Scottish Court of Session Decisions

The Lord Ordinary ( Kincairney) allowed a proof, and thereafter issued the following interlocutor:—“Finds (1) that on or about 8th July 1896 the pursuer was employed by the defender to appear on his behalf at the Police Court of Rothesay, and conduct his defence against certain prosecutions directed against him in that Court at the instance of the public prosecutor; (2) that the pursuer on said employment conducted the defence of the defender, and appeared on his behalf on various occasions at said Police Court; (3) that it is not proved as averred by the defender that the pursuer agreed to perform the said work for a fee of 10s. per day, or that he was paid that fee: … Therefore finds that the pursuer is entitled to recover the sums charged in the account so far as consistent with the previous findings, subject always to the taxation thereof, &c.

Opinion.—“This is an action by a law-agent for his account. It arises out of certain prosecutions brought before the Magistrates of Rothesay against the defender, who is a carriage hirer and bus driver there, for contravention of police regulations as to driving public carriages. These prosecutions were numerous, and several of them resulted in convictions, one of which, regarded as a test case, was set aside by the Justiciary Court on 2nd November 1896— Drummond v. M'Millan, 24 R. (J. C.) 1. The items in the pursuer's account may be classified as (1) charges for conducting the defence in the various prosecutions at Rothesay Police Court; (2) …

The defender has a different answer to each group of charges. He alleges (1) that the pursuer agreed to undertake the conduct of his defence in the Rothesay Police Court for a fee of 10s. per day, and that he, the defender, had paid that fee. …

In considering the first of these questions, namely, whether the pursuer agreed to conduct the defences in Rothesay Police Court for 10s. per day and had been paid, it is important to keep in view the exceptional character of a contract between agent and client. It is a familiar and common contract; but it has this specialty, that the obligations arising out of it are fixed by the law without special agreement. The client comes under an obligation to pay the law-agent's account; but he is protected from an overcharge by his right to insist that the account shall be taxed in accordance with the statutory table of fees. He can only be charged what the law holds to be a reasonable remuneration to the agent, so that when an agent seeks only to recover his taxed account, as here, he has nothing to prove but employment. The law proves the rest. The defender, however, alleges that his agreement with the pursuer was totally different from what is usual and what the law recognises, and it is obvious that the burden of proving that deviation from ordinary practice must fall upon him; and so strong is the favour of the law for the settled practice on this point that in Taylor v. Forbes, 13th January, 1853, 24 D. 21, it was held that a contract, not precisely the same as in this case, but similar, could not be proved by a client except by the writ or oath of the agent; and in Forbes v. Caird, 20th July 1877, 4 R. 1141, Lord Deas observed— ‘It is so unusual and out of the common course for a law-agent to work for nothing that a contract to do so will only be allowed to be proved by his writ or oath’; and I rather think that, if a law-agent were to attempt to enforce a special contract, his claim would be disallowed, and he would be confined to an account stated and audited in the regular way. The averment of the defender, however, is not that the law-agent agreed to work for nothing, which Lord Deas thought incredible, but that he was to be paid a fixed amount, and in a special manner; and I think that, having regard to other cases, and, in particular, to Scotland v. Henry, 18th July 1865, 3 Macph. 1125, and Moscrip v. O'Hara, 23rd October 1880, 8 R. 36, the point cannot be held to be finally determined by Taylor v. Forbes; but that on the contrary the weight of authority is rather in favour of the admission of parole evidence. The contract between agent and client is a very common one, and modifications of it are very common also. It is not at all unusual, for example, that an agent should take up a case on the chance of recovering his fees from the opposing litigant; and I see no sufficient reason why, when an agent seeks to enforce the obligations resulting from his contract with his client, in this case, and frequently, constituted by parole, the client should be debarred from proving modifications of that contract by parole also.

I am of opinion, therefore, that the defender's averment that the pursuer agreed to do the work at the Rothesay Police Court for 10s. a day and was paid, may be competently proved by parole; but I am also of opinion that the onus probandi lies on him, and that the decisions show that it is not an onus which will be easily discharged.

The question, then, is not whether the proof preponderates on the side of the defender, but whether it preponderates so much as to overcome the onus probandi. I am disposed to think that the defender's evidence is not sufficient for this purpose. I do not require, and am indeed not prepared, to say that the defender and the witnesses adduced by him have given false evidence. I have only to consider whether the balance of evidence is sufficient to overcome the onus.

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