The procedure relating to the two forms of commission, namely a commission and diligence for recovery of documents and a commission for examination of a witness, is set out in the Act of Sederunt (Rules of the Court of Session 1994) 1994 (RCS) r. 35, Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 28 and Summary Cause Rule r. 18.

The general rule is that where a proof or evidential hearing is allowed, the successful party will be entitled to recover costs that they incurred relative to commission procedure on a party/party basis.

A commissioner, unless appointed as part of their proper judicial function as a Lord Ordinary or sheriff, is entitled to a fee. If there is a disagreement as to the amount this shall be determined by the auditor. The courts are reluctant to interfere with the auditor’s assessment.

The fees of the commissioner and clerk require to be paid at the time they are incurred.

If the commissioner’s fee is not paid timeously a motion may be enrolled by the commissioner in the action for payment of their fee and that of the clerk to the commission, or the commissioner may sue for payment in a separate action.

The commissioner’s fee is personal to them as they are acting in the capacity of judicial appointee. It should therefore not be paid to their firm if a solicitor, or faculty services if an advocate. Normal practice is to appoint an advocate as commissioner in Court of Session proceedings and a solicitor in sheriff court proceedings.

Shorthand writer’s fees are the responsibility of the party executing the commission in the first instance.

Historically, the auditor was likely to disallow the fees of counsel in relation to a commission for the recovery of documents even in Court of Session proceedings. The instruction of counsel in the execution of any commission in modern day practice is subject to any sanction requirements that exist and where sanction in the sheriff court is granted for the proceedings, counsel’s involvement in a commission will remain subject to the scrutiny of the auditor on the grounds of reasonableness.