Argued for respondents—1. The Table of Fees only allowed certain fees known as “Instructions for Precognition,” and the ordinary drawing fees of precognition, with some travelling expenses. All this had been given by the Auditor, and as the table did not go into the point of the difference in the English scale of fees, he was not entitled to take that into consideration. The case of The “Hilda” had no application, for it dealt with the expenses of a commissioner.
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At advising—
Lord President —Of the two objections which we have now to dispose of, the first is in my opinion well founded.
Certain of the witnesses necessary at the proof were resident in Wales. According to our practice the losing party can only be charged with the cost of having witnesses resident away from the seat of the Court precognosced by a local solicitor, this being less expensive than sending the Edinburgh law-agent to do this work. The present objectors employed in this instance a local solicitor, who, of course, was an English solicitor, and they assert without contradiction (and their present objection is made on this footing) that the remuneration of this gentleman, according to the rules of his profession, amounts to less than the expense of sending a Scotch solicitor to take these precognitions. Upon this assumption the employment of the English solicitor was the proper course for the objectors to take, and his remuneration is a good charge against the losing party.
But then the defenders propose—and the Auditor has acted on this view—that the account of this English solicitor should be taxed according to Scotch rules. This position seems to me untenable. Assuming that the objectors were entitled, as in a question with their opponents, to employ an English solicitor, they could only employ him on the terms of his profession, and that means according to an English scale of remuneration. They were not bound to propose, and he could not be expected to accede to, a bargain that he should be paid according to a scale foreign to his country, and therefore to his profession. Accordingly, it seems to me that this account must be taxed according to English rules. Probably the parties can arrange for this being done, but if necessary we can make a remit.
The second objection is to the Auditor having cut down, to the customary two guineas, the allowance per diem claimed for the attendance of certain mining engineers at the proof. It is represented, and I shall assume, that these gentlemen are eminent in their profession, and that they gave evidence Doth as to personal observation of the place in dispute, made professionally in time past, and also as to matters of skill in relation to the working of collieries generally. (In the case of one of the gentlemen his evidence seems to have been solely on matters of skill.) Now, the Table of Fees does not distinguish between evidence as to facts seen and heard and evidence as to art and skill, except in that passage in which the table allows remuneration for preliminary examinations made by skilled persons previous to a proof, and qualifying them to give evidence thereat, where the judge certifies that the case was a fit one for such allowance to be made. That, however, is a matter entirely distinct from this, which we have to deal with under the present objection, and the judge's certificate does not affect the rate of allowance to be made for attendance at the trial. For attendance at the trial the two guinea rule is the part of the table which applies. We have ascertained that in the practice of the Auditor's office that rule is applied alike to professional men who come to speak to matters of skilled opinion as to professional men who come to speak to matters of fact pure and simple, and that this rule has never been departed from except in rare and exceptional cases, such as the two cited ( Murthly and Parnell ), in which the Court has authorised special allowances. There is nothing in the present question to assimilate it to such cases; and accordingly, founding on the Table of Fees and the established practice, I am for repelling this second objection.
Lord Adam , Lord M'Laren , and Lord Kinnear concurred.
In respect that the terms of payment of the account were adjusted by the parties, no interlocutor was pronounced by the Court.
Counsel for the Appellants— Salvesen. Agents— Bell & Bannerman, W.S.
Counsel for the Respondents— J. Wilson. Agents— Millar, Robson, & M'Lean, W.S.