Scottish Court of Session Decisions

Petitioners: Steele Q.C, Burnett; Simpson & Marwick

Respondents: McKay; Morton Fraser

20 October 2009

Background

[1] These applications for judicial review concern a challenge of decisions of Moray Council taken on 25 February 2009 which reading short were to grant planning permissions by varying conditions to allow for the unrestricted sale of open class 1 non-food goods from units 1, 3A and 3B of the Springfield Retail Park, Edgar Road, Elgin. These variations in conditions were granted in favour of The British Land Company Plc who are the owners of Springfield Retail Park.

[2] These matters called before me for a first hearing at which stage I was advised that both matters had settled and Joint Minutes were tendered. In terms of the Joint Minutes it was agreed that the foregoing decisions should be reduced. In addition the respondents, Moray Council were found liable to the petitioners in the expenses as taxed.

The motion

[3] Following the lodging of the Joint Minutes a motion was moved on behalf of the petitioners in each case for an additional fee. The relevant Rule of Court is 42.14. In each case additional fees were sought under reference to the factors referred to in subparagraphs (2)(a); (b); (e) and (f) of the Rules of Court.

[4] The test which I applied when considering the motions for an additional fee was that set forth by counsel for the respondents, namely: were the factors relied on present and if so were they present to such a degree as to justify an additional fee in Court of Session terms. Put another way having regard to the factors present was the case shown to be out of the ordinary or abnormal and thus of such a nature as justified an additional fee.

Submissions for the petitioners

[5] Senior counsel for the petitioners' submissions were divided into two sections. First he made submissions in support of his argument that factors (e) and (f) were present in relation to each of the cases. These factors are in the following terms:

"(e) The importance of the cause or the subject matter of it to the client;

(f) The amount or value of money or property involved in the cause;"

Senior counsel advised that his submissions under these two subheads were interconnected and as regards these he submitted the following:

(a) Robertson Property Limited

[6] Senior counsel described this petitioner as a smallish, non-international property development company which is based in Elgin. They had built an 85,000 square foot retail park at the cost of £13,200,000 which was valued in 2007 at £20,500,000. Interest on the capital cost for the building of the retail park is running at £625,000 per annum. This petitioners' retail park is situated opposite the Springfield Retail Park owned by British Land. Until the challenged decisions The Springfield Retail Park was zoned only for bulky goods. The petitioners' retail park was zoned for all goods. He described the effect of the challenged decisions (which had in broad terms removed the restrictions as to what could be sold at Springfield Retail Park) as being one of considerable blight to Robertson's Retail Park. He advised that the retail park had been empty since 2007. Senior counsel accepted that the sole reason for this was not said challenged decisions however they were a material factor. He stated that the decision in the petition for judicial review was of critical importance to Robertson's.

(b) Upland Investments Limited

[7] Senior counsel again described this company as a smallish property development company of a non-international nature based in Aviemore. They owned the St Giles Centre which was a retail shopping mall in Elgin town centre. This was described by senior counsel as the jewel in the Crown of the assets of the said company. It was his position that they had also suffered material blight as a result of the said challenged decisions. He again submitted that the decision in the petition for the judicial review was of critical importance to this company.

[8] Senior counsel submitted that against that background the factors set out in subparagraphs (e) and (f) were shown to exist in relation to each petitioner.

[9] In terms of subparagraphs (a) and (b) senior counsel again stated that his submissions under these two subheads were interconnected. He submitted that these two factors were present in respect of each of the cases. These factors are in the following terms:

"(a) The complexity of the cause and the number, difficulty or novelty of the questions raised.

(b) The skill time and labour and specialised knowledge required of the solicitor...."

He took me through the factual background of both cases and the legal issues in them as set forth in the petitions. The factual background and the legal issues in each petition were exactly the same. It was his position that individual issues of legal complexity were raised within the petitions. Further there were a large number of legal issues raised which he submitted when taken cumulatively made the two cases complex. In addition he submitted that the factual background was lengthy and not straight forward. Considerable skill and time had been required on the part of the solicitors acting for the petitioners in order to properly investigate and understand the whole factual background to the case.

[10] Given the foregoing circumstances it was senior counsel's submission that the factors set forth in paragraphs (a) and (b) were present.

Submissions on behalf of the respondents

[11] Counsel for the respondents reply in relation to these submissions made under (e) and (f) were that first the petitioners had produced no real evidence of blight and of the level of that blight and in addition they had produced no real evidence of any causal link between any such blight and the challenged decisions. For example no expert report had been produced supporting the foregoing. He accepted that there would be some indirect effect as a result of the challenged decisions on the investment value of the property. However, he submitted that in no real sense was there any capital sum at stake in these proceedings. He submitted that the successful outcome of the present judicial review proceedings did not mean that the decisions were permanently lifted. Rather decisions in the same terms as the challenged decisions might properly be reached at a later stage and thus all that the petitioners had obtained in the present proceedings could properly be described as temporary relief. He submitted that all that was at stake in the present proceedings was a chance that the challenged decisions would not be reinstated in a lawful form at some future stage. It was his position that there was nothing of major importance to the petitioners decided in these cases. He submitted that there was nothing under these heads to take the matter out of the ordinary.

[12] Turning to factors (a) and (b) counsel for the respondents position was that the background of the case involved no more investigation than in a normal planning case and did not amount to anything out of the ordinary. The legal issues were straightforward dealing with nothing more than well understood and well developed legal principles. There was nothing out of the ordinary in the law. He reminded me that the work done by senior and junior counsel had to be separated from the work done by the solicitors when considering these factors as the additional fee related to solicitors and not counsel.

Discussion

[13] Turning to factors (e) and (f) I was satisfied that it had been established that the cases were of more than ordinary importance to the petitioners and that the value of each case to the petitioners was of such a nature as to take the value of it beyond the normal.

[14] The first point under these heads which was of relevance was the size of the two companies. Both were small non-international property development companies and in each case either their primary asset or at least a principal asset was at the heart of these judicial review proceedings. It seems to me to follow from the nature of the challenged decisions and the proximity of the petitioners' retail parks to the Springfield Retail Park that they would have a material effect on the capital value of these assets and would cause material blight. The precise level of the financial impact was not established before me. However, I was satisfied that when looked at against the size of the two petitioners and the importance of the assets to the two petitioners that any material effect on these assets would have very serious financial repercussions for them. In my view it could be said that these assets were of critical importance to each petitioner.

[15] I did not accept the approach of counsel for the respondents to the effect that the victory achieved by the petitioners in these judicial review proceedings was not of a substantial nature in that it might be overturned at some future stage by the respondents arriving at the same decisions in a proper and lawful manner. That submission in my judgement was misconceived. The court has to have regard when considering such a motion to the situation as it presently finds it, namely: that the challenged decisions are of critical importance to the two petitioners for the reasons I have stated and they have been reduced. It is in my view not the correct approach to say: at some later date the challenged decisions might be arrived at correctly and in essence reinstated, thus rendering the petitioners' victory in these proceedings of no real effect. Such an approach would amount to allowing the respondents to say the decision is not of critical importance on the basis of a factual scenario that may not actually happen. Such an approach in my view is contrary to logic and defies commonsense.

[16] As regards factors (a) and (b) I accepted the submissions made on behalf of the respondents that: (1) in considering these factors I should separate the roles and work of counsel and solicitors and consider only the work done by solicitors and (2) that certain of the legal issues raised within the petitions related to well recognised legal principles in the area of judicial review and that the law regarding a number of the issues raised is well settled and therefore not of considerable complexity. Nevertheless, in my view the number of legal issues raised in the petitions and which were to be argued before me took this matter out of the ordinary. There were no less than ten separate and distinct legal challenges to the validity of the decisions all of which were to be argued before me. That in my view is a very substantial and unusual number of separate legal issues to be argued in a judicial review case of this type. It follows that the number of issues which had to be investigated and considered by the solicitors was out of the ordinary. Although I recognise that certain of these may have been reasonably straightforward for the solicitors to consider and investigate, I am of the view that certain of them raised novel and difficult questions. Overall looking at the legal issues, given their number and the complexity of certain of these they would have required skill and expertise on the part of the solicitors which was out of the ordinary and was abnormal.

[17] As regards to the factual background to the cases it in my view could be described as lengthy, complicated and convoluted. It in my judgement falls outwith the ordinary background which would require to be investigated by a solicitor in such cases. It would require more than the normal time to be expended by the solicitors investigating the matter. In addition it would require a greater than normal level of skill and expertise to be exercised by the solicitors than in a normal case.

[18] It is accordingly my view that the factors referred to in subparagraphs (a), (b), (e) and (f) were present in each case and that when looked at individually as well as when looked at cumulatively they took these cases out of the ordinary and justified holding that the petitioners were entitled to an additional fee.

Decision

[19] For the foregoing reasons I find the petitioners entitled to an additional fee under heads (a), (b), (e) and (f).