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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Powrie v. Louis [1881] ScotLR 18_606 (25 June 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0606.html Cite as: [1881] ScotLR 18_606, [1881] SLR 18_606 |
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Page: 606↓
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Held, following Birrell v. Beveridge, 15th February 1868, 6 Macph. 421, that, except in special cases, a charge for copies of evidence sent to counsel to enable them to debate on a proof will not be allowed as against a party found liable in expenses.
When a Lord Ordinary having heard proof intimated his opinion that counsel should be heard thereon after an approaching Christmas vacation, and the speeches on evidence were ultimately made before another Lord Ordinary about two months after the date of closing the proof, the circumstances were held to take the case out of the above general rule, and a charge to the extent of one copy of the evidence, for the use of that counsel who was speaker thereon, was allowed.
Counsel for Powrie objected to the Auditor's report in this case, in so far as two sums of £11, 8s. each, for copies of the evidence taken at the proof, to enable counsel to debate thereon, had been taxed off and disallowed.
The proof was led before the Lord Ordinary ( Craighill) on December 13 and 14, 1880. At its close the Lord Ordinary stated his view that counsel should take time to consider the evidence, and that the case would be put out for hearing thereon after the ensuing Christmas recess. On the meeting of the Court after that recess, Lord Craighill having taken his seat in the Second Division, the case came to depend before Lord Rutherfurd Clark, by whom counsel were heard on the evidence on 16th February 1881.
The objector argued, that the speeches having been delayed on the suggestion of Lord Craighill, and having been ultimately heard by a different Lord Ordinary, the case was one of these exceptional ones contemplated by the Judges, who laid down the general rule on this matter in Birrell v. Beveridge, February 15, 1868, 6 Macph. 421. Moreover, the evidence was of a kind which necessitated special and detailed criticism, and therefore a deferred hearing, and copies of the evidence.
Replied for Louis—There was nothing here to take the case out of the general rule laid down in Birrell v. Beveridge. The evidence was not intricate; it depended mainly on what took place at certain interviews, at none of which more than three witnesses were present. The Auditor's discretion should not be interfered with; but, in any view, one copy of the proof would have been sufficient, as only one counsel was allowed to address the Lord Ordinary on the evidence.
At advising—
In addition, we have the fact, which also occurred through no fault of the parties, that the Lord Ordinary who decided the case was not the same as the Lord Ordinary who heard the evidence, and it was therefore necessary to go more minutely into the details of the proof than if the judge had been the same. Putting these facts together—the lapse of time and the change of Judge—I think this may be held to be such an exceptional case as was contemplated in Birrell v. Beveridge. But it was not necessary that more than one copy of the evidence should be made, vizt., for the use of that counsel who was to address the Lord Ordinary upon the proof. I am therefore for allowing the charge for one copy, and one only.
The Court allowed the charge for one copy of the notes of evidence.
Counsel for Powrie— H. Johnston. Agents— Leburn & Henderson, S.S.C.
Counsel for Louis— Rhind. Agent— W. Officer, S.S.C.
