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Cite as: [2006] ScotCS CSOH_54, [2006] CSOH 54, 2006 SC 528

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 54

A4960/01

OPINION OF LORD HODGE

in the cause

SHIRLEY JANE McKIE

Pursuer;

against

THE SCOTTISH MINISTERS

Defender:

________________

Pursuer: Smith, Q.C., Duncan; Digby Brown, S.S.C.

Defender: Doherty, Q.C.; Solicitor to Scottish Executive

Lord Advocate: Cullen, Q.C.

30 March 2006

Background

[1] This is an action for damages against the Scottish Ministers, in which the pursuer alleged that she suffered loss and injury caused by malicious acts of officials of the Scottish Criminal Records Office ("SCRO") which gave rise to her prosecution for perjury, a charge of which she was unanimously acquitted. The action settled on the morning of the proof diet on 7 February 2006, when the pursuer accepted the defenders' offer of £750,000, which was made without admission of liability. The pursuer then enrolled motions seeking an additional fee under Rule of Court 42.14 and also the expenses of the action on the solicitor and client scale except so far as expenses had already been dealt with in the process.

The additional fee

[2 ] At the hearing on 9 March 2006 I indicated that I would award the pursuer an additional fee taking account of the factors listed in heads (a), (b), (c), (d), (e) and (g) of Rule of Court 42.14(3). The Scottish Ministers did not contest the pursuer's entitlement to an additional fee under heads (a), (b) and (e). This was a very difficult litigation for the pursuer to mount and those factors were clearly relevant. I was also persuaded that the number and importance of the documents which the pursuer's solicitors had to peruse and analyse, the unavoidable need to consult with experts in the United States of America and the Netherlands, and the efforts that the pursuer's solicitors made to settle the action merited account being taken of factors (c), (d) and (g).

Expenses on the solicitor and client scale

[3 ] The majority of the submissions which I heard addressed the issue of the scale on which the pursuer should be awarded expenses. Counsel referred me to Plasticisers Ltd v William R Stewart & Sons (Hacklemakers) Ltd 1972 SC 268, British Railways Board v Ross and Cromarty County Council 1974 SC 27, Walker v McNeil 1981 SLT (Notes) 21, North East Ice & Cold Storage Co Ltd v Third 4 June 1996, Lord Penrose (unreported), Baker Hughes Ltd v CGC Contracting International Ltd 2005 SC 65 and Ewos Ltd v Mainland 2005 SLT 1227. The law on this issue is well settled and may be summarised in the following five propositions. First, the court has discretion as to the scale of expenses which should be awarded. Secondly, in the normal case expenses are awarded on a party and party scale; that scale applies in the absence of any specification to the contrary. But, thirdly, where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale. Fourthly, in its consideration of the reasonableness of a party's conduct of an action, the court can take into account all relevant circumstances. Those circumstances include the party's behaviour before the action commenced, the adequacy of a party's preparation for the action, the strengths or otherwise of a party's position on the substantive merits of the action, the use of a court action for an improper purpose, and the way in which a party has used court procedure, for example to progress or delay the resolution of the dispute. Fifthly, where the court has awarded expenses at an earlier stage in the proceedings without reserving for later determination the scale of such expenses, any award of expenses on the solicitor and client scale may cover only those matters not already covered by the earlier awards.

[4 ] Where, as in this case, parties settle an action before a proof on its merits has been heard, it may be more difficult for the court to reach a firm view on a party's conduct in relation to the merits of the action than where the proof has been completed and the judge has made a final determination as in British Railways Board v Ross and Cromarty County Council (above). Nonetheless, in all of the other cases cited above the proceedings terminated before any hearing of evidence was completed and the court reached its view on the material placed before it. So must I.

[5 ] Mr Smith QC for the pursuer submitted that the Scottish Ministers had conducted the defence of the action in an unreasonable way. He suggested that while their behaviour did not amount to an abuse of process it was nonetheless so reprehensible that the award of expenses should be on the solicitor and client scale. In order to deal with this submission it is necessary that I set out the circumstances that gave rise to the action and the history of the action. In doing so I have relied on the written pleadings as they were developed, on Lord Wheatley's opinion issued after the Procedure Roll debate (2004 SLT 982), on certain documents to which counsel have referred me and on the ex parte statements of counsel as to what information was available to the Scottish Ministers at different times during the litigation.

The circumstances leading to the action

[6 ] The pursuer was formerly a detective constable in Strathclyde Police. When in January 1997 a lady named Marion Ross ("the deceased") was found murdered in her home in Kilmarnock, the pursuer was appointed to be part of the police investigation team. A man named David Asbury was identified as a suspect. During the inquiry fingerprints were obtained including fingerprints on the bathroom doorframe of the deceased's house. The pursuer's fingerprints were checked against those on the doorframe in order to eliminate fingerprints from the murder inquiry. SCRO were and are responsible for analysing fingerprint evidence at the request of police officers from various police forces in Scotland. In this murder inquiry SCRO produced a report dated 10 April 1997 on the fingerprints discovered on the bathroom doorframe. In that report the SCRO officials stated that one of the fingerprints on that doorframe was that of the pursuer. From the outset the pursuer has emphatically contested this finding. She denied and continues to deny the allegation made by police officers investigating the murder that she had been in the deceased's house in the course of the investigation.

[7 ] The pursuer gave evidence at the trial of David Asbury in the High Court in Glasgow in May 1997. In the course of her evidence she denied that the fingerprint (numbered Y7) on the bathroom doorframe was her print. Mr Asbury was convicted of the murder of the deceased. An important part of the evidence against him was the discovery of what was alleged to be the deceased's fingerprint on a tin found in his house. The SCRO report linking this fingerprint (numbered QI2) with the deceased was prepared by some of the SCRO personnel who were concerned with the preparation of the report relating to the pursuer. After the trial of Mr Asbury and after further investigation the pursuer was arrested and charged with perjury. In substance the allegation was that she had been in the deceased's house in the course of the investigation, that the fingerprint Y7 was hers and that her evidence to the contrary was perjured. Between 21 April and 14 May 1999 the pursuer was tried at the High Court in Glasgow for perjury. The case against her was essentially the SCRO report of 10 April and three of the four officials of SCRO (who were at one stage the 3^rd to 6^th defenders in this action) who prepared the report gave evidence against her. The pursuer's counsel led evidence of two independent fingerprint experts from the United States of America, Mr Wertheim and Mr Grieve, that the fingerprint Y7 was not hers and that this would have been evident to any competent fingerprint expert. The jury acquitted her of the charge with a unanimous verdict of not guilty.

[8 ] After the acquittal of the pursuer, Her Majesty's Inspectorate of Constabulary for Scotland ("HMIC") carried out an inspection of SCRO. To assist them they appointed two senior fingerprint experts, Messrs Rudrud and Zeelenberg, who produced a report dated 28 June 2000 setting out their findings. HMIC then produced a report ("the HMIC report") which was published on 14 September 2000 and which concluded that the fingerprint Y7 was not the pursuer's print. As a result of public and political interest in the McKie case, HMIC revealed its emerging findings and on 22 June 2000 Mr Jim Wallace, the Deputy First Minister and Minister for Justice, revealed to the Scottish Parliament that the experts appointed by HMIC had opined that the fingerprint Y7 was not made by the pursuer. The HMIC interim report had concluded that the SCRO fingerprint bureau was not "fully effective and efficient" and called into question training, testing and quality assurance in that bureau. Mr Wallace also announced that, in the light of the interim HMIC report, the Association of Chief Police Officers in Scotland ("ACPOS") had decided to set up a review group under Mr William Rae, its incoming president and the Chief Constable of Dumfries and Galloway Constabulary, to work on the findings of the HMIC report. When asked to apologise to the pursuer, Mr Wallace stated:

"I am sure that everyone in the Parliament recognises that this case has caused great distress to Shirley McKie and her family. I very much regret that and hope that the action we have taken to set up the [HMIC] inquiry and to announce the key finding at the earliest possible moment will reassure Shirley McKie and her family of our good intention to see that effective action is taken to remedy deficiencies in the present system".

[9 ] Mr Asbury appealed against his conviction for murder. The Crown Office instructed independent fingerprint experts from Denmark, Mr Rasmussen and Mr Rokkjaer, to give further advice on fingerprint QI2. In a report dated 7 August 2000 the Danish experts advised that the fingerprint did not match that of the deceased. In addition the American expert, Mr Wertheim, who had been instructed by the pursuer in her trial and by Mr Asbury in his appeal, gave a similar opinion. The Crown did not oppose Mr Asbury's appeal, taking the view that if the jury had heard this new evidence they might have acquitted Mr Asbury and that therefore there had been a miscarriage of justice.

[10 ] In October 2001 the pursuer raised this action seeking financial damages for the damage to her health and the loss of her police career that resulted from her being accused of perjury and her prosecution.

The history of the action

[11 ] At the outset the pursuer's advisers were uncertain as to which public body was in law vicariously liable for alleged wrongs committed by officials of SCRO. To protect the pursuer's interests, her counsel raised the action against the Strathclyde Joint Police Board ("the Police Board") as well as the Scottish Ministers and also included the four officials who signed the report of 10 April 1997 as the third to sixth defenders. As pleaded until after the Procedure Roll debate, mentioned below, the pursuer's first plea-in-law, which encapsulated the legal ground on which she sought damages, was that she had suffered loss, injury and damage "through the fault and negligence, or deliberate acts of the third to sixth defenders".

[12 ] The uncertainty as to who was vicariously responsible for the acts of the third to sixth defenders appears to have been shared by the Police Board and the Scottish Ministers as both denied any such liability. This uncertainty resulted from the complex arrangements by which SCRO was funded and managed by the eight police authorities of Scotland and by the Scottish Executive but the Police Board employed the fingerprint experts within SCRO. Mr Doherty QC informed me that the Scottish Ministers, despite doubts as to the correct locus of vicarious liability, took the pragmatic approach of accepting that they had such liability. As a result, on 13 December 2002 the action so far as directed against the Police Board and the third to sixth defenders was dismissed and the action proceeded thereafter against only the Scottish Ministers. On 3 July 2003 the Court granted a motion at the instance of the Scottish Ministers for the recovery and inspection of the fingerprints, doorframe and tin by an advocate with the technical assistance of Mr John MacLeod, an independent fingerprint expert. Both parties obtained court orders for the recovery of documents.

[13 ] In October 2003 there was a legal debate on the Procedure Roll before Lord Wheatley. In his opinion, dated 24 December 2003, (2004 SLT 982) Lord Wheatley analysed the pursuer's case as one of malicious prosecution and on that basis rejected the Scottish Ministers' submission that the relevant SCRO officials had absolute immunity from civil action. He also rejected their submission that the pursuer's case of breach of a duty of care was necessarily irrelevant. However he held that the pursuer's pleadings did not support a case of concert on the part of the third to sixth defenders and that it was of doubtful relevancy. While a relevant case had been pleaded against the third defender, Lord Wheatley foresaw that the pursuer would have significant difficulties at a proof in leading evidence in support of the case which her senior counsel explained was what she sought to prove. This was that the third to sixth defenders had initially made a mistake in identifying fingerprint Y7 as hers but had thereafter acted in concert to cover up the mistake and the doubts of some of their colleagues in order to protect the reputation of SCRO and not to compromise the prosecution of Mr Asbury. Lord Wheatley criticised the Scottish Ministers for failing to aver what he said was within their knowledge and for failing to give adequate notice of the case they were seeking to prove. Finally, Lord Wheatley refused to delete certain averments which the Scottish Ministers argued were irrelevant. He allowed the pursuer a proof before answer on her pleadings.

[14 ] The Scottish Ministers reclaimed against Lord Wheatley's decision. In their grounds of appeal they challenged the Lord Ordinary's finding that the pursuer's pleadings were sufficient to amount to a case that the third to sixth defenders had instigated a malicious prosecution. They submitted that he had "erred in treating the authorship of the print as being a fact within [their] knowledge", explaining that their counsel had submitted not that their position was that the print Y7 was the pursuer's but that they were putting the pursuer to her proof that the fingerprint was not hers. (I discuss this important point further in paragraph [26] below.) They argued that he should have reserved their alternative defences of absolute privilege and qualified privilege until after proof of the facts. As the pursuer was not making a case in negligence they argued that her pleadings asserting negligence and recklessness should have been deleted. Finally they renewed their arguments in favour of the deletion of certain other averments.

[15 ] In response, the pursuer's advisers chose to amend their pleadings by lodging a Minute of Amendment in July 2004. In that Minute they averred that each of the third to sixth defenders knew about the doubts expressed by their colleagues, that they knew that fingerprint Y7 did not match the pursuer's fingerprint yet they each signed the report of 10 April 1997, and that they deliberately cropped the photograph of fingerprint Y7 in their report and degraded an enhancement of the print to make it more obscure, all with the aim of securing the conviction of the pursuer. The pursuer's counsel thus pleaded a case of concert by each of the third to sixth defenders. Further the pursuer's counsel deleted the plea-in-law to which I referred in paragraph [11] above and replaced it with a plea: "The third to sixth defenders having acted in a malicious manner leading to the prosecution of the pursuer, for which the second defenders are responsible, and the pursuer having suffered loss, injury and damage as a result, she is entitled to reparation from them therefor". Thereafter and of consent the Inner House allowed the Scottish Ministers' reclaiming motion to the extent of restoring to the pleadings their alternative defences of absolute privilege and qualified privilege and remitted the case back to the Lord Ordinary.

[16 ] In February 2005 the pursuer attempted to obtain an order of the court requiring certain SCRO officials to give evidence on commission. The Scottish Ministers opposed the application, which the court refused on the ground that it was incompetent. In later 2005 the pursuer again amended her pleadings and thereafter there were applications by both parties to recover documents or to inspect and test property, before the proof was due to commence on 7 February 2006.

The negotiation of the settlement

[17 ] Mr Smith QC explained that the pursuer's solicitors requested a joint consultation involving each party's legal advisers in order to discuss the basis of each side's case. That consultation occurred on 12 May 2004. The pursuer's advisers explained their case but, Mr Smith submitted, the advisers of the Scottish Ministers did not offer any explanation of their position. The case therefore proceeded towards a proof. Matters moved on significantly in July 2005 when the Scottish Ministers, having received a confidential report from Mr John MacLeod (to whom I referred in paragraph [12] above), announced that they would admit that the SCRO officials had made a mistake in identifying fingerprint Y7 as the pursuer's print and that they would enter into negotiations to settle the action.

[18 ] It is not necessary to narrate the terms of the negotiations in any detail. A joint consultation was held on 21 September 2005 in advance of which the pursuer's advisers tendered a detailed schedule of damages that valued her claim at approximately £1.2 million. The advisers of the Scottish Ministers produced their valuation only at the meeting. They valued the claim at £328,000, but the Scottish Ministers' legal team advised that any settlement would have to discount that figure for litigation risk. Negotiations did not progress. On 3 November 2005 solicitors for the Scottish Ministers wrote to the pursuer's solicitors setting out a detailed quantification of the value of her claim and an offer in settlement. On 21 December 2005 the Scottish Ministers lodged a tender for £500,000. The pursuer did not accept it. On the same day the pursuer's solicitors sent a valuation that valued her claim at £1.205 million and indicated that they would settle for £1.1 million. A second settlement meeting between counsel took place on 2 February 2006, shortly before the proof diet. In discussions at that meeting counsel for the Scottish Ministers indicated that an increased offer would be made and on the following day a tender for £600,000 was lodged. In response, the pursuer's counsel indicated for the first time that they would accept £750,000 as a settlement. In negotiations on the morning of the proof (7 February 2006), the Scottish Ministers raised their offer in stages to the figure of £750,000 at which the action settled. That offer was made expressly without any admission of liability.

The Mackay and Robertson report

[19 ] Before I discuss the specific grounds on which Mr Smith QC argued that the conduct of the Scottish Ministers was unreasonable and irresponsible, it is necessary to mention the position that parties adopted in relation to a report prepared by Deputy Chief Constable Mackay and Detective Chief Inspector Robertson ("the Mackay and Robertson report"). In advance of a hearing of this motion that was scheduled for 23 February 2006, Mr Smith informed me that he intended to refer to the Mackay and Robertson report in his submissions on the motion and Mr Doherty QC requested that I continue the motion to allow the Lord Advocate in his capacity as head of the Crown Office to consider his position. I agreed to do so. Mr Cullen QC represented the Lord Advocate at the motion roll hearing on 9 March and spoke after Mr Smith and Mr Doherty had made their submissions.

[20 ] Mr Cullen QC explained that the Mackay and Robertson report had originated in a decision by ACPOS in response to the interim HMIC report. In the spring of 2000 ACPOS had set up a presidential review group under the chairmanship of Mr William Rae to conduct a review and inspection of SCRO. When the HMIC's interim findings were announced in June 2000, Mr Rae as chairman of the presidential review group asked Mr Mackay and Mr Robertson to inquire into the circumstances of the fingerprint identifications in the Mrs Ross murder inquiry. In July 2000 the Lord Advocate, responding to complaints from the pursuer's father about alleged criminal conduct by officials of SCRO, instructed Mr William Gilchrist, Regional Procurator Fiscal for North Strathclyde, to investigate those allegations of criminality. In order to carry out the criminal investigation Mr Gilchrist considered it expedient to use Mr Mackay and Mr Robertson, who were already engaged on the related inquiry. The inquiry by Mr Mackay and Mr Robertson thus became a police inquiry under the control of the Crown authorities and in October 2000 they reported their findings to Mr Gilchrist. Mr Mackay and Mr Robertson made further inquiries into the matter at Mr Gilchrist's request while Mr Gilchrist examined the evidence and interviewed experts before submitting his own report and recommendations to Crown Office in about July 2001. The evidence and the reports were appraised by the Deputy Crown Agent and thereafter by the Lord Advocate. Having considered all the evidence the Lord Advocate decided in September 2001 that there was insufficient evidence to justify taking criminal proceedings. In explanation of that decision Mr Cullen pointed out that the Mackay and Robertson report was only part of the evidence that had been assembled and there were fingerprint experts independent of SCRO who agreed with the relevant SCRO officials that there had been no misidentification. In addition, even if there had been a misidentification, the Crown would have had to prove to the criminal standard of beyond reasonable doubt that the relevant SCRO officials in persisting in asserting their view that there was a correct identification had acted dishonestly and with criminal intent.

[21 ] As the Mackay and Robertson report was a confidential police report on allegations of criminal conduct which had been submitted to the Crown authorities, the Lord Advocate had considered carefully whether it was in the public interest that content of the document should be referred to in court. He had concluded that it was not. In reaching that view the Lord Advocate had considered first that it was necessary to protect from public disclosure those making allegations of criminal activity and secondly that it was important to preserve the confidentiality of reports by police officers and procurators fiscal in order to promote the efficient investigation and prosecution of crime. Further Mr Cullen explained that the Lord Advocate considered that reference in public to the content of the report would be unfair on those mentioned in it against whom the allegations had been made. Finally, Mr Cullen explained that the Lord Advocate had at all times treated the Mackay and Robertson report as confidential to the Crown Office and that he had not allowed its disclosure to the Scottish Ministers or their officials.

[22 ] Mr Smith QC accepted for the purpose of the hearing of this motion that the Mackay and Robertson report was confidential and confined his comments on it to a script which he had shown in advance to Mr Cullen. In summary he disclosed the following. Mr Mackay and Mr Robertson had provided the pursuer's advisers with precognitions. In their precognitions they had explained that they had advised the Crown authorities that in their opinion there had been criminal conduct on the part of certain officials of the SCRO during the prosecutions of both Mr Asbury and the pursuer. This conduct comprised misrepresentation of the facts and failure to disclose both the blind comparisons that were carried out within SCRO on 17 February 1997 and doubts expressed by five SCRO officers after those comparisons. I discuss in paragraphs [33]-[35] below Mr Smith's suggestion that the Scottish Ministers knew enough about these allegations as to make unreasonable their failure in the course of the litigation to accept the existence of malice.

The pursuer's contention that the conduct of the Scottish Ministers was unreasonable

[23 ] Mr Smith based his allegation of unreasonable or culpable conduct on various aspects of the behaviour of the Scottish Ministers or their advisers in the course of the litigation. First, he criticised their failure to identify that they were vicariously liable for the wrongful acts of the SCRO officials. Secondly, he asserted that they had failed to make available to the pursuer's advisers relevant documents or to facilitate the taking of witness statements from potential witnesses. Thirdly, he suggested that their reclaiming motion against the Lord Ordinary's decision after the Procedure Roll debate was unnecessary and "nitpicking". Fourthly, he criticised their dilatoriness and lack of cooperation in settlement negotiations. I will consider each of these in turn.

[24 ] The gravamen of his charge of unreasonable conduct however was that I should infer from (a) the documentary material which would have been available to the Scottish Ministers on fingerprints Y7 and QI2, (b) their eventual public acceptance in July 2005 that fingerprint Y7 was not the pursuer's and (c) their payment of £750,000, which he described as "at least a full liability settlement", that they had failed for several years to admit what they knew or had reason to believe, namely both that fingerprint Y7 was not the pursuer's and that the relevant SCRO officials had been guilty of criminal conduct. On questioning from the court Mr Smith toned down his allegation against the SCRO officials from criminal behaviour to malicious conduct, which is the pursuer's case in her pleadings. But he submitted that the fact that mistakes were made by at least four officials over both fingerprint Y7 and fingerprint QI2 suggested deliberate action by the SCRO officials which was malicious. He also submitted that the Scottish Ministers would have known that the Crown had considered prosecuting the relevant SCRO officials and that also supported the pursuer's case. I deal first with this central plank of his submission before addressing the four points in the preceding paragraph.

[25 ] Setting to one side legal arguments about absolute and qualified privilege which might have been debated after a proof, it appears that, to win her pleaded case on the merits, the pursuer had to prove at least two things. First, she had to prove that the fingerprint Y7 was not her fingerprint. Secondly, she had to prove that the relevant SCRO officials acted maliciously in persisting with their assertions that there was a match, misrepresenting the fingerprint evidence in the way that it was presented to the criminal court and hiding the existence of doubters within SCRO. I consider each point in turn.

Whether fingerprint Y7 was the pursuer's

[26 ] Mr Smith asserted that the proposition that fingerprint Y7 was not the pursuer's fingerprint was a question of fact within the knowledge of the Scottish Ministers which in candour they should have admitted much earlier than in July 2005. This was at the heart of the central plank of his argument. He founded on Lord Wheatley's strictures in his opinion (2004 SLT 982 at para 33) after the Procedure Roll debate. But those criticisms of the Scottish Ministers were based on an understanding that their counsel would be seeking to establish in proof that fingerprint Y7 was the pursuer's fingerprint. As I stated in paragraph [14] above, counsel for the Scottish Ministers in their grounds of appeal challenged that understanding and in this hearing Mr Smith candidly stated that he did not recall the Scottish Ministers' senior counsel telling Lord Wheatley that they would seek to establish that fingerprint Y7 was the pursuer's print. More significantly however, I consider that the match or mismatch of fingerprint Y7 with the pursuer's fingerprint was not and is not a question of fact within the knowledge of the Scottish Ministers except as mediated to them through the reported opinions of fingerprint experts. It was and is a matter of scientific opinion and it was and is a matter on which laymen may reach informed conclusions only with the assistance of expert evidence. If all the expert evidence had pointed to one conclusion, it would have been very difficult for any fair-minded person acting reasonably not to accept the conclusion of the experts. But it appears that there was no such unanimity among experts in this case. Mr Doherty submitted that the Scottish Ministers had received conflicting advice from experts as to whether there was a match and, faced with the pursuer's claim for damages based on an assertion of malice on the part of the relevant SCRO officials, chose to require the pursuer to prove that the fingerprint Y7 was not hers, while not undertaking to prove that it was. Instead, until they amended their pleadings after the public announcement of July 2005, their stance was that if the fingerprint Y7 was not the pursuer's (and the pursuer would have to prove that), any mistake by the SCRO officials in matching the prints was a mistake which they made in good faith. Once the Scottish Ministers accepted that fingerprint Y7 was not the pursuer's, their defence rested on the assertion that the mistake of the SCRO officials was made in good faith.

[28 ] Mr Doherty explained that, on the other side of the balance, the Scottish Ministers had obtained precognitions from the third to sixth defenders and also other relevant witnesses in SCRO who had confirmed the match of fingerprint Y7 with the pursuer's print. Those potential witnesses maintained their view that there was a match. In addition, independent fingerprint experts, Mr Malcolm Graham and Mr Peter Swann, had supported that view. I was informed that Mr Swann had initially been instructed as an expert by the defence in the pursuer's criminal trial but had not been used as a witness as his opinions did not assist the pursuer's case. Thus there was a body of expert evidence available to the Scottish Ministers which continued to assert that fingerprint Y7 was the pursuer's and thereby contradict the views expressed in the HMIC report. He submitted that, faced with competing bodies of expert evidence, the Scottish Ministers were entitled in their defence of the civil action for damages to take the stance of denying the pursuer's assertion that fingerprint Y7 was not her print and thereby requiring the pursuer to prove that assertion.

Whether fingerprint QI2 was the deceased's

[29] The Scottish Ministers took a similar position in relation to the question whether fingerprint QI2 was the deceased's print. They had ascertained the opinions of the third to sixth defenders and other SCRO officials, including Mr McKenzie and Mr Dunbar. They also had the opinions of the independent experts, Mr Graham and Mr Swann, who identified fingerprint QI2 as the deceased's print. The Scottish Ministers were aware that other experts, in particular that the Danish experts and Mr Wertheim, had reached a different view. But that meant that they faced the task of resolving a conflict of expert opinions.

Decision on the fingerprint issue

[30 ] I am satisfied that the Scottish Ministers did not act unreasonably or in any way reprehensibly in initially taking the stance that it was for the pursuer to prove that fingerprint Y7 was not her print. They were faced with a conflict of opinion evidence from fingerprint experts and that conflict extended to experts who were independent of SCRO. For the same reasons I consider that the Scottish Ministers acted reasonably in taking a similar stance in relation to fingerprint QI2. They took the decision in mid 2005 to admit that fingerprint Y7 was not the pursuer's print on consideration of the balance of expert evidence including the evidence that Mr MacLeod had given them. See paragraph [17] above.

[31 ] I have been referred to reports by Messrs Rudrud and Zeelenberg, by Mr Wertheim and by Mr Grieve, all of which the pursuer's advisers lodged in process. As the Scottish Ministers had admitted that fingerprint Y7 was not the pursuer's print, they did not lodge in process any reports by Mr Graham or Mr Swann, explaining their view that it was. I was not informed of the nature of the evidence that Mr Graham and Mr Swann had provided to the Scottish Ministers other than that it supported the views of the third to sixth defenders nor was I told how the Scottish Ministers assessed the balance of the evidence when they decided to admit that fingerprint Y7 was not a match of the pursuer's print. But in light of the apparent conflict of views among experts I recognise that the Scottish Ministers may have faced a delicate and difficult decision in reaching a conclusion on the conflicting evidence available to them. I do not find their actions in relation to the issue of the matching of fingerprint Y7 and the pursuer's print to have been unreasonable.

Malice because the prints were obviously different

Malicious misrepresentation of evidence

[33 ] The pursuer also alleged that the third to sixth defenders had misrepresented the fingerprint evidence in her criminal trial, by cropping the enlarged photographs of fingerprint Y7, which they included in booklets for use at the pursuer's trial, so as to remove parts of the print which would have revealed clear differences between it and the purser's print and by digitally enhancing the fingerprint Y7 in their report in a way that rendered it more obscure in order to hide differences between it and the pursuer's print. She also alleged that the third to sixth defenders had exhibited malice by failing to disclose in their report, at the pursuer's trial or otherwise that colleagues in SCRO, namely Messrs Geddes, Bruce, Foley, and Padden and Ms McClure, had expressed doubts about the match of fingerprint Y7 with that of the pursuer and had refused to confirm the comparison. The pursuer made similar allegations against two other members of SCRO and asserted that the identification of her as the source of Y7 was the result of collective and cultural collusion on the part of SCRO employees. Mr Smith said the disclosure by Mackay and Robertson in their precognitions of the existence of the doubters within SCRO had been pivotal to the pursuer's case. It was also clear from e-mail messages that Mr McKie had recovered that the officials of the Scottish Executive were aware by September 2001 that the relevant SCRO officials have been subject to a "precautionary suspension" in August 2000 when the investigations by Mr Mackay and Mr Robertson suggested that the evidence given at the pursuer's trial was so distorted that there appeared to be manipulation and collusion.

[34 ] The answer to these allegations which the Scottish Ministers gave in their pleadings, and which Mr Doherty explained was the result of obtaining precognitions from the SCRO officials, contradicted or qualified the pursuer's assertions. They averred that Mr Geddes, although he did not find sixteen identical characteristics, was prepared to eliminate fingerprint Y7 from the murder investigation as being the pursuer's print. Mr Bruce and Mr Foley reached a similar conclusion. Mr Padden wished to examine the prints in more detail under a magnifying glass and Ms McClure, who came to make the comparison at the end of her shift when there was no daylight, said that she would prefer to examine the prints when her eyes were not tired and in daylight before expressing an opinion. They also averred that at the pursuer's trial the original photographs of the fingerprint Y7 and the pursuer's print were available as productions as well as the enlarged prints. The use of enlargements to demonstrate matching characteristics was normal practice and the enlargements in question had not been deliberately cropped to exclude characteristics that did not match.

[35 ] Faced with this conflict of factual assertions, which I am not able to determine without hearing evidence, I cannot conclude that SCRO officials deliberately withheld evidence or deliberately misrepresented their evidence. Thus I am not satisfied that the pursuer has demonstrated that the SCRO officials acted maliciously or that the Scottish Ministers acted unreasonably in failing to admit that they did. I am also aware that the practice of the Crown in relation to the disclosure of information to defence lawyers has changed considerably in the last six years. I would therefore have been slow to conclude that the non-disclosure of the view of those whom Mr Smith called "the doubters" pointed to malice on the part of someone involved in the prosecution of the pursuer. Further, while the Scottish Ministers through their officials would have been aware that allegations of misconduct had been made by Mr Mackay and Mr Robertson in the course of their investigation, and that the third to sixth defenders had been put on "precautionary suspension" in 2000, they did not have access to the Mackay and Robertson report or to the reasons why the Lord Advocate had decided that there was insufficient evidence to justify a prosecution.

[36 ] Mr Smith submitted that the acceptance by the Scottish Ministers in mid 2005 that fingerprint Y7 was not the pursuer's print and their eventual offer of £750,000 to settle the case gave rise to the inference that they were accepting the pursuer's case and that they should have done so long before. I have dealt with their stance in relation to the match of fingerprint Y7 and the pursuer's print above. The settlement figure, if based on an assessment of the prospects of success in the legal action, might suggest that the Scottish Ministers considered that there was a material risk that they would lose the action. For, while it would not be correct to call the sum of £750,000 a full liability settlement unless one were aware of the assumptions made as to the pursuer's career prospects, the sum of money was on any view not a nuisance settlement. On the other hand, for all I know, the settlement figure may have been the product of a decision to compensate the pursuer taken in the summer of 2005, when the Scottish Ministers announced that they would seek to settle the action, followed by tough negotiating on the part of the pursuer's advisers. I am not able on the information available to me to infer, as Mr Smith urged me, that the level of the settlement meant that the Scottish Ministers tacitly accepted that the pursuer would prove that the relevant SCRO officials were guilty of criminal conduct or of malice. I am not able, nor would it be appropriate, to look behind the terms upon which the Scottish Ministers settled the action, which were expressly that they did not admit legal liability as they continued to assert that the relevant SCRO officials acted in good faith.

[37 ] Finally, I can deal briefly with the four contentions which I summarised in paragraph [23] above. I accept that it was unfortunate that there was uncertainty over which public body was vicariously liable for any wrongs committed by officials of SCRO and that the pursuer was put to inconvenience and expense in suing several defenders before the Scottish Ministers accepted that liability. But the Scottish Ministers, when pushed by the pursuer's advisers, agreed to pay the expenses which the pursuer incurred in proceeding against the other defenders. I do not see this behaviour as unreasonable in the face of the genuine uncertainty over the issue of vicarious liability. Secondly, I do not consider that there was any unreasonableness by the Scottish Ministers in not assisting the pursuer to obtain witness statements from the relevant SCRO officials, the former Justice Minister, the present Justice Minister or the Lord Advocate. It must be borne in mind that the action was a civil action for damages in which parties were adversaries and in which the pursuer was accusing the relevant SCRO officials of misconduct. Mr Doherty informed me that the Scottish Ministers left it to the individual SCRO officials to decide whether or not to give precognitions. That was not unreasonable. Officials had asked the pursuer's agents to identify the issues on which the Lord Advocate and the two Justice Ministers could give relevant evidence but had received no satisfactory reply. Nor am I aware of any failure to produce relevant documents. It appears to me that Mr Smith's submission in this regard was based on an erroneous understanding that the Scottish Ministers had access to Crown Office documents, which in fact they did not see. See paragraphs [21] and [27] above. Thirdly, I do not accept that the Scottish Ministers were unreasonable in reclaiming against Lord Wheatley's decision on the Procedure Roll debate. In my opinion it was a reasonable step to take, particularly if, as appears to be the case, there was some misunderstanding as to the way in which the Scottish Ministers were seeking to argue their case. The pursuer's legal advisers were prudent in deciding to amend their pleadings in order to avoid the problems at proof that Lord Wheatley had foreseen in his opinion. Finally, while it is always advantageous to the court and often economically sensible for the parties if they can negotiate a settlement well before the start of a proof, the course of the negotiations in this complex case were not so out of the ordinary as to warrant criticism.

[38 ] On the information available to me and looking at the various criticisms both individually and in aggregate, I am not satisfied that the pursuer has made out her case that the Scottish Ministers acted unreasonably or reprehensibly in their conduct of the action.

Conclusion

[39 ] I therefore award the pursuer the expenses of the action, in so far as they have not already been dealt with, on the party and party scale. The fact that I consider the conduct of the Scottish Ministers to have been neither unreasonable nor reprehensible does not detract from my recognition of the skill and energy which the pursuer's legal team showed in assembling material in support of their case when they did not have access to many of the documents or people who might have been able to cast light on the events that occurred. Having considered the motion for an additional fee in terms of Rule of Court 42.14, I grant that motion under heads (a), (b), (c), (d), (e) and (g).