Global Santa Fe Drilling (north Sea) Limited And Others V. The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Reed,Lord President |
| Neutral Citation | [2009] CSIH 43 |
| Court | Court of Session |
| Published date | 03 June 2009 |
| Year | 2009 |
| Date | 27 May 2009 |
| Docket Number | P1067/05 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Lord Marnoch | [2009] CSIH 43 P1067/05 OPINION OF THE COURT delivered by THE LORD PRESIDENT in reclaiming motion by (FIRST) GLOBAL SANTA FE DRILLING (NORTH SEA) LIMITED AND OTHERS Interested Parties and Reclaimers; against THE LORD ADVOCATE Petitioner and Respondent: _______ |
Act: O'Neill, Q.C.; CMS Cameron McKenna (Scotland) LLP ((Interested Parties and Reclaimers)
Alt: Martin, Q.C., Mure; Scottish Government Legal Directorate (Petitioner and Respondent)
27 May 2009
Introduction
[1] This reclaiming motion is brought against an interlocutor of the Lord Ordinary dated 1 August 2007 whereby, in proceedings for judicial review, he reduced as ultra vires an award of expenses made by the sheriff at Aberdeen Sheriff Court on 14 December 2004. That award was made against the Lord Advocate in favour of Global Santa Fe Drilling Co. (North Sea) Limited, its sister company Global Santa Fe International Services Inc. of Panama and an individual, James Smith, ("the interested parties") at a fatal accident inquiry into the death of William Geddes Smith ("the deceased").
Legislative framework
[2] Section 1(1) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (as amended) ("the 1976 Act") places a duty upon procurators fiscal for their respective districts to investigate deaths occurring in the course of an individual's employment, and to apply to a sheriff for the holding of a fatal accident inquiry into the circumstances of such deaths. If criminal proceedings have been concluded against any person in respect of the death, and the Lord Advocate is satisfied that the circumstances have been sufficiently established in the course of such proceedings, the obligation to hold an inquiry does not apply (section 1(2)). Where an inquiry is held, the sheriff is required to make a determination setting out prescribed circumstances of the death so far as they have been established to his satisfaction. These circumstances include the cause, location and time of death, and the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)); but the determination is not admissible in evidence nor can it be founded on in any judicial proceedings arising out of the death (section 6(3)).
[3] The conduct of a fatal accident inquiry is regulated by section 4. Section 4(7) provides:
"Subject to the provisions of this Act and any rules made under section 7 of this Act, the rules of evidence, the procedure and the powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses at the inquiry shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone"
Section 7 of the 1976 Act provides, inter alia, that:
"(1) The Lord Advocate [now the Scottish Ministers] may, by rules, provide in relation to inquiries under this Act -
...
(h) as to the payment of fees to solicitors and expenses to witnesses and havers;
...
(k) as to such other matters relating to procedure as the Lord Advocate thinks appropriate."
[4] The Fatal Accident and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 ("the 1977 Rules") were made under the authority of section 7. They make no specific provision for the payment of fees or of expenses. Rule 17 provides the sheriff with a dispensing power. It states:
"The sheriff may in his discretion relieve any person from the consequences of any failure to comply with the provisions of these rules if the failure resulted from mistake oversight or any cause other than wilful non-observance of these rules and in granting such relief may impose such terms and conditions as appear to him to be just; and in any such case the sheriff may make such an order as appears to him to be just regarding extension of time, lodging or amendment of papers or otherwise, so as to enable the inquiry to proceed as if such failure had not happened"
Background to the sheriff's decision at the fatal accident inquiry
[5] The deceased was killed in an accident while working on an oil rig in the North Sea. He was employed by Global Santa Fe International Services Inc. In January 2004 Global Santa Fe Drilling Co (North Sea) Limited, the owner of the rig, was prosecuted for a number of contraventions of the Health and Safety at Work etc Act 1974 in connection with the deceased's death and was acquitted. James Smith was working on the oil rig as a driller at the time of the deceased's death.
[6] In April 2004 the procurator fiscal initiated proceedings for a fatal accident inquiry. The interested parties were represented at that inquiry. Solicitors acting for the owner of the rig had written to the Lord Advocate in March 2004 questioning whether it was in the public interest to hold such an inquiry as, it was suggested, the circumstances of the death had been established at the criminal trial. At a preliminary hearing on 30 April 2004 this concern was repeated by the solicitor for the interested companies. The procurator fiscal identified three topics which, he claimed, would be raised at the inquiry: the adequacy of the risk assessment; the systems put in place following the accident - to identify retrospectively defects in the system of working; and supervision and training. In the event, not all of these issues were raised at the inquiry. Where they were raised, the evidence in relation to them had been presented at the criminal trial.
[7] The inquiry was due to begin on 17 May 2004. Shortly before that date the procurator fiscal added an expert witness, Mr Beale, an inspector with the Health and Safety Executive, to the list of his witnesses. Mr Beale was contacted by the solicitor acting for both companies on 13 May 2004, but indicated that he had not been told to attend the inquiry and knew nothing about its subject matter. Evidence was led from 18 to 20 May 2004, when the procurator fiscal made a motion to adjourn the inquiry to enable Mr Beale to be cited and to prepare a report. That motion was granted, the inquiry being adjourned until 3 August 2004. On that date the procurator fiscal sought leave to lodge 11 new productions amounting to over 300 pages of documentation, relating to Mr Beale's evidence, which were not readily decipherable and had only been provided to parties two working days beforehand. The inquiry was again adjourned to the following day so that parties could consider that documentation and speak to Mr Beale. On that date there was a further adjournment to allow parties more time to consider the documentation. The solicitors acting for the interested parties understood that Mr Beale would be available at court on that date for precognition, but he was discharged by the procurator fiscal. A further meeting had to be arranged and significant additional preparation made. Mr Beale subsequently gave evidence without having heard, or seen transcripts of, the earlier testimony at the inquiry; his evidence, in part, contradicted or introduced matters extraneous to that testimony. He produced no expert report.
[8] At its conclusion, the interested parties moved for an award of expenses relating to such parts of the inquiry as took place after 20 May 2004. The procurator fiscal opposed that motion, submitting that such an award was not competent at a fatal accident inquiry.
The decision of the sheriff on expenses at the fatal accident inquiry
[9] The sheriff decided that, fatal accident inquiries being proceedings before a court, the motion was competent. She made reference to the court having an "inherent power" to award expenses, even in administrative proceedings. In acceding to the motion, she noted that the inquiry had canvassed nothing which had not been the subject of evidence at the criminal trial, had been unnecessary and had served no public interest. She also agreed with the submission that, through the evidence of Mr Beale, the procurator fiscal had attempted to lay some blame for the deceased's death on Mr Smith. She stated (2005 S.C.L.R. 355 at page 364):
"In the whole circumstances, if the Crown's decision to hold this inquiry did not amount to oppression, in my view it came very close. The way in which it was conducted was, in my opinion, oppressive. I am of the clear opinion that there was no justification for the holding of this inquiry and that the Crown's position can properly be regarded as vexatious.
[The interested parties] restricted their claim for expenses to the procedure after the adjournment in May 2004. In my view these expenses were occasioned entirely by the actings of the Crown and could have been avoided had the Crown prepared and presented the evidence appropriately and in accordance with the traditionally fair and even-handed approach to be expected of the Crown.
An award of expenses in any proceedings before a court is not a reward for success or a sanction for failure. Rather expenses are awarded to redress the balance between the party causing unnecessary and unjustified expense and the party incurring it.
An award of expenses against the Crown in a fatal accident inquiry will be very rare given the necessity for such inquiries in the public interest and to protect the workforce from avoidable accident, whatever the expense to parties. It seems to me, however, that for all the foregoing reasons, in the public interest an award should be made in this case."
The decision of the Lord Ordinary
[10] In deciding that the sheriff's award of expenses was ultra vires the Lord Ordinary indicated that, while there might be an inherent power to award expenses in most proceedings, that was not the correct approach in fatal accident inquiries. They were proceedings sui generis. The 1976 Act provided a self-contained set of provisions and made no provision for expenses. He stated:
"[252] I am not persuaded that fatal accident inquiries fall to be treated as ordinary actions, civil...
To continue reading
Request your trial
-
Inquiry Under The Fatal Accidents And Sudden Deaths Inquiry (scotland) Act 1976 Into The Death Of John Perry
...is required.” [13] The position was more recently confirmed by Lord President Hamilton in Global Santa Fe Drilling v Lord Advocate 2009 SLT 597 where at page 604 paragraph [28] he observed under reference to Black that although the Sheriff presiding at a Fatal Accident Inquiry has judicial ......
-
Inquiry Under The Fatal Accident And Inquiries (scotland) Act 1976 Into The Sudden Deaths Of Mhair Samantha Convy And Laura Catherine Linda Stewart
...to the accident.” That position was more recently confirmed by Lord President Hamilton in Global Santa Fe Drilling v Lord Advocate 2009 SLT 597 where at page 604 para. 28 he observed under reference to Black v Scott Lithgow that although the sheriff presiding at a Fatal Accident Inquiry has......
-
Inquiry Under The Fatal Accidents And Inquiries (scotland) Act 1976 Into The Death Of George Paul Rooney Riddell
...(p 327 and 615G to H) [36] As Lord President Hamilton observed in the more recent case of Global Santa Fe Drilling v Lord Advocate 2009 SLT 597 under reference to Black "[a] fatal accident inquiry is a statutory procedure" .. and "[a]lthough the sheriff presiding at it has judicial duties .......
-
Appendices To The Rosepark Nursing Home Fatal Accident Inquiry
...Accident Inquiries, 3rd edn, para. 5-77. [15] The 1976 Act, s. 4(7). [16] Cp Global Santa Fe (Drilling)(North Sea) Ltd v. Lord Advocate 2009 SLT 597, para. 28 per the Lord President (Hamilton). [17] Determination in relation to the Death of Mildred Rosenshine, July 2010, Sheriff IHL Miller ......