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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Magee v. Glasgow City Council [2003] ScotCS 109 (8 April 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/109.html Cite as: [2003] ScotCS 109

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Magee v. Glasgow City Council [2003] ScotCS 109 (8 April 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF J GORDON REID, Q.C., SITTING AS A TEMPORARY JUDGE in the cause MRS CAROLINE MAGEE, as legal representative of ANDREW MAGEE (AP) Pursuer; against GLASGOW CITY COUNCIL Defender:   ________________

 

 

Pursuer: Mackay Q.C., Brodies, W.S.

Defender: No appearance

8 April 2003

Introduction

1. In November 2002, the pursuer lodged a Note of Objections to the Report of the Auditor of the Court of Session, dated 12 November 2002, by which he taxed the pursuer's account of expenses in the total sum of £72,912.16 inclusive of VAT. The taxation took place on 1 October 2002 in the course of which the Auditor taxed off various items amounting in total to £12,669.65. Following the lodging of the Note of Objections, the Court required the Auditor, in terms of Rule of Court 42.4(2)(b)(ii), to lodge a Minute stating the reasons for his decision relative to his Report. The Auditor has lodged a Minute. I heard Senior Counsel, Mr D. I. Mackay Q.C., for the pursuer in support of the Note of Objections at a Hearing on 14 March 2003. There was no appearance by or on behalf of the Defender or the Auditor.

Background to the Account of Expenses

2. In 1994, Andrew Magee, then aged seven years, sustained catastrophic injuries; he fell from the roof of the school at which he was a pupil. In particular, he suffered inter alia severe head injuries; he can only communicate through a system of blinking. He was rendered quadriplegic. His life expectancy has been reduced to about 40 years of age, and he will require to be cared for throughout the rest of his life. The pleadings disclose that there were many heads of claim apart from solatium including loss of future employment and pension rights, the considerable and varying costs of caring for Andrew, physiotherapy and occupational therapy costs; the cost of adapting his home to his special needs, the cost of equipment such as special wheelchairs, the cost of extra heating and laundry, transport costs, and other extra costs which permeate every aspect of his handicapped life, even the inability in the future to carry out DIY tasks which the healthy take for granted. Quantification of this claim was thus not straightforward and is readily distinguishable from most personal injury claims which pass through these courts. In order to quantify the claim, an appreciation of the detail of the many expert medical and related reports was required and a careful analysis of how the views expressed therein fell to be converted into money had to be made. This would be particularly difficult as predictions, no doubt containing many variables had to be made far into the future. As for the merits, Mr Mackay explained that this was not straightforward. The case was based upon the proposition that the school roof was an allurement to children and that the defenders, as occupiers, breached their duties of reasonable care by failing to prevent access to the school premises at weekends and by failing to place barriers or other obstacles so as to prevent children from gaining access to the school roof. The action was defended on the merits and on quantum.
3. Mr Mackay submitted that while this type of action was not unique in these courts, it was uncommon and was readily distinguishable from most other personal injury actions, by reason of its difficulty on the merits, the assessment of quantum, the potentially very high value of the claim and the extensive preparation required to enable the case to be properly presented. He pointed out that the pursuer had twenty three witnesses on her List of Witnesses ; the defenders had forty witnesses on their List. There was some overlap between the two Lists but they disclosed that there were some ten expert witnesses, who had prepared reports. I accept this submission, made as it is by a senior Silk who is very experienced in the field of personal injury litigation. Its accords with my own more limited experience in this field. There is a world of difference between the preparation and presentation of this type of case and the many thousands of other personal injury cases which pass through these courts, which normally involve two or three experts at the most and perhaps less than half a dozen lay witnesses. Mr Mackay informed me that he allowed four days for preparation for the proof and that throughout the week before the proof, which was set down for two weeks beginning on 15 May 2001, he was in daily discussion with counsel for the defenders in relation to quantum. Eventually, counsel agreed quantum at the sum of £2.1m on the basis of full liability. On the morning of the proof, the defenders lodged a second tender (the first tender had been in the sum of £750,000) in the sum of £1m which was accepted. The Court subsequently found the pursuer entitled to charge an additional fee under reference to Rule of Court 42.14(3) factors (a),[complexity of cause, and number difficulty or novelty of questions raised] (b), [skill, time and specialised knowledge of solicitor] (c), [number or importance of documents (e), [importance to client] (f) [amount involved] and (g) [steps taken to settle].

Note of Objections and Principal Submissions

4. The pursuer has lodged a Note containing twenty three objections. The Auditor has lodged a Minute which by Rule of Court 42.4(2)(b)(ii) requires him to state "the reasons for his decision in relation to the items to which objection is taken in the note." In the course of the Hearing, Mr Mackay abandoned items 14-18, and 21-23 in the Note of Objections. In relation to the remaining items, his broad submission was that in taxing off the various items the Auditor has failed to take into account the unusual nature of the case, its complexity and difficulty all as more fully set forth above. This was a relevant and most important consideration which the Auditor had failed to take into account. The Auditor had to give reasons for his decision and so his reasons must be adequate and intelligible (Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345]. He accepted that the Court should be slow to interfere with the exercise of the Auditor's discretion, and submitted that the Wednesbury test applied (Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1KB 223). He referred me to MacNaughton v MacNaughton 1949 SC 42, 1949 SLT 10, Malpas v Fife Council 1999 SLT 499, at 500K-501A, City of Aberdeen Council v WA Fairhurst & Ors 2000 SCLR 392. In Malpas, the personal injury claim and its quantification were relatively straightforward in comparison with the present action. Liability was admitted and the case was settled at the sum of £43,500 a few days before the date of the proof under the Optional Procedure. The Hearing on the Note of Objections to the Auditor's Report was concerned with the disallowance of the charges made by senior counsel for preparation for proof and for the consultation and certain related charges made by agents. After considering Macnaughton (above), the Lord Ordinary (Bonomy) stated that in deciding whether to allow or disallow any particular item

"the Auditor is undertaking a task similar to mine and should only disallow an item if it can truly be said that to incur that expense was not reasonable, in the sense that a competent solicitor acting reasonably would not have incurred it" (at 1999 SLT 501E-F)

5. His Lordship thereafter observed that the question the Auditor was considering was whether a solicitor acting reasonably would have instructed Senior Counsel to conduct the proof (501F-G). I also note that in his consideration of various matters Lord Bonomy stated that it was plainly wrong for the Auditor to describe a sum of £43,500 as damages to a caretaker who might never be able to work during the eleven years between the date of her accident and her normal retirement date as "relatively small"; and that it was plainly wrong that there were no complicating factors in quantification [502A-B]; the defenders had averred that the pursuer was fit for light work.
6. In City of Aberdeen Council v WA Fairhurst and Ors (above) the issue related to commitment fees paid to counsel and allowed by the Auditor. There, the pursuers sought damages arising from the professional services of engineers and the performance of specialist contractors in connection with a sheltered housing project. The action settled about three weeks before the start of a six week proof in the sum of £770,000. The Lord Ordinary (Lord Penrose) emphasised that Rule of Court 42.10(1) provided a single test for recovery, namely "Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed" [2000 SCLR 399B]; he endorsed the views of the Auditor, who, he said, had the correct test in mind. The Auditor in that case, said this:-

"It would be unreasonable to expect the commitment of a counsel to a case which resulted in his or her inability to accept other competing instructions, or resulting in receiving no similar work for the 'vacated period' to be a commitment at no cost to the client. Consequently the incurring of such an expense must reasonably be expected to be within the contemplation of the unsuccessful party as an expense to which the successful party has been put for the conduct of the cause in a proper manner and of which the defenders in this cause had been forewarned. No counsel can properly conduct a proof without receiving and accepting instructions in advance of the hearing (and sometimes substantially in advance of the hearing) and the acceptance of those instructions inevitably means that counsel cannot make himself, or herself, available to any other party for court work during that period."

7. Lord Penrose was of the view that the Auditor could not be criticised for recognising that a commitment fee should reasonably have been expected in that case [400C-D]. I shall return to the question of commitment fees later in this Opinion.
8. In my view it is well established that the Court will intervene if the Auditor errs in the exercise of his discretion. Thus, if he takes into account irrelevant considerations, fails to take into account relevant considerations, makes an error of law which is material to his decision, or reaches a result which is wholly unreasonable or plainly wrong the Court may sustain an objection to his Report or remit the account of expense to him for further consideration (MacNaughton above at page 46; Malpas above at page 500L). While I consider that there is some force in Mr Mackay's broad submission, I am of the view that it is insufficient to justify remitting the items to which objection is still taken to the Auditor for further consideration without examining the detail of each individual item in order to identify whether the Auditor has truly erred in the exercise of his discretion.

The Individual Items of Objection

1 Senior counsel's fee for revising the Summons-£75

9. The Auditor has taxed off the whole of senior counsel's fee (Ann Paton Q.C. as she then was). The Note of Objections points out that Legal Aid sanction for Senior Counsel was granted at the outset. In his Minute, the Auditor states that the pursuers' agents have a reputation for acting for pursuers in complicated reparation actions, that at least two of their partners are solicitor/advocates, that junior counsel was an expert in this field, and that the agents have already been granted an additional fee under the various heads mentioned above. The Auditor took the view that the agents and junior counsel had sufficient expertise and experience to initiate proceedings and that it was not reasonable that a fee to Senior Counsel for revising the summons should be met by the Paying Party. Mr Mackay submitted that the Auditor has taken into account irrelevant considerations and failed to take account of relevant considerations. He has ignored a well established practice of having Senior Counsel revise junior's draft summons in appropriate circumstances. (JM Mitchell & Sons v Lord Advocate 1994 SCLR 522). He has ignored the fact the this was not an ordinary personal injury claim. He has overlooked the fact that it is counsel rather than solicitors who have expertise in drafting pleadings.
10. In my opinion, the Auditor has fallen into error. He has, it would seem, not taken into account the well established practice of senior counsel revising junior's draft summons in appropriate circumstances. These circumstances will include a case of particular importance to the client, a case of complexity and difficulty and with a potentially high value. These factors are all present here. In Mitchell, Lord Marnoch made it clear that it is always a question of circumstances whether the revisal of the summons by senior counsel was reasonable for conducting the case in a proper manner. That case concerned bovine tuberculosis and the failure to lift a statutory stop notice which prevented the pursuers, a farming partnership, from moving and selling stock in accordance with their farm policy to their loss and damage. If Senior counsel's fee for revising junior's draft summons were justified in that case (the item in the account was remitted to the Auditor for further consideration), it seems to me that a fee for revising junior's draft summons is justifiable in this case too. Moreover, that partners of the pursuers' agents are solicitor/advocates or that an additional fee has been granted to the agents are irrelevant considerations. By instructing junior and senior counsel the pursuer's agents are recognising that they require the special expertise which counsel can provide. One of counsel's principal functions in complex litigation is the drafting of pleadings. They are trained in drafting and, equally if not more importantly, spend much of their practice drafting or revising pleadings. The ability to draft skilful pleadings is an art, part of the art of advocacy, which is built up over a long period of time. It is sometimes forgotten how important skilfully drafted pleadings are to the proper management of complex litigation or arbitration. Senior Counsel are frequently called upon to draft pleadings or to revise them. It is often tactically important that an action is begun with a particularly well drafted summons making it as clear as possible that there is a case to answer and limited scope for defence on the merits as well as quantum. In the light of the circumstances of this case, which I have outlined above, I am of the view that the considerations taken into account by the Auditor in concluding that this item is not a reasonable expense for conducting the cause in a proper manner are irrelevant. I shall therefore remit the account of expenses to the Auditor for further consideration. In a case of this nature I would have thought it would be difficult to conclude that instructing senior counsel to revise a draft summons is not a reasonable expense for conducting the cause in a proper manner.

2 Abatement of Junior Counsel's Fee

11. The Auditor has taxed off £75 from junior counsel's fee of £400. The Note of Objections explains that the fee related to a Consultation, a Minute of Amendment and a Joint Note. The argument in the Note of Objections and at the Hearing was essentially that the Auditor's figure was too low. The Auditor has explained in his Minute that he has taxed off £75 for the Minute of Amendment which he has disallowed for the reasons set out in relation to Items 3-7. The fee for this Minute of Amendment therefore falls to be considered under these items.

3-7 Minute of Amendment and related procedure

12. In Item 3, the Auditor has taxed off the whole of a precognition fee (£159.60). The contents of the precognition are reflected in the Minute of Amendment referred to in Item 2. Items 4-7 are fees and outlays for the procedural steps relative to the consequent amendment of the pleadings. These have all been taxed off in their entirety. In the Note of Objections, it is explained that "ongoing" precognition of the pursuer was required in a case of this nature. It was necessary to precognosce the pursuer on the terms of an expert "Needs Report" which added a "seven figure sum" to the value of the claim. In his Minute, the Auditor draws attention to Rule of Court 24.4 which provides that the Court must find a party making an amendment liable in the expenses occasioned by it unless it is just and equitable to do otherwise. He records that the Court's Interlocutor dealing with the amendment is silent on the question of expenses. He concludes that the Auditor has no discretion to interfere with this Rule and therefore has no discretion to allow items 3-7. Mr Mackay submitted that the Auditor had erred in law. He pointed out that Rule of Court.24.4 directs what the Court, not the Auditor, should do. The Auditor has, in effect, made a finding of no expenses due to or by either party notwithstanding the fact that when granting decree in terms of the Minute of Tender and Acceptance, the Court found the defenders liable in the expenses of the action to the date of the Tender, which would include the amendment procedure.
13. In my opinion Mr Mackay's submission is sound. The Auditor has misdirected himself as to the effect of Rule of Court 24.4 and the Court's interlocutor dated 12 March 2002 finding the defenders liable to the pursuer in the expenses of the action to the date of the Tender. That finding supersedes the terms of the Rule of Court. The Rule of Court has no effect unless acted on by the Court. Here, parties have agreed that the defenders are to be liable for the amendment procedure because that procedure is part of the expenses of the action. The Auditor has not suggested that it was unreasonable to precognosce the pursuer or to amend thereafter. Nor has it been suggested that Rule of Court 42.5(2) applies [which enables the Auditor to tax off expenses where he considers that a party found entitled to expenses was unsuccessful or incurred expenses through his own fault].
14. The Auditor has, for the same reasons, disallowed £75, which he identifies as counsel's fee for the Minute of Amendment. For the reasons already given, I consider that the Auditor was wrong to disallow this Item in principle.
15. Mr Mackay asked that Items 3-7 and Item 2 be remitted to the Auditor for further consideration and I agree this should be done.

8-9 New Health and Safety Expert

16. The Auditor has taxed off the pursuer's agents fee (£20.55) for instructing a new expert, the previous expert having died, and the new expert's fee for what may be described as a preliminary view (£350 plus VAT). The Note of Objections records that this was an interim measure to ascertain whether the new expert agreed with the views of the previous expert. The solicitors' minimal fee covered collating papers, obtaining cost estimates, and sanction from the Legal Aid Board, and considering the preliminary report prepared. The new expert had to consider numerous documents including witness statements to enable him to provide the brief preliminary report. The Auditor has observed, in his Minute, that the report ran to one sheet. He concluded that it was not an expert's report, and points out that the expert's report is allowed in full (£2,543.88) elsewhere in the account of expenses. I have no note of Mr Mackay adding significantly to the terms of the Note of Objections.
17. The Auditor's conclusion appears to be based upon the view that what the new expert provided at this early stage in his involvement could not be classified as an expert report and therefore his fee must be disallowed. I do not consider that to be the proper test. The proper test is whether in the circumstances of this case having regard to the fact that the original expert died pendent lite, the expenses to which the instructions given to the expert and the work carried out by him relate were reasonable for conducting the cause in a proper manner. Put another way, the Auditor should have disallowed these items only if it could truly be said that it was unreasonable to incur the expense in the sense that a competent solicitor acting reasonably would not have incurred it, bearing in mind as Lord Penrose observed in City of Aberdeen Council at page 397E that not all the fees and expenses which it is fair to charge against a client will necessarily be recovered on a party and party taxation. It appears to me that the Auditor has applied the wrong test and that he has therefore misdirected himself. I shall therefore remit these two items to him for further consideration.

10-12 Consultation 23/2/01

18. The Auditor has taxed off the whole of the solicitors' fee (£114), Senior Counsel's fee (£850) and junior counsel's fee (£325) for a consultation held on 23/2/01 some three months before the proof. The Note of Objections records that given the volume of preparation work that had to be carried out this work had to be reviewed at consultation several months prior to the proof. As a result of discussion at consultation, the updating of several reports was instructed which increased considerably the value of the claim. It is argued that the Auditor failed properly to consider the complexity of the case and the exceptional nature and extent of the preparations required for the proof. In his Minute, the Auditor notes that the instructions for the consultation were to update counsel regarding progress and to discuss case preparation. He points out that further consultations were allowed in April 2001 and May 2001, the latter to consider a tender. He states that the consultation in February 2001 was a "comfort" consultation and unnecessary for Agents with the experience and expertise of the pursuer's solicitor; there was nothing to persuade him that the expense of the consultation was reasonable for conducting the cause in a proper manner; the consultation on the Note on the Line of Evidence gave the agents the steps needed for preparation. Mr Mackay submitted that the reference to the subsequent consultations was irrelevant. The question was whether it was reasonable at the time to fix the consultation in dispute. At that consultation, Senior Counsel gave advice as to how he proposed to present the case and what further steps needed to be taken to enable that to be done. He advised inter alia that the video mentioned below be prepared.
19. In my view, while the Auditor purports to consider and apply the correct test, he has not in fact done so. In disallowing these Items, he appears to have taken into consideration the number of subsequent consultations. This seems to me to be an irrelevant consideration. The real issue is whether in the circumstances of this case it was unreasonable for the conduct of the cause in a proper manner to arrange and hold a consultation some three months before the proof to update counsel and discuss further preparation. In my view, the Auditor was plainly wrong to dismiss the consultation as a "comfort" consultation. The nature and complexity of this case have been fully described above. The consultation on the Note on the Line referred to above took place, according to the account of expenses, in the previous year on 24 May 2000. Much may have changed since then. I do not find it surprising at all that a competent solicitor in such a case would wish to discuss a whole range of matters with counsel. There were many expert reports. Andrew Magee's condition and needs may not have remained static. In a Minute of Amendment, the defenders themselves averred that his condition was deteriorating. Costs estimates previously given might need to be updated and approached from a different angle having regard to the views of other experts and any change in Andrew's condition. The pursuer's solicitors and counsel work together as a team; their respective experience and functions compliment one another. The best forum to discuss existing information, the need to pursue new lines of enquiry, how a case can best be presented and so on, is at a consultation. In complex cases such as this one, proof preparation is a continuing and sometimes continuous process, requiring reassessment of a changing body of information as the proof date approaches; several consultations are sometimes required to discuss these matters and technical issues within the province of particular experts. Attempting to deal with all experts and all issues at one consultation in a complex and difficult case is often counterproductive and unhelpful to counsel and solicitors.
20. For the foregoing reasons I shall remit these Items to the Auditor for further consideration.

13 Video

21. The Auditor has taxed off the whole cost of this Item (£2,916.59). The Note of Objections narrates that Andrew Magee could not have given evidence, and thus the only way in which the Court could receive direct evidence of his circumstances would be to visit him or view an appropriate video. It is said that the use of such videos has been approved in Scotland and in other jurisdictions. The video would not have duplicated other evidence but supplemented it. It is suggested that the video may have been instrumental in achieving the settlement reached. The Auditor, in his Minute, states that while a video might have been of assistance in a Jury Trial he is not persuaded that its production was reasonable to conduct this cause in a proper manner; the Outer House is experienced in dealing with complicated cases of reparation with catastrophic injuries sustained by children. He lists a large number of witnesses whose evidence, he says, would have allowed the Court to reach a full and concluded view on Andrew's treatment injuries and prognosis. Mr Mackay described the video as a "day in the life" video. He pointed out that there was a growing practice of using such videos. He said it was often difficult for witnesses to describe the detail of difficulties encountered with and the tasks required to assist a severely injured person. Mothers and even professional carers tended to play down the difficulties. He submitted that it was wholly unreasonable to exclude the cost of this video. He drew my attention to an Irish medical negligence case, Gallagher v Stanley & The National Maternity Hospital 2001 IEHC 46 (23/3/01, High Court) in which the plaintiff was born with cerebral palsy of the spastic quadriplegic type; the issue concerned objections to the Taxing Master's report; the medical negligence action had settled after twenty three days of evidence in the sum of £2.15m. Items in issue in the Plaintiff's Bill of Costs included Senior Counsel's brief fee of £99,750, which was accompanied by daily refresher fees of 3000 guineas. The brief fee was taxed down to £42,000; however, the taxing master's decision was remitted by the High Court to another taxing master for reconsideration. In the course of his judgement, Kearns J noted that a video had been made of the plaintiff for the purposes of the trial to give the court a full picture of the plaintiff's debilitating condition.
22. In my view, the Auditor has fallen into error. The pursuer is entitled to present her case in the most persuasive manner whether she is attempting to persuade a judge or a jury. In this type of case, I find it difficult to understand why it may be reasonable to instruct such video for a jury trial but not a proof before answer. It seems to me that it would be a most useful tool to persuade a judge as the fact finder, to make favourable findings of fact. The advantage of a video is that what can be seen cannot generally be disputed, although there can be differences in interpretation. It can be put to experts or indeed any witness for their comment. The court then knows that all experts are proceeding on the same factual basis. To describe in words what such a video can show might take a very long time in evidence. The playing of such a video in the course of a proof might well reduce the length of the proof. Videos have also been used in personal injury litigation to show that a pursuer does not suffer from the injuries he claims to have sustained or that he is exaggerating the extent or consequences of his injuries. If the Auditor's approach were correct, then this would never be an allowable expense in a proof as the holder of the camcorder could give the evidence of what he saw. It seems to me to be reasonable for conducting such a cause as the present in a proper manner to lead such video evidence. It would be much more persuasive than the possibly conflicting evidence of say orthopaedic surgeons that a pursuer is or is not exaggerating the extent or consequences of his injuries. In my view the proper use of modern technology is to be commended and encouraged and not penalised. While it is true that the Outer House is generally experienced in dealing with complicated cases of reparation with catastrophic injuries sustained by children, the quantification of each such case very much turns on its own particular facts and circumstances; and that is where the "day in the life" video, properly prepared can become so useful as a persuasive evidential tool. In my view, therefore, it is irrelevant in this instance, to contrast the evidence that might be deployed before a jury on the one hand, and a judge, sitting alone, on the other hand. It is irrelevant to disallow this item because other witnesses can describe Andrew's condition and circumstances. In any event, I consider that this type of case is wholly suited to a "day in the life" video. Gallagher was a similar case at least on quantum and it is noteworthy that a video was prepared to show the plaintiff's condition. I therefore consider that Auditor was plainly wrong to disallow this Item for the reasons he gives. I shall therefore remit this Item to him for further consideration.

19-20 Senior and Junior Counsels' Fees

23. The Auditor has abated Senior Counsel's commitment fee of £6,000 by £4000 and reduced it to £2000. He has allowed a preparation fee of four days at £1,500 (£6000), a fee of £2000 for the first day of the proof when the case settled, and a commitment fee of £2,000 i.e. a total of £10,000 instead of the sum of £14,000 claimed. Junior counsel's fees of £7,000 were abated by £300. The Note of Objections stresses the unusual and complex nature of the case and the unusual level of responsibility, and the amount of work involved in assessing quantum. The Auditor, in his Minute, states that in addition to allowing fees to Senior Counsel for Consultations in May 2000, February 2001 and April 2001, he has allowed four days preparation for the proof at £1,500 per day, £2000 for the day of the proof and a further £2000 for disappointment for the next day. He says this is reasonable on a party and party basis and reflects Counsel's busy involvement prior to the Hearing. The abatement to Junior Counsel's fees reflects the restriction of Senior Counsel's fee. Mr Mackay submitted that the proper approach to commitment fees was to be found in the opinion of Lord Penrose in City of Aberdeen Council v WA Fairhurst & Ors (above) at page 399CE where his Lordship states that

"when arranged in advance, the primary reason for making such a payment may reasonably be assumed to be to secure the services of the advocate in question for the conduct of the instant litigation. Typically that will involve recognition of the consequence of his engagement, that he will not be free to accept competing instructions for another litigation in a different court at the same time..."

24. Lord Penrose proceeds to observe that the Faculty of Advocates' Guide to the Professional Conduct of Advocates recognises that it may be proper professional practice to charge a fee where counsel has kept free from other engagements and has been unable to accept other instructions (paragraph 5.12). Mr Mackay pointed out that here, as in City of Aberdeen, commitment and preparation fees had been charged separately. He submitted that the Auditor has not given any reasons for the abatements. He has therefore failed to provide adequate reasons and his decision cannot stand. It is therefore not clear what he has taken into account in reaching his decision to abate. He appears to have left out of account the fact that the proof was fixed for and counsel were committed to two weeks in court. Mr Mackay said that the current practice was that two days per week were normally allowed as a commitment fee
25. In my opinion the Auditor has failed to give any relevant reasons for his decision to abate counsel's commitment fees. If his reference to consultation fees, preparation fee, and fee for attending on the first day of the proof are the reasons for abating a commitment fee, then these reasons are irrelevant. If they are not his reasons but merely background narrative then he has failed to give any reasons at all and thus failed to comply with Rule of Court 42.4(2)(b)(ii) which requires him to state the reasons for his decision. This Item must therefore be remitted to him for further consideration. It may be helpful to the Auditor to have the following observations.
26. The commitment fee in this case was charged separately from the preparation fee. In my opinion, this was the correct way to proceed as they are entirely separate matters and there need not be any link between the two. Normally there will be because, as a generality, the longer the proof is set down for, the greater the amount of preparation. However, it sometimes happens that a four day proof may require just as much or more preparation than a proof fixed for eight days. When proofs are fixed, the number of days allocated is very much educated guesswork and the number of days set down is not always a reliable indicator of the amount of preparation required. However, once counsel is instructed for a proof however long or short, he is committed to that case on the days for which he is instructed, whatever may be the amount of preparation required. By accepting instructions he is agreeing not to undertake any other court work on those days. If a case settles before the proof, on the morning of the first day of the proof, or even after the proof has begun, counsel are entitled to be compensated for the loss of fees for appearing in court. This is now well established as can be seen from the opinion of the then Auditor in City of Aberdeen, the Opinion of Lord Penrose, paragraph 5.12 of the Faculty of Advocates' Guide to the Professional Conduct of Advocates, and the Court of Session Practice Note No 5 of 1996. In my view, the extent of preparation is irrelevant to the entitlement to and quantification of a commitment fee. In determining whether payment of a commitment fee either before or after a case settles is a reasonable expense for conducting the cause in a proper manner, the principal considerations will be the length of the proof for which counsel is instructed, the date of his instructions, the date on which the case settles and counsel is released from his commitment to the case, and the prospect of counsel earning fees at a rate commensurate with the fees in the case to which he had been committed. I do not consider that it should be assumed that senior counsel or even junior counsel for that matter will automatically be instructed for a case or cases during the days lost because of the settlement of a proof. In many cases because counsel have been committed from an early stage to a proof they will have had to turn away instructions for the same period. Plainly, a balance has to be struck. Counsel would not be entitled to be paid for each and every one of the days for which he had been instructed. That argument was rightly rejected in Gorrie v Ciba Geigy Ltd 25 June 1996 Lord Osborne. Payment for each day would not take account of the prospect, however slim, of obtaining other instructions to appear in court. On the other hand, payment of only one day's fee when counsel is committed to seven seems, at first blush, to be unreasonably low. While quantum is primarily a matter for the Auditor I would have thought that in the present circumstances, payment for at least one half of the period to which counsel was committed would be difficult to attack as unreasonable.

Summary

1. The cause was exceptionally complex particularly in relation to quantum. Extensive preparation was required both by the solicitors and the counsel involved.
2. The Auditor has erred in the exercise of his discretion in relation to Items one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, nineteen and twenty. These Items will be remitted to the Auditor for further consideration.
3. As requested all questions of expenses relating to the Hearing on the Note of Objections and the Auditor's Minute are reserved.