Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 1

P101/13

Lord Menzies

Lady Smith

Lord McGhie

OPINION OF THE COURT

delivered by LADY SMITH

in the reclaiming motion

by

ASIF ALI ASHIQ

Petitioner;

for judicial review of a decision of The Secretary of State for the Home Department

Respondent and reclaimer:

Alt:  Webster; Office of the Advocate General

Third Party:  Irvine; Scottish Legal Aid Board

10 December 2015

Introduction
[1]        This is a motion for and in respect of an award of expenses following upon the success of a reclaiming motion at the instance of the respondent, the Secretary of State for the Home Department.

[2]        The motion is in the following terms:

“On behalf of the respondent and reclaimer, the Lords having allowed the respondent and reclaimer’s motion by interlocutor of 28 April 2015, (1) to find the petitioner and respondent liable in the expenses of the reclaiming motion as taxed,……….and (3) for an order in terms of section 19(1) of the Legal Aid (Scotland) Act 1986 requiring payment of the expenses of the reclaiming motion out of the Scottish Legal Aid Fund in respect that it is just and equitable in all the circumstances that the award should be paid out of public funds.”

[3]        Part (2) of the motion, which concerned expenses in the Outer House, was granted by interlocutor of 12 November 2015 in which the petitioner was found liable for those expenses as an assisted person and his liability was modified to nil.

[4]        Part (1) of the motion was granted but only to the extent of finding the petitioner liable in the expenses of the reclaiming motion as an assisted person.

Legal Aid (Scotland) Act 1986
[5]        Section 19 of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”), on which part 3 of the respondent’s motion was based, is, insofar as relevant, in the following terms:

“19 – (1) In any proceedings to which a legally assisted person is party and which are finally decided in favour of an unassisted party, subject to subsections (2) and (3) below, the court may make an award out of the Fund to an unassisted party of the whole or any part of any expenses incurred by him (so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person).

(2) Before making an order under this section, the court shall consider making an award of expenses against the legally assisted person.

(3) An order under this section may be made only if –

(a) an order for expenses might be made in the proceedings, apart from this Act; and

(b) in the case of expenses of proceedings in a court of first instance, those proceedings were instituted by the legally assisted person, and the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made; and

(c) in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds.

(4)……………

(5) No appeal may be made against an order made under this section, or against a refusal to make such an order, except on a point of law.

(6) In this section “expenses” means expenses as between party and party, and includes the expenses of applying for an order under this section.”

Proceedings before the Lord Ordinary
[6]        The petitioner sought judicial review of a decision of the respondent in which she had, in two letters, refused his application for leave to remain in the UK.  The Lord Ordinary held that the respondent had, in her first letter, failed to consider the petitioner’s application outwith the immigration rules, as she was obliged to do.  She also held that the second letter could not cure that failure.  She granted the prayer of the petition thus setting aside the respondent’s decision.

The reclaiming motion
[7]        The respondent reclaimed.  As explained in its opinion dated 28 April 2015 ([2015] CSIH 31), this court agreed that the respondent’s first letter did not provide the necessary assurance that the respondent had considered whether or not leave to remain had been granted outside the rules.  However, the Lord Ordinary had failed to consider whether ‑ as was submitted to her by counsel for the respondent ‑ in all the circumstances, that error was material.  For the reasons set out in our opinion, it was not a material error.  The Lord Ordinary had, accordingly, erred in setting aside the respondent’s decision.

[8]        Regarding the second letter, this court was of the view that it was not amenable to judicial review.

Procedure in the Inner House
[9]        On 12 November, in addition to granting part 2 of the motion, the court (i) ordered the respondent to lodge a statement on oath of the grounds for claiming payment of her expenses out of the Scottish Legal Aid Fund (ii) an estimate of the probable amount of those expenses, and (iii) to intimate all relevant documents and a copy of the motion, to the Scottish Legal Aid Board (“SLAB”).

[10]      Intimation to SLAB was delayed until that point because of the relevant terms of regulation 6 of the Act of Sederunt (Civil Legal Aid Rules) 1987 which provide:

“6 – (1) An application to the court for an award of expenses under section 19(1) of the Act shall be made by motion in the cause.

(2) On an application to the court being made under section 19(1) of the Act, the court may-

(a) summarily dismiss the application; or

(b) order the applicant to lodge a statement on oath of his grounds for claiming payment out of the Scottish Legal Aid Fund of the whole or any part of the expenses incurred by him together with an estimate of the probable amount of those expenses.

(3) Where the court pronounces an interlocutor under paragraph (2)(b), the court shall also order the applicant to intimate a copy of each of the statement of grounds and estimate referred to in paragraph 2(b) to the Board.

(4) The Board may –

(a) appear and be represented at any hearing to consider an application in which there has been intimation under paragraph (3); and

(b) cite any party to the cause to attend any such hearing.”

Experience of this and other similar applications demonstrates, however, that this is a cumbersome procedure which, we would hope, could be streamlined to operate more efficiently.  For instance, there seems to be no good reason for delaying intimation to SLAB until the second stage.  They have an interest from the outset.  On consideration of the effectiveness of the rule, it may also be concluded that there is no need to have a two stage process or the formality of a statement on oath; a requirement for a note to accompany the motion setting out why the applicant considers it just and equitable that the award should be made may, for example, suffice.

[11]      However, in this, as with other applications under section 19(1) of the 1986 Act, disposal of the motion required two hearings. SLAB were present at the second hearing which took place on 10 December.  The respondent had duly lodged a statement on oath and an Account of Expenses.  The statement on oath was sworn by a solicitor in the office of the Advocate General and included the following:

“9. The reclaimer’s principal grounds for reclaiming and, before that, in answering the petition, have been consistent: any error on the part of the respondent and reclaimer was not material. The Lord Ordinary recorded that submission but failed to determine it. The reclaiming motion proceeded principally in respect of that failure. The Inner House recorded and identified the Lord Ordinary’s failure: paras.[19] and [23], Opinion of the Court, delivered by Lady Smith, 28 April 2015.

10. Further, the Inner House concluded that any judge would, on the circumstances presented (set out succinctly at para.[24]) by the respondent, have been bound to conclude that his removal would not be disproportionate (para [24]) and to have dismissed the petition ([pqrq.[23]). The reclaiming motion was demonstrably meritorious.

11. Notwithstanding the Grounds of Appeal, the reclaiming motion was not conceded such as to permit disposal by means of a McAllister minute, nor was public funding withdrawn in the light of the marking of the reclaiming motion or on consideration of the Grounds of Appeal.

12. Even on the respondent and reclaimer’s esto  argument relating to the second decision letter, the Inner House held that the letter was permissible (“quite proper”) (para. [27]) and comprehensive (“difficult to see how the decision maker’s considerations could have been more extensive”) (para. [28])

13. There are no facts that would make it unjust or inequitable for the reclaimer’s expenses of the reclaiming motion to be paid out of the Scottish Legal Aid Fund.”

The account brought out the sum of £13698.17 as the expenses incurred by the respondent in connection with the reclaiming motion.

Submissions
Respondent
[12]      Mr Webster made submissions in support of paragraphs 9 to 13 of the statement on oath.  He relied in particular on the respondent having won on a point which had been raised in submissions before the Lord Ordinary but not determined by her; that being so, the respondent could not be accused of seeking to have “two bites at the cherry”.  It would be wrong, he submitted, to impose some form of condemnation of the respondent for having raised proceedings in the Inner House after having lost in this way in the Outer House yet that would be the effect of refusing the motion.  The respondent had engaged in the appellate procedure to vindicate her rights and had required to do so because of an error in the court below.  That ought not to be held against her when considering whether it was just and equitable to follow the normal rule that expenses follow success.

[13]      Mr Webster likened the circumstances of the present case to those in the case of McGraddie v McGraddie 2015 SC (UKSC) 45 where, at para [7], Lord Neuberger of Abbotsbury had said that SLAB should “clearly” be required to pay the pursuer’s expenses, it being:

“unfortunate that (they) decided to support the appeal against the decision of the Lord Ordinary, and it would be simply unjust if the pursuer was out of pocket as a result of that appeal.”

He submitted that SLAB had had a duty to assess prospects of success; there had been well focussed grounds of appeal and a clear note of argument on the basis of which they could have done so.  SLAB should have recognised that the central argument was that the Lord Ordinary had failed to deal with an important submission and appreciated that it was a cogent one.

[14]      Mr Webster submitted that it was plainly just and equitable to make the award, particularly where the petitioner’s liability for any of the expenses in the Outer House ‑ where the Lord Ordinary had not dealt with the respondent’s submission on materiality ‑ had been modified to nil.  All other things being equal, the unassisted party ought, on success, to be awarded expenses.  That was the normal rule and it weighed in the balance, in favour of the applicant.  There was nothing that demonstrated that it would be unjust or inequitable to award expenses against SLAB; there was nothing to tip the balance the other way.  Regarding the observations in R v Greenwich London Borough Council, Ex p Lovelace (No 2) [1992] QB 155, referred to by the Master of the Rolls in R(Gunn) v Home Secretary [2001] 1 WLR 1634, to the effect that there might be force in an argument that an award for expenses to be paid out of public funds should not be made where the applicant was itself a public body, they were, he submitted, not in point.  An award was, in fact, made in favour of the applicant public body in Lovelace and in Gunn. In the present case, the budgets involved were entirely separate.  Those observations were, further, not followed by this court in MUB v Secretary of State for the Home Department [2015] CSIH 43.

SLAB
[15]      Ms Irvine appeared for SLAB to oppose the motion.  She offered the following observations.  First, SLAB were not to be regarded as dominus litis:  1986 Act Sch. 1 para 15.  SLAB did not run the litigation and in ordinary course, SLAB is not found liable in expenses.  The application was not the same as a “party ‑ party” application.  Against that background, section 19 afforded a wide discretion.  The party seeking to invoke it required, she submitted, to satisfy its threshold criteria.  It was not enough to have won; if that was so, there would, she submitted, have been no point in enacting the terms of section 19.

[16]      Secondly, the respondent’s approach was, she submitted, flawed in respect that it inverted the onus.  It was not a matter of whether there were facts which would make it unjust or inequitable to make the award; the respondent required to show why it would be just and equitable to do so.  There were considerations which favoured SLAB; whilst the court departed, in MUB, from any suggestion that an award ought not to be made in favour of one public body against another, the fact that the payment would be made from public funds was a relevant factor.  Also, SLAB had been faced with a decision of the Lord Ordinary which stated that the decision of the Secretary of State was unlawful and counsel’s opinion had supported opposition to the appeal being maintained.  SLAB had a statutory function for the securing of legal advice and assistance and it could not refuse to fund a party where the relevant statutory criteria were satisfied.  She confirmed that the same test was applied by SLAB at appeal stage as at first instance namely that of probabilis causa.

Decision

[17]      The issue for us is whether, in all the circumstances of this case, it is just and equitable that the award of expenses against the petitioner in favour of the respondent should be paid out of public funds namely the Scottish Legal Aid Fund.  As in MUB, the circumstances of the case are unremarkable save, perhaps, that it is less common for the reclaimer in petitions for judicial review of immigration decisions to be ‑ as in the present case ‑ the Secretary of State for the Home Department.  If an order is made, it will be paid out of the coffers of a government agency into those of a department of government.  As did the court in MUB, we note how quickly the observation to the effect that there might be merit in the argument that that ought not to occur was departed from in Bell v Fife County Council 1975 SLT (N) 4 at 4-5.  It is, accordingly, not of itself a factor which points to it being unjust or inequitable to make the award.  Nor, we consider, is it one which should carry any weight.

[18]      Certainly, the reclaiming motion was not brought because of SLAB’s assessment of its prospects of success, as was the position in MUB, but those cannot be the only circumstances in which it will be just and equitable to grant a section 19(1) application.  As Ms Irvine freely accepted, the discretion afforded by the provisions of the section is a wide one; we do not read them as applying only where it is SLAB’s backing which enabled the reclaiming motion to be embarked upon.  It is, we think, self‑evident that an application may be made where the appellate stage is caused by the unassisted party and, if that party can show that it is just and equitable to grant it, the court may do so.

[19]      We accept Mr Webster’s submission that when addressing the issue of whether it would be just and equitable to make the award, the normal rule that expenses follow success weighs in favour of granting the application.  The successful unassisted reclaimer is entitled to have the court take into account, as weighing in her favour, the fact that, had the petitioner also been unassisted, it seems clear that he would have been found liable in the usual way without being able to pray in aid the protection of a legal aid shield.  Simply put, such an outcome is one which the law would normally regard as being just and equitable. Further, we accept that, in this case, that which proved to be the winning argument was clearly articulated in both the grounds of appeal and the applicant’s note of argument, giving SLAB repeated opportunities to assess the likelihood of the petitioner being able to resist the reclaiming motion and the consequent question of whether it was appropriate for opposition to be maintained at public expense.

[20]      The balance having thus been tipped, we look to see whether there is, in the circumstances, any factor that weighs in the opposite direction.  We find none.

[21]      SLAB’s opposition to the application under sec 19(1) involved, essentially, three observations.  The first one rested on the provisions of Sch 1 para 15 of the 1986 Act.  We do not, however, accept that by granting such an application there can be any question of the court holding SLAB to be dominus litis.  The whole point of the provision is to enable the court to do justice by making the funder pay even although that funder did not direct the litigation.  The second was in relation to onus.  We do not, however, read anything set out in the statement on oath or articulated by the applicant’s counsel in oral submission as involving an inversion of onus.  We are satisfied that the case advanced was to the effect that the circumstances demonstrated that it would just and equitable to grant the application;  that is sufficient so far as onus is concerned.  The third matter touched on was that SLAB were but fulfilling their statutory duty as they saw it.  No doubt they were, likewise, doing so in the case of McGraddie but, as the Supreme Court’s decision there demonstrates, that does not mean that SLAB cannot be found liable under the provisions of section 19(1).  Indeed, those provisions must have been predicated on the assumption that applications under it will be made and may be successful where SLAB have done just that.

[22]      In these circumstances, as was advised at the hearing, we were satisfied that it had been demonstrated that it was just and equitable to grant the application and make an award against SLAB in favour of the applicant  in relation to the whole expenses of the reclaiming motion.