SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A645/10

Act: Mr Stephen McLaren, solicitor, Ledingham Chalmers LLP, Aberdeen

Alt: Miss Linda Fyffe, solicitor, Westerton (UK) Limited, Aberdeen

Aberdeen: 1 February 2012

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 8 June 2011; finds the first defender and appellant liable to the pursuers and respondents in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] The pursuers in this case are husband and wife. The first pursuer is a solicitor and a partner in the firm of Ledingham Chalmers in Aberdeen. The defenders were formerly married but are now divorced. In the initial writ the pursuers craved the court to grant decree for payment to them by the defenders of various sums of money as damages for breach of a contract for the sale of a property at Cults, Aberdeen. After sundry proceedings the first defender and appellant tendered to the pursuers the sum of £4,500 with the expenses of process to the date of the tender in full satisfaction of the craves of the initial writ so far as directed against him. This tender was accepted by the pursuers, and by interlocutor dated 9 February 2011 the sheriff decerned against the first defender for payment to the pursuers of the sum of £4,500 and found him liable to the pursuers in the expenses of the cause to the date of the tender on the Ordinary Cause scale as taxed. Of consent he dismissed the cause against the second defender and found no expenses due to or by the pursuers and the second defender.

[2] An account of the expenses incurred by the pursuers was duly lodged in court. This had been prepared on the basis of the fees set out in Part II of Chapter II of the Table of Fees in Schedule 1 to the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 as amended. The first defender intimated objections to this account on the basis that the first pursuer was a solicitor and had conducted his own cause. Reference was made to the decision of Sheriff Macphail (as he then was) in Macbeth Currie & Co v Matthew 1985 SLT (Sheriff Court) 44. A diet of taxation took place before the depute auditor of court on 18 May 2011. The first pursuer appeared for himself and his wife, the second pursuer, and the first defender (who was present himself) was represented by his solicitor. Having heard the parties and considered a correspondence file which had been produced by the first pursuer, the auditor issued a certificate dated 18 May 2011 as follows:

I certify that I have taxed the foregoing Account of Expenses presented by the pursuers and that I consider the sum of Five Thousand Five Hundred and Eighty One Pounds and Twenty Seven Pence (£5,581.27), including VAT and outlays, to be fair and reasonable remuneration for the work involved and fix the fee at the said sum accordingly.

[3] Following the diet of taxation the auditor prepared a report. She stated that she had considered the case of Macbeth Currie & Co v Matthew and heard from the first pursuer and the first defender's solicitor. She continued:

Mr Edward is a solicitor, and one of 27 partners in the firm of Ledingham Chalmers. Mr Edward is a court practitioner, and he carried out some work in relation to this case, although he did not draft any of the pleadings or conduct any of the court hearings. I do not consider that he is a solicitor acting in his own cause as was the case in Macbeth. Neither do I consider that any arrangement between Ledingham Chalmers and Mr and Mrs Edward for payment of the work carried out by the firm is a matter for the auditor.

In her report the auditor then explained why she had allowed certain charges in the account and taxed off certain others. These had evidently been the subject of dispute between the parties during the diet of taxation. I shall refer to some of these charges in more detail in due course.

[4] The first defender thereafter lodged a note of objections to the auditor's report. It was said that the first pursuer had been a solicitor acting in his own cause and was therefore only entitled to the expenses for those parts of the case where a solicitor would have been required if he had not been a solicitor himself. It was said too that the auditor had erred in law by taking the view that the second pursuer should be treated as a separate pursuer and therefore a separate party for the purposes of the pursuers' judicial account of expenses. It was claimed therefore that the auditor had erred in allowing certain specified charges which it was said should have been disallowed. It was also said that two further charges should have been disallowed for reasons unconnected with the fact that the first pursuer was a solicitor. Needless to say, if all these charges had been disallowed, the amount of the fee fixed by the auditor would have been very much less than £5,581.27.

[5] Answers were lodged by the pursuers to the first defender's note of objections. In these answers the pursuers in short supported the auditor's decision on all the issues which featured in the first defender's note of objections. In due course a hearing on the note of objections and answers took place before the sheriff on 8 June 2011. The pursuers were represented by an assistant solicitor in the employment of Ledingham Chalmers and the first defender by the same solicitor as had previously acted for him in the case. Having heard them the sheriff by interlocutor dated 8 June 2011 repelled the first defender's objections, approved the auditor's report on the pursuers' account of expenses and granted decree against the first defender for payment to the pursuers of the sum of £5,581.27 of taxed expenses. For good measure he also found the first defender liable to the pursuers in the expenses of the hearing that day.

[6] It is this interlocutor which is the subject of the present appeal by the first defender, and in the note of appeal it was said in short that the sheriff had erred in repelling the first defender's note of objections to the auditor's report and approving this report accordingly. In response to the appeal the sheriff helpfully wrote a note in which he explained why he had approved the report. For present purposes it is I think unnecessary to rehearse in detail what he said in his note. In a nutshell he effectively agreed with the auditor on all the issues that had been the subject of challenge by the first defender in his note of objections.

[7] At the hearing of the appeal the first defender's solicitor submitted that the auditor had erred in finding that the first pursuer was not a solicitor acting in his own cause and that the pursuers' account of expenses should be remitted to the auditor for taxation of new on the basis that the first pursuer had indeed been a solicitor acting in his own cause. She submitted too that the pursuers as husband and wife should have been treated as one for the purposes of the taxation of their account of expenses. She referred here to Macbeth Currie & Co v Matthew, London Scottish Benefit Society v Chorley, Crawford and Chester 1884 13 QBD 872, Malkinson v Trim 2003 1 WLR 463 and Macphail's Sheriff Court Practice (3^rd Edn) at paragraph 19.58.

[8] In response the pursuers' solicitor submitted that the auditor had been correct to treat the second pursuer as a separate party from her husband, the first pursuer, and to find that the latter had not been a solicitor acting in his own cause. In any event, so he argued, even if the auditor had been wrong on this last point, she had as a matter of fact taxed the account of expenses on the basis that the first pursuer had been a solicitor acting in his own cause so that a remit to her to tax the account on this basis would make no difference to the outcome. It was submitted therefore that the appeal should be refused.

[9] Before considering the circumstances of this particular case, I think that it may be helpful to review the authorities to which the first defender's solicitor referred and also the case of Cuthbertson v Eliott 1860 22D 389 to which Sheriff Macphail referred in Macbeth Currie & Co v Matthew. In this last case a firm of solicitors raised an action of payment against former clients for recovery of unpaid fees. Decree with expenses was granted in favour of the pursuers and, after their account of expenses had been taxed by the auditor, they lodged a note of objections thereto. The sheriff sustained the note of objections and remitted the account of expenses to the auditor to tax of new on the principle that insofar as the pursuers had conducted their own cause they were entitled to make professional charges for those parts of the case where a solicitor would have been required if the pursuers had not been solicitors other than charges for such professional services as were rendered unnecessary or impossible by reason of the fact that the pursuers were solicitors acting in their own cause.

[10] It is important to notice that the issue in that case was not whether, the pursuers having acted in their own cause, their account of expenses fell to be taxed on a different basis from that which would have been appropriate for an account incurred by solicitors who had instructed another firm of solicitors to act on their behalf. Rather the issue was whether the pursuers' account should have been taxed on the basis that they were party litigants within the meaning of the Litigants in Person (Costs and Expenses) Act 1975 and the Act of Sederunt (Expenses of Party Litigants) 1976. So Sheriff Macphail's decision in that case is not directly in point in the present case. But it is helpful nonetheless to notice two passages in his note. At page 46 he stated:

In both Scotland and England the law as to the recovery of expenses or costs drew a distinction between a solicitor conducting his own cause and any other litigant conducting his own cause. In Scotland, Cuthbertson v Eliott .... was repeatedly cited as authority for the proposition that a solicitor who conducted his own cause and was awarded expenses was entitled to make professional charges for those parts of the case where a solicitor would have been employed if the party had not been a law agent.

And at page 48 Sheriff Macphail said:

If a solicitor acting in his own cause were entitled to recover no more than two thirds of the sum otherwise allowable to him under the table of fees, he would instruct another solicitor to act for him, and the unsuccessful opponent would have to pay full expenses, whereas it appears to follow from Cuthbertson v Eliott ..... that a solicitor who successfully acts in his own cause is entitled to expenses subject to certain deductions - since he cannot charge for consulting or instructing himself - and of such deductions his unsuccessful opponent gets the benefit.

[11] This last comment is evidently an echo of an observation of Fry LJ in London Scottish Benefit Society v Chorley, Crawford and Chester. In that case the defendants were a firm of solicitors who were ultimately successful in resisting the claim against them and were awarded costs. The question was whether they were entitled to have these taxed as if they had been acting for one of their clients. It was held in the Queen's Bench Division (12 QBD 452) that they were and this judgement was affirmed by the Court of Appeal. At pages 875/6 of the report in the Court of Appeal Brett MR after considering the case of a party litigant said:

When, however, we come to the case of a solicitor, the question must be viewed from a different aspect. There are things which a solicitor can do for himself, but also he can employ another solicitor to do them for him; and it would be unadvisable to lay down that he shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor. If a solicitor does by his clerk that which might be done by another solicitor, it is a loss of money, and not simply a loss of time, because it is work done by a person who is paid for doing it. It is true, however, to say that the costs of a solicitor appearing in person must be taxed differently from those of an ordinary litigant appearing by a solicitor. The unsuccessful adversary of a solicitor appearing in person cannot be charged for what does not exist, he cannot be charged for the solicitor consulting himself, or instructing himself, or attending upon himself. The rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litigant appearing by a solicitor, subject to this restriction, that no costs which are really unnecessary can be recovered. Of this kind are the costs of instructions and attendances ..... This is an appeal from the decision of the Queens's Bench Division reported in 12 QBD 452; the judgements are there reported, and it seems to me that the headnote of the report accurately expresses the law: it states nearly the same principle that I have laid down.

This headnote was as follows:

Where an action is brought against a solicitor who defends it in person and obtains judgement he is entitled upon taxation to the same costs as if he had employed a solicitor, except in respect of items which the fact of his acting directly renders unnecessary.

At pages 877/8 in the Court of Appeal report Fry LJ stated:

I am of the same opinion. This is not a question as to a solicitor's privilege. I think that the conclusion at which we have arrived will be beneficial to the public, because if the rule were otherwise a solicitor who is party to an action would always employ another solicitor, and whenever he is successful he would recover full costs; whereas under the rule of practice laid down by us, a solicitor who sues or defends in person will be entitled, if he is successful, to full costs, subject to certain deductions, of which his unsuccessful opponent will get the benefit.

[12] In Malkinson v Trim the question was whether the fifth defendant who was a solicitor and who had been awarded costs was entitled to charge for work done on his behalf by partners and employees of the firm of which he was himself a partner. In short, it was held that he was. Giving the leading judgement in the Court of Appeal, Chadwick LJ stated at pages 469/470:

14. If a solicitor can charge for his own time, and for the time of those he employs (who may include an assistant solicitor), should the position be different if some or all of the work is carried out by one or more of his partners, or by employees of the firm? For my part, I can see no reason why it should be. The time of one partner is of value to another partner, because each partner contributes to the profits of the firm. The time of employees of the firm has to be paid for out of the profits in which each partner is interested...... I would think it absurd to permit a solicitor to charge for work in the litigation when done (a) by another solicitor (or a solicitor in another firm) or (b) by his clerk (or an employed solicitor in his sole practice) or (c) by himself, but not to permit him to charge for the same work when done (d) by employees of the firm of which he is a partner or (e) by one or more of his partners. The reasoning which led this court to the conclusion which it reached in the London Scottish Benefit Society case must lead to the same conclusion in a case where the solicitor litigant carries on his practice as a solicitor in partnership. The successful litigant is entitled to an indemnity; there is no difficulty in measuring the cost of legal professional time and skill; and there is likely to be some saving of costs if the work is done within his own firm rather than if he is encouraged, in practice, to instruct another firm.

15. Support for the view that the reasoning which led this court to the conclusion which it reached in the London Scottish Benefit Society case must lead to the same conclusion in a case where the work is done by the partner of the solicitor litigant can be found in the decision of Stirling J, some three years later, in Bidder v Bridges 1887 WN 208. It appears from the short report in the Weekly Notes that the dispute between the plaintiff and defendant related to their respective titles to land: it was not a dispute which involved the defendant in a professional capacity as a solicitor. Nevertheless, the defence was conducted on his behalf by the firm of which he was a partner: "the action was entirely managed by one of his partners with the assistance of managing clerks". The defendant succeeded in his defence to the action and was awarded costs. The plaintiff took objection to the costs charged in relation to the perusal of the defendant's title deeds by his partner and members of his firm. Stirling J upheld the master's decision to overrule the objection. He said, at page 209:

"The rule was laid down in London Scottish Benefit Society v Chorley 13 QBD 872, 875, and the principle upon which the Court of Appeal went in that case was, that when a solicitor appeared in person, he was not to charge for things which did not exist - he could not attend upon himself. But the Court of Appeal recognized to the full extent, that a solicitor might employ the services of people - his clerk, and be paid, not for his loss of time, but for the loss of money he would have earned. Was a solicitor's partner in a different position? The partner attended upon various parties at various places and certain things had been done by him. All this fell within the principle laid down in that case, and these costs ought to be allowed".

[13] Cuthbertson v Eliott is perhaps a helpful example of how the taxation of the account of a solicitor who has acted in his own cause works out in practice. In that case the pursuer was the sole surviving partner of a firm of solicitors. He sued a former client of the firm and in due course was awarded decree with expenses. Various objections were made to the auditor's report insofar as they had allowed certain charges in the pursuer's account of expenses including (3) charges made by him for searching for documents which he had been called upon to produce as a haver, and (6) charges made by him for his attendance at a diet of proof in London when the defender had been examined as a witness.

[14] Dealing with the third of these objections the Lord President (McNeill) said at pages 391/2:

In regard to the examination of a haver, it is very clear that a party who is called upon as a haver to produce documents, as their custodier, who happens to be a professional man, is not in making a search for them as a haver occupied professionally. It may be that it is his own time that is consumed, and he may be assisted in making the search. But he is examined as custodier of the documents happening to be a professional man - not because he is a professional man, but because he is custodier of the documents..... In this particular case he was also the pursuer of the action...... but what I have to express is the principle ...... that it is not as a professional man that a party is to be remunerated who happens to be a professional man, and the custodier of documents, and who is examined as a haver. But still he must have remuneration; but it must be remuneration not on the footing of receiving professional charges, for it is plainly not a professional matter. It is not a matter in which another party who happened to be custodier could have employed an agent to do it for him.

In the result the court, as indicated, found the pursuer entitled to remuneration for his time and trouble in searching for the documents, but in a much reduced amount compared with that which the pursuer had sought to charge. On the other hand, according to the report, he was found entitled to the expense of making copies and inventories of the documents which afforded him some profit.

[14] Turning to the sixth objection, the Lord President said at page 392:

Then we come to the last objection, which relates to the attendance of the pursuer in London at the examination of the defender....... The examination was upon the merits of the case; and the defender having tendered himself as a witness, I think that professional attendance was essential, but more than one agent could not be allowed. It was not necessary to have both an Edinburgh agent and a London agent. But the main question is, whether Mr Cuthbertson is to be paid for having gone to London and attended the examination himself. He went professionally. That is quite evident. He went as his own agent; and to attend the examination was a professional duty; and if he had not been a professional man, the question then would have been, whether it was a case in which he would have been justified in sending his Edinburgh agent to London....... It was a case in which a third party would have been perfectly justified in sending his Edinburgh agent; and therefore it was justifiable for Mr Cuthbertson, as his agent, to attend and charge for his attendance. I do not think that the attendance of the London agent could be allowed in addition; but instructions to him, so far as required, before the Edinburgh agent went to London, such as obtaining an appointment from the commissioner, are perfectly fair charges in the case.

[15] Turning now to the circumstances of the present case, I cannot help thinking that too much emphasis has been given to the question whether the first pursuer was, or was not, a solicitor acting in his own cause. For the truth of the matter appears to me that a solicitor who has been awarded expenses having acted in his own cause is entitled in his account of expenses to charge for work done on exactly the same basis as a solicitor who has been awarded expenses having instructed a solicitor in another firm to act on his behalf, subject to the qualification that he is not entitled to charge for any item of work that, by reason of the fact that he has been acting in his own cause, has not existed, such as consulting himself or taking instructions from himself, and in that sense has been unnecessary. On the other hand he is entitled to charge for work such as consulting him or taking his instructions if as a matter of fact it has been a partner or employee of his firm who has consulted him or taken his instructions since in that event the work has been done and the solicitor would have been entitled to charge for it if it had been done by a solicitor in another firm whom he had instructed to act on his behalf.

[16] So the question for the auditor in this case was not so much whether the first pursuer was a solicitor acting in his own cause which (contrary to the opinion of the auditor and the sheriff) I think he plainly was, at least in part. Nor did she require to consider what difference, if any, was made in the case by reason of the fact that the second pursuer was not a solicitor. Rather the question was whether the various charges made by the pursuers in their account of expenses represented charges for work that would normally have been done by a solicitor in the course of a litigation and had actually been done in this particular case either by the first pursuer himself or by a partner or employee of his firm as opposed to charges for work that was illusory such as the pursuer consulting himself or taking his own instructions.

[17] In other circumstances I might have considered it necessary to remit the account to the auditor to tax of new in light of what I have just said. But the difficulty for the first defender in this case is that it does not appear that such a remit would result in any reduction in the amount of expenses for which decree has been granted against him. On the contrary, it appears to me that this amount might actually be increased. I say this because it is plain that, notwithstanding that she found that the first pursuer was not a solicitor acting in his own cause, the auditor proceeded to tax off certain charges for work done by the pursuer himself which would have been allowable if he had instructed a solicitor in another firm to act on his behalf and would also I think have been allowable, at least in part, even though he was a solicitor acting in his own cause. In other words, on any view of the matter the auditor may have taxed off more from the account than she should have done, and the first defender accordingly ought perhaps to consider himself fortunate that there has been no cross-appeal by the pursuers against the sheriff's decision to approve the auditor's report.

[18] The first charge in the account which was challenged in the first defender's note of objections to the auditor's report was for the sum of £403 which is the sum allowed at item 1A in the Table of Fees for work which the auditor is satisfied has reasonably been undertaken in contemplation of, or preparatory to, the commencement of proceedings (or such lesser sum as in the opinion of the auditor is justified). The auditor reduced this to £100 and in her report she recorded that the first pursuer had shown her the correspondence file for the case and that she had allowed a fee of £100 based only on the work carried out by one of the first pursuer's partners. Whether or not the pursuer was a solicitor acting in his own cause, this sum at least ought to have been allowed, the work having actually been done by his partner. So the first defender can have no complaint in this respect.

[19] The next charge challenged in the account was for the sum of £728.60 which is the sum allowed at item 1 in the Table of Fees as an instruction fee to cover all work (except as otherwise specially provided for in Chapter II) to the lodging of defences including copyings. The auditor in her report records that she allowed this on the basis that this work was carried out by the litigation department of the first pursuer's firm and not by the first pursuer himself. Once again, this charge would have been allowable whether or not he was a solicitor acting in his own cause given that it was for work that was actually done by others in the firm rather than by himself.

[20] There followed in the account charges in line with item 2 in the Table of Fess for the precognitions of the first and second pursuers, various other members of their family and other witnesses. The auditor allowed all these charges with the exception of those for the two precognitions of the first pursuer which, according to the auditor's report, he had taken himself. The charges for these two precognitions, namely £266 and £66.50, were thus taxed off by the auditor. Whether or not she was right to have done this given that he did actually do the work of preparing his own precognitions (which would of course have been required had the action got to the stage of a proof, if not before) is perhaps a moot point. But I do not consider that there can be any sound basis for challenging the auditor's decision to allow the charges for preparing the other precognitions since these charges were for work that had to be done, and evidently was done, whether or not the first pursuer was a solicitor acting in his own cause.

[21] The next charge of interest in the present context was for £75 which was said to be a restricted sum for an extrajudicial settlement offered but not agreed. Of this the auditor stated in her report that she was not satisfied that additional work had been undertaken by anyone other than the first pursuer in respect of this offer and hence that she had taxed off the sum of £75. If the first pursuer had been the only pursuer and had been acting in his own cause, I dare say that this would have been correct. But to the extent that the first pursuer would presumably have had to consult his wife, the second pursuer, I am not convinced that the whole sum of £75 should have been taxed off. But it was. So the defender has nothing to complain about here.

[22] The first defender's solicitor also challenged the process fee of 10% on the total fees and copyings allowed by the auditor on taxation. The sum originally sought to be charged here was £476.22. But having taxed off various other charges in the account the auditor reduced this to £371.99. According to item 23 in the Table of Fees this is intended to be a fee to cover all consultations between solicitor and client during the progress of the cause and all communications, written and oral, passing between them. Of this charge the auditor in her report stated:

Mrs Edwards is not a solicitor, and I have accepted that Mr Edwards is not a solicitor conducting his own case. There would have been consultations and communications with the solicitors in the firm of Ledingham Chalmers who acted for Mr & Mrs Edwards, and I have allowed this charge.

Even if the auditor had found that the first pursuer was, at least to some extent, a solicitor acting in his own cause, I cannot see that in practice this would have made any difference to the amount of the fee that the pursuers would have been entitled to charge here given that the second pursuer was not a solicitor and would have been entitled to be consulted by the first pursuer and given also that, as the auditor found, the first pursuer did not draft any of the pleadings or conduct any of the court hearings. Inevitably therefore there would have been consultations and communications between the pursuers on the one hand and other partners and staff of the firm on the other. This was work that was actually done by the latter, and the pursuers were in my opinion entitled to charge for it.

[23] In his note of objections the first defender also challenged the auditor's decision to allow the sum of £818.37 in respect of value added tax (VAT) having found that both the first and second pursuers were individuals and not registered for VAT. The basis of the objection was that there had not been a taxable supply by the first pursuer's firm to his wife and himself. But at the hearing of the appeal the pursuers' solicitor confirmed under reference to regulation 13 in Schedule 1 to the 1993 Act of Sederunt that a fee note had been rendered by the firm to the pursuers and I understood the first defender's solicitor to accept on this basis that the pursuers had indeed been entitled to charge for VAT in their account of expenses.

[24] In his note of objections the first defender stated two further objections to the auditor's report. But at the appeal hearing his solicitor indicated that he now only insisted on one of these, namely the auditor's allowance of fees for the pursuers' own note of preliminary plea and their consideration of the note of basis of preliminary plea for the second defender. It was submitted that the tender lodged by the first defender had been in respect of him only and not the second defender and that, since these notes of preliminary pleas related to the second defender only, the fees in respect of these should have been disallowed. It was said that notwithstanding their acceptance of the first defender's tender the pursuers could have elected to continue the action against the second defender alone.

[25] In my opinion the short answer to this objection, as the auditor rightly pointed out in her report, is that the first defender's minute of tender offered the expenses of process to the date of the tender and was not restricted to the expenses in relation to the first defender as it could have been. Having made this unqualified offer (which the pursuers accepted) the first defender cannot in my opinion be heard to complain that in pursuance of this offer and acceptance the sheriff proceeded in his interlocutor dated 9 February 2011 to find the first defender liable as he did to the pursuers in the expenses to the date of the tender on the Ordinary Cause scale. Nor can he complain that the auditor proceeded to give effect to this finding by refusing to disallow the fees sought to be charged by the pursuers for the work associated with the notes of preliminary plea. These fees were unquestionably part of the expenses of process to the date of the tender and so the auditor was quite right not to tax them off in the pursuers' account of expenses.

[26] On the whole matter, notwithstanding that the auditor and the sheriff erred in holding that the first defender was not a solicitor acting in his own cause, I am satisfied that the sheriff was right to repel the first defender's specific objections to the auditor's report and to approve this report and grant decree accordingly. The appeal is therefore refused.

[27] Both parties moved for the expenses of the appeal in the event of success. I have therefore found the first defender liable to the pursuers in these expenses.