Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 142
	OPINION OF LORD KINCLAVEN in the Petition of MARY BUCHAN FORBES (FE) Petitioner; against ABERDEENSHIRE COUNCIL First Respondents; and TRUMP INTERNATIONAL GOLF LINKS Second Respondents; for Judicial Review of the decisions of Aberdeenshire Council to grant planning permissions 2009/1620, 2009/1623, 2009/1629, 2009/1631, 2009/1633 and 2009/2479 ___________

Petitioner: Smith, Q.C.; Drummond Miller

First Respondents: Creally; Biggart Baillie

Second Respondents: Martin, Q.C.; Burnet, Dundas & Wilson

27 October 2010

Introduction

[1] This is a petition for Judicial Review which came before me on 26 October 2010 in relation to three opposed motions.

[2] Mr Smith QC appeared for the petitioner, Mary Buchan Forbes.

[3] Mr Creally appeared for the first respondents, Aberdeenshire Council.

[4] Mr Martin Q.C. and Mr Burnet appeared for the second respondents, Trump International Golf Links.

[5] Having heard counsel, I considered parties' submissions overnight.

[6] This is my decision on the issues raised.

Authorities

[7] During the hearing counsel for the petitioner referred me to the following:

1 McGinty and Another Petitioners [2010] CSOH 5, a decision of Lady
Dorrian dated 20 January 2010;

2 Civil Legal Aid (Scotland) Regulations 2002/494 (Scottish SI),
Regulation 18, Legal aid in matters of special urgency;

3 Bell v Inkersall Investments Ltd (No 2) 2007 SC 823, particularly the
Lord Justice Clerk at paragraphs [26] and [27];

4 Esso Petroleum Co Ltd v Hall Russell & Co Ltd 1988 SLT 33 at page 39;

5 Council Directive of 27 June 1985 on the assessment of the effects of
certain public and private projects on the environment (85/337/EEC);

6 Report of the Working Group on Access to Environmental
Justice"Ensuring access to environmental justice in England and Wales, Update Report, August 2010", paragraphs 1 to 10 and 23;

7 The Queen on the application of Garner v Elmbridge Borough
Council
[2010] EWCA Civ 1006;

[8] Counsel for the second respondents referred me to:

1 Collum v Glasgow Corporation 1964 SLT 199 which concerned
abandonment "in terms of the statute";

2 McArthur v Lord Advocate 2006 SLT 170; and

3 Upland Investments Limited and Robertson Property Limited and Another Petitioners
[2009] CSOH 143, a decision of Lord Bannatyne dated 20 October 2009, at paragraph [16].

[9] Parties also referred me to the Rules of the Court of Session (Parliament House Book, Volume 2, Division C) and in particular to certain parts of Chapter 42. That Chapter relates to the taxation of accounts, modification of expenses and additional fees.

The Petitioner's Position

[10] On behalf of the petitioner, Mr Smith invited me:

(1) Firstly, to discharge the first hearing fixed for 26 October 2010 and
7 subsequent days.

(2) Secondly, to allow the petition to be abandoned - on the basis that
there were to be no further proceedings by the petitioner on the same issues;

(3) Thirdly, to reserve the question of expenses meantime; and

(4) Fourthly, to sist the cause pending determination of a petition for
judicial review against the Scottish Legal Aid Board seeking to have the petitioner admitted to legal aid.

[11] I will comment of those four "heads" below.

[12] By way of background it was explained that the petitioner had applied for legal aid under the "special urgency" provisions prior to lodging her petition - but legal aid had subsequently been refused. The petitioner was challenging that decision. A draft petition for judicial review of the refusal decision was produced. Attached was a chronology described as a "SLAB timeline" from 16 November 2009 until 5 October 2010.

[13] The petitioner was actively seeking to obtain legal aid through discussions with the Scottish Legal Aid Board (and by judicial review if necessary) and thereafter she intended to apply for modification of her liability in expenses in these proceedings as an assisted person - under Rule of Court 42.6.

[14] As the petitioner has not been granted legal aid (at least not yet) it would not be appropriate, or competent, to find her liable in expenses as an "assisted person" (at least not yet).

[15] There was some discussion of whether or not the petitioner could or should have sought a protective and restricted expenses order - under reference to McGinty and Another Petitioners [2010] CSOH 5 (a decision of Lady Dorrian dated 20 January 2010). The petitioner contended that she was not entitled to such an order. The "no private interest" test could not be satisfied. In the result there is no such order - and none was sought.

[16] The petitioner contended that it would be appropriate to reserve the question of expenses pending determination of a judicial review of the decision of the Scottish Legal Aid Board (to refuse to grant legal aid) and in connection with which a full civil legal aid application has been lodged - all of which will allow the petitioner to have the benefit of legal aid in relation to the question of expenses - or so argued the petitioner.

Head (1) discharge and head (2) abandonment

[17] There was no opposition by either of the respondents to the court discharging the hearing and allowing the petition to be abandoned.

[18] On 26 October 2010, I granted the petitioner's motion to discharge the diet.

[19] Having heard counsel, I am also satisfied that the appropriate course is to allow the petitioner to abandon the petition in terms of Rule of Court 29.3.

[20] In terms of Rule of Court 29.3 the court may grant a motion for abandonment of the cause "subject to such conditions as to expenses or otherwise, if any, as it thinks fit".

[21] The remaining issues relate to the petitioner's opposed motions in relation to head (3) reserving expenses, and head (4) sisting the cause.

The First Respondents' Position

[22] The first respondents opposed those remaining parts of the petitioner's motion - heads (3) and (4).Mr Creally also moved for an award of expenses against the petitioner - seeking the expenses of process to date - which in turn was opposed by the petitioner.

[23] The first respondents did not consider it appropriate that the question of expenses should be deferred for an indeterminate period of time having regard to proceedings, the outcome of which is speculative. The cost of litigation should fall on the person who has caused it (unless, presumably, the circumstances justify otherwise).Expenses should be dealt with now - so submitted Mr Creally.

The Second Respondents' Position

[24] The second respondents also opposed the remaining parts of the petitioner's motion. Mr Martin also moved for an award of expenses against the petitioner - seeking the expenses of process to date - which in turn was opposed by the petitioner.

[25] The petitioners' application for interim orders was refused and she has intimated her intention to abandon the petition. The question of expenses should be resolved at the same time as the disposal of the petition. There is likely to be a delay of many months before the petitioners' entitlement to legal aid is finally resolved. The petitioner has no reasonable prospect of receiving an award of legal aid even if her judicial review of their decision is successful - so submitted Mr Martin.

[26] Mr Martin also moved for an additional fee in terms of Rule of Court 42.14 (3)(a), (b), (e) and (f) - which was in turn opposed by the petitioner as being inappropriate.

The Procedural Background

[27] It might be helpful to see the various opposed motions in procedural context.

[28] The petition, which is Number 1 of Process, was lodged on 23 November 2009. It concerns plans to build a golf course and associated leisure development in an area along the coast to the north of Aberdeen. The petitioner sought judicial review of six grants of planning permission. The orders sought by the petitioner were specified in Statement 5 of the petition.

[29] On 25 and 26 November and 4 and 16 December 2009 Lady Smith heard submissions from parties in relation to the opposed motion of the petitioner for a first order and for orders ad interim and thereafter made avizandum.

[30] On 6 January 2010 Lady Smith delivered a detailed opinion in relation to this petition - which I can gratefully refer to for its full terms. It is reported at [2010] CSOH 1.

[31] In her concluding paragraphs Lady Smith stated inter alia:

"[47] In summary, I have serious reservations as to whether or not the petitioner has established a prima facie case. It is, for the reasons I have explained, highly doubtful that she has the requisite title and interest; I am not persuaded that her present averments demonstrate that she has even when viewed in the light of the oral submission made on her behalf. Further, her case on the merits is, for the reasons I have explained, a distinctly weak one."

[32] Lady Smith then dealt with the balance of convenience, including financial consequences.

[33] In her final paragraph Lady Smith concluded that "In all the circumstances, I will pronounce an interlocutor refusing the interim orders sought, but granting the usual first orders for intimation and service of the petition. In her interlocutor of 6 January 2010 Lady Smith inter alia, refused in hoc statu the motion of the petitioner for suspension ad interim and interdict ad interim; and reserved meantime the question of expenses.

[34] The petitioner thereafter enrolled for leave to reclaim the decision of 6 January 2010.

[35] On 15 January 2010 Lady Smith refused the petitioner's motion for leave to reclaim. She also continued motions by the First and Second Respondents (both seeking expenses to date) to a date to be afterwards fixed.

[36] The petitioner subsequently enrolled a motion to discharge the hearing set down for 29 October 2010 and to sist the cause for four months. On 6 October 2010 Lady Dorrian, having heard counsel, refused that motion. Lady Dorrian found the petitioner liable to both respondents in the expenses occasioned by that motion roll hearing and remitted the account thereof, when lodged, to the Auditor of Court to tax. Lady Dorrian also decerned against the petitioner for payment to both respondents of those expenses as the same shall be taxed by the Auditor of Court.

[37] Thereafter, on 26 October 2010, the matter came before me by way of the opposed motions (outlined above) at what would otherwise have been the first day of the first hearing.

[38] No Answers have been lodged.

Discussion in relation to head (3) expenses and head (4) sist

[39] Expenses are essentially a matter for the court's discretion. The question is sometimes said to be one of equity - to be dealt with on an equitable view of the circumstances of each case. See Maxwell on Court of Session Practice, at page 609.

[40] In broad terms, I require to do justice between the parties by acting fairly and reasonably in light of the whole circumstances of the particular case before me.

[41] The rules in relation to the taxation of accounts and modification of expenses are to be found in Chapter 42 of The Rules of the Court of Session.

[42] In this particular case, having taken into account the submissions of counsel for all three parties, I am satisfied that the first and second respondents are both entitled to an award of expenses.

[43] The petitioner seeks to abandon her petition. On the information before me, the appropriate course is to find the petitioner liable in expenses to date. There is no good reason for withholding that finding. The respondents' motions for a finding of expenses are, in my view, irresistible.

[44] I am not prepared to simply sist the cause. There has been no material change of circumstances (in favour of the petitioner) since Lady Dorrian refused the petitioner's motion to sist the cause on 6 October 2010. Lady Dorrian's interlocutors of 6 October 2010 still stand - as does her award of expenses against the petitioner. On the contrary, a sist is contra-indicated by abandonment of the petition.

[45] However, although the petitioner is to be found liable in expenses, the court is not necessarily bound to decern against the petitioner for immediate payment of those expenses - nor is the court bound immediately to remit an account to the Auditor to tax and report. In general terms, in appropriate circumstances, the court can make a finding of expenses but expressly reserve and appoint parties to be heard on questions relating to those expenses - for example in relation to (a) the modification of expenses or (b) the allowance of an additional fee - all in terms of the provisions of the Rules of Court in Chapter 42.

[46] In other words, I can in an appropriate case dispense with the provisions of Rule of Court 42.1 and reserve leave to pronounce further quoad a petitioner's liability in expenses, any modification thereof and any remit to the Auditor of Court for taxation of accounts.

[47] In the present, somewhat unusual, case I am satisfied that sufficient cause has been shown for adopting a middle course in relation to (a) questions of modification in terms of Chapter 42and (b) the allowance of an additional fee in terms of Rule of Court 42.14.

[48] In relation to modification of expenses, I am prepared to allow the petitioner an opportunity to make further submissions to the court on modification of expenses -but that will be within what I regard as a reasonable finite time-period and under the control of the court.

[49] Accordingly, I intend to appoint the case to be heard "By Order" on 11 January 2011 - or on earlier application to the Court.

[50] I am not prepared to postpone a decision until the conclusion of proceedings against The Scottish Legal Aid Board. I agree with the respondents that it would be unreasonable to delay a final decision on expenses for an indeterminate period. I am however, prepared to allow a further finite period of time to enable to petitioner to resolve her legal aid status with the Scottish Legal Aid Board if she can. If she cannot do so, then the court will have to form a view on the information then available at the time of the "By Order" hearing. No doubt the petitioner will inform the Scottish Legal Aid Board of recent developments - including the fact that the petitioner has abandoned her petition.

[51] I am also prepared to allow the second respondents an opportunity to make further submissions to the Court in relation to their motion for an additional fee at that "By Order" hearing - if so advised. I considered whether I should simply form a view on that matter now but on reflection it may be that, for aught yet seen, the situation changes between now and the calling of this case "By Order". The motion for an additional fee would best be considered in light of all the circumstances.

[52] Accordingly, I shall reserve leave to pronounce further orders in respect of (a) modification of expenses and (b) an additional fee.

[53] In the whole circumstances, having already discharged the hearing fixed for 26 October 2010, I shall in the exercise of my discretion pronounce an interlocutor along the following lines:

Firstly, I shall refuse the petitioner's motion to sist these proceedings pending the outcome of any petition for judicial review of a decision of the Scottish Legal Aid Board in relation to her legal aid application;

Secondly, in terms of Rule of Court 29.3, I shall dismiss the petition, and decern;

Thirdly, insofar as not already dealt with, I shall find the petitioner liable to each of the first and second named respondents in expenses; dispense meantime with the provisions of Rule of Court 42.1; and reserve leave to pronounce further quoad the petitioner's liability for said expenses, any modification thereof and any remit to the Auditor of Court for taxation of accounts;

Fourthly, I shall continue and reserve leave to pronounce further quoad the second respondents' motion for an additional fee under Rule of Court 42.14(3)(a), (b), (e) and (f); and

Finally, I shall appoint parties to be heard By Order on 11 January 2011 at 10.00 a.m. on the further orders to be pronounced with regard to paragraphs 3 and 4above, under qualification that parties may apply to the Keeper of the Rolls to advance the date of said By Order Roll hearing if the petitioner's legal aid position is determined before that date.