The Lord Advocate For Judicial Review Of A Finding By Sheriff Annella M Cowan Dated 14 December 2004 In Respect Of The Expenses At A Fatal Accident In
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2007] CSOH 135 |
| Date | 01 August 2007 |
| Docket Number | P1067/05 |
| Court | Court of Session |
| Published date | 01 August 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 135 | |
| P1067/05 | OPINION OF LORD KINCLAVEN in the Petition of THE LORD ADVOCATE Petitioner for Judicial Review of a finding by Sheriff Annella M Cowan dated 14 December 2004 in respect of the expenses at a fatal accident inquiry ________________ |
Petitioner: Moynihan, Q.C., Mure; M. Sinclair, Scottish Executive
Interested Parties: O'Neill, Q.C.; CMS Cameron McKenna LLP, Aberdeen
1 August 2007
Introduction
[1] This is a Petition at the instance of the Lord Advocate for judicial review of a finding by Sheriff Annella M Cowan dated 14 December 2004 in respect of the expenses at a fatal accident inquiry into the death of William Geddes Smith.
[2] That inquiry was held in Aberdeen under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
[3] In particular, Sheriff Cowan found the Lord Advocate liable to parties represented at the fatal accident inquiry, namely, GlobalSantaFe Drilling (North Sea) Limited, GlobalSantaFe International Services Inc and James Smith ("the Interested Parties" in this Petition).
[4] The important question which arises is whether it is competent for a sheriff to make a finding of expenses against another party in relation to a fatal accident inquiry.
[5] The significance of Sheriff Cowan's decision can be illustrated by reference to the most recent edition of Macphail on Sheriff Court Practice (third edition, at page 1000, paragraph 28.23) where the learned authors state inter alia:-
"... a fatal accident inquiry is not an adversarial process, and no awards of expenses should normally be made against or in favour of any compearing party, unless it can be shown that party's actings are vexatious. Indeed until Smith (Fatal Accident Inquiry) 2005 SCLR 355 (which is Sheriff Cowan's decision in the present case) it was thought that to make such an award would be contrary to the public interest, and would be susceptible to reduction by judicial review. (See The Herald, June 27, 1997, for a news report of a case in which decree of reduction was granted in respect of a finding of liability in expenses. This was however, due to the parties being unwilling to contemplate the cost of a contested Court of Session judicial review.)"
[6] The case came before me for debate at a first hearing which lasted several days.
[7] Mr Moynihan QC and Mr Mure appeared for the Petitioner and argued, in essence, that the Sheriff's decision was ultra vires and should be reduced.
[8] Mr O'Neill QC appeared for the Interested Parties and argued that the finding was competent and should stand.
[9] I was referred to an impressive range of authority and numerous lines of argument - which I will outline (albeit in summary) below.
[10] The original diet of debate was continued to a further diet. Thereafter, while the case was at avizandum, I received further written submissions in relation to the case of Stankiewicz v Poland.
[11] In the whole circumstances, and for the reasons outlined below, I am satisfied that the Petitioner's arguments are well founded and should prevail.
[12] I can readily understand why Sheriff Cowan formed the view which she did in this particular case but the learned sheriff did not have the benefit of the very detailed submissions provided to me.
[13] In my opinion, in short, the award of expenses was not competent.
[14] Accordingly, I shall grant decree of declarator that the finding by Sheriff Cowan dated 14 December 2004 in respect of the expenses at the fatal accident inquiry into the death of William Geddes Smith was ultra vires and I shall reduce that finding.
[15] I shall also put the case out By Order in relation to the question of expenses of and incidental to the present proceedings.
The Background
[16] It might be helpful to highlight some features of the background.
[17] In general terms, by virtue of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14 as amended -"the 1976 Act"), the Lord Advocate is responsible through the procurator fiscal service for the investigation in the public interest of certain deaths in Scotland by means of the holding of a public inquiry.
[18] On 3 July 2001, William Geddes Smith ("the deceased") died as a result of an industrial accident whilst working off shore. Following a criminal trial held in Aberdeen Sheriff Court in January 2004, GlobalSantaFe Drilling (North Sea) Limited were found not guilty of certain offences in connection with the deceased's death. Following an application by the procurator fiscal the Sheriff made an order for the holding of an inquiry under the 1976 Act. The inquiry was held on various dated in 2004, when the following parties were represented. A Procurator Fiscal Depute represented the Crown. Miss J Burgess, Solicitor, represented the companies GlobalSantaFe Drilling (North Sea) Limited and GlobalSantaFe International Services Inc. Mr G McAteer represented Mr James Smith who was a driller at the time of the accident. The family of the deceased were not represented at the inquiry.
[19] The sequence of events following the conclusion of the inquiry was broadly as follows:-
· On 12 October 2004, the agents for the interested parties argued that expenses could and should be awarded against the Crown.
· On 15 November 2004, Sheriff Cowan issued her determination in terms of section 6(1) of the 1976 Act. The determination has been lodged as No. 7/2 of Process.
· The motion for expenses was heard by Sheriff Cowan on 6 December 2004.
· On 14 December 2004 Sheriff Cowan issued her Note dealing with the motion for expenses. The Sheriff's Note has been produced as No. 6/1 and 7/3 of Process.
The Sheriff's Note dated 14 December 2004
[20] It might also be helpful to outline some of the salient features of the sheriff's decision.
[21] The motion for expenses was intimated as far back as May 2004 when the inquiry was adjourned to await the identification and subsequent attendance of the Crown's witness Mr Beale who was a Health and Safety Executive Inspector. The motion applied to such parts of the inquiry as took place after 20 May 2004.
[22] On 12 October 2004 it had been argued by the interested parties that the motion for expenses was unusual but competent. The interested parties emphasised that the whole situation was unusual. They founded upon the conduct of the Crown which had inter alia delayed and dislocated proceedings. It was argued that an inquiry had not been necessary. The Lord Advocate had been written to twice seeking an explanation for the decision to hold the inquiry in circumstances in which a dispensation would normally have been granted under section 1(2) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act").
[23] As noted by the sheriff, section 1(2) of the 1976 Act specifically empowers the Lord Advocate to decide that, in the case of a death in respect of which the whole facts have been explored at a criminal trial, no fatal accident inquiry should be held.
[24] The interested parties also emphasised the expense to the public purse and the trauma to witnesses in giving evidence again soon after a criminal trial. They argued that nothing had been achieved by the inquiry. Fewer witnesses had been called than at the trial. Only one new witness had been called and his evidence added nothing and was of no assistance. There were also some difficulties encountered in precognoscing the Crown's expert witness and problems were caused by the late lodging of voluminous productions.
[25] It was pointed out that similar motions had been made in at least two fatal accident enquiries in Sheriff Cowan's jurisdiction (Brent Spar and Cormorant Alpha).
[26] The Sheriff explained (at page 2 of her Note - No. 6/1 and 7/3 of Process) that:-
"On 6 December 2004 the Procurator Fiscal Depute argued that the motion was incompetent. He dealt summarily with the arguments made earlier by Ms Burgess and Mr McAteer. His submissions were brief in the extreme ..."
[27] The Sheriff outlined the submissions from the Procurator Fiscal Depute ("PFD") and continued (at page 2-3):-
"Having heard from the PFD, I was addressed by Ms Burgess and Mr McAteer. I then gave the Depute the opportunity to respond to their detailed submissions set out below. In a particularly unhelpful response which exemplified the attitude and approach of the Crown to and throughout the Inquiry, The Procurator Fiscal Depute repeatedly declined to present any further argument and merely stated that his instructions from Crown Counsel were that the motion was incompetent."
[28] Sheriff Cowan commented further (at page 3):-
"Accordingly, should I be persuaded that the motion is competent, I have no argument from the Crown on the merits of the motion and no explanation in answer to the criticisms which were levelled at the Crown's conduct by those representing the other parties to the Inquiry."
[29] The sheriff summarised the arguments for the interested parties at pages 3 and 4 of her Note.
[30] The "papers" produced by the interested parties (and referred to by the Sheriff on page 4) have now been produced as No 6/23 of Process.
[31] In relation to the first argument, relating to competency, Sheriff Cowan concluded (at page 4) that:-
"I have no hesitation in agreeing with the proposition that the motion is competent".
[32] The sheriff stated inter alia (at page 4):-
"If Parliament intends to limit the inherent power of the Court to deal with expenses in proceedings brought before it then, in my view, express provision to that effect is required ..."
[33] The second part of the argument submitted by the interested parties was to the effect that in the very special circumstances in which this inquiry took place, it was in the public interest that expenses be awarded against the Crown.
[34] As summarised by the Sheriff (at page 6), Ms Burgess, for the companies, highlighted in particular the following three circumstances:-
(1) In her submission...
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