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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jamieson & Others v. Mackinnon [1882] ScotLR 19_824 (14 July 1882) URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0824.html Cite as: [1882] ScotLR 19_824, [1882] SLR 19_824 |
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Page: 824↓
In the Auditor's taxation of an account of expenses of a process where objections were taken (1) to the fees allowed by him to professional accountants, and (2) to the manner in which he proposed to deal with the accounts for printing, which were exceptionally large—the Court, after hearing parties, altered his finding on the first branch and increased the allowance by one-third in respect of the quantity and quality of the work done, and found on the second branch that by agreement of parties the whole of the printing account fell to be paid by the losing party.
In the case of Jamieson and Others (Liquidators of the City of Glasgow Bank) v. Mackinnon, reported ante, p. 278, their Lordships of the First Division, by interlocutor of 23d December 1881, inter alia, found the respondent William Mackinnon entitled to expenses, allowed an account thereof to be lodged, and remitted the same to the Auditor to tax and report.
On the 18th March 1882 the Auditor issued his report taxing the respondent's account at £3619, 9s. 6d., and he added a note for the guidance of the Court in the event of objections being lodged to his report.
On the 12th May 1882 a note of objections was lodged by the respondent, who objected to the said report in so far as it disallowed various items specified therein, amounting in all to £2764, 14s. 8d.
In the note appended to his report the Auditor referred to the account of expenses in the ordinary action raised by the liquidators in the Outer House prior to the instituting of the proceedings before the First Division of the Court. That action was sisted immediately after the closing of the record, and without any debate, to await the issue of the Inner House case. In consequence of the decision of the Inner House that action was abandoned, and the account of expenses incurred in it was taxed at £1673, 12s. l0d.
The respondent objected to this taxation in so far as it disallowed items amounting to £941, 6s.
On the 13th May 1882
When the case came on for discussion it was argued for the objector Mackinnon—(The Auditor had classified the expenditure under various heads):—(1) As to charges for printing—The effect of the agreement between the parties contained in their correspondence, which is quoted by the Lord President, was that 500 copies of the large print were to be thrown off, and that to give effect to the proposal of the Auditor would virtually be to review the agreement between the parties. By the 28th April 1881 the print was complete, and at that date each party had got, or there was lying at their order, 250 copies. Owing to the magnitude of this case unusual expense was unavoidable. (2) As to accountants' charges—The sum allowed by the Auditor quite inadequate. In a case such as this a charge should be allowed for accountants' work in the preparation of the record. The sum claimed was reduced after the summons was raised owing to what was brought out by the accountant Harding.
Authorities— Millar v. Ure, 1853, 15 D. 781; Inglis v. Baird, May 1861, 23 D. 872.
Argued for the liquidators:—(1) As to printing account—The auditor availed himself of the assistance of a printer in fixing the amount that should be charged under this head. Down to August 1880 there was no agreement between the parties for more than the ordinary 60 copies, and nothing can be gathered from the subsequent letters to enlarge the responsibilities of parties. There was no agreement that the losing party should pay extra charges. (2) As to the accountants' charges—Two professional men ought not to be paid as for separate work when one of them simply revised and checked the work done by the other.
At advising—
Page: 825↓
As to the printer's account—there is no doubt that this stands in a very peculiar position. It is in every respect an exceptionally large account, and provided that there was no agreement about it between the parties a great part of it would fall to be disallowed. As to the matter contained in the large print, there can be no doubt that there is a great deal in it that should never have been there; and as to the number of copies, it is equally certain that there were far too many thrown off.
But then it is urged that it was matter of agreement between the parties that the full amount incurred for printing was to be stated in the account of and to be paid by the losing party. Now this depends upon the construction which is to be put upon the letters passing between the parties. Three periods of time have also to be kept in mind in considering this correspondence. On the 22d July the respondent's agents wrote to the liquidators' agents in these terms:—“Referring to Mr Forrester's call upon you to-day, we are anxious to have … (3) a complete copy of the correspondence with Messes Irvin & Co., Mr G. A. Thomson, Mr Alex. Mitchell for himself and others, and the bank, in connection with the American railways, embracing all the correspondence referred to in the minutes of meeting of the directors during the period embraced in this summons. As you mentioned to us that …. Mr Muir had the whole correspondence above referred to arranged and tabulated in such a form as would enable him to get it at once put into print, we agree to your getting the correspondence printed, as also the investigation committee's report of 1857, and to pay one-half of the expense of printing, on the understanding that the expense shall be held to form part of the expenses of process, and be afterwards dealt with as such.”
To this the liquidators' agents answer on the 28th July, as follows:—“The third thing you want is a complete copy of the correspondence with Messrs Irvin and others relating to the Western Union Railway. We wrote Mr Muir, and have also seen him and Mr M'Grigor, as to printing the correspondence. We are now willing that it should be printed, on the understanding mentioned in your letter. We should warn you, however, that the correspondence is very voluminous, and the expense of printing will therefore be great. To save the expense of getting a copy made we have arranged that the print is to be set up in Glasgow direct from the original documents. Mr Muir, who is most familiar with the correspondence, is to see that the letters are handed to and received back from the printer. So soon as a proof of any portion is ready we shall send it to you.”
After a meeting which seems to have taken place between the parties on the 5th August an arrangement was arrived at that the prints should be completed irrespective of cost, and had the correspondence ended here the Auditor is of opinion that the cost, however great, would have formed a part of the expenses of process, to be dealt with in the ordinary way. The second portion of the correspondence is in the month of October and November 1880.
On the 21st October the respondent's agents wrote the liquidators' agents as follows:—“With reference to the number of copies of the correspondence to be printed, seeing that the case will probably go to the House of Lords, and that there may be a good deal of litigation here, we propose that 500 copies should be printed.” In reply Messrs Davidson & Syme wrote on the following day—“You do not say whether the 500 copies mentioned are for yourselves, or whether you propose that 500 copies in all should be thrown off, half being allotted to you and the other half to us.” The answer was—“Five hundred copies in all is what we think should be thrown off, one-half being allotted to you and one-half to us.”
To this letter the following reply was sent by the agents of the liquidators on the 4th November 1880:—“Mr Maclehose, the printer in Glasgow employed in connection with the printing of the correspondence, &c., in this case, has applied to the liquidators for a payment to account of £1250. As there has already been considerable outlay connected with the matter, we are sure you will agree with us that it is proper that such a payment should now be made, and we shall accordingly be glad to receive Mr Mackinnon's half thereof, viz., £625, at your convenience.” On 8th November Messrs Murray, Beith, & Murray answered thus—“When we agreed to a joint print being made at this stage of the case we had no idea that the print was to assume such large dimensions, or would have taken such a length of time in its preparation. We do not, however, see any reason for departing from the usual course followed by the Edinburgh printers, which is not to charge for a joint print until it is finally completed, and then to render their account to each of the parties, who respectively settle their share of the expense.”
Now here the matter stopped; the print had not been completed, and therefore the time had not arrived for making any payment to account, nor had anything been said about the number of copies which were to be thrown off, nor whether
Page: 826↓
But the correspondence was continued, and this brings us to what may be called the third period. By April the print was completed, and as it would have been unreasonable to have delayed any longer in making a payment to account, the agents of the respondent wrote to the agents of the liquidators on the 28th of April to the following effect:—“We have now received authority from our client to pay to you £1000 to account of his half of the proportion of Mr Maclehose's account for printing the seven volumes of the large print.” We accordingly enclose our cheque on the Commercial Bank of Scotland in your favour for £1000 to account of the print, of which please acknowledge receipt. In sending the enclosed it is on the understanding that Mr Mackinnon does not in the meantime admit the correctness of Mr Maclehose's account, and also that whatever the sum is paid by him in respect of the expense of printing shall be held at the taxation of his account of expenses, in the event of his being held entitled to expenses, to be a proper charge as against the liquidators.”
Now, this is a very distinct proposal, and means that whatever sum is paid for the print is to be a charge against the losing party. It was quite open to the liquidators when they received that letter to have replied—“Oh no, that is not our agreement at all but what they did say is contained in a letter of the same date written by their agents to the agents of the respondent, and is in these terms:—“You will understand that whatever sum the liquidators have paid or may pay to Mr Maclehose to account of his charges for printing is or will be paid subject to the same condition as you stipulate at the end of your letter, viz., that at the taxation of the liquidators' account of expenses, in the event of their being held entitled to expenses, the account is to be a proper charge as against Mr Mackinnon.” That is to say, that parties agree that the entire printer's account is to be dealt with as proper expenses of process. It appears to me, therefore, that Maclehose's account as paid must be considered as a burden on the losing party.
Counsel for Liquidators— Robertson— W. C. Smith. Agents— Davidson & Syme, W.S.
Counsel for Respondent— Lorimer. Agents— Murray, Beith, & Murray, W.S.
