Robert Bell V. On The Motion By The Defenders In The Cause Inkersall Investment Limited+prosper Properties Limited+michael Woodcock
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Marnoch,Lord Justice Clerk |
| Judgment Date | 13 July 2007 |
| Neutral Citation | [2007] CSIH 60 |
| Date | 13 July 2007 |
| Court | Court of Session |
| Published date | 13 July 2007 |
| Docket Number | A730/04 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Johnston Lord Marnoch | [2007] CSIH 60 A730/04 OPINION OF THE LORD JUSTICE CLERK on the MOTION by the Defenders in the cause ROBERT BELL Pursuer and Reclaimer; against (First) INKERSALL INVESTMENTS LIMITED; (Second) PROSPER PROPERTIES LIMITED; and (Third) MICHAEL WOODCOCK Defenders and Respondents: _______ |
For pursuer and reclaimer: O'Neill QC, Nicoll; Drummond Miller
For defenders and respondents: Joughin; Digby Brown
13 July 2007
Introduction
[1] By Interlocutor dated 15 March 2006 this court refused a reclaiming motion by the pursuer against an interlocutor of Lady Paton dated 12 April 2005 by which she recalled an interim interdict that had been granted to the pursuer (Bell v Inkersall Investments Ltd, 2006 SC 507). The interdict was obtained ex parte on the pursuer's averment that he had an agricultural tenancy of the whole of the defenders' estate. It effectively excluded the defenders from the estate.
[2] In my Opinion in the case, with which my colleagues concurred, I set out the history, discussed the inadequacy of the pursuer's pleadings and criticised the conduct of the pursuer and of those advising him. I should mention at the outset that the pursuer's present solicitors are not those who acted for him at first instance and that senior counsel for the pursuer has not been involved in the case until now.
The motion
[3] The defenders have moved for the expenses of the reclaiming motion on the basis of agent and client, client paying. The pursuer concedes that he should be found liable in expenses, but he moves (1) that he should be liable as an assisted person; (2) that his liability should be modified to nil; and (3) that if he should not be found liable as an assisted person, he should be found liable as between party and party only.
The legal aid frameworkThe Legal Aid (Scotland) Act 1986
[4] Section 16(2) of the Legal Aid (Scotland) Act 1986 (the 1986 Act), so far as relevant to this case, defines a "legally assisted person" as "a person in receipt of civil legal aid in the proceedings in question" (cf Act of Sederunt (Civil Legal Aid Rules) 1987 (SI No 492), rule 1(2)). Section 17 provides for the payment of a contribution to the Fund by an assisted person and for payment by the assisted person to the Scottish Legal Aid Board (the Board) of any net liability incurred by the Fund out of any property recovered or preserved.[5] Sections 18 and 19 provide inter alia as follows.
"18(2) The liability of a legally assisted person under an award of expenses in any proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.
(3) None of the following, namely a legally assisted person's house, wearing apparel, household furniture and the tools and implements of his trade or profession shall-
(a) be taken into account in assessing his means for the purposes of
subsection (2) above ...
except in so far as regulations made under this section may prescribe.
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 aided person.
(3) An order under this section may be made only if -
...
(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 ..."
The Civil Legal Aid (Scotland) Regulations 2002
[6] The Civil Legal Aid (Scotland) Regulations 2002 (SSI No 494) (the 2002 Regulations) provide inter alia as follows."18(1) The Board may make legal aid available for specially urgent work undertaken before an application is determined, if it is satisfied that at the time such work was undertaken there was probabilis causa litigandi and it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid, in either of the following circumstances:-
(a) where any step specified in paragraph (2) below has required to
be taken as a matter of special urgency to protect the applicant's position; or
(b) in any other circumstances where the Board is satisfied on
application that steps require to be taken as a matter of special urgency to protect the applicant's position.
(2) The steps referred to in paragraph (1)(a) above are-
...
(t) initiating or opposing appellate proceedings other than such
proceedings in the House of Lords or the Judicial Committee of the Privy Council ...
(5) Where work is carried out by a solicitor in the circumstances described in paragraph (1) above-
(a) Section 17 (contributions and payments out of property
recovered) of the Act shall be modified so that-
(i) a legally assisted person for the purposes of that section includes a person for whom such work is carried out; and
(ii) the requirements of that section apply in respect of specially urgent work undertaken before an application for legal aid made in terms of section 14 of the Act is determined ...
34 Where, after proceedings have been instituted in any court, a party thereto becomes an assisted person, the provisions of section 18(2) of the [1986] Act shall apply to so much of the expenses of the proceedings as were incurred while that party was an assisted person."
The Scottish Civil Legal Assistance Handbook - February 2006[7] The Board's Handbook sets out the Board's interpretation of the legislation. In relation to the authorisation of specially urgent work and the applicant's liabilities in respect of it, the Handbook says inter alia -
"10.6 Effective date
... A grant of legal aid will only cover work done before the effective date if it has been done in accordance with the special urgency provisions ...
15.8 Status of applicant
For the purposes of section 17 of the [1986] Act only, regulation 18 [sc of the 2002 Regs] provides that a person for whom work is carried out under special urgency is a legally assisted person. This means they are now liable to pay a contribution for work carried out as a matter of special urgency whether or not we grant legal aid ...
19.10 Modification of assisted person's liability
... Where work is undertaken under the special urgency provisions of regulation 18, modification cannot be sought unless civil legal aid is subsequently granted and covers these steps ... "
The pursuer's application for legal aid
[8] After the reclaiming motion was marked, the pursuer applied to the Board for special urgency cover in advance of an application by him for legal aid. In the special urgency mandate dated 25 October 2005 that he signed, he stated that his total income and disposable capital were nil. On 7 February 2006 the Board, by telephone, authorised special urgency cover. On 6 March 2006 it issued a certificate of special urgency cover for certain specified work, which in effect covered his opposition to the reclaiming motion. The pursuer's solicitors began the specially urgent work and in due course applied for legal aid.
[9] The Board granted legal aid on 14 September 2006. The certificate states inter alia -
"This is to certify that subject to the provisions of the Legal Aid (Scotland) Act 1986 and any regulations made thereunder, legal aid has been made available to the person designed below as the assisted person effective from the date shown hereon and for any urgent work undertaken before that date under Regulation 18 of the [2002 Regulations], provided that all the necessary conditions imposed by or under that regulation have been complied with ... "
The effective date of the certificate is also 14 September 2006.
The expenses incurred by the defenders
[10] The defenders' account of expenses in connection with the reclaiming motion is likely to be about £6,000 on a party and party basis and about £7,500 on an agent and client basis, client paying. The latter figure represents the expenses that the defenders have actually incurred. I understand from counsel that, except for a trivial amount, the expenses of the reclaiming motion were incurred in the period between the grant of special urgency sanction and the grant of full legal aid.
Events since the grant of the interim interdict
[11] After the interim interdict was granted, the pursuer occupied the whole estate. Despite the refusal of the reclaiming motion he has continued to occupy the estate, apparently on the basis that his claim to the tenancy is the subject of the sheriff court litigations to which I referred in my earlier Opinion (Bell v Inkersall Investments Ltd, supra, at para [4]).
[12] By having occupied the subjects in this way, the pursuer has become eligible for and has obtained the Single Farm Payment (SFP). In about April 2006 he was paid about £60,000. He was paid a further £53,000 in January 2007. According to counsel for the defenders, a further payment is due in about six months time. The right to the SFP is a saleable commodity. The pursuer has also obtained grants under the Less Favoured Areas Support Scheme (LFASS). He has also behaved disgracefully towards third parties on the estate (ibid, at para [11]).
The financial information provided by the pursuer[13] The pursuer's accountants have prepared a statement of the pursuer's financial position. They summarise his assets and liabilities as follows.
"Assets Notes £
Tenant's Improvements 1 50,147
Implements and Farm...
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