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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tannett, Walker & Co. v. Hannay & Sons [1874] ScotLR 11_286_1 (31 January 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0286_1.html Cite as: [1874] SLR 11_286_1, [1874] ScotLR 11_286_1 |
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Page: 286↓
(1) Charges of an agent for attending examination of havers at a distance, disallowed: (2) Amount of Commissioner's fee fixed: (3) Double fees to Counsel allowed, in respect of the nature of the case: (4) Charge for two accountants allowed: (5) Unsuccessful party, held not entitled, by the fact of paying for them, to get the models which had been prepared by the other side to be produced in the case.
This case came before the Court on objections by the pursuer and defender to the Auditor's Report, which was in the following terms:—
ABSTRACT OF ACCOUNTS.
I. Messrs Hunter, Blair, and Cowan's accounts—
As stated.
Taxed off.
(1) For action at instance of Messrs Tannett, Walker & Co. v. Hannay & Sons,
£96
8
2
£21
19
8
(2) For action at instance of Hannay & Sons v. Tannett, Walker & Co.,
73
12
11
11
2
0
(3) For conjoined processes,
1673
2
3
667
12
7
£1843
3
4
£700
14
3
II. English solicitor's account,
650
14
9
373
16
2
III. Payments to witnesses,
1299
16
4
656
18
10
£3793
14
5
£1731
9
3
Taxed of.
1731
9
3
£2062
5
2
Page: 287↓
Edinburgh, 10 th January 1874.—In obedience to a remit by the Lords of the First Division of the Court, the Auditor has examined the accounts, of which the foregoing is an abstract, and has taxed the same, in presence of the agents of the parties, at the sum of two thousand and sixty-two pounds, five shillings and two pence (£2062, 5s. 2d.) sterling. Reference is made to the subjoined note.
Edmund Baxter
Note.—The amount of this account, as submitted to the Auditor, is exceptionally large, £3793, 14s. 5d. The amount disallowed is also very considerable, £1731, 9s. 3d. The Auditor does not expect that the parties will acquiesce in his report, and, in anticipation of objections which may be stated, he considers it expedient to explain in this form the grounds on which he has proceeded in dealing with some of the heavier items of the account.
I.— Fees to Counsel for Consultation and Trial.
Having regard to the fact that these are conjoined actions, each involving very large pecuniary interests, and to the multiplicity of details, the Auditor is of opinion that the pursuers were entitled to instruct three counsel for the trial. This was objected to on the part of the defenders, who maintained that only two should be allowed against them, or at all events that the fees should be sustained only as for one senior and two juniors. The fees stated in the accounts are the following, viz.:—
Lord Advocate and clerk—
For consultation,
£13
17
6
For second consultation,
11
11
0
For trial—first day,
46
4
0
For trial second day,
34
13
0
For trial third day,
34
13
0
£140
18
6
Solicitor-General and clerk—
For consultation,
£11
0
6
For second consultation,
11
0
6
For trial—first day,
33
1
6
For trial second day,
22
1
0
For trial third day,
22
1
0
£99
4
6
Mr Blair and clerk—
For consultation,
£8
15
6
For second consultation,
5
12
6
For trial—first day,
22
1
0
For trial second day,
16
10
9
For trial third day,
16
10
9
£69
10
6
In all,
£309
13
6
These fees are very largely beyond those allowed as maximum fees in ordinary cases, and the Auditor is of opinion that to some extent they should be reduced. On the other hand, he is of opinion that this is an exceptional case, and that more than the ordinary maximum fees should be allowed. Acting on this view he has allowed as follows:—
Lord Advocate and Clerk—
For consultation as stated,
£13
17
6
For second consultation,
£13
17
6
For trial—first day, as stated,
46
4
0
For trial second day,
17
6
6
For trial third day,
11
11
0
£88
19
0
Solicitor-General and clerk—
For consultation as stated,
£11
0
6
For second consultation,
£11
0
6
For trial—first day, as stated,
33
1
6
For trial second day,
16
10
9
For trial third day,
11
0
6
71
13
3
Carry forward,
£160
12
3
Brought forward,
£160
12
3
Mr Blair and clerk—
For consultation as stated,
£8
15
6
For second consultation,
£8
15
6
For trial—first day, as stated,
22
1
0
For trial second day,
11
0
6
For trial third day,
7
14
6
49
11
6
In all,
£210
3
9
The consultation fees stated in the account and sustained by the Auditor, are in his opinion full fees. The fees for first day of trial stated and sustained are double the maximum fees in ordinary cases. Having sustained these, it appeared to the Auditor a reasonable course to limit the fees for the second and third days of trial to the ordinary rates. The result is much the same as if fees had been sustained for one senior and two juniors at maximum rates in ordinary cases, with the addition of one-half in respect of the exceptional nature of the case.
II.— Expense of executing the Pursuers' Commission and Diligence in London.
In the account under date 1st October 1873, there are stated the following charges:—
For Edinburgh agent's journey to London to attend at examination of havers in London on 29th September,
£21
0
0
Travelling expenses from Perthshire to London,
5
13
6
Travelling expenses from London to Edinburgh,
3
10
0
Personal expenses,
8
8
0
Together,
£38
11
6
These the Auditor has disallowed, except to the extent of £9, 9s., and that sum he has sustained as sufficient to cover the expense of instructing a London solicitor, and for his attendances at the execution of the commission, correspondence, &c. It was strongly urged at the audit that in the circumstances the attendance of the Edinburgh agent in London was absolutely necessary, seeing that the report of the commission was due on 1st October; that the trial was fixed to commence on 6th October; that his London correspondent was from home, and that there was no Scotch solicitor in London at the time. In support of this the agent has produced his correspondence with the managing clerk of his London agent. Having perused this correspondence and examined the proceedings, the Auditor is clearly of opinion that the business might have been properly entrusted to the London agent's clerk, or to an English solicitor, more especially keeping in view that the commissioner was a counsel at the Scotch bar, who had acted throughout in the execution of the commissions granted to both parties in the cause. The defenders at the execution of this commission in London were represented by an English solicitor.
In connection with this matter the Auditor may notice that the fee (£105) paid to the commissioner (entered under date 24th October 1873) was objected to by the defenders' agents, on the ground. inter alia, that there should not be sustained against them fees to the commission at a higher rate than those paid by them to the same commissioner, and accepted by him, for the execution of their commission—viz. £5, 5s. per day. This objection appeared to the Auditor to be well-founded, and giving effect to it he has reduced the fee from one hundred guineas to sixty-five guineas.
Page: 288↓
III.—Expenses of Models and Tracings.
1. Models.—For the preparation of the models produced by the pursuers at the trial a charge of £200 is entered in the account of the English solicitors. These models appear to have been made by the pursuers themselves, and the sum charged appears to be their estimate of the value of them. At the audit a letter from Mr John Milne, brass-founder, Edinburgh, to the agents of the pursuers, was produced, in which Mr Milne values the models (including £4 as the worth of material in the models valued as metal) at £147. The defender's agents, at an adjourned diet of taxation, produced a letter from their correspondents in Glasgow, in which they state the cost of the models used by the defenders, and which are alleged by them to be more elaborate, at £80. The Auditor felt some difficulty in dealing with this charge, but having had a meeting with Mr Milne (in whose opinion he has much confidence) and obtained details of his valuation, he has sustained the charge to the extent of £124, being the amount of Mr Milne's estimate, £147, less a sum of £23, allowed by him as profit on the construction of the models.
2. Tracings.—The charge for tracings and copies of drawings for the Court, counsel, and witnesses, is £111, 6s. It is stated that these were 212 in number, and they are charged at 10s. 6d. each. These also appear to have been prepared by the pursuers themselves. In the account produced forty of the tracings are said to have been for the Court and the pursuer's counsel (three in number), making ten for each. The remainder, being 172 in number, are stated to have been prepared for witnesses, and are charged at the same rate, 10s. 6d. each. The only witnesses for whom these appear to the Auditor to have been necessary are the two engineering witnesses certified by the Court, and after perusal of their precognitions, the Auditor is humbly of opinion that an allowance of ten tracings for each might have been sufficient. Acting on this view, he has restricted the allowance for tracings to £31, 10s.
IV.— Payments to Witnesses.
1. Skilled Witnesses.—Application was made to the Judge who presided at the trial to certify as skilled witnesses Messrs Bramwell, Woods, and May, civil-engineers, and Messrs Gillies Smith and Muir, accountants. A certificate was granted for all these, except Mr May. The charges made for the four witnesses so certified amount, as stated in the account, to £982, 15s. 6d. A large proportion of this sum appears to the Auditor not chargeable against the defenders.
(1) Mr Bramwell, C.E.—The charges for this witness qualifying, attending trial, and outlays, are stated at £325, 1s. 11d. No details of time are given. The Auditor requested details, but the pursuers' agents stated that rather than trouble the witness for these they would leave it to the Auditor, in the absence of details, to state his opinion as to the sums to be allowed. This is not very satisfactory, but the Auditor has in these circumstances sustained, for preparation, £52, 10s.; attendance at trial, £10, 10s.; and outlays, £22—in all, £85.
(2) Mr Woods, C.E.—The charges for this witness are stated at £134, 2s., and these have been dealt with in the same manner. The Auditor has sustained, for preparation, £36, 15s.; for attendance at trial, £10, 10s.; and outlays, £12, 5s.,—in all, £59, 10s.
(3 and 4) Mr Gillies Smith, C.A., Edinburgh, and Mr Muir, Accountant, Glasgow.—The charges for these witnesses amount, as stated, to £260, 8s. 3d. and £263, 3s. 4d. Both are included in the certificate of the presiding Judge, but the parties are not agreed as to the footing on which they were certified. At the audit it was stated, on the part of the defenders, that both were certified solely on the ground that the time for preparation between the commencement of Mr Smith's employment and the day of trial was too limited to enable one accountant to qualify to give evidence, and on the understanding that the allowance to both accountants should not exceed a full allowance to one accountant for complete preparation to give evidence. This was disputed on the part of the pursuers, and it was maintained for them that the only restriction intended by the presiding Judge was, that while both accountants should have allowances for qualifying to give evidence, these should not be given as if each had qualified independently of the other, but on the footing of the work of preparation being carried on jointly, so that the investigation of each should be merely verified by the other. Mr Smith attended several meetings before the Auditor, and furnished him with full details of the time given by himself and by his clerks to the work, and he also explained that Mr Muir and he bad divided the investigations so that each did not make the whole investigation for himself, but only a portion, at the same time verifying the work of the other so as to be able to speak in corroboration. The Auditor has dealt with the charges of these witnesses on the footing that both were to be examined at the trial, as contended by the pursuers. After careful examination of the states and notes prepared by the accountants, and of the detailed note of time occupied, the Auditor has sustained Mr Smith's charges to the extent of £157, 8s. 4d.
The Auditor had not the same detailed information as to the time of Mr Muir and his clerks, but he is of opinion that his charges may be sustained to the same extent, £157, 8s. 4d. The period of Mr Muir's employment was not so long as Mr Smith's, but, on the other hand, he was longer absent from Glasgow in connection with the business than Mr Smith was from Edinburgh.
If the contention of the defenders' agents, that it was intended by the presiding Judge that allowance should be made as for one accountant only, be correct, the Auditor would humbly suggest that there should be deducted from the sums sustained by him, £78, 14s. 2d.. being one-half of the allowance for the second accountant.
2. Ordinary Witnesses.—The witnesses, other than those certified, are twenty-six in number, and the charges stated for them amount to £317, 0s. 10d. These have all, with a single exception, and with some limitation of time and rates, being allowed by the Auditor,—the amount sustained being £183, 10s. 10d. In the account all the witnesses have been charged as for six days. The Auditor has restricted the time to five days for the witnesses from England and three days for those in Glasgow and the neighbourhood.—The trial commenced on the morning of Monday, 6th October, and was brought to a conclusion by compromise early on the afternoon of Wednesday, 8th October. In
Page: 289↓
these circumstances, and the pursuers leading in the trial, the time he has sustained appears to the Auditor to be very ample, The only witness entirely disallowed by the Auditor is Mr May, C.E., a skilled witness, whom the presiding Judge declined to certify. After perusal of his precognition the Auditor is satisfied that Mr Hay was brought exclusively as a scientific witness, and that, not being certified in that capacity, the pursuers are not entitled to any allowance for him as an ordinary witness.
The pursuers lodged the following objections:—
The Auditor's Report is objected to in so far as he has taxed off and disallowed—
(1) The charges under date the 1st day of October 1873, in reference to the pursuer's agent going to London to attend examination of havers, amounting to
£39
10
0
Less allowed by Auditor for instructions to agent in London and for his attendance at executing of commission and correspondences,
9
9
0
Taxed off,
£30
1
0
(2) The charge under date 4th October 1873, for going over and perusing and examining the documents in process (4800 in number), consisting of letters, accounts, plans, tracings, &c., and selecting those to be copied and printed, time occupied twenty-one days (8 hours a-day), amounting to
£84
0
0
Less sum allowed by Auditor,
21
0
0
Taxed off,
£63
0
0
3. The charges, under date 4th October 1873, for making three copies for use of counsel at the trial of “cost sheet” of time, “and material in the construction of Hannay & Sons' mills, prepared by Tannett, Walker & Co.,”—50 shs. folio figs., and three copies of “Excerpts from the pursuers' ledger, commencing No. 2701,”—20 shs. figs., both of which documents were produced by Messrs Tannett, Walker & Co., under diligence at the instance of Messrs Hannay & Sons, amounting together the said charges to
£36
0
0
Less allowed by the Auditor for one copy of each of said documents “for reference,’
12
0
0
Taxed off,
£24
0
0
4. The following fees paid to counsel on 6th October 1873, for attending on second day of trial, viz.:—
(1) The fee paid to the Lord Advocate and Clerk,
£34
13
0
Less allowed by Auditor,
17
6
6
Taxed oft,
£17
6
6
(2) The fee paid to the Solicitor-General and Clerk,
£22
1
0
Less allowed by Auditor,
16
10
0
Taxed off,
£5
10
3
(3) The fee paid to Mr A. Blair and Clerk,
£16
10
9
Less allowed by Auditor,
11
0
6
Taxed off,
£5
10
3
5. The following fees paid to counsel on 7th October 1873, for attending on third day of trial, viz.
(1) The fee paid to the Lord Advocate and Clerk,
£34
13
0
Less allowed by Auditor,
11
11
0
Taxed off,
£23
2
0
(2) The fee paid to the Solicitor-General and Clerk,
£22
1
0
Less allowed by Auditor,
11
0
6
Taxed off,
£11
0
6
(3) The fee paid to Mr A. Blair and clerk,
£16
10
9
Less allowed by Auditor,
7
14
6
Taxed off,
£8
16
3
6. The fee paid to J. R. Buntine, Esquire. Advocate, under date the 24th day of October 1873, for acting as Commissioner under diligence at the pursuer's instance, amounting to
£105
0
0
Less allowed by Auditor,
68
5
0
Taxed off,
£36
15
0
7. The charges under date the 29th day of October 1873, for printing excerpts from the business books of Hannay & Son, amounting to
£60
15
0
Less allowed by Auditor for one manuscript copy of excerpts for reference,
8
0
0
Taxed off,
£52
15
0
8. The charges under date 29th September 1873 (English Solicitors' Account) for making tracings and copies of drawings of machinery,
£111
6
0
Allowed by Auditor,
31
10
0
Taxed off,
£79
16
0
(Signed) Alex. Blair.
The defenders lodged the following objections:—
The Accountant's Report is objected to on the part of the defenders, in so far as—
(1) He has allowed fees for the preparation of two accountants, in place of a suitable fee for the whole work to one accountant, the excess being £78, 14s. 2d.
(2) The sum allowed by the Auditor, namely £124, for models is objected to as excessive in the view that the pursuers are to retain these models without crediting the defenders with the value thereof.
Memo. If the models are delivered to the defenders, the amount allowed therefor will not be obejcted to. (Signed) J. B. Balfour.
At advising—
Page: 290↓
The pursuers applied for a certificate that certain skilled witnesses were necessary. I do not think that two accountants are usually necessary, but in the time in which the work had to be done it required two, each on a separate part of the case, and each has verified the work of the other. The Auditor has allowed for that, and I think he was right in the particular circumstances of the case.
As to the models, I do not know how we can review this finding of the Auditor without taking skilled advice, and if I were to take advice from anyone on the matter it would be from Mr Milne. The demand of the defenders for delivery of the models is quite novel. They say that if they pay for them they are entitled to have them. It is clear they cannot have them at cost price, whatever they might be if they were willing to pay a profit on them. But I do not think they can really be held entitled to have them at all. The models were made for a distinct purpose, and may reveal trade secrets, and I think the pursuers are entitled to keep them; they were admittedly necessary for the trial and the cost of their preparation must therefore form part of the expenses.
The other Judges concurred.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel for the parties on the Auditor's report on the pursuers' (Tannet, Walker & Company's) amount of expenses, No. 4870 of process, and also on the notes of objections for the said pursuers and the defenders Hannay & Sons respectively, No. 4871 and 4872 of process: Sustain the fourth and fifth objections for the said pursuers to the effect of allowing additional payments to counsel and clerks, amounting together to £71, 5s. 9d.: Sustain also the sixth objection for the pursuers to the effect of allowing an additional payment of £13, 13s. to the Commissioner Mr J. R. Buntine: Repel the remaining objections for the said pursuers, also the defenders Hannay & Sons' objections, and decern: And with the above variation, approve of the Auditor's report, and decern against the defenders Hannay & Sons for payment to the said pursuers of £2062, 5s. 2d., the taxed amount of their account, and also of the additional sums of £71, 5s. 9d. and £13,13s. above specified, the said three sums amounting altogether to £2147, 3s, 11d.
Counsel for Tannett, Walker & Co.— Blair. Agents— Hunter, Blair & Cowan, W.S.
Counsel for Hannay & Sons— Balfour. Agents— Webster & Will, S.S.C.
