Scottish Court of Session Decisions

In this case (reported supra, p. 70, November 7, 1884) the owners of the “Hilda” were successful, and were found entitled to damages and to the expenses of the process. The usual remit was made to the Auditor, who taxed the amount of expenses at £448, 16s. 8d. (including the £60 hereafter referred to), but reserved a question for the determination of the Court as to the extent of the defenders' liability for the expense of the examination by commission of one of the pursuers' witnesses named Salvatore Farrugia, a Maltese pilot at Port Said, which amounted to £60, 6s. There were seventy-five interrogations, and the report of the commissioner, the British Consul at Port Said, extended to fifteen pages of print. The time occupied in the examination was stated at three and a-half days, and the commissioner's charge (including 5s. 6d. for postages) was stated at £37, being at the rate of £10, 10s. per day. The clerk's fee was charged at £11, being at the rate of £3, 3s. per day, and the allowance to witness (including hotel and travelling expenses) amounted to £12, 5s. At the audit the defenders' agent objected to the expense of the commission as excessive, and the pursuers' agent, while concurring in this view, stated that he had no alternative except payment of the charge or loss of the evidence. The pursuers' agent also stated that he had been in correspondence with the Foreign Office on the subject, and had received a letter reporting that the explanations given by the commissioner appeared quite satisfactory to Lord Granville. A portion of the examination was conducted in Italian, the commissioner acting as interpreter, and the Auditor, while considering that this to some exten t explained the length of the time occupied, could not help concurring with the agents as regards the rate of fees for the commissioner and clerk as unusually high, and the time occupied as excessive, assuming the days to have been ordinary business days. Practically, there was no check on the expense of commissions executed abroad, but the question remained, by whom was any excess of charge to be borne? In the present case the Auditor had not felt at liberty to disallow any part of the expenses incurred.

Counsel for the owners of the “Australia” argued—The ordinary rule that the losing party must pay the expenses of process could not be applied in this special case. The expenses in this commission, so far as in excess of what was reasonable, must be borne by the pursuers, whose duty it most clearly was, when they found how high the commissioner's charges were to be, to have come to the Court and asked for the appointment of a new commissioner.

Counsel for the owners of the “Hilda” stated that it was a rule of the Suez Canal Company that their pilots should only appear for examination before a Consul or an official of the Commissioners.

At advising—