Scottish Court of Session Decisions

S.M.& Ors,Re [2002] ScotCS 147 (23rd May, 2002)

SINGLE JUDGE, INNER HOUSE, COURT OF SESSION
	OPINION OF LORD HAMILTON in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause S.M., I.K. and J.A.K. Appellants:       _______

 

 

Act: Cheyne; Robson McLean, W.S.; Brodies, W.S.; HBM Sayers

23 May 2002

1. Consequent on referrals under section 65 of the Children (Scotland) Act 1995 to a children's hearing in Glasgow of the cases of three children (C E, his sister J E and their cousin L M), applications were made under section 65(7) to the sheriff as to whether certain disputed grounds of referral were established. The applications, which concerned the children in related families, were conjoined. In those proceedings certain "relevant persons", including S M, the father of L M, I K, the mother of L M, and J A K, the mother of C E and J E, were represented by solicitors. The proof before the sheriff ran for many weeks. The sheriff found that certain of the grounds of referral were established and remitted the cases of these three children to the Reporter to make arrangements for a children's hearing. (It appears from the sheriff's decision that the applications and remits also related to two further related children but these other children were not mentioned in the course of the hearing before me). The sheriff's decision is dated 26 September 2001.
2. Thereafter I K and J A K took steps to exercise their right of appeal to the Court of Session under section 51(11)(b) of the 1995 Act. A draft stated case, I was informed, was issued on 20 December 2001 and after adjustment finalised by 17 January 2002. S M is a respondent in that appeal. In or about January 2002 solicitors for each of S M, I K and J A K enrolled motions before the sheriff for a percentage increase of fees under Regulation 5(4) of the Civil Legal Aid (Scotland)(Fees) Regulations 1989. These motions were heard by the sheriff on 4 February 2002 and by interlocutor of that date were in each case refused by him.
3. In each case appeals were marked to the Court of Session against that interlocutor purportedly in exercise of the right of appeal conferred by section 28 of the Sheriff Court (Scotland) Act 1907 (as amended). The Deputy Principal Clerk, having considered that these appeals might be incompetent, referred them to me under Rule of Court 40.12(4). Having considered the papers I ordered in terms of rule 40.12(6)(a) that parties make oral representations to me in respect of the competency of the appeals. Mr Cheyne appeared on 3 May 2002 to represent the interests of all three firms of solicitors affected. There was no other representation.
4. Mr Cheyne submitted that these appeals were competent. He acknowledged, as I understood him, that appeals to the Court of Session under section 28 of the 1907 Act would not have been competent against the sheriff's decision relative to whether the grounds of referral were established. That was because section 51(11) of the 1995 Act made express statutory provision for such an appeal (subject to certain restrictions) and that any right of appeal which might otherwise have lain under section 28 was thereby effectively excluded. He submitted, however, that the applications for an increase in the fees payable to the solicitors were "separate" and "stood alone" from the applications relative to the grounds of referral and that the former were not subject to such restrictions on appeal as applied to the latter. He referred to section 29 of the Legal Aid (Scotland) Act 1986 and to Cullen v. Cullen 2002 SLT 540. He stated that motions for an increase in fees would not ordinarily be enrolled until accounts of expenses had been made up and thus were likely to come before the sheriff only after any stated case on the grounds of referral had been finalised.
5. I have serious doubts as to the competency of these appeals. Matters initially came before the sheriff because applications were made to him under section 65(7) of the 1995 Act. Section 51(11) of that Act provides -

"Subject to subsections (13) ... below, an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case -

...

(b) to the Court of Session from any decision of the sheriff such as is

mentioned in sub-paragraphs (i) to (iii) of paragraph (a) above"

(which includes an application under section 65(7)). Sub-section (13) of section 51 provides that the application to state a case shall be made within a period of twenty-eight days beginning with the date of the decision appealed against. Thus the scope of appeal under section 51 is restricted as regards manner ("by way of stated case"), scope ("either on a point of law or in respect of any irregularity in the conduct of the case") and time (28 days from the relative decision). These restrictions apply to any decision of the sheriff on an application under section 65(7).

6. In these cases the motions for an increase in fees were enrolled in the names of the respective clients in the sheriff court process concerned with the grounds of referral (ie the conjoined applications under section 65(7)) and were disposed of by the sheriff who had heard and determined the issues arising relative to those grounds. This is consistent with normal practice in accordance with which motions under Regulation 5(4) of the 1989 Regulations for an "additional" fee (in the Court of Session) or a "percentage increase" in fees (in the Sheriff Court) are generally regarded as incidental to the principal matter litigated. That is so whether or not awards of expenses can be or are made as between parties and notwithstanding that the persons at least primarily interested in the motions are the instructed solicitors (and presumably also the Scottish Legal Aid Board) rather than the litigants themselves. The connection between the principal proceedings and the determination of any increase in fees under Regulation 5(4) appears also to be recognised in L, Petitioners (No 3) 1996 SLT 928 (a case not cited to me).
7. In these circumstances I find it difficult to accept that the applications here made under Regulation 5(4) have any "separate" or "stand alone" character. I did not find the references to section 29 of the 1986 Act or to Cullen v. Cullen helpful in that regard. If they do not have such a character, I have difficulty in accepting that any appeal against the decision by the sheriff is not subject to the same statutory restrictions as those applying to appeals against decisions on the principal matters litigated. If these concerns are well-founded, then the manner of any appeal against the refusal of a percentage increase would appear to be only by stated case (either within any stated case on the principal issues or by separate stated case).
8. In the present case the difficulties are confounded by the fact that the sheriff was not asked to write a Note on his reasons for refusal of the motions for a percentage increase. If section 51(11) of the 1995 Act regulates any appeal against that refusal, then an appeal would be incompetent unless a point of law or an "irregularity in the conduct of the case" was identified. If section 51(11) does not apply, the absence of a Note by the sheriff, while not rendering an appeal incompetent, will make it very difficult, if not impossible, to persuade the Inner House that the decision should be interfered with.
9. While I entertained and still entertain the serious doubts and concerns expressed above, I intimated at the closing of the hearing that I would not refuse the appeals on the ground that they were incompetent but rather direct that they proceed as if the referral to me had not been made. I took that course because, in the absence of clear authority, it could not be said that the point was either settled or plain beyond argument and that a decision by me to refuse the appeal as incompetent would be final and not subject to review (Rule 40.12(7)). Where in circumstances of uncertainty as to the legal position a substantial sum might be at stake, it seemed to me to be undesirable that the matter should finally be determined by a single judge. I also took the view that a direction by me under Rule 40.20(6)(c) ("that the appeal is to proceed as if the referral had not been made") allowed the matter of competency to remain for decision by a Division of the Inner House. Accordingly, if those interested wish to pursue these appeals, it will be necessary for them in early course to bring them (by a motion for further procedure or otherwise) before a Division for a ruling on competency. At the same time the difficulties arising from the absence of a Note by the sheriff can be addressed.