Nicholas Dingley (ap) V. The Chief Constable Of Strathclyde Police
| Jurisdiction | Scotland |
| Judge | Lord Eassie |
| Date | 09 October 2002 |
| Docket Number | A448/93 |
| Court | Court of Session |
| Published date | 09 October 2002 |
| OUTER HOUSE, COURT OF SESSION | |
| A448/93
| OPINION OF LORD EASSIE respecting a NOTE OF OBJECTIONS to a REPORT BY THE AUDITOR in the cause NICHOLAS DINGLEY (A.P.) Pursuer; against THE CHIEF CONSTABLE OF STRATHCLYDE POLICE Defender: ________________ |
For the Objectors: Cullen, Q.C.
For the respondent counsel for the Pursuer: Brailsford, Q.C.
9 October 2002
[1]This matter came before me for a hearing on a Note of Objections to a Report by the Auditor of the Court of Session on a matter of expenses in this action.
[2]The action was brought by a former police constable. He was injured in a road traffic accident when a police van in which he was travelling as a passenger overturned. In addition to his immediate injuries, some time after the accident the pursuer was diagnosed as suffering from multiple sclerosis and in his action for reparation also sought compensation for that condition from the defender, the Chief Constable. Liability for the driver's fault was admitted and the issue between the parties was whether the multiple sclerosis from which the pursuer was suffering was caused by the accident. The pursuer was awarded damages for multiple sclerosis at first instance but the Lord Ordinary's decision was successfully reclaimed by the defender. The proceedings in the Inner House are reported at 1998 S.C. 548. Until that stage the pursuer's action had been financially supported by the Police Federation. It appears that the Federation were not prepared to support a further appeal to the House of Lords. The pursuer therefore sought legal aid for such an appeal from the Scottish Legal Aid Board - "the Board". His application was granted by the Board. In the event his appeal to the House of Lords was unsuccessful. The speeches delivered in the House of Lords are reported at 2000 S.C. (H.L.) 77. The House of Lords awarded costs against the Board. The issue now arising, however, concerns the amounts of the fees sought from the Board by senior and junior counsel for the pursuer, who, it may be noted, acted for the pursuer at all stages of this litigation against the Chief Constable. The Auditor having taxed counsels' fees, the Board objected to the report of that taxation. Prior to the hearing on the Board's Note of Objections the Auditor provided a minute in terms of Rule of Court 42.4. At the hearing on the Note of Objections counsel who had appeared in the House of Lords were jointly represented by Mr Brailsford, Q.C.
[3]Costs awarded by the House of Lords in respect of proceedings before it in Scottish appeals are normally taxed by the House of Lords' taxing officer appointed by the Clerk of the Parliaments and are not within the province of the Auditor of the Court of Session. Thus, in the present case, the House of Lords having made an award of costs in favour of the defender against the Board, the fees of counsel instructed for the defender respecting which the Board is liable have been taxed by the taxing officer. Where, however, the legally aided party in a Scottish appeal to House of Lords has been unsuccessful with the consequence that the Board is responsible for paying the fees of counsel for that party, the terms of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 have the consequence that the taxing authority is the Auditor of the Court of Session. The relevant provisions of the 1989 Regulations are Regulation 12, read with the definition of Auditor contained in Regulation 2.
[4]Regulations 9 and 10 of the 1989 Regulations deal with the fees allowable to counsel. Regulation 9 is in these terms:
"9Subject to the provisions of Regulation 10 regarding calculation of fees, counsel may be allowed such fees as are reasonable for conducting the proceedings in a proper manner, as between solicitor and client, third party paying."
Regulation 10(1) provides that in the case of the Court of Session fees for counsel are to be calculated in accordance with Schedule 4. For other tribunals, including the House of Lords, Regulation 10(2) stipulates that counsel's fees shall be 90% of the amount of fees which would be allowed for that work on a taxation of expenses between solicitor and client, third party paying, if the work done were not legal aid.
[5]Before turning to the detailed issues of the Auditor's treatment of the fees claimed by counsel from the Board it is convenient to mention briefly some further features of the litigation. Firstly, as already indicated, liability for the negligence of the driver was never in issue and before the Inner House it was agreed that if the causal link between the accident and the multiple sclerosis were not established a certain sum should be awarded for the other, minor injuries. Secondly, on the question whether the multiple sclerosis from which the pursuer was suffering was causally related to the accident, two principal issues were raised. The first was the general question whether the onset of multiple sclerosis can ever be triggered by a traumatic incident such as that suffered by the pursuer in the accident. The second question, which depended on a positive answer to that general proposition, was whether in the pursuer's particular case his succumbing to multiple sclerosis could be so related. The issues were essentially issues of fact, albeit involving complicated medical evidence, and it is not suggested that any significant points of legal principle were raised. A considerable amount of expert testimony was adduced at first instance. It appears that the transcript of evidence extended to some twelve volumes. The Lord Ordinary's treatment of that evidence was eventually regarded by the Inner House as unsatisfactory, enabling and obliging the Division to review the transcript of the evidence. Having carried out that review the court decided in favour of the defender but on the varying grounds evident from their reported opinions.
[6]The issues raised in the appeal to the House of Lords were similarly questions of fact. For the reason narrated by Lord Hope of Craighead at p. 82D of the report of his speech, the House took the unusual step of holding a procedural hearing to discuss the procedure to be followed in the preparation of the appeal. The procedural hearing took place on 13 July 1999 and I was told that it lasted for less than one hour. The results of that hearing are described by Lord Hope (82P) as follows:
"An essential element in that procedure was the exchange between the parties of their written cases prior to the lodging of the final written cases in the Judicial Office. Both sides were asked to ensure, when preparing their written cases, that they set out not merely the heads of argument but also an outline of the argument to be advanced under each head and that the parts of the judges' opinions which were under challenge were clearly identified by page number. They were also asked to provide cross-references to the particular passages in the evidence or the medical reports on which they proposed to rely in support of any submission that the judges' treatment of the facts was materially incomplete, inaccurate or otherwise in need of supplementing by reference to the words used by the witnesses. Counsel on both sides are to be commended for the care and attention which they have given to these details and to the fact that their cases gave identical paragraph numbers to the competing arguments on each point. Their Lordships were greatly assisted by the quality of the written cases in their preparation for the hearing of the appeal and in their consideration of the case after the conclusion of the oral argument."
In presenting his submissions to me, counsel for the Board acknowledged at the outset that the task of analysing the opinions delivered by the Division was a substantial one, particularly since each of the judges followed different reasoning in reaching a result adverse to the pursuer, and it was accepted by the Board that a substantial amount of time and effort was expended by counsel on both sides in the preparation of the written cases for the House of Lords. The hearing in the House of Lords lasted for three days between 14 and 16 February 2000.
[7]With that background description I turn now to the fees proposed by counsel for the pursuer. The actual notes of proposed fee issued on behalf of counsel by Faculty Services Ltd, were produced for the purposes of the hearing on the Note of Objections but were, I understand, not physically before the Auditor. However virtually all of the details in those fee notes were transcribed or translated on to a separate record (51/1 of process) which was before him.
[8]Six separate fee notes were submitted on behalf of junior counsel and they may be summarised as follows:
| (a) | Petitions for extension of time | £200.00 |
| (b) | Framing statement of facts and issues | £3,000.00 |
| (c) | Advising on contents of appendix | £600.00 |
| (d) | Preparation for and attendance at procedural hearing on 13 July 1999 | £3,350.00 |
| (e) | Preparation of written case and preparation for the hearing | £35,000.00 |
| (f) | Hearing in the House of Lords | £6,500.00 |
It appears that at some subsequent stage an offer was made to reduce the fee note (e) to £26,250 whereby the total claim, with that reduction amounted to £39,900.
[9]The fee note submitted on behalf of senior counsel may be summarised as follows:
| (a) | Considering (sic) draft statement of facts and issues | £1,500.00 |
| (b) | Considering (sic) appendix | £350.00 |
| (c) | Procedural hearing on 13 July 1999 | £8,000.00 |
| (d) | Preparation and revisal of case for the appellant and preparation for the hearing | £53,000.00 |
| (e) | Appeal hearing | £10,000.00 |
It appears that at some point a reduction in the fee claimed under fee note (d) was also suggested, the reduction being to £40,000 thereby making the total figure claimed by senior counsel £59,850. The foregoing summary is only a very brief indication of the content of the fee notes, which contain...
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