McKie v Scottish Ministers [Court of Session Outer House]
| Jurisdiction | Scotland |
| Judgment Date | 30 March 2006 |
| Date | 30 March 2006 |
| Docket Number | No 33 |
| Court | Court of Session (Outer House) |
Court of Session Outer House
Lord Hodge
Expenses - Settlement without admission of liability - Whether conduct of case by party unreasonable or reprehensible - Whether expenses should be awarded on agent/client party paying basis
The pursuer was formerly a detective constable in Strathclyde Police. In 1997 she was appointed as part of a police investigation team in a murder inquiry. During the inquiry fingerprints were found on the bathroom doorframe of the deceased's house. Following analysis of those prints SCRO officials produced a report on 10 April 1997 ('the report'), which stated that one of the prints (Y7) was that of the pursuer. The pursuer denied that the print was hers and gave evidence to that effect at the trial of an accused later found guilty of murder. Part of the crucial evidence against that accused was a fingerprint (QI2) stated by SCRO officials to be of the deceased and found on a tin recovered at the accused's house. Following a report dated 7 August 2000 by Danish experts instructed by the Crown Office concluding that the fingerprint on the tin did not match that of the deceased, the Crown did not oppose an appeal against conviction by the accused.
The pursuer was tried at the High Court of Justiciary in Glasgow in April and May 1999 for perjury in relation to the evidence she had given at the trial of the accused and in particular to fingerprint Y7. At her trial, the pursuer led evidence of fingerprint experts from America to the effect that the print Y7 was not hers and that this would have been evident to any competent fingerprint expert. The jury acquitted the pursuer with a unanimous verdict of not guilty. Following acquittal of the pursuer, Her Majesty's Inspectorate of Constabulary for Scotland carried out an inspection of SCRO and appointed two senior fingerprint experts who produced a report in June 2000 concluding that Y7 was not the pursuer's fingerprint. This report was published on 22 June 2000. Thereafter, the Association of Chief Police Officers in Scotland set up a review group to work on the findings of the HMIC report. A confidential report was produced to the Crown Office by two officers which was considered along with other evidence including that of experts independent of SCRO who agreed that there was no misidentification. In light of the evidence, the Lord Advocate decided in September 2001 that there was insufficient evidence to justify taking criminal proceedings.
In October 2001, the pursuer raised an action for damages for the damage to her health and the loss of her police career, which arose out of the accusation of perjury and her prosecution. The action was initially raised against the Strathclyde Joint Police Board, the Scottish Ministers and the four officials who signed the report. The defenders having taken a pragmatic approach despite doubts as to vicarious liability accepted that they carried the liability and on 13 December 2002 the action was dismissed in so far as directed against the other parties initially convened as defenders. Following a debate on the procedure roll in October 2003 a proof before answer was allowed. The Lord Ordinary's decision was appealed and the pursuer lodged a minute of amendment in July 2004. The pursuer's case was predicated upon proving that Y7 was not her fingerprint and that the relevant SCRO officials acted maliciously in persisting with their assertions that there was a match; misrepresenting the fingerprint evidence in the way it was presented to the criminal court and hiding the existence of doubters within SCRO. The cause was thereafter appointed to proof before answer to commence on 7 February 2006. On the morning of the proof, parties settled the action with no admission of liability on the part of the defenders, who had continued to maintain that the SCRO officials had acted in good faith although in mid 2005 they had decided to admit that Y7 was not the pursuer's fingerprint. The sum for which the action settled was more than the amount tendered by the defenders but less than that previously sought in negotiations by the pursuer's representatives on her behalf. The pursuer sought an additional fee which was not opposed. In addition the pursuer sought an award of the outstanding expenses on an agent and client scale. This portion of the motion was opposed.
Counsel for the pursuer argued that the defenders had acted unreasonably and reprehensibly in their conduct of the action by first, failing to identify that they were vicariously liable for the acts of the SCRO officials; secondly, failing to make available to the pursuer's advisers relevant documents or facilitating the taking of witness statements; thirdly, by reclaiming against the Lord Ordinary's decision; and fourthly, by being dilatory and uncooperative in settlement negotiations.
Counsel for the defenders argued that there was a body of conflicting expert evidence on the fingerprint evidence which entitled the defenders initially to require the pursuer to prove that Y7 was not her fingerprint. There having been conflicting evidence from independent experts the defenders had been entitled to approach matters as they did.
Held that the defenders had not acted unreasonably or reprehensibly in their conduct of the action and the expenses of the action fell to be dealt with on a party and party scale (paras 30-39).
Shirley Jane McKie raised an action for damages against the Scottish Ministers. Following a debate on the procedure roll in October 2003 and a subsequent appeal against the Lord Ordinary's decision following that debate and sundry other procedure the action was appointed to a proof before answer. The action settled on the morning of the proof diet without admission of liability and the pursuer enrolled a motion for an additional fee and for the awarding of expenses on the solicitor and client scale except in so far as expenses had already been awarded. The motion was opposed only in relation to the scale of fees sought. The motion came before the Lord Ordinary (Lord Hodge) at a hearing on 9 March 2006. The Lord Advocate was represented at the hearing to explain the position in relation to a confidential report on relevant matters obtained by the Lord Advocate.
Cases referred to:
Baker Hughes Ltd v CGC Contracting International LtdENRUNK2005 1 SC 65; 2005 SCLR 1084
British Railways Board v Ross and Cromarty County CouncilSC 1974 SC 27; 1974 SLT 274
Ewos Ltd v Mainland [2005] CSOH 153; 2005 SLT 1227
McKie v Strathclyde Joint Police Board 2004 SLT 982
North East Ice & Cold Storage Co Ltd v Third, 4 June 1996, unreported
Plasticisers Ltd v William R Stewart & Sons (Hacklemakers) LtdSC 1972 SC 268; 1973 SLT 58
Walker v McNeil 1981 SLT (Notes) 21
Following the hearing the Lord Ordinary (Hodge) issued his decision on 30 March 2006-
Lord Hodge-
[1] This is an action for damages against the Scottish Ministers, in which the pursuer alleged that she suffered loss and injury caused by malicious acts of officials of the Scottish Criminal Records Office ('SCRO') which gave rise to her prosecution for perjury, a charge of which she was unanimously acquitted. The action settled on the morning of the proof diet on 7 February 2006, when the pursuer accepted the defenders' offer of £750,000, which was made without admission of liability. The pursuer then enrolled motions seeking an additional fee under Rule of Court 42.14 and also the expenses of the action on the solicitor and client scale except so far as expenses had already been dealt with in the process.
[2] At the hearing on 9 March 2006 I indicated that I would award the pursuer an additional fee taking account of the factors listed in heads (a), (b), (c), (d), (e) and (g) of Rule of Court 42.14(3). The Scottish Ministers did not contest the pursuer's entitlement to an additional fee under heads (a), (b) and (e). This was a very difficult litigation for the pursuer to mount and those factors were clearly relevant. I was also persuaded that the number and importance of the documents which the pursuer's solicitors had to peruse and analyse, the unavoidable need to consult with experts in the United States of America and the Netherlands, and the efforts that the pursuer's solicitors made to settle the action merited account being taken of factors (c), (d) and (g).
[3] The majority of the submissions which I heard addressed the issue of the scale on which the pursuer should be awarded expenses. Counsel referred me to Plasticisers Ltd v William R Stewart & Sons (Hacklemakers) Ltd, British Railways Board v Ross and Cromarty County Council,Walker v McNeil, North East Ice & Cold Storage Co Ltd v Third and Baker Hughes Ltd v CGC Contracting International Ltd and Ewos Ltd v Mainland. The law on this issue is well settled and may be summarised in the following five propositions. First, the court has discretion as to the scale of expenses which should be awarded. Secondly, in the normal case expenses are awarded on a party and party scale; that scale applies in the absence of any specification to the contrary. But, thirdly, where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. Fourthly, in its consideration of the reasonableness of a party's conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party's behaviour before the action commenced, the adequacy of a party's preparation for the action, the strengths or otherwise of a party's position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or...
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