James Hendrick Against (1) Stephen House, Qpm, Chief Constable, Strathclyde Police And (2) The Police Appeals Tribunal (scotland)
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Wheatley,Lady Paton |
| Judgment Date | 09 September 2014 |
| Neutral Citation | [2014] CSIH 75 |
| Court | Court of Session |
| Date | 09 September 2014 |
| Published date | 09 September 2014 |
| Docket Number | P755/12 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 75
P755/12
Lady Paton
Lord Drummond Young
Lord Wheatley
OPINION OF THE COURT
delivered by LADY PATON
in the Reclaiming Motion
by
JAMES HENDRICK
Petitioner and Reclaimer;
against
(First) Stephen House, QPM, Chief Constable, Strathclyde Police; and (Second) The Police Appeals Tribunal (Scotland)
Respondents:
Petitioner and Reclaimer: A Smith QC, R G Anderson; Drummond Miller LLP
First Respondent: Non-Participating Party
Second Respondents: J Lake QC; Jones, Solicitor Advocate; Brechin Tindal Oatts
9 September 2014
Expenses of first hearing in judicial review
[1] The only issue before us is whether the Lord Ordinary erred in making an award of expenses in favour of the second respondents in respect of the first hearing in this judicial review. An award of expenses in favour of the first respondent is not challenged.
Background
[2] In 2006 the petitioner, a police officer, was served with formal misconduct proceedings. Details of the ensuing disciplinary proceedings can be found in Hendrick v Chief Constable, Strathclyde Police 2014 SC 549, 2014 SLT 382. The petitioner was ultimately dismissed. Appeals taken by him ended unsuccessfully in September 2010.
[3] Almost two years later, in July 2012, the petitioner raised the current proceedings for judicial review. He challenged several aspects of the disciplinary proceedings, in particular the admission of hearsay evidence, the alleged non-disclosure of a letter from the complainer withdrawing her complaint, and the standard of proof applied (namely, on a balance of probabilities). After sundry procedure, a first hearing took place on 7 and 8 March 2013 before Lord Boyd of Duncansby. By interlocutor dated 26 April 2013, the Lord Ordinary dismissed the petition.
[4] The respondents then enrolled motions seeking the expenses of the first hearing. The petitioner did not oppose the first respondent’s motion, but did oppose any award in favour of the second respondents. The opposed motion was part-heard on 31 May 2013 in the absence of the first respondent, and was continued to 4 June 2013 to allow the court to hear submissions on behalf of the first respondent. By interlocutor dated 4 June 2013 the Lord Ordinary found both respondents entitled to expenses for the reasons set out in his note (see paragraph [8] below). The petitioner reclaimed in respect of the award in favour of the second respondents.
Procedural history
[5] In July 2012, the petitioner’s intention had been to direct the petition for judicial review solely against the first respondent. However the first respondent’s answers contained a plea-in-law of “All parties not called”, supported by the following averments:
“Answer 1: … the respondent is the Chief Constable of Strathclyde Police. He was appointed under and in terms of section 4 of the Police (Scotland) Act 1967. In the present petition, the petitioner seeks a variety of orders in relation to decisions taken by the [respondent] and the “Appeals Panel” … The respondent is not responsible for any decision of the Police Appeals Tribunal. The Police Appeals Tribunal is a distinct body in law, and is established by virtue of section 30 and Schedule 3 of the Police (Scotland) Act 1967. The petition does not designate either the Joint Police Board or the members of the Police Appeals Tribunal, responsible for the decision that is challenged, as either a respondent or an interested party to the petition. It is believed and averred that the petition has only been served on the respondent. In these circumstances, all parties with an interest in the petition have not been called, and the petition should be dismissed.”
[6] Those acting for the petitioner were concerned that the first hearing might be taken up with a debate on that plea and those averments. They therefore, without any order for service from the court, informally intimated the petition to the Police Appeals Tribunal (the “PAT”, now the second respondents) by letter dated 7 November 2012 in the following terms:
“Dear Sirs,
Petition of James Hendrick for Judicial Review
We act as Edinburgh agents for Beltrami & Company, Solicitors, Glasgow, on behalf of the petitioner James Hendrick. The respondent to the petition is the Chief Constable of Strathclyde Police, and Answers have been lodged by solicitors acting on behalf of the respondent. Within those Answers the respondent asserts that intimation of the Petition should have been made to the Appeals Tribunal as well as to the Chief Constable.
Whilst we do not agree with that assertion, we take the opportunity to informally intimate to you the Petition and Answers. We would further advise that a first hearing in connection with the Petition and Answers has been fixed to take place on Wednesday 14th November 2012 within the Court of Session, Edinburgh. No doubt you will advise if you intend to seek to enter the process.”
The petitioner’s expectation was that the PAT would not participate in the judicial review. However the PAT did wish to participate, as they considered that certain averments in the petition required a response from them (see paragraph [7] below).
Rule of court 58.8 provides:
“(1) … a person to whom intimation of the first hearing has been made and who intends to appear –
- shall intimate his intention to do so …
- may lodge answers and any relevant documents.
(2) Any person not specified in the first order made under rule 58.7 as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process …”
[7] Following upon the informal intimation in the letter dated 7 November 2012, the PAT were represented at the first hearing on 14 November 2012. On that date, the Lord Ordinary (Glennie) granted the PAT leave to enter the process as second respondents. There followed the lodging of answers on behalf of the second respondents, and adjustment of the pleadings. Issues expected to be debated at the continued first hearing included:
- The appropriate standard of proof at the disciplinary hearing (whether balance of probabilities, or beyond reasonable doubt)
- The admissibility of hearsay evidence
- The question of any award of damages
- The rationality of the decision-making
- The pleas of mora, taciturnity and acquiescence
The second respondents’ position was that these were all issues about which they wished (and were entitled) to make submissions. It was not for the first respondent to attempt to do so on their behalf, and indeed some of the matters were of importance to the second respondents, but not necessarily of importance to the first respondent, while others (for example, damages) might result in a conflict of interests between the respondents.
The ruling on expenses by the Lord Ordinary
[8] The Lord Ordinary’s note was in the following terms:
“[1] Following my interlocutor of 26 April 2013 dismissing the petition both respondents enrolled motions for expenses against the petitioner. The petitioner opposed the motion in respect of the second respondents only and the matter came before me on 31 May. Only the petitioner and second respondents were represented. Having heard counsel I considered that I should also hear counsel for the first respondent and continued the matter until 4 June when I found the petitioner liable to both respondents in the expenses of process.
[2] In opposition to the second respondents’ motion Mr Smith took me through the history of the petition. He advised me that the second respondents had only come into the process as a result of the first respondent’s encouragement. They had sought leave to enter the process at the first hearing on 14 November 2012. The petitioner had not opposed the second respondents’ motion seeking leave to enter the process but had questioned what it was that could be raised by them. Lord Glennie [the Lord Ordinary presiding on 14 November 2013] had himself asked what they could contribute and had warned that there could be consequences in expenses. What the petitioner had in the end been faced with was senior and junior counsel representing both respondents taking essentially the same point. He referred me to the case of Bell v East Renfrewshire Council 2006 SLT 104, a decision of Temporary Judge R F Macdonald QC (as he then was) in which he held that the lodging of answers in a petition was equivalent to the lodging of a closed record in an ordinary action and that while individual respondents were entitled to be separately represented it did not follow that the petitioner was liable to pay their expenses. This decision had been affirmed by an Extra Division.
[3] Mr Smith submitted that essentially this was a complaint against the decision of the first respondent to dismiss him because of a fundamental failure in process, in particular the conduct before the disciplinary committee hearing. The position of the second respondents was to endorse that decision. However the main argument was directed against the decision of the first respondent and the conduct of the hearing. Mr Smith did not detect any substantial difference between the respondents on the main argument. It was the court’s duty to take control of unnecessary expenditure.
[4] The petitioner was a private individual funding these proceedings himself. It was unreasonable for him to be expected to meet these costs himself.
[5] In reply Mr Jones for the second respondents informed me that their intervention came about as a result of a plea in the first respondent’s answers of all parties not called. The petition was intimated to them by the petitioner on 7 November 2012 by recorded delivery but not by order of the court. The second respondents were wholly independent from the first respondents. They were a statutory body constituted under Act of Parliament. In any event there were distinct challenges against the decision of the second respondents.
[6] I...
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