Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 46

XA131/15

Lord Justice Clerk

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the APPEAL

by

THE CITY OF EDINBURGH COUNCIL, PETITIONERS

Appellant;

against

JACKIE PRINGLE qua curator ad litem to the child MO

Respondent:

Act:  Scott, QC; Brodies LLP

Alt: J. Mitchell, QC; Allan McDougall, Solicitors

24 June 2016

Introduction

[1]        This is one of two associated appeals relating to the expenses to be paid to a curator ad litem appointed in connection with a permanence order.  The second appeal is Clackmannanshire Council, Petitioners [2016] CSIH 47.  This opinion must be read in conjunction with the opinion in that case.  The issue arising in each appeal is whether in such a case the sheriff is entitled to make an order for expenses under rule 2(a) of the Sheriff Court Adoption Rules 2009, which are contained in the schedule to SSI 2009/284, (“the 2009 Rules”) or whether the curators’ recoverable expenses are limited to such sum as the local authority thinks fit, by virtue of regulation 10(1A) of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001 (“the 2001 Regulations”).  In each case the curator was a member of the panel of curators established by the local authority for the relevant area, established under regulation 4 of the 2001 Regulations.

[2]        The respondent was appointed curator ad litem to a child, in connection with an application for a permanence order, by interlocutor dated 31 July 2013.  The application was granted after proof on 31 August 2015.  The respondent subsequently enrolled a motion under rule 2(a) for a finding that she was entitled to recover from the petitioner such fees, outlays and expenses which she had incurred as curator ad litem in the proceedings from 29 January 2015 (expenses having been dealt with by agreement under Regulation 10).  Following an opposed motion hearing on 27 October 2015, the sheriff granted the motion.

Legislation

[3]        Regulation 4 of the 2001 Regulations provides:

“3. (1) … there shall be for each local authority area a panel of persons from whom curators ad litem and reporting officers may be appointed for the purposes of section 108 of the 2007 Act.

…

4. (1) … each local authority shall from time to time appoint such a number of persons to be members of a panel as, after consultation with the Sheriff Principal, they consider to be adequate”.

[4]        Regulation 10(1A) provides:

“The local authority shall defray the expenses incurred by a member of the panel established for their area and shall pay to that member such fees and allowances as the local authority think it in the case of an application for –

…

(c)        a permanence order (within the meaning of section 80 of [the Adoption and Children (Scotland) Act 2007] …”.

[5]        Rule 2 of the 2009 Rules provides:

“The sheriff may –

(a)        make such order as he thinks fit with regard to the expenses of an application under these Rules, including the expenses of a reporting officer and a curator ad litem or any other person who attended a hearing; and

(b)        modify such expenses or direct them to be taxed on such scale as he may determine”.

Background

[6]        As explained in the Clackmannanshire Council case, the question at issue arises from a decision of the Sheriff Principal of Lothian and Borders in Scottish Borders Council 2014 SLT (Sh Ct) 140, in which an appeal against the sheriff’s interlocutor awarding a curator expenses in terms of rule 2 was refused.

The sheriff’s decision

[7]        The sheriff concluded that she was bound by the decision in Scottish Borders Council, which could not be distinguished from the circumstances of the present case, and granted the motion. 

Submissions

Appellant

[8]        The appellant’s submissions were the same as those advanced in Clackmannanshire Council, Petitioners (supra).

Respondent

[9]        The sheriff had power to make the award of expenses which she did.  The express language of rule 2 is not impliedly excluded by regulation 10(1).  The two provisions were not incompatible.  Other local authorities pay curators on a time and line basis, with no need to seek a judicial award.

[10]      Rule 2 is consistent with the ordinary practice of the courts of Scotland in civil proceedings.  Absent clear provision to the contrary, the Court of Session or the Sheriff Court have an inherent power to regulate expenses in civil proceedings (Court of Session Practice, Division L, Chapter 1).  The practice in relation to curators is well stated in MacLaren on Expenses, pp. 236 – 7: their “right to recover expenses is construed as favourably as is consistent with the rights of those with whom he has been litigating … the court is always willing to secure the payment of the expense of a curator ad litem from any source available”.

[11]      If the power of the court to regulate expenses had been excluded, one would have expected clear language to that effect.  The true purpose of the 2001 Regulations was to provide some further assurance to persons carrying out such duties that they would be paid, even if no party to the litigation could be found liable in expenses or was able to meet such an award. It did not oust the jurisdiction of the court.

[12]      Rule 2 does not confer upon the court an unfettered discretion.  The discretion falls to be exercised by doing substantial justice amongst the parties.  The court can take into account the extent to which the curator has been paid already.  There is no suggestion that the respondent should be paid twice.

[13]      The appellant’s personal bar argument is irrelevant. The question before the court is one of competence.

Decision

[14]      There is no necessary conflict between regulation 10(1A) and rule 2, and there is no reason that they cannot be read together.  Each has a different purpose, and performs a different function.  Regulation 10(1A) is concerned with a local authority’s duty to maintain a panel of curators ad litem and reporting officers, and the responsibilities associated with discharging those duties; rule 2 concerns the court’s power to award and allocate judicial expenses in a litigation.

[15]      The fact that a local authority is charged with statutory responsibility for maintaining a panel, and has an associated duty to defray the expenses incurred by panel members, is not conclusive of the entirely separate question of the judicial expenses which may be awarded by the court.  The power in rule 2 is very wide, mirroring the court’s common law powers.  It would require clear language to curtail such powers.  There is no express limitation on the exercise of the court’s power in rule 2, and there is no basis for implying such a limitation.  Notwithstanding regulation 10(1A), the court retains power, at the conclusion of proceedings, to make such award as it sees fit amongst the parties to the action, one of whom may incidentally hold ultimate responsibility for defraying the expenses as a party to the action.  That accords with the traditional approach to expenses.

[16]      The appellant’s submission invited the court to discriminate between panel and non–panel members, by holding that panel members were limited to fees paid by a local authority under regulation 10(1A), but that non-panel members might seek a judicial award under rule 2.  There is no basis for such discrimination.

[17]      We endorse the observations of the sheriff principal at paragraphs 35K-L and 37B-D of Scottish Borders Council.  The court should – and on this interpretation would - retain some degree of control to ensure that the work of curators ad litem and reporting officers is done properly and independently, and that those appointed by the court to this important job are properly paid, all of which are matters in which the court has an interest.  For completeness we record that we have taken a different view from that expressed by the sheriff at Dundee in Dundee City Council v D, 2007 Fam LR 157.  We note that the sheriff was distinctly unhappy with the decision he felt compelled to make.

[18]      We accordingly refuse the appeal and adhere to the interlocutor of the sheriff.   Parties in this case were agreed that taxation should be avoided and the sheriff was invited to modify the award to reflect the sum brought out in the respondent’s account of expenses.  It seems likely that this would remain the position of parties, should the appellants be unsuccessful.  We shall therefor put the case out by order for further determination.