Scottish Court of Session Decisions

[1] Counsel for the first and second defenders and respondents has moved us to find the pursuer and reclaimer liable in the expenses of the whole cause, so far as not already dealt with, both in the Outer House and in this Court. The motion is made on the ground that these defenders have been successful both in the Outer House and this Court. He also invited us to remit the cause to the Lord Ordinary to consider and determine a motion for an additional fee so far as the expenses occasioned to the defenders in the Outer House are concerned.

[2] The motion for expenses has been opposed by the pursuer and reclaimer who appeared on her own behalf. Her submissions are contained in a written Note which she has lodged and which she amplified in the debate before us. Her principal submission was that no award of expenses should be made since this was an appeal which had merit. She further argued that to grant the motion and, in particular, to award an additional fee would be tantamount to a violation of Article 6 by punishing those litigants who exercise their rights under Article 6. It is sufficient to say that we can find no jurisprudence of the European Court of Human Rights which supports, as a matter of principle, the proposition that a court should not award costs and expenses to a successful litigant against his unsuccessful opponent. The making of such an award is not only consistent with the decision of the European Court in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHHR 442 but also with the practice of that Court itself. A subsidiary submission was advanced for the pursuer and reclaimer based on the proposition that it would be premature at this stage to make an award, standing her intention to appeal to the European Court of Human Rights. Whatever may be her intention, we are required to consider the motion on the basis that the defenders and respondents have been successful both after the proof and in the appeal. The defenders and respondents are entitled to a decision on the motion that they make before us and issues of further appeal procedures are not to the point.

[3] The next chapter of the submissions was directed to an issue relating to the Lord Ordinary and to an allegation of apparent bias. This issue arises out of circumstances that were described in a Note to this Court, dated 7 June 2000, which the Lord Ordinary prepared after he had been made aware that such an allegation was contained in the original written grounds of appeal lodged by the pursuer and reclaimer after this appeal had been marked. It is now said that, standing the terms of the Note, this court has a duty to nullify the judgment of the Lord Ordinary. It suffices to say that this court has disposed of the appeal upon the submissions made before it at the hearing of the appeal, including those made on behalf of the pursuer and reclaimer. These are recorded in its judgment. In any event, the terms of the Lord Ordinary's Note give no countenance to any such allegation of bias as now appears in the written submissions for the pursuer and reclaimer. The Note makes clear that the matters referred to were ventilated in open court during the proof. When that happened, counsel representing all the parties were agreed that the Lord Ordinary should continue to hear the proof and determine the cause. In any event, no argument was directed to the issue of bias during the appeal hearing before this Court. By the date that the hearing took place, new written grounds of appeal had been lodged on behalf of the pursuer and reclaimer. These new grounds of appeal made no mention of the issue of bias. It is now too late to raise the matter. This Court has decided the appeal upon the written grounds of appeal before it at the date of the hearing and upon the submissions then advanced before it. The Court has issued its Opinion, which sets out in full the reasons for its decision. It cannot now review its own decision.

[4] During her submissions the pursuer and reclaimer made some reference to certain proceedings in this court prior to the date of the hearing of the appeal. These cannot bear upon the present question except insofar as they may have been relevant to a matter raised at the outset of the hearing of the appeal. This concerned a motion on behalf of the pursuer and reclaimer to discharge the diet fixed for the appeal and to allow new evidence to be heard, either by this court or, upon a remit to him, by the Lord Ordinary. The motion was considered and refused for the reasons which are fully rehearsed in the Opinion of this Court.

[5] We should record that, in relation to certain matters referred to in paragraphs 24 and 25 of the written submissions, counsel for the defenders and respondents advised the court on behalf of his clients and agents that it had never been the defenders' intention to instruct the individual named there as counsel and that by June 1999 that individual was already a prospective witness and that he subsequently attended the proof under witness citation.

[6] In our opinion, there is no warrant for this Court declining to deal now with the motion before it. In particular, there is no warrant for the suggestion in paragraph 3 of the written submissions that if we were to make an award of expenses in favour of the defenders, it would be "acting incompatibly with the pursuer's and reclaimer's rights as expressed by the Scotland Act and the ECHR". Neither the written submissions nor the oral submissions of the pursuer and reclaimer provide any material which would prevent us from considering and determining the motion. The motion for expenses is a competent one. The defenders and respondents have succeeded in both the Outer House and before this Court. They appeal to the normal rule that expenses should follow success. Nothing in the written or oral submissions for the pursuer and reclaimer persuades us that there is any ground for departing from that rule. We shall accordingly grant the motion in the terms moved before us and find the pursuer and reclaimer liable to the defenders and respondents in their expenses in the Outer House and in this Court so far as not already dealt with. Thereafter we shall remit the cause back to the Lord Ordinary to consider and determine the motion for an additional fee so far as that motion relates to the expenses of the defenders and respondents in the Outer House.