Act: Sir Crispin Agnew, Q.C.; Morton Fraser (Appellant)

Alt: A. Stewart; Lindsays (Second Respondents)

31 May 2006

[1] In his Opinion (No.2) in these proceedings, [2006] CSOH009, dated 9 December 2005, the then temporary judge found the applicant Ashley Bell liable to the first respondent, East Renfrewshire Council, in the whole expenses of process. He found the applicant liable to the second and third respondents, George Wimpey UK Ltd and Carvill (Scotland) Ltd, in the expenses of the application up to and including 30 January 2004, being the date on which answers on their behalf had been lodged. The second and third respondents reclaimed against this interlocutor. In the event, the third respondent did not insist in the reclaiming motion, which was accordingly conducted on behalf of the second respondent only. Having heard counsel, we refused the reclaiming motion. The reasons for our decision were as follows.

[2] The disposal of the original motion for expenses was a matter for the discretion of the temporary judge and it was only open to us to interfere if we were satisfied that his decision was one which no reasonable Lord Ordinary could have made in the circumstances. One principle we extracted from the authorities to which reference was made was that an award of expenses should be confined to those expenses which were necessary for the resolution of the issue before the court. We were unable to say in the particular circumstances of this case, applying the guidance given by Lord Lloyd of Berwick in Bolton Metropolitan District Council v Secretary of State for the Environment and Others [1995] 1 WLR 1176 at pps.1178-1179, that it was an unreasonable exercise of the temporary judge's discretion to make the decision he did, even where he recognised that it would have been inappropriate for all three respondents to have had conjoined representation. Having heard all the submissions the temporary judge was in the best position to decide whether there was truly any need for separate argument to be advanced on behalf of the second and third respondents in respect of what he described as the one issue which fell to be determined, which was the validity of Policy T7 adopted in the local plan by the first respondent as planning authority. For these reasons we refused the reclaiming motion.