Scottish Court of Session Decisions

William Campbell, warper, Walkerburn, raised an action against the County Council of the county of Peebles for payment of the sum of £250 as compensation in respect of the death on 4th December 1891 of his son John Campbell, a boy six years of age, through the fault of the defenders in failing to sufficiently fence part of the turnpike road leading through the village of Walkerburn. The defence was a denial of liability, and contributory negligence on the part of the pursuer and the boy, and the defenders further maintained that certain feuars were liable for the maintenance of the wall at the part of the road in question, and over which the boy had fallen into vacant area ground in front of an adjoining tenement of dwelling-houses.

The case was tried by Lord Kincairney, Ordinary, with a jury, and lasted two days; thirteen witnesses were examined for the pursuer, and five for the defenders. The jury returned a verdict for the pursuer with £50 damages.

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The verdict was applied, and the pursuer found entitled to expenses.

After taxation the pursuer lodged a note of objections to the report of the Auditor upon his account of expenses, which had been taxed at £193, 12s. 5d. The main items of the objections were the 4th and 5th of his note, dealing with fees of counsel and charges incident thereto for their attendance at the trial, involving a sum of £16, 18s. 2d. taxed off by the Auditor.

Salvesen, for the pursuer, submitted that the Auditor was wrong in allowing fees to counsel for the trial only at the rate to senior of 15 guineas for the first day instead of 20 guineas, and 12 guineas for the second day instead of 15 guineas, and to junior at the rate of 10 guineas instead of 15 guineas for the first day, and 8 guineas instead of 10 guineas for the second day. The scale he contended for was usual in jury trials. Here points of law as to liability between the defenders and certain feuars in a question with the pursuer, a tenant of the property of the latter, had been raised at the trial, as well as points in regard to contributory negligence. In regard to this latter point the defenders excepted to the charge of the Court to the jury, but did not proceed with their bill of exceptions.

The defenders supported the Auditor's taxation. The fixing of the scale of fees was one entirely within his discretion. The trial was of a simple description. No injustice could be done to the pursuer by the adherence of the Court to the report, in respect that in the present case the fees of his counsel were not sent at the time.

Pursuer's Authorities— Campbell v. Ord & Maddison, November 5, 1873, 1 R. 149; Black v. Mason, March 1881, 8 R. 666; Young v. Johnston & Wright, May 19, 1880, 7 R. 760.

Defenders' Authority— Wilson v. North British Railway Company, December 13, 1873, 1 R. 305.