The Scottish Ministers For Expenses In Respect Of A Recovery Order In Terms Of Section 266 Of The Proceeds Of Crime Act 2002 In Respect Of Russell Sti
| Jurisdiction | Scotland |
| Judge | Lady Stacey |
| Neutral Citation | [2012] CSOH 166 |
| Year | 2012 |
| Published date | 17 October 2012 |
| Docket Number | P1801/05 |
| Court | Court of Session |
| Date | 17 October 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 166 | |
| P1801/05 | OPINION OF LADY STACEY in Petition of THE SCOTTISH MINISTERS Petitioners; for EXPENSES IN RESPECT OF A RECOVERY ORDER IN TERMS OF SECTION 266 OF THE PROCEEDS OF CRIME ACT 2002 IN RESPECT OF RUSSELL STIRTON AND ALEXANDER ANDERSON ________________ |
Petitioners: Crawford QC, Heaney; Morton Fraser
First Respondent: Murphy, Adam; Trainor Alston
Third Respondent: Party
Messrs Robertson & Ross: McAlpine; Robertson & Ross
Scottish Legal Aid Board: Broome
17 October 2012
Introduction
[1] On 29 February 2012, the petitioners enrolled a motion seeking expenses in the cause under the Proceeds of Crime Act 2002 in which proof was heard between 2009 and 2011. They sought expenses against the solicitors acting for Mr Stirton, Messrs Robertson & Ross (hereinafter referred to as Robertson & Ross) personally, and, while they did not in the written motion seek a particular percentage of expenses against the agents personally, in the course of argument they came to argue for 20% of the expenses to be dealt with in that fashion. Failing such an award, they sought expenses against Mr Stirton, first respondent and Mr Anderson, third respondent, (hereinafter referred to as 'the respondents'), jointly and severally, including the expenses occasioned by the interim administrator's investigative and reporting function, on the agent client, client paying scale. The petitioners also sought certification under RCS 42.13A of certain skilled witnesses, namely Mr Martin, surveyor, Mr Murray, accountant, Mr Smith, forensic document examiner, Mr Thomson, accountant, Mr Milliken, accountant, and Mr Cleghorn, accountant. They sought an uplift in fees under RCS 42.14 under heads (a) (b) (c) (e) (f) and (g).
[2] The motion as enrolled included paragraphs in which the petitioners sought to inform Mr Stirton that given his interests and those of Robertson & Ross might not coincide he should consider taking independent legal advice. They sought intimation on the Scottish Legal Aid Board (hereinafter SLAB); they sought a procedural hearing and they sought an order for written submissions.
[3] In response, the first respondent lodged opposition and the following motion:-
1. To certify that the persons named below are skilled persons who it was reasonable for the first respondent to employ in connection with the cause:
(i) Jeffrey Meek Chartered accountant French and Saunders [sic] Edinburgh;
(ii) Richard Eadie Quantity Surveyor Richard Eadie and Partners Edinburgh.
2. To find that the first respondent's agents are entitled to an additional fee in terms of Regulation 5(4) of the Civil Legal Aid (Scotland) Fee Regulations 1989 in respect of paragraphs (a) (b) (c) (d) (e) and (f).
3. To find the petitioners' law agents, the Civil Recovery Unit liable to the first respondent for the whole expenses of the cause on the basis that the estimation of the length of time the proof would take was woefully inadequate.
[4] Mr Anderson lodged opposition, in which he gave notice of the line he would take in argument. Among other things he stated that SLAB had no locus to appear at a hearing on expenses. He wished the matter to be sisted until all grounds of appeal and opposition relating to the reclaiming motion marked by him had been lodged, and lastly he stated that he did not wish to be part of any arrangement whereby written arguments were lodged in advance of the hearing.
[5] I had the motion put out By Order so that administrative arrangements could be made for it to be heard efficiently. I instructed that skeleton arguments should be lodged on behalf of all parties and I put it out By Order a second time in order to check that parties were ready to proceed. On 1 June 2012 at a By Order hearing junior counsel appeared and advised that she was instructed by Robertson & Ross on behalf of Mr Stirton and was therefore appearing both for Robertson & Ross and Mr Stirton. She advised that matters were prepared and she was ready to have a hearing fixed. She also advised that she would not be appearing for Robertson & Ross at the hearing of the motion. The petitioners were ready to proceed and sought the earliest date on which the court would be available. Mr Anderson wished to have the hearing of the motion postponed for approximately three months. He explained that he had marked a reclaiming motion and had work to do on that. I took the view that the motion had been enrolled several months before, and that parties ought to be ready to argue it. The first date on which the court was available was 10 and 11 July and therefore I fixed those dates.
The first motion hearing
[6] On 10 July the petitioners were represented by senior and junior counsel. Mr Stirton was represented by a leading junior and another junior counsel, who had not been instructed in any of the hearings prior to that date. He had changed solicitors and was no longer represented by Robertson & Ross, but by Trainer Alston. Mr Anderson was present as a party litigant. Mr Broome appeared for SLAB. Both the petitioners and Mr Anderson had lodged skeleton arguments. Mr Murphy, instructed by Trainer Alston, had a motion to make concerning an adjournment, but prior to my hearing him a preliminary matter arose. Mr Robertson of Robertson & Ross was present in court and Mr Murphy assisted by indicating that Mr Robertson wished to address the court.
Representation of Robertson & Ross
[7] Mr Robertson stated that he was a solicitor and was one of two directors of a limited company, Robertson and Ross Limited which traded as Messrs Robertson & Ross. Mr Robertson said that as a director of the limited company he wished to address the court in order to oppose the petitioners' motion for expenses against Robertson & Ross personally. I asked him how he could appear for a limited company and he stated that he would be a party litigant, and that he effectively was Robertson & Ross, and that he had detailed knowledge of the case. I was concerned that I had no power to allow him to appear and invited him to address me. He had no authorities with which to address me on my power to allow him to appear for the company. He simply stated that he wished to appear. Being aware that there were authorities on the matter I invited other parties to address me. Counsel for the petitioners argued that I had no power to allow Mr Robertson to appear. She referred to the case of Apollo Engineering Limited (in liquidation) v James Scott [2012] CSIH 4 and to the cases referred to therein. The law was in her submission clear. The case of Secretary of State for Business Enterprise and Regulatory Reform 2010 SLT 1242 (known as The UK Bankruptcy Case) and the Apollo case were to the effect that a limited company could not be represented in court by a director except, potentially, in very special circumstances. She argued that Mr Robertson had not begun to set up the necessary conditions. He had not argued that Robertson & Ross were not in funds to instruct counsel and had not explained why it was that no counsel had been instructed. Counsel for Mr Stirton made no submissions. Counsel for SLAB made no submissions. Mr Anderson argued that I had no power to allow Mr Robertson to appear. In reply Mr Robertson argued that the arguments made by counsel were incorrect, but did not explain further. He argued that if he was wrong, then he would change his ground and argue that while he was not a solicitor with extended rights of audience which would allow him to appear in the Court of Session, I should allow him restricted rights to appear in this case because he had the best knowledge possible of the matter having been involved in the case. I inquired what power I might have to grant restricted rights and he was not able to assist me.
[8] I took the view that I could not allow Mr Robertson to appear on either basis. He put no argument before me to counter the interpretation of the law given by counsel for the petitioners. I agreed with counsel's submissions. In my opinion the law is clearly stated in both cases referred to above. Mr Robertson made no submissions to the effect that there was any reason to allow him to appear except that he knew about the case. As to restricted rights of audience, Mr Robertson could not explain what power he thought I could exercise. I have no power to allow a solicitor who does not have extended rights of audience, to appear in the Court of Session.
Mr Stirton's first motion to adjourn
[9] Counsel for Mr Stirton moved the court to adjourn. He explained that Mr Stirton had changed solicitors on or about 22 June and that he, counsel, had been instructed on or around 6 July, when he was out of the country. He returned on Monday 9 July and had not been able to prepare the case. His junior had been instructed on 4 July, but the time was insufficient to prepare, as this was a very complicated case. He had not yet received all of the papers. I adjourned the motion over lunch time and after the adjournment Mr McAlpine appeared, instructed by Robertson & Ross. He did not seek an adjournment but took a neutral stance on counsel's motion to adjourn. Counsel for the petitioners opposed the motion to adjourn. She reminded me of the history of the motion, which had been intimated five months before the hearing. Her submissions had been lodged and intimated on 17 May. She argued that the petitioners were entitled to have their motion heard and that no delay should be allowed. Mr Anderson supported the motion for adjournment. He stated that counsel who had appeared in the proof for Mr Stirton should be present. I told him that there was no motion for expenses against counsel. Mr Broome was ready to proceed, and stated that it would be useful from his client's point of view to know why Mr Stirton and Robertson & Ross were now separately represented. Counsel for Robertson & Ross said that his client had concerns about conflict of interest, but had...
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