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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 200
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A417/04
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OPINION OF LADY
DORRIAN
in the cause
ARLENE GREENAN
Pursuer;
against
AMANDA COURTNEY
Defenders:
ннннннннннннннннн________________
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Pursuer:
Sandison; Morton Fraser
First Defender: Kinroy, Q.C., Doyle & Co
14 December 2007
[1] This
case came before me on a motion on behalf of the first defender for the expenses
awarded against her as an assisted person to be modified to nil. The motion was opposed on the basis that her conduct
during the litigation did not justify modification of the expenses.
[2] For
the defender, counsel drew attention to Section 18(2) of the Legal Aid
(Scotland) Act 1986 which provides that "the liability of a legally assisted
person under an award of expenses in any proceedings shall not exceed the
amount (if any) which in the opinion of the court or tribunal making the award
is a reasonable one for him to pay, having regard to all the circumstances
including the means of all the parties and their conduct in connection with the
dispute." For the scope of the court's
discretion to modify such an award he referred to Bell v Inkersall Investments
Ltd [2007] SLT 737, submitting that the court should consider how the party
in question conducted the litigation; should consider whether he used his
position for unfair advantage; should not modify to nil automatically and should
not modify to levels so high as to be beyond party's resources even if the
conduct had been improper. In the
present case the conduct of the defender had not been improper and a finding of
improper conduct certainly did not follow from the fact that she was not
believed at proof.
[3] So
far as means are concerned first defender had a legal aid certificate with a
nil contribution. She had been
unemployed for over a year, when the department in which she worked as a
printer closed. She had virtually no
funds and an order to pay expenses would bankrupt her. She received income support of г63.44 per
week and an allowance towards housing costs of г72.01 per week. The fact that she is in receipt of income
support suggests that she is not unreasonably failing to find work. г7.55 a week is deducted to repay a loan paid
to her from the social fund for living and other necessaries. She is also in receipt of child tax credit of
г82.32 per week. She has living with her
her 11 year old son and her older son (formerly the second defender) who is a
full time student. His education is paid
for by means of a bursary and he is in receipt of г63 per week. Apart from the usual expenses she has an
additional payment towards her mortgage of г33 per week which is not met by her
housing allowance. She has a mortgage of
г73,206.11. A document showing sale
prices of comparable properties was produced from which counsel suggested a
value of about г325,000 for her property.
The sale prices varied from г315,000 to г400,000. Accordingly there was equity in the property
but no way of accessing it. Counsel
pointed out that the pursuer has an award against the second defender which was
not modified and is payable from his share of the estate.
[4] In
reply Mr Sandison confirmed that the draft account of expenses showed a
sum of г22,158.45. The draft account
against the second defender showed г4,679.29.
He referred to the case of Armstrong
v Armstrong 1970 SC 161 for a submission
that conduct did not require to be as extreme as that in Bell before it could be taken into account, but that there may be
cases in which the conduct of a party has been such that the court considers
that an improper advantage has been taken of the opportunity of getting legal
aid. Counsel drew attention to the fact
that the pursuer in this case sued on behalf of her children and that in
respect of their needs, each will receive a maximum of г58,582.30 from the
estate, on the assumption that all expenses are paid. If the first defender did not pay there would
be a diminution of this sum by about г5,000 each. He suggested that there was a discordance between
the figures given for the first defender and the observable reality that she
lived in a nice area, a private house and that her children went to private
school. She had been in employment and
was likely to be so again.
[5] Under
reference to MacKenzie v Lothian & Borders Police [1995] SLT 1332 he submitted that
conduct did not have to be extreme for modification to be refused in whole and
in part. The court there referred to
conduct productive of unnecessary procedure and expense, in a case where the
pursuer had the adjustment of pleadings extended three times. Three procedure roll hearings were discharged
on the day of the hearing.
[6] He
also submitted that the conduct in this case had been serious enough to prevent
modification. In the first place a
counter claim was raised and abandoned within weeks. Secondly, as soon as the record closed the
pursuer had sought summary decree. The
only thing which prevented decree passing in June 2005 was an averment that
"Mr Greenan was advised, following the birth of his children with the pursuer,
by his legal advisors Messrs Snell & Co to make a new will but declined to
do so". On 23 June 2005 the court continued the motion for
summary decree to allow the defender to lodge an affidavit giving the basis on
which that averment was made and continued with. In the affidavit she deponed that:
"on 19 November 2003 John Colquhoun,
solicitor from Stuart & Stuart wrote to me giving his advice. It was a five page letter in which he
explained the law to me, gave me his opinion in relation to the law and
highlighted the difficulties that I might have in invoking the terms of the
existing will. In the course of that
letter he recorded that both he and his assistant had spoken to Phillipa Snell
to obtain information from which they could give me advice. In his letter to me, Mr Colquhoun used
an expression which I take to mean that Phillipa Snell had told him that she
had discussed making a new will with Richard Greenan but that he had declined
to do so."
In light of that affidavit the
motion was dropped. The defender's
agents were not of course obliged to lodge the letter and did not do so. At proof the defender said that the averment
on record was not made because of an expression in that letter. She now said that the basis for the averment
was something which had been said to her orally by Mr Colquhoun at a
meeting. In his evidence (which I accepted
at proof) Mr Colquhoun said there had been no such conversation and that
in any event he had had no such information.
[7] Counsel
submitted that there was no reasonable basis for the claim on record and there
never was. He submitted that it was that
averment which prevented the whole action from being resolved at procedure roll
and there was no basis for proceeding to proof at all. If that were not improper conduct it was hard
to see what would be. Accordingly he opposed
the motion.
[8] In
reply, counsel for the defender submitted that there was a possibility that the
solicitor was mistaken, which he would recognise if confronted with the letter,
(which I had still not seen). The reason
for not lodging the letter did not lie in a disjunction between the affidavit
and the averment. There were other
reasons for it. He said that it was
expected the solicitor would give different evidence. However he did not at that stage choose to
produce the letter.
[9] I
continued the case for the further information regarding her means. At this stage Mr Kinroy informed me that
the first defender had from the start been in receipt of legal aid with a nil
contribution, despite being employed at that time. A document from the Legal Aid Board was
produced showing how that calculation had been reached. Documentation also showed receipt of income
support since 13 September 2005
and that her employment ceased on 1 September
2005. Counsel had previously
been mistaken in suggesting that there was a deduction made from the pursuer's
income in respect of the social fund payment.
[10] Regarding the letter of 19 November 2003 from
Mr Colquhoun counsel, after taking advice, had decided to inform the Court
of the contents of the relevant paragraph which he then read to me as follows:-
"It is now clear
to me that Snell & Co have, by and large, acted quite properly and
carefully in the matter. They dealt with
the estate as an intestacy when they had no reason to think there was any
will. They had indeed pressed their
client to make a will and he had not mentioned to them that one was already in
existence."
There was therefore no fair basis
for saying that the first defender was in bad faith.
[11] After a suggestion from Mr Sandison that it was
extraordinary to ask the Court to proceed on the basis of one paragraph read
from the letter, the whole letter was produced.
Counsel advised that he had taken the view that the case was not
unstateable but that the weight of evidence was problematic. All efforts had been made to keep the
Scottish Legal Aid Board aware of this advice and despite the advice which had
been given they continued to support the case.
DECISION
[12] In her affidavit the first
defender relied on the letter of 19 November
2003 as justifying the averment that the deceased had been advised
to make a will after the birth of his other children but had declined to do so. At the proof Mr Colquhoun said he did
not have information to the effect that the deceased had in fact declined to
make a will. The letter was not produced
at the proof but having seen it, it is entirely consistent with the position
adopted by Mr Colquhoun. Having
written the passage already quoted, he went on to write "unless, however, you
are in a position to produce evidence that a conscious decision was made to
disinherit his children and, for that matter, his wife, then it is difficult to
see how your case could succeed."
[13] In my view it is clear that this letter could not justify an
averment that the deceased had made such a conscious decision, and had done so
after the birth of subsequent children yet that is precisely what the first
defender maintained in her affidavit and was the basis on which the critical
averment was justified to the court. It
was that affidavit which meant that the case was not resolved at procedure roll
and required to go to proof. I am quite satisfied
that this amounts to conduct which is improper in the sense referred to in McKenzie, supra and to such a degree that modification to nil should not be
granted.
[14] I have considered separately the question of whether in all the
circumstances modification to any extent should be granted. It does seem to me that this is quite an
extreme case and I do not consider that modification to any degree would be
justified. The motion will therefore be
refused.
