Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 75

P755/12

Lady Paton

Lord Drummond Young

Lord Wheatley

OPINION OF THE COURT

delivered by LADY PATON

in the Reclaiming Motion

by

JAMES HENDRICK

Petitioner and Reclaimer;

against

(First) Stephen House, QPM, Chief Constable, Strathclyde Police; and (Second) The Police Appeals Tribunal (Scotland)

Respondents:

Petitioner and Reclaimer:  A Smith QC, R G Anderson;  Drummond Miller LLP

First Respondent:  Non-Participating Party

Second Respondents:  J Lake QC; Jones, Solicitor Advocate;  Brechin Tindal Oatts

9 September 2014

Expenses of first hearing in judicial review

[1]        The only issue before us is whether the Lord Ordinary erred in making an award of expenses in favour of the second respondents in respect of the first hearing in this judicial review.  An award of expenses in favour of the first respondent is not challenged.

Background

[2]        In 2006 the petitioner, a police officer, was served with formal misconduct proceedings.  Details of the ensuing disciplinary proceedings can be found in Hendrick v Chief Constable, Strathclyde Police 2014 SC 549, 2014 SLT 382.  The petitioner was ultimately dismissed.  Appeals taken by him ended unsuccessfully in September 2010.

[3]        Almost two years later, in July 2012, the petitioner raised the current proceedings for judicial review.  He challenged several aspects of the disciplinary proceedings, in particular the admission of hearsay evidence, the alleged non-disclosure of a letter from the complainer withdrawing her complaint, and the standard of proof applied (namely, on a balance of probabilities).  After sundry procedure, a first hearing took place on 7 and 8 March 2013 before Lord Boyd of Duncansby.  By interlocutor dated 26 April 2013, the Lord Ordinary dismissed the petition. 

[4]        The respondents then enrolled motions seeking the expenses of the first hearing.  The petitioner did not oppose the first respondent’s motion, but did oppose any award in favour of the second respondents.  The opposed motion was part-heard on 31 May 2013 in the absence of the first respondent, and was continued to 4 June 2013 to allow the court to hear submissions on behalf of the first respondent.  By interlocutor dated 4 June 2013 the Lord Ordinary found both respondents entitled to expenses for the reasons set out in his note (see paragraph [8] below).  The petitioner reclaimed in respect of the award in favour of the second respondents.

Procedural history

[5]        In July 2012, the petitioner’s intention had been to direct the petition for judicial review solely against the first respondent.  However the first respondent’s answers contained a plea-in-law of “All parties not called”, supported by the following averments:

“Answer 1: … the respondent is the Chief Constable of Strathclyde Police.  He was appointed under and in terms of section 4 of the Police (Scotland) Act 1967.  In the present petition, the petitioner seeks a variety of orders in relation to decisions taken by the [respondent] and the “Appeals Panel” …  The respondent is not responsible for any decision of the Police Appeals Tribunal.  The Police Appeals Tribunal is a distinct body in law, and is established by virtue of section 30 and Schedule 3 of the Police (Scotland) Act 1967.  The petition does not designate either the Joint Police Board or the members of the Police Appeals Tribunal, responsible for the decision that is challenged, as either a respondent or an interested party to the petition.  It is believed and averred that the petition has only been served on the respondent.  In these circumstances, all parties with an interest in the petition have not been called, and the petition should be dismissed.”

[6]        Those acting for the petitioner were concerned that the first hearing might be taken up with a debate on that plea and those averments.  They therefore, without any order for service from the court, informally intimated the petition to the Police Appeals Tribunal (the “PAT”, now the second respondents) by letter dated 7 November 2012 in the following terms:

“Dear Sirs,

Petition of James Hendrick for Judicial Review

We act as Edinburgh agents for Beltrami & Company, Solicitors, Glasgow, on behalf of the petitioner James Hendrick.  The respondent to the petition is the Chief Constable of Strathclyde Police, and Answers have been lodged by solicitors acting on behalf of the respondent.  Within those Answers the respondent asserts that intimation of the Petition should have been made to the Appeals Tribunal as well as to the Chief Constable.

Whilst we do not agree with that assertion, we take the opportunity to informally intimate to you the Petition and Answers.  We would further advise that a first hearing in connection with the Petition and Answers has been fixed to take place on Wednesday 14^th November 2012 within the Court of Session, Edinburgh.  No doubt you will advise if you intend to seek to enter the process.”

The petitioner’s expectation was that the PAT would not participate in the judicial review.  However the PAT did wish to participate, as they considered that certain averments in the petition required a response from them (see paragraph [7] below). 

Rule of court 58.8 provides:

“(1) … a person to whom intimation of the first hearing has been made and who intends to appear –

1. shall intimate his intention to do so …
2. may lodge answers and any relevant documents.

(2) Any person not specified in the first order made under rule 58.7 as a person on whom service requires to be made, and who is directly affected by any issue raised, may apply by motion for leave to enter the process …”

[7]        Following upon the informal intimation in the letter dated 7 November 2012, the PAT were represented at the first hearing on 14 November 2012.  On that date, the Lord Ordinary (Glennie) granted the PAT leave to enter the process as second respondents.  There followed the lodging of answers on behalf of the second respondents, and adjustment of the pleadings.  Issues expected to be debated at the continued first hearing included:

• The appropriate standard of proof at the disciplinary hearing (whether balance of probabilities, or beyond reasonable doubt)
• The admissibility of hearsay evidence
• The question of any award of damages
• The rationality of the decision-making
• The pleas of mora, taciturnity and acquiescence

The second respondents’ position was that these were all issues about which they wished (and were entitled) to make submissions.  It was not for the first respondent to attempt to do so on their behalf, and indeed some of the matters were of importance to the second respondents, but not necessarily of importance to the first respondent, while others (for example, damages) might result in a conflict of interests between the respondents.

The ruling on expenses by the Lord Ordinary
[8]        The Lord Ordinary’s note was in the following terms:

“
[1]        Following my interlocutor of 26 April 2013 dismissing the petition both respondents enrolled motions for expenses against the petitioner.  The petitioner opposed the motion in respect of the second respondents only and the matter came before me on 31 May.  Only the petitioner and second respondents were represented.  Having heard counsel I considered that I should also hear counsel for the first respondent and continued the matter until 4 June when I found the petitioner liable to both respondents in the expenses of process. 

[2]        In opposition to the second respondents’ motion Mr Smith took me through the history of the petition.  He advised me that the second respondents had only come into the process as a result of the first respondent’s encouragement.  They had sought leave to enter the process at the first hearing on 14 November 2012.  The petitioner had not opposed the second respondents’ motion seeking leave to enter the process but had questioned what it was that could be raised by them.  Lord Glennie [the Lord Ordinary presiding on 14 November 2013] had himself asked what they could contribute and had warned that there could be consequences in expenses.  What the petitioner had in the end been faced with was senior and junior counsel representing both respondents taking essentially the same point.  He referred me to the case of Bell v East Renfrewshire Council 2006 SLT 104, a decision of Temporary Judge R F Macdonald QC (as he then was) in which he held that the lodging of answers in a petition was equivalent to the lodging of a closed record in an ordinary action and that while individual respondents were entitled to be separately represented it did not follow that the petitioner was liable to pay their expenses.  This decision had been affirmed by an Extra Division. 

[3]        Mr Smith submitted that essentially this was a complaint against the decision of the first respondent to dismiss him because of a fundamental failure in process, in particular the conduct before the disciplinary committee hearing.  The position of the second respondents was to endorse that decision.  However the main argument was directed against the decision of the first respondent and the conduct of the hearing.  Mr Smith did not detect any substantial difference between the respondents on the main argument.  It was the court’s duty to take control of unnecessary expenditure.  

[4]        The petitioner was a private individual funding these proceedings himself.  It was unreasonable for him to be expected to meet these costs himself. 

[5]        In reply Mr Jones for the second respondents informed me that their intervention came about as a result of a plea in the first respondent’s answers of all parties not called.  The petition was intimated to them by the petitioner on 7 November 2012 by recorded delivery but not by order of the court.  The second respondents were wholly independent from the first respondents.  They were a statutory body constituted under Act of Parliament.  In any event there were distinct challenges against the decision of the second respondents. 

[6]        I noted that Lord Glennie had allowed the second respondents to enter the process under Rule of Court 58.8.  It was not for me to revisit that decision but it seemed to me to be both reasonable and inevitable that the second respondents should be a party to the proceedings.  I also considered that they were entitled to expenses.  However my attention was drawn to the passage in Bell, at paragraph 2, quoting Lord Trayner in Anderson v McCracken Bros. (1900) 2F 780 at 793-794 where he laid out the rule in ordinary actions to the effect that where, after the lodging of the closed record, it appears that as regards both, the same question is raised, then the court regards it as reasonable that the defenders should combine and be represented by the same agents and counsel.  If they do not do so then the court will award full expenses to only one defender and a watching brief to the other.  In the light of the Temporary Judge’s approach in Bell and the observations of Lord Trayner in Anderson I considered that there might be merit in the argument that the first and second respondents should have combined their representation.  If that was right then it appeared that there were a variety of options open to me.  However it would not be right to consider these in the absence of the first respondent.  Accordingly I continued the second respondents’ motion for expenses and starred the first respondent’s motion. 

[7]        When the matter next came before me Ms Maguire for the first respondent challenged the suggestion that the respondents should have combined their representation.  It was not only that they were separate and distinct legal entities but the first respondent was a party before the second respondents.  It was not possible or desirable that they should be represented by the same agents and counsel.  There were issues of confidentiality;  there was confidential material in the possession of the first respondent which could not and should not be shared with the second respondents.  If the decision of the second respondents was quashed by the court the position would be that the first respondent would revert to being a party before the second respondents having just been jointly represented in proceedings challenging the second respondents’ earlier decision.  In any event the true respondent here was not the first respondent but the second respondents.  The expense had come about by the petitioner’s misconceived challenge to the decision of the first respondent.  Had the petition been confined, as it should have been, to the decision of the second respondents then the petitioner would not now be facing this expense.  

[8]        Mr Jones for the first respondent adopted the submissions made by Ms Maguire.  The real issue was a failure to focus on what the petitioner wanted to achieve.  He reminded me that Mr Smith had said that the petitioner did not want reinstated but wanted compensation, presumably from the first respondent.  Yet he had not properly focussed that issue in the petition.  While there had been no issue between the respondents on the issue of mora if the petition had moved on to substantive issues real conflict may well have emerged between the respondents. 

[9]        In reply Mr Smith submitted that I should consider the whole proceedings as a unified procedure following the decision of Lord Drummond Young in MacR 2013 CSOH 28 [reported as M v Law Society of Scotland 2013 SLT 462].  There was no real conflict between the respondents.  They should have been jointly represented.  In the unlikely event that conflict emerged between the parties that could have been resolved by a parting of the ways.  There was an issue about access to justice.  It was unfair and unreasonable for the petitioner to bear all the costs. 

Discussion and decision
[10]      It is difficult not to feel sympathy for the petitioner in this case.  In relation to the mora argument that I heard there was little, if any, difference between the respondents.  He is now faced with the expense of senior and junior counsel together with instructing agents for separate parties together, presumably, with his own expenses.  In total these will no doubt be quite considerable.  

[11]      However having considered the submissions and the pleadings I decided that in this case I should award both respondents expenses.  In the first place the presumption is that the successful party are entitled to expenses.  That presumption may be overcome, perhaps easily in some cases.  Nevertheless it is a starting point. 

[12]      Secondly I accept that there are substantial reasons why in this case it would not be right to expect that the respondents should combine their representation.  They have very different functions.  The first respondent is responsible for the policing of the area of the police authority.  He is responsible amongst other things for maintaining the operational efficiency of the police service.  The second respondents are wholly independent of the first respondent and their independence is an essential feature of the system.  Apart from the awkwardness of expecting a party to proceedings before an independent tribunal to combine with that tribunal to defend its decision it is I think constitutionally unacceptable.  It infringes the independence of both parties but more particularly that of the second respondents.  I note that there may be confidential material in the hands of the first respondent which would not ordinarily be shared with the second respondents.  I cannot say how significant that might be but it reinforces the concern that the constitutional independence of the parties should not be infringed. 

[13]      Thirdly, while one can sympathise with the petitioner in facing the expenses of two respondents I consider that had he properly applied his mind to the issue he would have directed the petition solely against the second respondents.  Under section 30 of the Police (Scotland) Act 1967 a constable who was dismissed by a chief constable had a right of appeal to a police appeal tribunal.  This Act has now been repealed by the Police and Fire Reform (Scotland) Act 2012 but was in force through these proceedings.  The tribunal could allow an appeal thus overturning the decision of the chief constable.  The petitioner availed himself of this procedure but was unsuccessful.  The important and significant point however is that it is not the decision of the first respondent that is the operative decision so far as the petitioner is concerned but the decision of the second respondents to refuse the appeal. 

[14]      In this petition the petitioner has challenged the proceedings before the conduct hearings of the first respondent.  In particular he has challenged the admissibility of hearsay evidence, the non-disclosure of a letter and the standard of proof to be applied.  In general his point is that the charges of misconduct which he faced were essentially criminal in character and that the standard of proof should be the criminal standard of proof beyond reasonable doubt. 

[15]      These were all matters that could have been raised before the second respondents.  Indeed had the petitioner raised an action for judicial review of the first respondent’s decision before exercising his right of appeal this court would have declined to hear it on the grounds that the petitioner had a right of appeal to the second respondents.  However these issues did not form part of the grounds of appeal to the second respondents.  Had the matter progressed to substantive argument on the merits it may have been that the failure to raise these issues before the second respondents would have been a problem for the petitioner.  Mr Smith’s position was that the characterisation of the proceedings as criminal and the standard of proof that should be applied were so fundamental that it did not require grounds of appeal; it would still be open to this court to hold that the second respondents had misdirected themselves and quash the decision.  If Mr Smith was successful in that argument the result would be to quash the second respondents’ decision and require them to reconsider the appeal. 

[16]      Accordingly in my opinion the decision that should have been submitted for judicial review was the decision of the second respondents.  The petition as originally drafted was misconceived.  It attacked the decision of the first respondent and not the second respondents.  Mr Smith’s position on this was that if the second respondents’ decision was reduced that would still leave the first respondent’s decision to dismiss the petitioner in place.  Accordingly he said that it was necessary to reduce the first respondent’s decision.  With respect to counsel I think this shows a misunderstanding of the role of the second respondents and/or the role of judicial review.  If the second respondents’ decision were reduced the decision of the first respondent to dismiss the petitioner would still be subject of appeal.  It would fall to be re-considered by the second respondents in the light of the decision of this court. 

[17]      I should add that the petitioner’s expenses might have been greater had I not acceded to the respondents’ motion, opposed at the time by Mr Smith, to hear as a preliminary matter the argument on the mora plea. 

[18]      It is of course important that those who seek to vindicate their rights in this court should not be deterred by the prospect of findings of excessive expenses against them.  Access to justice is an important principle and there is a duty on the court to keep this in mind when dealing with motions for expenses, especially against privately funded individuals such as the petitioner.  Equally however there is a responsibility on those who advise such parties to properly analyse the legal issues and focus their actions accordingly. 

Submissions for the petitioner

[9]        It was accepted that appeals relating to expenses were to be discouraged.  However, in the petitioner’s submission, it was incompetent to permit a decision-making body to appear and be represented in a judicial review such as the present (cf Dundee City Council v Dundee Valuation Appeal Committee 2012 SC 463, Lord Justice-Clerk Gill at paragraph [28]).  Esto it was competent, the Lord Ordinary had erred in the exercise of his discretion.  He had given insufficient weight to the fact that the interests of the respondents were virtually identical, and ought to have had single representation.

[10]      The first respondent initiated the disciplinary process, terminated the petitioner’s employment, and was the first level of appeal.  He was the correct respondent in a judicial review.  Once the second respondents determined an appeal, they were functus (cf the curator in Black v Mental Health Tribunal for Scotland 2012 SC 251 paragraph [15]).  Thus they had no basis upon which to enter judicial review proceedings in order to defend their position.  It was also inappropriate that they do so as, if the petitioner were to succeed in his judicial review, there might be a remit back to the second respondents:  an adversary would then become a judge, which seemed unsatisfactory.

[11]      The petitioner had given informal intimation of the petition to the second respondents as a result of the first respondent’s plea of “All parties not called”.  The second respondents had not been expected to participate, especially as both respondents shared the same source of funding, namely the local authority. There had been no difference between the arguments on mora presented by the respondents, and thus common representation should have been adopted.  The second respondents were not therefore entitled to their expenses (cf Robertson v City of Edinburgh District Licensing Board 1994 SC 83;  Moray Council v Scottish Ministers 2007 SC 280, paragraphs [12] and [14]).

[12]      The Lord Ordinary was wrong to suggest that proceedings should have been directed against the second respondents alone.  Everything flowed from the original complaint (cf the circumstances in M v Law Society of Scotland 2013 SLT 462).  The Lord Ordinary had also erred in failing to appreciate that the respondents shared the same interest in the litigation.  The Lord Ordinary’s interlocutor of 4 June 2013 should be recalled so far as relating to the second respondents.  Indeed the petitioner should be awarded his expenses against the second respondents in respect of any additional expense caused by their entering the process.  For example, the hearings on 31 May and 4 June 2013 had been taken up with arguments about the second respondents.

Submissions for the second respondents

[13]      Senior counsel for the second respondents submitted that the reclaiming motion should be refused.

[14]      In relation to the competence of the second respondents’ appearance, the present procedure was a judicial review, not a statutory appeal.  The authorities referred to by counsel for the petitioner (for example, Dundee City Council v Dundee Valuation Appeal Committee 2012 SC 463) concerned statutory appeals from a body to the court:  that was a very different context.

[15]      As for the Lord Ordinary’s decision on expenses, that was a discretionary one.  It was not enough to say that insufficient weight had been given to certain factors.  No basis had been identified for disturbing the result reached following upon the exercise of the Lord Ordinary’s discretion.  No error in law or misdirection on the part of the Lord Ordinary had been identified.

[16]      The decision under challenge was properly that of the second respondents, not that of the first respondent.  Reference was made to section 30 of the Police (Scotland) Act 1967;  Rules 7, 10 and 15 of the Police Appeals Tribunals (Scotland) Rules 1996;  and The Police (Conduct) (Scotland) Regulations 1996 seriatim.  The second respondents were entirely independent of the first respondent.  Thus the Lord Ordinary was correct in his assessment in paragraph [13] to [16] of his Note.  M v Law Society of Scotland 2013 SLT 462 concerned a different regulatory scheme, and could not be regarded as analogous.

[17]      The first hearing had been expected to deal with all the issues in dispute, not merely mora.  Many of the issues affected the second respondents (not the first respondent) and were matters of importance to them.  Thus the second respondents had a clearly defined separate interest.  The first hearing could not have been dealt with by common representation.

[18]      Furthermore, the Court of Session did not have the power to pronounce a declarator that there had been no valid reason for the petitioner’s dismissal.  To do so would usurp the functions of both respondents – functions which had been entrusted to them by statute.  If the petitioner had been successful in his judicial review, the court would have had to remit the case back to the second respondents for a full hearing, which might include hearing all the evidence – in effect, starting afresh.  But it would have been inappropriate for the court to remit back to the second respondents if they and the first respondent had shared the same legal representation in a judicial review in the Court of Session.  That might give the appearance of undermining the second respondents’ impartiality.  This was accordingly a further reason for separate representation.

Discussion

[19]      We agree with counsel for the petitioner that appeals against awards of expenses should be discouraged.  The judge who heard submissions at first instance is best placed to assess expenses (cf Ramm v Lothian and Borders Fire Board 1994 SLT 560, Lord Justice Clerk Ross at page 562 J-K).  Unless some error of law or misdirection can be identified, a Lord Ordinary’s decision on expenses (being an exercise of his discretion) should rarely be interfered with.

[20]      In relation to the issue of competence, raised by counsel for the petitioner, in our opinion Lord Gill’s dicta in Dundee City Council v Dundee Valuation Appeal Committee 2012 SC 463 were given in the context of statutory appeals from certain bodies to the Court of Session.  By contrast, the present case is a judicial review challenging aspects of the procedure at the disciplinary hearings.  In that type of judicial review, disciplinary bodies may competently enter appearance and participate – for example, The Law Society of Scotland;  The Scottish Legal Complaints Commission;  The Conduct and Competence Committee of the Nursing and Midwifery Council.  We are not therefore persuaded that it was incompetent for the second respondents to enter appearance and to be represented in the present judicial review. 

[21]      We also accept that the second respondents are wholly independent of the first respondent, notwithstanding the common source of funding (see section 30 of the Police (Scotland) Act 1967;  Rules 7, 10 and 15 of the Police Appeals Tribunals (Scotland) Rules 1996;  and Regulations 5-6, 10-13, 17-18, and 20-21 of the Police (Conduct) (Scotland) Regulations 1996).  A registrar – not the first respondent – convenes the PAT, which consists of persons selected for the purpose of determining a particular case.  Unlike the first respondent, the PAT has the power to oblige witnesses to attend, and to recover evidence (Regulation 10 of the 1996 Regulations).  The PAT also has the power to start afresh and to re-hear the whole case, including evidence and submissions (Regulation 15 of the 1996 Regulations).  Thus the statutory scheme set up by the Police (Scotland) Act 1967 and the 1996 Rules and Regulations is very different from the scheme referred to in M v Law Society 2013 SLT 462, where the disciplinary procedure involved a professional body undertaking both investigation and determination by means of an internal tribunal.

[22]      It follows, in our opinion, that the second respondents were entitled to take the view that the petition raised significant issues concerning their particular practices and procedures about which they wished to make submissions.  A ruling in the Court of Session about the standard of proof and the admissibility (or inadmissibility) of hearsay evidence in hearings before the PAT could have significant repercussions.  A finding that the petitioner was entitled to damages might also affect the PAT.  As for the plea of mora, we consider that the second respondents were entitled to seek to persuade the court that any judicial review of their proceedings should be carried out promptly after the issuing of a decision, to avoid the re-opening of stale claims long after their resolution.

[23]      In the result therefore it is our opinion that the second respondents were indeed a “person … who [was] directly affected by any issue raised”, and as such they were properly granted leave to enter the process and to lodge answers.  Furthermore they were entitled to appear at the continued first hearing on 7 and 8 March 2013 in anticipation that all of the above matters would be debated and ruled upon:  cf Lord Boyd’s record of proceedings in paragraph [1] of his opinion dated 26 April 2013:

“… [Following upon the first hearing in November 2012, Lord Glennie] pronounced an interlocutor setting out a detailed timetable to manage the process … He continued the first hearing to a date to be afterwards fixed to take the form of a three day debate on all the issues [emphasis added]”

Thus the second respondents approached the first hearing in the expectation that all the issues in dispute would be debated (namely, the standard of proof, the admission of hearsay evidence, the question of damages, the rationality of the decision-making, and the plea of mora, taciturnity and acquiescence).  It was necessary for them to instruct counsel to appear on their behalf.  The fact that the first hearing was, in the event, devoted to the respondents’ pleas of mora, taciturnity and acquiescence due to shortage of time does not detract from their entitlement to be separately represented.  The second respondents were entitled to present their own arguments in relation to that particular issue.  To suggest that they should have withdrawn in the hope that the first respondent would sufficiently protect their position is unrealistic, a fortiori as the second respondents’ interest and arguments in relation to the plea of mora might not necessarily coincide with the first respondent’s.  Furthermore, as already mentioned in paragraphs [10] and [18], the sharing of legal representation by the first and second respondents might give the appearance of undermining the second respondents’ independence and impartiality, which would be unsatisfactory were the petitioner’s case subsequently to be remitted back to the second respondents.

[24]      We are not therefore persuaded that the second respondents’ entering appearance and having separate representation was either incompetent or unnecessary.  It follows that we are not persuaded that the Lord Ordinary erred in any respect in relation to the awards of expenses. 

Decision

[25]      We shall refuse the reclaiming motion and adhere to the Lord Ordinary’s interlocutor of 4 June 2013.  We shall continue the question of the expenses of this reclaiming motion.