Barrett v. Thompsons [2005] ScotCS CSOH_145 (09 November 2005)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Court of Session Decisions You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barrett v. Thompsons [2005] ScotCS CSOH_145 (09 November 2005) URL: https://www.bailii.org/scot/cases/ScotCS/2005/CSOH_145.html Cite as: [2005] CSOH 145, [2005] ScotCS CSOH_145 [ New search ] [ Help ] Barrett v. Thompsons [2005] ScotCS CSOH_145 (09 November 2005) OUTER HOUSE, COURT OF SESSION [2005] CSOH 145 A2482/02 OPINION OF LORD MACPHAIL in the cause JOHN BARRETT Pursuer; against THOMPSONS Defenders: ________________ Pursuer: Lindsay; Morisons Defenders: No appearance 9 November 2005 [1] This is a note of objections to the report of the Auditor in an action of damages brought against a firm of solicitors by a client. The pursuer averred that he had sustained personal injuries in an accident in the course of his employment, that the defenders had been instructed to act on his behalf and that they had failed to commence proceedings before the expiry of the triennium. The defenders admitted liability but disputed the quantum of damages. The action was settled by joint minute. By an interlocutor of 12 October 2004 the Temporary Lord Ordinary interponed authority to the joint minute and in terms thereof found the defenders liable to the pursuer in the expenses of process, remitted the account of expenses when lodged to the Auditor of Court to tax, certified two persons, one of whom was Mr Angus Findlay, as skilled witnesses for the pursuer, and quoad ultra assoilzied the defenders from the conclusions of the summons. [2] At the taxation, the Auditor taxed off two items in full: the pursuer's solicitors' fee for Mr Findlay's report, and the fee plus VAT paid to Mr Findlay for his report. The pursuer lodged a note of objections and the Auditor lodged a minute in response. At the hearing on the note of objections I heard submissions by counsel for the pursuer. There was no appearance for the defenders. Counsel advised me that the defenders no longer opposed the note of objections and agreed that the two items should be remitted to the Auditor for further consideration. [3] The pursuer's solicitors instructed Mr Findlay in the following circumstances. The pursuer sustained his injuries when he was working off-shore on a production platform in the North Sea. He averred that he had had a strong case against his employers. The defenders, on the other hand, while admitting liability, averred that any claim he had had for damages was extremely weak. The pursuer's solicitors considered that they required an expert report on the cause of the accident and the respects in which the pursuer's employers had been in breach of their statutory duties, with a view to demonstrating that the pursuer's claim had reasonable prospects of success. They therefore instructed Mr Findlay, who is a consultant marine engineer. [4] It happened that Mr Findlay's report was delivered to the pursuer's solicitors during a period when the parties had been allowed to amend. The record having been closed, the Lord Ordinary on 5 June 2003 allowed a minute of amendment for the pursuer to be received and appointed the defenders to lodge answers if so advised. On 6 November 2003 the Temporary Lord Ordinary prorogated the time for adjustment of the minute and answers by a period of eight weeks from that date. The pursuer's solicitors took advantage of the amendment procedure to make adjustments based on Mr Findlay's report. However, amendment was never allowed: the action was settled by the interlocutor of 12 October 2004 interponing authority to the joint minute, without any interlocutor ever having been pronounced allowing amendment and making any award of expenses. The Court by its interlocutor of that date found the defenders liable to the pursuer in the expenses of process, which included the expenses of the amendment procedure. The parties agreed, however, that the pursuer would not seek his expenses relative to the amendment procedure, and the defenders would not seek a contra award of the expenses incurred in answering the minute of amendment. [5] Counsel advised me that at the taxation before the Auditor the defenders had argued that the fee paid to Mr Findlay was excessive, but they had not argued that it had been obtained for the purposes of amendment. In any event, the Auditor taxed off both the items mentioned above. In his minute, the Auditor outlines the history of the action and provides the following reasons for his decision: "The report from Global Marine prepared by Angus Findlay is dated 20 February 2004. This is within the Amendment period and forms part of that procedure. In the Auditor's opinion Rule of Court 24.4 is clear; the party making an amendment pays the expenses occasioned by it. The Auditor is being asked to overlook this Rule, which he cannot do regardless of any concession which may have been made by the Defenders. If such a concession is to be made, it can be dealt with extra judicially but standing the peremptory wording in the Rule, the Auditor may not give it effect." [6] In my opinion the Auditor's decision cannot stand, for two reasons. First, by the interlocutor of 12 October 2004 the Court certified Mr Findlay as a skilled witness for the pursuer. That certification necessarily implied that Mr Findlay had carried out investigations in order to qualify himself to give evidence in a prospective proof or jury trial (RCS 1994, rule 42.13(2), (3)). Thus, his report did not form part of the amendment procedure, albeit the pursuer's solicitors received it during that procedure and made adjustments in light of it. Rule 42.13(2) is mandatory in its terms: charges for such investigations "shall be allowed": the Auditor has no discretion to tax them off. Secondly, RCS 24.4 comes into play only if the Court finds the amending party liable in the expenses occasioned by the amendment. Here, the Court did not pronounce any interlocutor to that effect, and accordingly the rule does not apply. "The rule of court has no effect unless acted on by the Court" ( Magee v Glasgow City Council 2003 SLT 777 at 781J). The Auditor was therefore entitled to take into account the parties' agreement that there should be no expenses to or by either party in respect of the amendment procedure. [7] I shall accordingly sustain the note of objections and remit to the Auditor to consider these matters further and amend his report accordingly. Counsel moved me to reserve all questions of expenses relating to the note of objections, and I shall do so. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/2005/CSOH_145.html