said scale accords with the scale of charges for the same work applicable in the case of members of the Land Agents' Society, the Chartered Auctioneers' and Estate Agents' Institution, and the Incorporated Society of Auctioneers and Landed Property Agents. Under subheading (a) of said Scale 5 a valuer who prepares the case is entitled to charge the scale fee set out therein and under subheading (b) any additional valuer who qualifies to give evidence is entitled to charge three-quarters of the said scale fee. The pursuer in consequence of his engagement by the defenders and the services performed by him in course thereof is entitled to payment from the defenders of a fee being three-
quarters of the said scale fee. The said scale fee is calculated on the amount of compensation awarded. The compensation awarded to the defenders was 343,835. Three-quarters of the said scale fee which the pursuer is entitled to charge and the defenders are bound to pay amounts to 2728, 13s. 9d. The said Schedule provides that the said scale fee is exclusive of attendance at arbitrations. In respect of his attendance at said arbitration for five days the pursuer claims payment at the rate of twenty-five guineas per day. The said rate of payment is reasonable and is the rate customarily charged by and paid to chartered surveyors of the pursuer's professional standing. The said Schedule also provides that the fees and commissions set out in the Scales are exclusive of travelling and other expenses, disbursements, plans, copies of documents and lithography. Details of the pursuer's out of pocket and travelling expenses, to payment of which he is...To continue reading
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