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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Neilson and Others v. Barclay [1870] ScotLR 7_686 (19 July 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0686.html Cite as: [1870] ScotLR 7_686, [1870] SLR 7_686 |
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Page: 686↓
( Ante, pp. 181 and 547.)
Agent's charge for precognoscing scientific witnesses as to the validity of a patent disallowed. Witness allowed eight days' preparation for case. Counsels' fees fixed above usual rate, as case more difficult than usual.
The questions in this case were, whether a patent was for a new invention, and if so, whether it had been infringed? The auditor, in taxing the pursuers' account, (1) disallowed charges made by their agent for going to Bolton, Manchester, and London, and precognoscing certain scientific witnesses in regard to the novelty of the invention. He, however, allowed a considerable sum for instructions to, and correspondence with, London solicitors, and drawing precognitions, in addition to the witnesses' own reports. The auditor (2) disallowed charges to the extent of £245, 3s. for expenses to a scientific witness, but allowed £5, 5s. per diem for four days for perusal of the proceedings and specifications, &e., and preparing report; £5, 5s. per diem for four days' travelling to Scotland and examining works; and £2, 2s. per diem for four days for attendance at trial and returning to London. The auditor (3) allowed to senior counsel for the first day of the trial £21, for the second day £15, 15s., and for the following days £10, 10s.; and to each of two junior counsel for first day £15, 15s., for second day £10, 10s., and for following days £7, 7s.
Shand, for the pursuers, objected to the dis-allowing of the sums under the first and second heads, and to the small fees allowed under the third head, considering the difficulty and importance of the case.
Watson in answer.
The Court approved of the auditor's report on the first two heads. The first charge was for an agent travelling about to precognosce scientific witnesses as to the validity of a patent, not as to its infringement. But the precognoscing these scientific witnesses for this purpose required only that the papers and proceedings should be laid before them; and the reports they made thereon came in the place of precognitions, and were the precognitions of these witnesses. No agent was necessary for this, and no questioning. In regard to the second point, the auditor had dealt liberally in the number of days he had allowed. Professor Rankine, who was examined on the whole matter, and had in fact been the pursuers' principal witness, had prepared in two days. As to the third point, it might have been expected that the cases of Cooper and Wood, and of Hubbard, had definitively settled this point; but peculiar cases could not but arise. Fees twice as large had been allowed in the Esk Pollution case, but it was one of the longest and hardest cases in recent years. The present case, though not so hard, was harder and more difficult than
Page: 687↓
ordinary jury trials; and therefore it might be proper to allow fees one-half larger than those the auditor allowed. Where this would make the fee so many guineas and a half, a half guinea more to be given.
Agents for Pursuers— Hamilton, Kinnear, & Beatson, W.S.
Agents for Defender— Macnaughton & Finlay, W.S.