Owen Gallacher Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 01 June 1990 |
| Neutral Citation | 1990 SCCR 492 |
| Docket Number | No. 54. |
| Date | 01 June 1990 |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Cowie, Kirkwood
Expenses—Procedure—Summary procedure—Competency—Application to High Court for commission and diligence to recover documents in the hands of third party—Petitioner failing in that application—Whether competent for court to award expenses against petitioner—Whether award subject to restriction.
Procedure—Summary procedure—Application to High Court for commission and diligence to recover documents in the hands of third party—Petitioner failing in that application—Whether liable to pay expenses.
An accused person was charged with certain offences in the sheriff summary court. In order for him fairly to prepare for his defence, he presented a petition to the High Court craving for a commission and diligence in order to recover certain documents in the hands of a company third party. The petition came before the Lord Justice-General (Hope) for a hearing thereon. At that hearing the havers were represented by counsel. After hearing counsels' submissions, the Lord Justice-General refused the petition and the havers moved for expenses. The Lord Justice-General thereafter convened a larger court in order to hear submissions on the question of the competency of such a motion.
Held, (1) (distinguishingH.M. Advocate v. Aldred 1922 J.C. 13) that, where proceedings were brought into the High Court privately and not in the public interest by the Lord Advocate, there was no obstacle in principle to an award of expenses against the party who brings those proceedings if he did not succeed; but that (2) it was appropriate that the havers' expenses should be modified to a fixed sum of £200; and order pronouncedaccordingly.
Owen Gregory Gallacher was charged on a summary complaint in the sheriffdom of Tayside Central and Fife at Stirling at the instance of Keith Valentine, procurator-fiscal there, the libel of which set forth that:—(1) "[B]etween 30th October and 23rd December 1988, both dates inclusive, you did at the premises occupied by Ogilvie Builders Ltd., Bannockburn Road, Stirling, without lawful authority or excuse, possess three certificates issued under sec. 70 of the undermentioned Act: contrary to the Finance (No 2) Act 1975 70 (10) (b); (2) between 1st October and 23rd December 1988, both dates inclusive, at the offices of Ogilvie Builders [Ltd.], Bannockburn Road, Stirling, you did deliver 3 Inland Revenue tax exemption vouchers in the name of J. D. Beck and you did pretend that you were entitled to act as an agent for J. D. Beck, an exempt subcontractor, the truth being that you were the true subcontractor and that the said sums were due to you that you were not an exemption certificate holder and not entitled to payment of said sums £15,912 without the statutory deduction and you did thus cause Ogilvie Builders Ltd. to make said payments without deduction of tax amounting in cumulo to £4,036 of money in respect of said payments and did defraud the Inland Revenue thereof; (3) date and place libelled in charge 1 hereof, you did without lawful authority or excuse dispose of said vouchers in the name of J. D. Beck and did deliver same to employees of Ogilvie Builders Ltd. to acknowledge the purported receipt by the said J. D. Beck of the sums paid to him without the statutory deduction under sec. 69 of the said undermentioned Act in payment for work carried out by him for said Ogilvie Builders [Ltd.] as a subcontractor, the truth being that you were the true subcontractor and that said sums were due to you, that said sums were paid by cheques made payable to J. D. Beck and thereafter encashed by you and that not being an exemption certificate holder you were not entitled to payment of said sums without said statutory deduction and that the disposal of said vouchers was a device to enable you to obtain...
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