OUTER HOUSE, COURT OF SESSION

 

[2013] CSOH 75

 

PD2134/07

 

 

 

 

 

 

 

 

 

 

 

OPINION OF MORAG WISE, Q.C.

(Sitting as a Temporary Judge)

 

in the cause

 

JOSEPH MacKAY

Pursuer;

 

against

 

STRATHCLYDE FIRE BOARD

Defenders:

 

__________

 

 

Pursuer: Hofford, QC; Thompsons

Defender: Macfarlane, solicitor advocate; Simpson & Marwick

 

2 May 2011

 

[1] This is a decision on a Note of Objections on the part of the pursuer to the auditor's report in which he has abated from the account of the pursuer's expenses (No 24 of process) the sum of 63.43 charged as an outlay under the description "printing costs records". It is not in dispute that the pursuer is obliged to print and lodge a record in personal injuries action of this type in terms of Rule of Court 43.6(4). It is also not in dispute that if the pursuer chooses to pay an agency for the cost of printing no question of abatement other than possibly in relation to quantum would arise. So it seems to me that it is not in dispute that a cost is, as a general rule, reasonably involved in the printing of records. The issued focussed by the defenders at taxation was whether where that cost was incurred "in-house" by the agents, it could properly be described as an outlay and they said it could not. In his report and subsequent Minute the auditor agrees with the first defenders that it cannot be so described. He then goes on to explain how he considers a charge for this printing might be included as part of the fees allowed in the relevant table and/or as a copying charge. He refers first to paragraph 4(a) of the relevant Table of Fees, for Personal Injuries actions where a fee is allowed for "all work in connection with adjustment and closing of record". The auditor indicates that in-house printing of records for the purposes of lodging would be included in that. In my view he is wrong so to conclude. Had the steps to be taken in lodging the records (which first include printing) been intended to be included in this fee no doubt that would have been spelt out as it is in the relevant Sheriff Court Table.

[2] The decision about how to print a record for lodging may be taken after the record has closed. It seems to me there is a choice between printing in-house or using an agency. It is the cost of the chosen method that is at issue. In my view it has nothing to do with the work done up to the date of the closure of the record. So far as copying is concerned, that seems to me to be a completely irrelevant consideration. Paragraph 15 of the relevant Table allows copying charges which can be included in appropriate circumstances as a fee if the work is done in-house and as an outlay that where copying was done other than in the place of business of the solicitor. I note in passing that paragraph 15 refers to obligations in terms of rules that do not apply to chapter 43 cases despite the Table being specifically designed to cover personal injuries litigation. In any event it is in my view irrelevant to the issue of the cost of printing a record to lodge it in compliance with the rules.

[3] Accordingly, on both these points it seems to me that the Auditor has taken irrelevant considerations into account in seeking to give reasons for his decision. He has also, on the matter actually argued before him, failed to take into account the long practice of including and charging as an outlay (with zero rated VAT) the cost of printing where carried out in-house by the agent. I was informed by senior counsel for the pursuer that the method of charging the cost in this way was initiated by the then auditor, Mr Haldane Tait. The present auditor has also failed to take into account that he has followed that practice himself, particularly on a previous occasion when objection was taken to it. That was in the case of Lynch v Greater Northern Eastern Railway Ltd, the account of expenses and note of objections for which is produced at No 6/32 of process. In doing so he was in my view plainly wrong. No reasonable auditor would ignore without proper explanation a long-standing practice for including in an account of expenses the costs incurred in printing where no outside agency has been used.

[4] I have concluded, therefore, that this is one of those unusual cases in which the discretion of the auditor can be interfered with. I must, as counsel agreed, then look at the matter de novo and it seems to me that while on one view there is no authoritative decision directly in point, there are two decisions that may be worthy of note. The first is Neill v South East Lancashire Insurance Co Ltd reported at 1931 SLT 439. Now although this was a decision of the Second Division of the Inner House and did involve the issue of in-house printing and revising, the ratio was really that where the auditor had allowed fees as necessary on proper charges, his discretion shouldn't be interfered with because he was best placed to know. But what can be said of that case are two things. First, there were certainly no adverse remarks made by the Second Division about the practice of charging "as a charge for printing" the cost of that where it had been done in-house. It is also noteworthy and that there is reference in the brief Opinion of Lord Anderson to the practice of these charges having been allowed by the auditor since 1922. The second case that was of some interest was that of Crooks v Lawford Kidd [5 April 2002, unreported]. That was a decision of Mr Coutts, QC, sitting as a temporary judge. In that case a distinction was drawn between an outlay and a fee and it was decided in the context of the interpretation of a particular statutory provision relating to legal aid that where printing had been carried out in-house it should be included as a fee and not as an outlay.

[5] It seems to me that the Table of Fees under consideration in this case does not make provision for the cost of printing as a fee. That may be because it is more properly regarded as a cost than the provision of a service. If the cost cannot be included as a fee, and I think that is correct, then it should be charged as an outlay. That has been the practice for many years and it seems sensible. I have concluded that the requirement to characterise each item in the account as a fee or as an outlay may have obscured the simple point here. The account of expenses itself narrates, in my view accurately, "printing costs records", as what the pursuer is entitled to recover from the defender is that cost. It is a cost not just reasonably incurred, it is necessarily incurred in order to comply with the Rules of Court. In my opinion it cannot be said that it costs nothing to print records. I was informed by senior counsel for the pursuer that a department has been set up for that purpose within the pursuer's firm. No issue was taken with the level of the costs in this particular case. In other cases it might be. I can see why, as was decided in Crooks, that a solicitor should not be allowed to charge the cost that would have been incurred had he used an outside agency. There is no suggestion that that is what is attempted here. There was also no suggestion from the defenders that the cost involved was too high or didn't reflect the reasonable actual cost incurred. For all these reasons I will sustain the Note of Objections and direct that the auditor include the outlay concerned and I shall award the expenses of the application against the first defenders.