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Douglas Stuart v. Doreen Bulger [2008] CSOH 102


Reparation:- This case related to an action for damages following a road traffic accident in Arran in 1996. The case settled extra judicially with the defenders agreeing to make reparation to the pursuer together with the judicial expenses of the action as taxed. The pursuer's account of expenses was remitted to the Auditor of Court for taxation and the pursuer sought an additional fee under the provisions Rule of Court 42.14(2) and that application was also remitted to the Auditor for determination. Here the pursuer's former solicitors enrolled a motion in which they sought approval of the Report of the Auditor of Court dated 11 July 2006 and thereafter to grant decree in favour of the pursuer's former solicitors against the pursuer for sums they claimed were outstanding to them following the Auditor's Report. The motion for decree was opposed on the basis that it would be incompetent for a Court to grant decree in the terms sought. It was submitted on behalf of the pursuer's solicitors that since 1806 it had been competent for a solicitor to obtain a decree for expenses against his own client, within the same action as that in which he had acted for the client. In opposing the motion counsel for the pursuers submitted that:- (1) the procedure being adopted by the pursuer's former solicitors in seeking decree in terms of the Auditor's Report was incompetent; and (2) in the alternative, it was submiited that even it was competent to grant decree against the pursuer in terms of the Auditor's Report, without further procedure, in the particular circumstances of this case the court should not do so. Here the court considered the competency of the motion and the further procedure to be adopted.