Petition Of Mub Against The Secretary Of State For The Home Department

CourtCourt of Session
JudgeLord McGhie,Lord Brodie,Lady Clark Of Calton
Judgment Date04 June 2015
Neutral Citation[2015] CSIH 43
Publication Date04 June 2015
Docket NumberP325/13
Date04 June 2015


[2015] CSIH 43


Lord Brodie

Lady Clark of Calton

Lord McGhie


delivered by LORD BRODIE

in the Reclaiming Motion



Petitioner and Reclaimer;




Act: Caskie; Drummond Miller LLP

Alt: MacGregor; Office of the Advocate General

Third Party: Broome; Scottish Legal Aid Board

4 June 2015

[1] This is a motion for and in respect of an award of expenses following upon the refusal of the reclaiming motion at the instance of the petitioner. It is made by the respondent, the Secretary of State for the Home Department. The motion falls into three parts and is in the following terms:

“On behalf of the Respondent, the Lords having refused the reclaiming motion by interlocutor of 30th January 2015, (1) to find the Petitioner and Reclaimer liable in the expenses of the reclaiming motion as taxed, (2) for an order in terms of s19(1) of the Legal Aid (Scotland) Act 1986 requiring payment of those expenses out of the Scottish Legal Aid Fund in respect that it is just and equitable in all the circumstances that the award should be paid out of public funds and (3) to find the Petitioner and Reclaimer liable in the expenses of the Outer House proceedings as an assisted party and to modify those expenses to NIL in terms of s18(2) of the Legal Aid (Scotland) Act 1986.”

[2] Part (3) of the motion was unopposed by the petitioner, and accordingly, was granted. Part (1) was opposed to the extent that the petitioner sought modification to nil. The Scottish Legal Aid Board was heard in opposition to part (2).

[3] The petition is for judicial review of the refusal by the Upper Tribunal on 22 November 2012 of an application by the petitioner for permission to appeal a determination by the First‑tier Tribunal. The temporary Lord Ordinary dismissed the petition in terms of interlocutor dated 21 November 2013. The petitioner reclaimed that interlocutor. That reclaiming motion was refused for the reasons set out in the opinions of the members of the court on 30 January 2015.

Jurisdiction to make an award of expenses out of the Scottish Legal Aid Fund
[4] Section 19 of the Legal Aid (Scotland) Act 1986 provides as follows:

19 Expenses out of the Fund.

(1) In any proceedings to which a legally assisted person is party and which are finally decided in favour of an unassisted party, subject to subsections (2) and (3) below, the court may make an award out of the Fund to an unassisted party of the whole or any part of any expenses incurred by him (so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person).

(2) Before making an order under this section, the court shall consider making an award of expenses against the legally assisted person.

(3) An order under this section may be made only if—

(a) an order for expenses might be made in the proceedings, apart from this Act; and

(b) in the case of expenses of proceedings in a court of first instance, those proceedings were instituted by the legally assisted person, and the court is satisfied that the unassisted party will suffer financial hardship unless the order is made; and

(c) in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds.

(4) The provisions of subsection (3)(b) above regarding financial hardship may be modified, in their application to persons who are concerned in proceedings only in a fiduciary, representative or official capacity, by regulations made under this section.

(5) No appeal may be made against an order made under this section, or against a refusal to make such an order, except on a point of law.

(6) In this section, “expenses” means expenses as between party and party, and includes the expenses of applying for an order under this section.”

[5] Rule 6(2) of the Act Sederunt (Civil Legal Aid Rules) SSI 1987/492 provides that on an application being made to the court under section 19(1) of the 1986 Act if the court does not summarily dismiss the application it may order the applicant to lodge a statement on oath of his grounds for claiming payment out of the Scottish Legal Aid Fund of the whole or part of the expenses incurred by him together with an estimate of the probable amount of these expenses. In the present case the court made such an order on 23 April 2015. In compliance the respondent lodged a statement on oath dated 7 May 2015 together with an account of expenses in the sum of £11,603.50.

[6] Mr MacGregor appeared on behalf of the respondent. The statement on oath lodged on behalf of the respondent had been framed with a view to setting out the relevant law and the basis upon which a claim was made in the present case for payment of expenses out of the Fund. Mr MacGregor adopted what appeared there. In order for the court to make an award it had to be satisfied that it was just and equitable in all the circumstances that expenses should be paid out of public funds. This was to confer a very wide discretion on the court. However, unlike in relation to the expenses of proceedings in the Outer House, it was not also a necessary condition for the award being made that the court was satisfied that the respondent would suffer financial hardship if the award was not made. Guidance as to when the court should be satisfied that it was just and equitable that an award should be paid out of public funds was available from the decisions in relation to the predecessor provision, in Christensen v Ranks Hovis McDougall Ltd 1974 SLT (Notes) 69 and 70 and Bell v Fife Council 1975 SLT (Notes) 4 at 4 - 5. The relevant factors to be taken into account included the fact that the reclaiming motion was made by the assisted party, the fact that the unassisted party had been successful in the reclaiming motion, whether the reclaiming motion had had any real merit and the conduct of the parties. Further assistance was available from the decision of the Court of Appeal in R (Gunn) v Secretary of State for the Home Department [2001] 1 WLR 1634. As appeared from the judgment in that case, the phrase “out of public funds” in the legislation did not restrict the court’s power to make an award only in favour of a litigant who was not publicly funded; it will normally be just and equitable that, when a costs order is made against a party who had been supported by public funds, the costs covered by the order should, insofar as they cannot be recovered from the funded party, be defrayed out of public funds; it is just and equitable that the funding body should stand behind the person it has funded unless there are facts that make the result unjust or inequitable; and a government department is not at a disadvantage as compared with any other litigant in seeking recovery.

[7] It was Mr MacGregor’s submission that, applying the principles he derived from both Scottish and English authority, it was just and equitable that the respondent’s expenses in this reclaiming motion should be paid out of public funds. It was because of the Board’s assessment of prospects of success that the reclaiming motion had been brought. The...

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