Reclaiming Motion By Asif Ali Ashiq For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord McGhie,Lord Menzies |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2016] CSIH 1 |
| Published date | 08 January 2016 |
| Date | 10 December 2015 |
| Court | Court of Session |
| Docket Number | P101/13 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 1
P101/13
Lord Menzies
Lady Smith
Lord McGhie
OPINION OF THE COURT
delivered by LADY SMITH
in the reclaiming motion
by
ASIF ALI ASHIQ
Petitioner;
for judicial review of a decision of The Secretary of State for the Home Department
Respondent and reclaimer:
Alt: Webster; Office of the Advocate General
Third Party: Irvine; Scottish Legal Aid Board
10 December 2015
Introduction
[1] This is a motion for and in respect of an award of expenses following upon the success of a reclaiming motion at the instance of the respondent, the Secretary of State for the Home Department.
[2] The motion is in the following terms:
“On behalf of the respondent and reclaimer, the Lords having allowed the respondent and reclaimer’s motion by interlocutor of 28 April 2015, (1) to find the petitioner and respondent liable in the expenses of the reclaiming motion as taxed,……….and (3) for an order in terms of section 19(1) of the Legal Aid (Scotland) Act 1986 requiring payment of the expenses of the reclaiming motion out of the Scottish Legal Aid Fund in respect that it is just and equitable in all the circumstances that the award should be paid out of public funds.”
[3] Part (2) of the motion, which concerned expenses in the Outer House, was granted by interlocutor of 12 November 2015 in which the petitioner was found liable for those expenses as an assisted person and his liability was modified to nil.
[4] Part (1) of the motion was granted but only to the extent of finding the petitioner liable in the expenses of the reclaiming motion as an assisted person.
Legal Aid (Scotland) Act 1986
[5] Section 19 of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”), on which part 3 of the respondent’s motion was based, is, insofar as relevant, in the following terms:
“19 – (1) In any proceedings to which a legally assisted person is party and which are finally decided in favour of an unassisted party, subject to subsections (2) and (3) below, the court may make an award out of the Fund to an unassisted party of the whole or any part of any expenses incurred by him (so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person).
(2) Before making an order under this section, the court shall consider making an award of expenses against the legally assisted person.
(3) An order under this section may be made only if –
(a) an order for expenses might be made in the proceedings, apart from this Act; and
(b) in the case of expenses of proceedings in a court of first instance, those proceedings were instituted by the legally assisted person, and the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made; and
(c) in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds.
(4)……………
(5) No appeal may be made against an order made under this section, or against a refusal to make such an order, except on a point of law.
(6) In this section “expenses” means expenses as between party and party, and includes the expenses of applying for an order under this section.”
Proceedings before the Lord Ordinary
[6] The petitioner sought judicial review of a decision of the respondent in which she had, in two letters, refused his application for leave to remain in the UK. The Lord Ordinary held that the respondent had, in her first letter, failed to consider the petitioner’s application outwith the immigration rules, as she was obliged to do. She also held that the second letter could not cure that failure. She granted the prayer of the petition thus setting aside the respondent’s decision.
The reclaiming motion
[7] The respondent reclaimed. As explained in its opinion dated 28 April 2015 ([2015] CSIH 31), this court agreed that the respondent’s first letter did not provide the necessary assurance that the respondent had considered whether or not leave to remain had been granted outside the rules. However, the Lord Ordinary had failed to consider whether ‑ as was submitted to her by counsel for the respondent ‑ in all the circumstances, that error was material. For the reasons set out in our opinion, it was not a material error. The Lord Ordinary had, accordingly, erred in setting aside the respondent’s decision.
[8] Regarding the second letter, this court was of the view that it was not amenable to judicial review.
Procedure in the Inner House
[9] On 12 November, in addition to granting part 2 of the motion, the court (i) ordered the respondent to lodge a statement on oath of the grounds for claiming payment of her expenses out of the Scottish Legal Aid Fund (ii) an estimate of the probable amount of those expenses, and (iii) to intimate all relevant documents and a copy of the motion, to the Scottish Legal Aid Board (“SLAB”).
[10] Intimation to SLAB was delayed until that point because of the relevant terms of regulation 6 of the Act of Sederunt (Civil Legal Aid Rules) 1987 which provide:
“6 – (1) An application to the court for an award of expenses under section 19(1) of the Act shall be made by motion in the cause.
(2) On an application to the court being made under section 19(1) of the Act, the court may-
(a) summarily dismiss the application; or
(b) order the applicant to lodge a statement on oath of his grounds for claiming payment out of the Scottish Legal Aid Fund of the whole or any part of the expenses incurred by him together with an estimate of the probable amount of those expenses.
(3) Where the court pronounces an interlocutor under paragraph (2)(b), the court shall also order the applicant to intimate a copy of each of the statement of grounds and estimate referred to in paragraph 2(b) to the Board.
(4) The Board may –
(a) appear and be represented at any hearing to consider an application in which there has been intimation under paragraph (3); and
(b) cite any party to the cause to attend any such hearing.”
Experience of this and other similar applications demonstrates, however, that this is a cumbersome procedure which, we would hope, could be streamlined to operate more efficiently. For instance, there seems to be no good reason for delaying intimation to SLAB until the second stage. They have an interest from the outset. On consideration of the effectiveness of the rule, it may also be concluded that there is no need to have a two stage process or the formality of a statement on oath; a requirement for a note to accompany the motion setting out why the applicant considers it just and equitable that the award should be made may, for example, suffice.
[11] However, in this, as with other applications under section 19(1) of the 1986 Act, disposal of the motion required two hearings. SLAB were present at the second hearing which took place on 10 December. The respondent had duly lodged a statement on oath and an Account of Expenses. The statement on oath was sworn by a solicitor in the office of the Advocate General and included the following:
“9. The reclaimer’s principal grounds for reclaiming and, before that, in answering the petition, have been consistent: any error on the part of the respondent and reclaimer was not material. The Lord Ordinary recorded that submission but failed to determine it. The reclaiming motion proceeded principally in respect of that failure. The Inner House recorded and identified the Lord Ordinary’s failure: paras.[19] and [23], Opinion of the Court, delivered by Lady Smith, 28 April 2015.
10. Further, the Inner House concluded that any judge would, on the circumstances presented (set out succinctly at para.[24]) by the respondent, have been bound to conclude that his removal would not be disproportionate (para [24]) and to have dismissed the petition ([pqrq.[23]). The reclaiming motion was demonstrably meritorious.
11. Notwithstanding the Grounds of Appeal, the reclaiming motion was not conceded such as to permit disposal by means of a McAllister minute, nor was public funding withdrawn in the light of the marking of the reclaiming motion or on consideration of the Grounds of Appeal.
12. Even on the respondent and reclaimer’s esto argument relating to the second decision letter, the Inner House held that the letter was permissible (“quite proper”) (para. [27]) and comprehensive (“difficult to see how the decision maker’s considerations could have been more extensive”) (para. [28])
13. There are no facts that would make it unjust or inequitable for the reclaimer’s expenses of the reclaiming motion to be paid out of the Scottish Legal Aid Fund.”
The account brought out the sum of £13698.17 as the expenses incurred by the respondent in connection with the reclaiming motion.
Submissions
Respondent
[12] Mr Webster made submissions in support of paragraphs 9 to 13 of the statement on oath. He relied in particular on...
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