08 February 2017
The case of Eileen Collie v Tesco Stores Ltd 2016 CSOH 149 provides a recent example of the approach taken by the Auditor of the Court of Session (‘the Auditor’) in dealing with a Pursuer’s Account of Expenses (‘the Account’) in which fees were omitted from the Account.
Collie was a personal injury action set to proceed to jury trial. It settled prior to trial and the Pursuer lodged an Account within the prescribed four month period. Prior to the Account being taxed (assessed) by the Auditor it became apparent that elements of both junior and senior counsels’ fees had been omitted from the Account. The Pursuer made an application to the Court to allow an amended Account to be lodged, but subsequently withdrew this application upon Counsel’s advice. The view was taken by the Pursuer’s Counsel that the Auditor would address the omission. The Auditor failed to include the omitted entries in his report taxing the Account and the Pursuer submitted a Note of Objections to the Court.
The Pursuer’s argument was that it was unreasonable for the Auditor, given that vouching for Counsels’ fees had been provided and the fact that the Auditor had the power to include omitted charges, for him to refuse to permit the vouched for fees in his report. The Auditor’s position was that whilst he had an innate power to amend an included fee that did not include the power to insert omitted fees.
The principal issue for the Court was whether the Auditor had the inherent power to amend an Account to include omitted expenses. The Pursuer argued that the Defender had copies of the omitted fee notes, so would have been aware of the Auditor’s duty to include them and could not argue there being a lack of fair notice.
In contrast, the Defender argued that the matter had to be determined by Chapter 42 of the rules of the Court of Session. Their proposition was that it was for the Court to determine whether an amended Account should be received late and, if so, upon what conditions. They argued this was not a decision for the Auditor to take.
The view of the Court was that the case concerned the scope of the Auditor’s power to tax the account lodged. It held that the Auditor’s discretionary power did extend to permitting omitted sums or supporting vouchers, or both. The Court accepted that the Auditor, when determining whether to insert omitted charges from an Account, could take account of a multitude of considerations, including but not limited to, a lack of notice and any prejudice arising from the taxation process or the parties’ conduct in the taxation process. Ultimately, the Court referred the case back to the Auditor for him to exercise his discretion on whether to allow the omitted fees to be included within the Account.
The case reiterates the point that the Auditor has the implicit power to increase fees or include those omitted at his discretion. It also serves as an example of the difficulties that can be encountered if an Account is not properly framed and the additional expense that can be incurred in seeking to argue this before the Court.
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Joanne Farrell |