No need to tax undefended account, court holds
8 Sep 05
Sheriff principal decides that 1992 rules ended any rule requiring taxation
There is no need in an undefended sheriff court action for payment of a solicitor's fees, to have the account taxed (approved by the auditor of court) before decree is granted, a sheriff principal has ruled.
Sheriff Principal Sir Stephen Young allowed an appeal by Aberdeen solicitors Stronachs Corporate, who sued their clients Mountwest 166 Ltd over a professional account for £3,584.
When the action was undefended, the solicitors originally moved the sheriff to dispense with the requirement to tax the account and grant decree. But they then claimed in argument that this was an error and that no such requirement existed. The sheriff rejected this and Stronachs appealed.
Amendments ran together
In his judgment Sheriff Principal Young accepted that a number of earlier sheriff court decisions held that there was such a rule, probably dating from the 19th century. These often referred to the express provision which then appeared in the Court of Session rules, commenting that the sheriff court ought to follow the same practice.
The sheriff principal however studied the amendments to the Court of Session rules made in 1992 and concluded that it was "abundantly clear" that their purpose was to do away with the former requirement that every account be taxed before decree could be granted. Instead the court was given a discretion to decide in each case whether this should happen.
Observing that the sheriff court rules had been amended at the same time and with effect from the same date, the sheriff principal considered that the amended rules must have been intended to have the same effect. Even if there had been a prior rule that accounts had to be taxed, as to which he was unconvinced, the amendment conferred on the sheriff "a discretion to determine whether or not in any given case there should be a remit for taxation".
Rational basis
Before the sheriff remitted the account for taxation, Sheriff Principal Young concluded, "he had to find a rational basis in the particular circumstances of the present case for taking this positive step. In my opinion, in the absence of any opposition from the defenders there was no such rational basis, and the sheriff ought not therefore to have remitted the account for taxation but instead should have granted decree in absence without further ado".
Sheriff Principal Young's opinion can be read at http://www.scotcourts.gov.uk/opinions/A1677_03.html .