Appeal By The City Of Edinburgh Council Against Jackie Pringle Qua Curator Ad Litem To The Child Mo
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Justice Clerk,Lady Clark Of Calton |
| Judgment Date | 24 June 2016 |
| Neutral Citation | [2016] CSIH 46 |
| Court | Court of Session |
| Docket Number | XA131/15 |
| Published date | 24 June 2016 |
| Date | 24 June 2016 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 46
XA131/15
Lord Justice Clerk
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the APPEAL
by
THE CITY OF EDINBURGH COUNCIL, PETITIONERS
Appellant;
against
JACKIE PRINGLE qua curator ad litem to the child MO
Respondent:
Act: Scott, QC; Brodies LLP
Alt: J. Mitchell, QC; Allan McDougall, Solicitors
24 June 2016
Introduction
[1] This is one of two associated appeals relating to the expenses to be paid to a curator ad litem appointed in connection with a permanence order. The second appeal is Clackmannanshire Council, Petitioners [2016] CSIH 47. This opinion must be read in conjunction with the opinion in that case. The issue arising in each appeal is whether in such a case the sheriff is entitled to make an order for expenses under rule 2(a) of the Sheriff Court Adoption Rules 2009, which are contained in the schedule to SSI 2009/284, (“the 2009 Rules”) or whether the curators’ recoverable expenses are limited to such sum as the local authority thinks fit, by virtue of regulation 10(1A) of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (“the 2001 Regulations”). In each case the curator was a member of the panel of curators established by the local authority for the relevant area, established under regulation 4 of the 2001 Regulations.
[2] The respondent was appointed curator ad litem to a child, in connection with an application for a permanence order, by interlocutor dated 31 July 2013. The application was granted after proof on 31 August 2015. The respondent subsequently enrolled a motion under rule 2(a) for a finding that she was entitled to recover from the petitioner such fees, outlays and expenses which she had incurred as curator ad litem in the proceedings from 29 January 2015 (expenses having been dealt with by agreement under Regulation 10). Following an opposed motion hearing on 27 October 2015, the sheriff granted the motion.
Legislation
[3] Regulation 4 of the 2001 Regulations provides:
“3. (1) … there shall be for each local authority area a panel of persons from whom curators ad litem and reporting officers may be appointed for the purposes of section 108 of the 2007 Act.
…
4. (1) … each local authority shall from time to time appoint such a number of persons to be members of a panel as, after consultation with the Sheriff Principal, they consider to be adequate”.
[4] Regulation 10(1A) provides:
“The local authority shall defray the expenses incurred by a member of the panel established for their area and shall pay to that member such fees and allowances as the local authority think it in the case of an application for –
…
(c) a permanence order (within the meaning of section 80 of [the Adoption and Children (Scotland) Act 2007] …”.
[5] Rule 2 of the 2009 Rules provides:
“The sheriff may –
(a) make such order as he thinks fit with regard to the expenses of an application under these Rules, including the expenses of a reporting officer and a curator ad litem or any other person who attended a hearing; and
(b) modify such expenses or direct them to be taxed on such scale as he may determine”.
Background
[6] As explained in the Clackmannanshire Council case, the question at issue arises from a decision of the Sheriff Principal of Lothian and Borders in Scottish Borders Council 2014 SLT (Sh Ct) 140, in which an appeal against the sheriff’s interlocutor awarding a curator expenses in terms of rule 2 was refused.
The sheriff’s decision
[7] The sheriff concluded that she was bound by the decision in Scottish Borders Council, which could not be distinguished from the circumstances of the present case, and granted the motion.
Submissions
Appellant
[8] The appellant’s submissions were the same as those advanced in Clackmannanshire Council, Petitioners (supra).
Respondent
[9] The sheriff had power to make the award of expenses which she did. The express language of rule 2 is not impliedly excluded by regulation 10(1). The two provisions were not incompatible. Other local authorities pay curators on a time and line basis, with no need to seek a judicial award.
[10] Rule 2 is consistent with the ordinary practice of the courts of Scotland in civil proceedings. Absent clear provision to the contrary, the Court of Session or the Sheriff Court have an inherent power to regulate expenses in civil proceedings (Court of Session Practice, Division L, Chapter 1). The practice in relation to curators is well stated in MacLaren on Expenses, pp. 236 – 7: their “right to recover expenses is construed as favourably as is consistent with the rights of those with whom he has been litigating … the court is always willing to secure the payment of the expense of a curator ad litem from any source available”.
[11] If the power of the court to regulate expenses had been excluded, one would have expected clear language to that effect. The true purpose of the 2001 Regulations...
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