Craig Moore V. The Scottish Daily Record And Sunday Mail Limited
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord Wheatley,Lord Abernethy,Lord Carloway,Lord Justice Clerk |
| Judgment Date | 09 December 2008 |
| Neutral Citation | [2008] CSIH 66 |
| Date | 09 December 2008 |
| Published date | 09 December 2008 |
| Court | Court of Session |
| Docket Number | A631/05 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Kingarth Lord Wheatley Lord Carloway Lord Abernethy | [2008] CSIH 66 A631/05 OPINION OF THE LORD JUSTICE CLERK in the RECLAIMING MOTION in the cause CRAIG MOORE Pursuer and Respondent; against THE SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED Defenders and Reclaimers; _______ |
Parties Participating at this hearing
For defenders and reclaimers: Dunlop, Pugh; Balfour and Manson
Amicus curiae: Mure; Scottish Government Legal Directorate
Non-participating parties
For pursuer and respondent; Harper MacLeod
9 December 2008
Introduction
[1] The hearing in the reclaiming motion in this case was fixed for 19 and 20 March 2008. On 13 February 2008 at a By Order hearing, counsel for the defenders intimated that the reclaiming motion would go ahead. On 11 March the defenders' agents notified the court that the action had been settled. On 19 March the case was called before an Extra Division. The parties lodged a joint minute disposing of the action. They agreed that no expenses should be found due to or by either party. The question then arose as to whether the court should make an order against either or both of the parties of the kind made by the First Division in Billig and Anr v The Council of the Law Society of Scotland (No 2) (2008 SC 150 ("Billig")). The Extra Division was concerned as to the competency of such an order. It remitted the case to a court of five judges, ordered that intimation be made to the Scottish Court Service (SCS) and invited the Lord Advocate to nominate an amicus curiae, if so advised. The pursuer has not taken part in the hearing before us, but counsel for the defender and the amicus curiae have given us a comprehensive examination of the legal issues.
The procedural history in Billig
[2] In Billig the parties were given notice in December 2006 that the hearing on the petitioners' reclaiming motion had been fixed for 2 October 2007 and the three following days. At about that time the petitioners' counsel gave a pessimistic view of their prospects. In April 2007 the petitioners told the respondents that they would not insist in the reclaiming motion. On 4 August they notified the respondents that they were thinking of going ahead with it and would consult with English counsel. On 29 August 2007 they gave notice at a By Order hearing that they intended to proceed with the reclaiming motion and that all four allotted days would be required. On 20 September 2007 at a continued By Order hearing they confirmed that position. By then they had failed to lodge their appendix in time. On that occasion an Extra Division observed that the conduct of the petitioners came close to an abuse of process and awarded the expenses of the hearing to the respondents. On 26 September 2007, after a consultation with new Scottish counsel, the petitioners' agents gave notice to the court that the reclaiming motion would not proceed.
[3] On 2 October 2007, at the court's request, counsel addressed the First Division on the late abandonment of the appeal. The court allowed the reclaiming motion to be abandoned and awarded expenses to the respondents in both the Inner House and the Outer House.
[4] Counsel for the respondents moved that the expenses should be as taxed on an agent and client (client paying) basis. The court refused the motion, but made the novel suggestion that it might mark its dissatisfaction by requiring the petitioners to pay to SCS a sum equivalent to the court fees that would have been payable by the petitioners if the reclaiming motion had gone ahead.
[5] I think that it would have been better if the court, having floated that idea, had continued the hearing to enable counsel to consider it and prepare submissions. As it was, the discussion before the First Division lasted for about an hour. There was no reference to authority. Counsel for the petitioners did not attempt to justify the petitioners' conduct; nor did he submit that an order to pay money to SCS would be incompetent.
[6] The court ordered the petitioners to pay to SCS £1,332. That sum represented the amount of the court fees that would have been payable by the petitioners for a four-day hearing. The interlocutor, so far as relevant to this case, was in the following terms.
"The Lords ... find the petitioners liable to the Scottish Court Service in the daily court fees which would have been due had the reserved diet not been aborted and that in the sum of ... [£1332]."
The decerniture for that sum was in the following terms.
"The Lords decern against the petitioners ... for payment to the Scottish Court Service of the fees found due in said interlocutor."
[7] The petitioners enrolled a motion to have the interlocutor corrected or altered (cf RC 4.16(7)). On 19 October 2008, after a hearing that lasted for about 15 minutes, the First Division refused the motion. It took the view that, even if it could alter the interlocutor, it had no reason to do so, since the interlocutor was competent and appropriate.
The decision in Billig
[8] In the Opinion of the Court delivered by the Lord President the court commented on the disruption caused by late settlements and its impact on the court and on other litigants. It referred to the court's obligation under article 6(1) of the Convention to ensure that parties have a hearing within a reasonable time. It considered that "to allow litigants like the [petitioners] to act with impunity and without sanction, in advising the court, at such short notice, and with no just excuse, that a four-day hearing will not proceed, would involve an acceptance by [the] court that it had no effective control over the administration of its business" (at para [8]).
[9] The court made the order expressly in the exercise of its inherent jurisdiction. It held that the measures available to prevent or discourage abuses of its procedures would vary with circumstances. Where an abuse was likely to waste public resources, the appropriate measure might be to mulct the abuser in a way that went some way to compensating the public purse. The statutory court fees might "provide a touchstone, albeit an imperfect one, against which an appropriate compensatory requirement [might] be tested" (at para [10]). It was immaterial that the compensatory requirement was made in favour of a third party. A decerniture in favour of the body responsible for administering the court service was appropriate. Although the court found business to fill one of the four reserved days, that did not mitigate the seriousness of the petitioners' default.
[10] An Extra Division has since made an order in almost identical terms (Slessor v Vetco Gray UK Ltd, unreported, 22 February 2008).
Imposition of court fees
[11] The Courts of Law Fees (Scotland) Act 1895 (s 2 (the 1895 Act)) empowered the court to regulate court fees with the approval of HM Treasury. The Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (s 4 (the 1983 Act)) transferred that power to the Secretary of State. It is now held by the Scottish Ministers (Scotland Act 1998, s 53). The court fees payable by litigants are laid down in the Court of Session etc Fees Order 1997 (1997 SI No 688 ("the 1997 Order")), as amended. Under the 1997 Order each party pays court fees. Fees for a hearing on the Summar Roll are charged in half-hour units (1997 Order, Sched 1, Pt I, para 17). If a hearing ends prematurely, fees are not charged for the unused part of the allotted time. The Order provides for the payment of a cancellation fee in the case of a diet of taxation before the Auditor of the Court of Session (ibid, Sched 1, Pt III, para 3), but not in the case of a hearing in the Court of Session itself. The order made in Billig could not apply in relation to a legally aided litigant or to a litigant who is exempt from court dues (ibid, art 5).
The scope of the inherent jurisdiction
[12] The order made in Billig is without precedent. It involves the granting in favour of a third party of a decree, which neither the litigants nor the third party sought, for the payment of a sum of money that the third party had no legal right to recover.
[13] The court has an undoubted inherent jurisdiction to take action where there has been a contempt of court or an abuse of process; or where for some other reason a fair trial of a case has become impossible. In the case of contempt of court the court has the power to fine. The court also has a...
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