Inquiry Under The Fatal Accidents And Inquiries (scotland) Act 1976 Into The Sudden Death Of Margaret Westwater Gill
| Jurisdiction | Scotland |
| Judge | Sheriff I.H.L. Miller |
| Court | Fatal Accident Determinations (Scotland - United Kingdom) |
| Docket Number | 2B2249/08 |
| Date | 23 December 2009 |
| Published date | 29 December 2009 |
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
2B2249/08
| INQUIRY HELD UNDER THE FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976, SECTION 1(1)(b) | INTERLOCUTOR of IAN HARPER LAWSON MILLER, Esquire Advocate, Sheriff of the Sheriffdom of Glasgow and Strathkelvin in respect of the hearing on expenses in the Fatal Accident Inquiry into the circumstances of the death of MARGARET WESTWATER GILL Act: Stephenson, Advocate, for the Health Boards Alt: O'Mahony, Procurator Fiscal Depute, for the Crown |
GLASGOW, 23rd December 2009
The Sheriff, having heard Counsel for the National Waiting Times Centre Board and the Greater Glasgow Health Board and the procurator fiscal depute for the Crown on the motion of both Boards for an award of expenses in their favour from the Crown, Refuses the motion.
NOTE/
NOTE
[1] In my determination in this Fatal Accident Inquiry which I issued on 30th September 2009 I pronounced an interlocutor continuing to a hearing consideration of the motion made on behalf of both the National Waiting Times Centre Board and the Greater Glasgow Health Board, opposed by the Crown, to find the Crown liable to both Boards in the expenses of the Inquiry and assigned that hearing to take place on 28th October 2009. At that hearing the Boards were represented by Mr Stephenson, Queen's Counsel, who, as junior counsel, had represented the Boards at the Inquiry, and the Crown by Mr O'Mahony, acting principal procurator fiscal depute, who had not represented the Crown at the Inquiry but who was a senior depute in the deaths unit within the office of the Procurator Fiscal, Glasgow.
[2] At the hearing counsel tendered written submissions and then read them through, on occasions adding observations not in the text. In reply the depute presented his submissions orally to which counsel replied.
The motion
[3] As it was expressed in the written submissions the motion for the Boards was in the following terms.
"That the conduct of the Fatal Accident Inquiry by the Crown having been vexatious the Lord Advocate should be found liable to pay to (i) the National Waiting Times Centre Board and (ii) Greater Glasgow Health Board their respective judicial expenses in connection with their preparation for and appearances at the Fatal Accident Inquiry, as taxed on a party and party basis; which failing should be found liable for such part or proportion of their respective expenses as Your Lordship deems appropriate, again as taxed on a party and party basis; the case should be certified as suitable for the employment of junior counsel."
The submissions on behalf of the Boards
[4] In support of the motion he advanced six propositions.
(1) The Sheriff in a Fatal Accident Inquiry has the power to award expenses in favour of a party appearing at an FAI against another party appearing, at least where the latter has been guilty of vexatious conduct
(2) Conduct on the part of the Crown that may be classified as vexatious includes failure to prepare and present evidence appropriately, so as to cause another party to incur unnecessary and unjustified expense.
(3) The Boards have justifiably incurred substantial costs in connection with the Inquiry which raised potentially very serious matters.
(4) The conduct of the Inquiry by the Crown has been vexatious resulting in unnecessary and unjustified expense for the Boards.
(5) Apart from the absence in the present case of a previous prosecution the conduct of this case is similar to that in the Global Santa Fe case
(6) Should the whole expenses be awarded of only a part or proportion?
He supported each proposition with detailed submissions.
The first proposition
[5] Counsel grounded his first proposition in the decision of the Inner House of the Court of Session in the case of Global Santa Fe Drilling (North Sea) Limited & Ors v The Lord Advocate, 2009 SLT IH 597. This case arose out of a decision by a sheriff in the context of a Fatal Accident Inquiry whereby she made a finding of expenses against the Lord Advocate and in favour of the interested parties for part of the expenses they had incurred during the Inquiry on the ground that the Crown was unjustified in holding the Inquiry and that as a consequence the Crown's position could properly be regarded as vexatious. The Lord Advocate raised proceedings for judicial review of that finding. The Lord Ordinary reduced the finding. The interested parties reclaimed and the First Division allowed the reclaiming motion.
[6] From the report counsel traced the procedural history, the remedy sought, the circumstances that led to the motion for expenses being made and the learned sheriff's reasons for deciding that the holding and conduct of the Inquiry was oppressive and vexatious. This related to the prolongation of the Inquiry by reason of the failure to properly and timeously instruct a Mr Beale, an inspector with the Health and Safety Inspectorate, apparently intended to be an expert and the motion for expenses related only to the period during which Mr Beale was involved. He pointed out that the principal issue before the Inner House was whether the finding of expenses was competent and that the reasonableness of the finding and the sheriff's characterisation of the Crown's behaviour as oppressive and vexatious was accepted by the Crown, at least for the purposes of the reclaiming motion. For present purposes it was sufficient to look at paragraphs [33] to [35] of the Opinion of the Court delivered by the Lord President, Lord Hamilton, for the conclusions of the Court which culminated with the words of paragraph [35]: "In the whole circumstances we are of opinion that a sheriff may award expenses against a party to a fatal accident inquiry whose conduct before him has, as the sheriff here found, been vexatious." Counsel submitted that so far as the competency of an award of expenses in a Fatal Accident Inquiry was concerned, where there had been vexatious conduct the decision was binding upon me.
The second proposition
[7] This proposition was concerned with what was meant by vexatious for present purposes. Counsel began by saying that presumably something was vexatious if it tended to vex, ie. to worry or concern. The idea conveyed in the context of a legal action was that the action was vexatious if instituted and conducted without sufficient grounds. What the sheriff was concerned with in the Global Santa Fe case appeared to have been an Inquiry which might or might not of itself have been vexatious but which was in any event then conducted in a manner that proved to be vexatious. In the case the sheriff had founded upon the following factors:
(a) The Inquiry had canvassed only matters already dealt with at the criminal trial.
(b) The Inquiry had been unnecessary.
(c) The Inquiry had served no public interest.
(d) The expenses sought were occasioned entirely by avoidable 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."
(e) The purpose of an award of expenses is "to redress the balance between the party causing unnecessary and unjustified expense and the party incurring it"
[8] Counsel then intimated that the word "vexatious" and the phrase "vexatious legal proceedings" in a statutory context had been considered very recently by the Inner House in the case of The Lord Advocate v McNamara [2009] CSIH 45, 4 June 2009. That case was an application by the Lord Advocate under section 1 of the Vexatious Actions (Scotland) Act 1898 for an order to be made in respect of the respondent. Counsel directed attention to paragraphs [31] to [35] inclusive of the Opinion of the Court delivered by Lord Reed and observed that in McNamara the focus of attention was on the institution of proceedings. He also drew attention to the observations of the Court at paragraph [34] drawing a distinction between vexatious conduct of an action and the bringing of an action which is in itself vexatious.
The third proposition
[9] Counsel began by submitting that Fatal Accident Inquiries were generally expensive and time-consuming. They were taken very seriously by Health Boards, who had an obvious interest in preventing avoidable patient deaths: whether due to individual casual failures by staff, or to systemic failures. In the present case the suggestion was that medical staff may have caused or contributed to Mrs Gill's death in circumstances in which they could not have then avoided serious censure, giving rise to the need for the employing Boards to take action. Whereas the function of an Inquiry was not to find or to apportion "fault" as a basis for attributing civil responsibility for damages, it was accepted by all the medical witnesses, except perhaps Dr Hatter, that puncturing the abdominal aorta during an angiogram was completely unknown in practice and could not happen if the procedure were undertaken appropriately. Moreover the evidence was that this could not happen without the operator realising what had happened. If the Court had accepted that a tear to the aorta had been caused by the procedure then the position of Dr Oldroyd and of Dr MacDonald would have been very serious indeed and Dr Baxter's evidence would also have put his position in doubt.
[10] Counsel then said that it was not evident to him that the Crown during the Inquiry fully appreciated the extremely serious potential ramifications for at least Dr Oldroyd and Dr McDonald, of the position they advanced based upon Dr Hatter's pathology report.
[11] In advance of the hearing of the Inquiry Counsel was instructed to represent at it the interests of both Boards who were interested parties. The discrepancy between the post mortem report and the CT scan was immediately identified, having been highlighted by Dr Oldroyd in a letter to the Greater Glasgow Health Board Head of Nursing dated...
To continue reading
Request your trial