Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 47

XA136/15

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

CLACKMANNANSHIRE COUNCIL, PETITIONERS

Appellant;

against

CRAIG DUNBAR qua curator ad litem to the child LK

Respondents:

Act:  J. Scott, QC; Brodies LLP

Alt: Coutts; TLT LLP

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 the City of Edinburgh Council, Petitioners [2016] CSIH 46.  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 curator’s 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 (SSI 2001/477) (“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, operating under regulation 4 of the 2001 Regulations.

[2]        The respondent was appointed curator ad litem by interlocutor of the sheriff at Alloa dated 13 July 2015, in connection with an application for a permanence order which was granted unopposed at a preliminary hearing on 21 August 2015.  The respondent made an oral motion for expenses in terms of rule 2(a) of the 2009 Rules.  The motion was opposed, on the basis that any fees required to be restricted in terms of the 2001 Regulations.  The sheriff found the appellant liable to the respondent in expenses as taxed by the auditor of court.

Legislation

[3]        The Adoption and Children (Scotland) Act 2007, section 108 provides:

“(1)      In the case of an application for a relevant order in relation to a child, Rules of Court must provide for the appointment, in such cases, as are prescribed by the rules-

(a)        of a person to act as curator ad litem of the child on the hearing of the application, with a duty of safeguarding the interests of the child in such manner as may be so prescribed….

(3)        Rules may not make provision for-

…

(b)        the appointment of a person who is employed by a local authority which is making (or has made) an application for a permanence order to act as a curator ad litem or reporting officer for the purposes of the application.”

A relevant order includes a permanence order.

[4]        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”.

[5]        Regulation 10(1A) of the 2001 Regulations 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] …”.

[6]        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”.

[7]        Rule 32 of the 2009 Rules provides that on the lodging of a petition seeking a permanence order including authority for adoption the sheriff must appoint a curator ad litem and a reporting officer.  Rule 32(5) provides:-

“The sheriff may appoint a person who is not a member of the panel established under regulations made by virtue of section 101 of the 1995 Act to be curator ad litem or a reporting officer.”

Background
[8]        The issue arising in this case was considered by the Sheriff Principal of Lothian and Borders in Scottish Borders Council, Petitioners, 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 Principal noted that in such important cases as these, there was a compelling need for the court to be satisfied that what it was being asked to do was the correct outcome for the child, outweighing the rights and ties of birth parents.  It was essential that the information upon which the court proceeded displayed the utmost integrity and independence.  If the remuneration of the curator ad litem were to be restricted to a sum selected at the instance of the local authority, the Sheriff Principal was of the view that the imperative for independence would be compromised.  A further undesirable consequence would be that non-panel curators would be in a more favourable position regarding remuneration than those who had been accredited to be on the panel.  The Sheriff Principal observed:-

“It appears to me to be inconceivable that the policy and intention of the legislators and ministers would have sought to achieve that purpose when they had carefully recognised the need to set up panels based on merit but otherwise to remove local authority involvement in the cohort of curators.” (para [31]). 

[9]        The Sheriff Principal concluded that any apparent conflict between regulation 10(1A) and rule 2 was capable of being reconciled.  The correct approach to the interpretation of regulation 10(1A) was that it imposed on the local authority an obligation to meet in whole or in part the remuneration, fees or expenses of the curator ad litem and reporting officer whether the local authority was a party to proceedings or not.  The regulation did not limit the fee to those fixed by the local authority and in particular did not detract from the court’s power under rule 2 to deal with the overall adjudication of the curator’s remuneration.  The important words in regulation 10(1A) were the words “shall defray the expenses incurred by a member of the panel “which indicated a mandatory requirement that the local authority was obliged to make a payment in the form of defraying the expenses in the sense of meeting or contributing to these expenses.  A panel member was not limited to such a fee, and in becoming a panel member did not bind himself in turn to accept only a token fee.

Decision of the Sheriff

[10]      In the present case the sheriff considered that the effect of the two sets of regulations was a creation of a binary arrangement for the remuneration of reporting officers and curators.  While the local authority had the discretion to set fees and allowances to be paid to members of its panel in terms of rule 10(1A), the overall authority in relation to expenses in an application under the Adoption Rules rested with the sheriff in terms of Rule 2 of those Rules.  It allowed the sheriff to award expenses in relation to a non-panel curator but did not apply to a panel curator.  While the local authority had a discretion to set the fees and allowances to be paid to members of its panel by regulation 10(1A), the overall authority in relation to expenses in an application under the adoption rules rested with the sheriff in terms of rule 2 of the 2009 Rules. The means of checking the dual system of remuneration and of ensuring fairness as to the level and extent of remuneration was by the process of taxation by the auditor of court.  Any award by the court after taxation should be under deduction of any payment received from the local authority.

Submissions

Appellant

[11]      Scottish Borders Council was wrongly decided.  The fee payable to a curator ad litem appointed under the 2001 Regulations was reserved to the discretion of the local authority.  In a case in which a fee was payable under the 2001 Regulations, the curator ad litem must look to the local authority for payment under the regulations and could not make an application to the court for an award of expenses in respect of work covered by them.  It had not been the legislature’s intention to provide two separate sources of payment for this work.  The motion for expenses under Rule 2(a) was variously described as “incompetent” or “inappropriate”.

[12]      The respondent in each case had accepted appointment as a member of the panel appointed under the 2001 Regulations.  They had accepted that remuneration would be determined under regulation 10(1A).  In each case, the curator was entitled to a fee under those Regulations, but was personally barred from seeking a judicial award of expenses against the petitioner.

[13]      If any member of a panel for a given area were dissatisfied with the fee proffered by the local authority, recourse lay in a petition for judicial review, not an application under rule 2.  By accepting panel membership, curators accepted any scheme of fees offered by the relevant local authority.  Moreover, if for some reason the authority refused to pay, a curator could not apply under the 2009 Rules, but would have to raise an action for payment.  The rule and the regulation were mutually exclusive. 

Respondent
[14]      Counsel for the respondent submitted that the sheriff did not err in making an award of expenses in favour of the respondent.  A payment by the appellant in terms of regulation 10(1A) did not render an award of expenses under rule 2(a) incompetent.  Parliament had not terminated the court’s power to award expenses in terms of rule 2(a) by imposing the duty upon local authorities in regulation 10(1A).  In advancing this submission counsel adopted the submissions advanced by counsel for the respondent in City of Edinburgh Council, Petitioners.  The submissions are set out in greater detail in that case but were essentially that the court has an inherent power to regulate expenses in civil proceedings and rule 2 is consistent with that ordinary practice and wide in its application.  It would require clear language to oust the jurisdiction of the court in this matter.  The true purpose of the 2001 Regulations was to provide assurance to persons carrying out these important duties that they would be paid, even if no party to the litigation could be found liable in expenses or was able to make such an award.

Decision

[15]      There is no necessary conflict between regulation 10(1A) and rule 2, and there is no reason that they cannot be read together.  Each rule 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.

[16]      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.

[17]      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.

[18]      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.

[19]      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.