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JOHN HALLEY FOR JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH MINISTERS [2022] ScotCS CSOH_81 (09 November 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_81.html
Cite as:
[2022] CSOH 81,
2022 GWD 36-530,
[2022] ScotCS CSOH_81,
2022 SLT 1273
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 81
P395/22
OPINION OF LADY DRUMMOND
in the petition of
JOHN HALLEY
Petitioner
for
Judicial Review of decisions of the Scottish Ministers
Petitioner: O'Neill KC Campbell Smith LLP
Respondents: McIlvride KC; P Reid The Scottish Ministers
9 November 2022
Background
[1]
The petitioner challenges funding decisions made by the Scottish Ministers: (i) to
refuse to continue to fund his legal representation before a Tribunal reporting on his fitness
to practice as a part-time Sheriff and (ii) to refuse to fund his legal expenses for judicial
review proceedings in which he seeks to review the Tribunal's decision at a preliminary
hearing.
[2]
The petitioner is an advocate and part-time Sheriff. On 25 July 2019 the
Lord President of the Court of Session wrote to the petitioner explaining that it had come to
his attention that the petitioner had made public comments that were highly critical and on
the face of it defamatory of another member of the judiciary in breach of the standards of
2
conduct expected of the judiciary. He suspended the petitioner from the office of part-time
Sheriff in exercise of powers conferred on him by section 34(1) of the Judiciary and Courts
(Scotland) Act 2008.
[3]
On 29 August 2019 the Lord President requested that the First Minister convene a
Tribunal under section 21 of the Courts Reform (Scotland) Act 2014 to investigate whether
the petitioner was unfit to hold the office of part-time Sheriff. The First Minister appointed
four people as members of the Tribunal under section 21(4): the Lord Justice Clerk (as
Chair), Sheriff Alistair Duff, Gerry Moynihan KC and Karen Watt, Chief Executive of the
Scottish Funding Council. Lord Bracadale was appointed as the Investigating Officer.
[4]
By letter dated 26 April 2021 the Tribunal advised the petitioner that, following
receipt of the recommendations and statement of reasons from Lord Bracadale and
correspondence from the petitioner, the Tribunal had decided to proceed to a hearing and
had appointed a Presenting Officer. The letter also stated:
"Rule 8(5) provides that you may be represented by an advocate or solicitor, or any
other person authorised by the Tribunal. The Tribunal will meet the cost of such
representation, and would approve payment for senior counsel, should it be your
wish to nominate senior counsel as your representative. The Tribunal would urge
you to nominate a representative so that appropriate submissions may be made on
your behalf as to subsequent procedure. I would be grateful if you could please let
me know your choice of representative by 7 May 2021. If the Tribunal does not hear
from you by that date, the Tribunal will ask the Dean of Faculty to nominate senior
counsel on your behalf." (my emphasis)
On or about 1 December 2021 Sheriff Duff retired from judicial office. The First Minister
appointed Sheriff Tait to the Tribunal in place of Sheriff Duff with effect from 12 January
2022.
[5]
On 18 January 2022 the Tribunal held a preliminary hearing when it heard
submissions from the petitioner's senior counsel which included a challenge to the
constitution of the Tribunal. The petitioner argued that Tribunal membership could not be
3
changed once the initial appointments had been made. Objection was taken to the non-
permanent, non-judicial and lay membership of the Tribunal selected by the government
with no requirement to take a judicial oath. In an undated decision emailed to the
petitioner's agents on 8 February 2022, the Tribunal rejected the petitioner's submissions.
[6]
The petitioner lodged a petition for judicial review of the Tribunal's decision
contending that the Tribunal misdirected itself on all of the preliminary points ("the
substantive petition"). The petitioner's agents wrote to the respondents seeking
confirmation that the respondents would meet the petitioner's expenses in the substantive
petition and continuing expenses before the Tribunal in terms of their obligations under
section 23(6) of the 2014 Act, EU retained law and the European Convention on Human
Rights. The respondents by letters dated 6 April 2022 and 5 May 2022 refused to meet those
expenses. Those are the decisions that are challenged in this petition.
[7]
In their letter of 6 April 2022, the respondents stated that in summary their position
was:
"1. The agreement was to pay the expenses in respect of the preliminary hearing to
facilitate the attendance of your client in respect of his (medical) fitness to go through
proceedings, as the Tribunal requested that the expenses of legal representation for
your client were met to allow it to decide that point.
2. There has been no agreement to pay beyond that, and not for the expenses of a
judicial review challenge to the process such as you have outlined.
3. The obligation under section 23(6) of the courts Reform (Scotland) Act 2014 ("the
2014 Act") to pay such expenses as Ministers consider are reasonably required to
enable the Tribunal to carry out its functions is in respect of your client's legal costs
to date, to ensure your client was legally represented during the preliminary
proceedings.
4. A judicial review as outlined to challenge the process cannot be said to fall within
the scope of the preliminary hearing for which there was agreement to pay your
client's legal expenses. Section 23(6) relates to carrying out the functions of a fitness
for office Tribunal. It is not considered that paying the expenses of judicial review of
the process is reasonably required to enable the Tribunal to carry out its functions.
4
5. All costs incurred to date in respect of legal advice or representation (or associated
outlays) that do not relate to the matter at issue in the preliminary proceedings of the
Tribunal fall outwith the scope of the agreed expenses of the Tribunal."
[8]
The respondents confirmed those decisions in the letter of 5 May 2021. The
respondents understood the Tribunal had agreed to meet the petitioner's expenses up to the
preliminary hearing on the basis that the petitioner was not physically well enough to
participate. When the respondents took these decisions the Tribunal had not provided them
with the letter dated 26 April 2021. Nor was any reference made to that letter in any pre-
litigation correspondence between the parties. Instead the petitioner's agents referred to
correspondence from the Tribunal advising that the petitioner's legal representation would
only be paid in relation to preparation for and appearance at the first preliminary hearing
before the Tribunal with matters to be reviewed thereafter.
The respondents' minute of amendment
[9]
On the morning of the hearing, the respondents moved to allow a minute of
amendment to be received and for the amendments to be allowed. In the proposed
amendments the respondents aver that they have, in light of the letter dated 26 April 2021,
determined that in accordance with considerations of fairness, payment of the petitioner's
legal expenses before the Tribunal is reasonably required to enable the Tribunal to carry out
its functions. Thereafter the amendments set out the terms of an offer made by the
respondents to the petitioner to meet his expenses before the Tribunal and the petitioner's
counter offer with proposals to include a London solicitor and interest which were not
accepted by the respondents. The respondents aver that their offer is a fair and reasonable
one and satisfies any obligation incumbent upon them under section 23(6). Senior counsel in
5
oral submission explained that the minute was not complete but should be allowed to be
received and parties could address whether the new decision made by the respondents to
pay expenses on the basis set out in their offer (rejecting those set out in the petitioner's
counter offer) fulfilled the respondents' obligation under section 23(6).
[10]
The respondents had only become aware of the letter of 26 April showing that the
Tribunal had offered to pay the petitioner's legal representation before the Tribunal without
further qualification when they saw the petitioner's adjustments on 18 July 2022. The
respondents maintain, as a matter of generality, they are not required to pay the expenses of
legal representation incurred by a judicial office holder before a Tribunal constituted under
section 21. However, where such an assurance as is contained in the letter of 26 April had
been given by the Tribunal, as a matter of fairness, they accept they are required to do so . It
was submitted that the proposed amendment was necessary to focus the real issue between
the parties. The respondents did not accept that the averments setting out the content of the
respondents' offer and the petitioner's counter-offer were inadmissible as argued by the
petitioner. The authorities showed that clear and unequivocal admissions of fact could be
referred to in subsequent proceedings (Daks Simpson Group plc v Kuiper 1994 SLT 689;
[11]
The petitioner opposed receipt of the minute of amendment in a 56 page paper apart.
The motion, enrolled the day before the hearing, did not seek to dispense with the normal
period of intimation and did not allow the petitioner any time to answer. Such a late
amendment made without adequate explanation for the delay should be refused (Cork v.
Great Glasgow Health Board, 1997 SLT 404). The respondents were under a positive public
law duty of inquiry to ascertain the relevant facts before making their decision to
discontinue funding before the Tribunal. R (Balajigari) v Secretary of State for the Home
6
for Education and Science v Tameside MBC [1977] AC 1014 Lord Diplock at p1065A-B). Had
they made the necessary investigations or inquiries they would have known about the letter
sooner.
[12]
Whilst the petitioner had understood negotiations were ongoing, the respondents
had not intimated any new decision to him. The first the petitioner became aware of a new
decision was when the minute of amendment was intimated. The proposed amendment is a
radical change to the respondents' case. If allowed, the hearing would require to be
discharged, the petitioner given time to answer and further case management orders made.
It would result in consequent delay, expense and procedural complexity.
[13]
If the minute was to be received, the petitioner objected to averments about what
was contained in legally privileged negotiations between the parties. In the absence of the
consent of all parties, settlement negotiations are inadmissible as evidence and could not be
referred to and relied upon in open court. (Bell v Lothiansure Ltd., 1990 SLT 58; Oceanbulk
[14]
I refused to allow the minute to be received. The amendments do not add further
specification of the respondents' case. The respondents currently aver that there is no
obligation to continue to pay the petitioner's legal representation before the Tribunal under
section 23(6). In the amendments they concede that these expenses are required to be paid
in fulfilment of that obligation. But the proposed averments are not simply a concession.
They narrate the terms of an offer made to the petitioner's agents and counter offer from the
petitioner. They include the averment that:
"The proposal made by the respondents to the petitioner is a fair and reasonable one
and satisfies any obligation which may be incumbent upon the respondents in terms
of section 23(6) of the 2014 Act."
7
On the face of it the respondents seek to have the court review their offer to pay certain
expenses only and decide whether that is a reasonable offer in fulfilment of their obligation
under section 23(6). No new decision on these terms has been intimated to the petitioner
other than by way of proposed amendment to the pleadings. It requires the petitioner to
respond to a new decision and to effectively start again as regards what is a significant
branch of the petition.
[15]
The amendments come at a very late stage on the morning of the hearing without
satisfactory explanation for the delay. The respondents have known about the terms of the
letter for over 7 weeks. They have had more than enough time to amend. The respondents
indicated to the Court they were ready to proceed at a stage when they knew of the
existence of the letter. They have not provided a satisfactory explanation as to why the letter
was not discovered by them before July 2022. To allow the minute would result in the
discharge of the hearing to allow time for the petitioner to answer with consequent delay
and further expense. Amendments of this nature at such a late stage are incompatible with
the efficient and speedy resolution of judicial review. The respondents are free to make any
concession they think fit in relation to the decisions that are challenged in this judicial
review.
[16]
Had I allowed the minute to be received, I would have excluded the averments
disclosing the terms of settlement negotiations between the parties which are inadmissible
as a general rule. (Bell v Lothiansure Ltd., supra Oceanbulk Shipping v TMT Asia Ltd. (supra). I
did not accept the respondents' submission that the correspondence discloses an
unequivocal admission of fact. The correspondence sets out the terms of an offer and
counter offer, the terms of which are properly understood as forming part of parties'
8
settlement negotiations and are inadmissible.
The petitioner's submissions
[17]
The petitioner submitted that it is a fundamental requirement of EU law that
decisions taken by national tribunals specifically tasked with enforcing the disciplinary
regime against judges can be challenged by legal proceedings before a court of full
jurisdiction. The requirement that a judicial office holder be protected in office from
removal forms part of the essence of the right to effective judicial protection and the
fundamental right to a fair trial, which are important guarantees that individuals' rights will
be protected and that judicial independence and the rule of law is safeguarded. The
disciplinary regime must provide the necessary guarantees to prevent any risk of it being
used as a system of external control of duly appointed judges (Asociatia "Forumul
Judecatorilor
Din Romania"
[18]
The Tribunal itself in its decision on the preliminary issues, in deciding the Tribunal
was "established by law" in accordance with EU law relied on the fact the petitioner was
entitled to be represented by an advocate of his choosing and that the decision of the
Tribunal was subject to judicial review (paragraphs 31-32 of its decision). There is therefore
an enforceable legitimate expectation that funding will continue to be provided to the
petitioner by the respondents to allow the lawfulness of the Tribunal's decision to be
authoritatively determined on judicial review before the Court of Session, as a court of full
jurisdiction.
[19]
The petitioner has a right at common law to effective access to the court, which
access should not be impeded, whether by the imposition of excessive court fees or by the
uncertainty as to the level of costs to which the litigant might be exposed in coming to the
9
court, or by being exposed to court proceedings which, looked at objectively, are
prohibitively expensive (R (UNISON) v Lord Chancellor [2020] AC 869 per Lord Reed at
paragraphs 87-89, 93, 95, 98 and 119). By refusing to make funding available for the judicial
review proceedings, the respondents have denied the petitioner real and effective, as
opposed to theoretical and illusory, access to the court.
[20]
Given that the respondents accept they are required to continue to fund the
proceedings before the Tribunal, it necessarily follows that funding should be provided to
allow an authoritative decision on the lawfulness of the Tribunal's decision to be made by an
independent court with full jurisdiction. Such an authoritative determination, particularly
on whether the Tribunal had any lawful jurisdiction, is a necessary prerequisite before the
Tribunal can carry out its functions. A Convention compliant and EU law fundamental
rights compatible reading of section 23(6)(a) supports the proposition that there is an
obligation on the respondents to fund the petitioner's judicial review, because only then will
the Tribunal be enabled to carry out its functions properly and in accordance with law .
[21]
The relevant national provisions which govern the right of access to the Court must
be disapplied by the Court if and insofar as these national provisions "make it in practice
impossible or excessively difficult to exercise rights conferred by European Union law".
That is the EU law principle of effectiveness. The principle applies in all cases in which EU
law based rights and obligations are prayed in aid against the national State authorities. In
DEB Deutsch Energiehandels-Und Beratungesellschaft mbH v Bundesrepublik Deutschland [2011]
[2011] 2 CMLR 21 the CJEU held that the domestic court had to lift any domestic prohibition
against legal persons applying for legal aid as a result of the EU law effective judicial
protection test (at paragraph 59).
[22]
The principle was applied by the First Division in Anwar v Secretary of State for
10
(Carloway) at paragraph 9 and Lord Drummond Young at paragraph 52. Article 19 TEU
and Article 47 of the Charter of Fundamental Rights requires the national authorities to
ensure that this EU Charter right to an "effective remedy" is duly observed and respected.
[23]
The European Court of Human Rights has established unequivocally that
disciplinary proceedings taken by the State against judicial office holders engage Article 6 as
a determination of civil rights and obligation. The protections of Article 6 include the need
for equality of arms in such judicial disciplinary procedures and the need for judicial review
16 June 2022)).
[24]
74041/13 (Grand Chamber, 6 November 2018), it was accepted that in the context of
disciplinary proceedings against a judge, the presence on the disciplinary body of non-
judicial members, albeit in a minority, meant that it is classified under the Convention as a
non-judicial tribunal. The Court found that where the initial judicial disciplinary decisions
are taken by a non-judicial tribunal, the procedures will only be found to be Convention
compatible if the decision of the non-judicial tribunal can be appealed on both fact and law,
and not simply limited to a general judicial review of their lawfulness. It follows that the
Tribunal constituted under section 21 is also a non-judicial body as it too is made up on non-
judicial members, and it too therefore requires a review on fact and law.
[25]
paragraph 71, the Court recognised that the protection of judicial independence requires the
national authorities to put in place specific protections to ensure that judicial office holders,
such as the petitioner, who are subject to disciplinary procedure before a non-judicial
11
tribunal, have direct access to an independent and impartial court in respect of their
allegations of unlawful prevention from exercising their judicial functions. Such direct
access can only be ensured in the present case by the respondents providing the required
funding.
[26]
Court held that there were insufficient procedural guarantees in the appointment procedure
for lay members of the disciplinary chamber in proceedings against a court enforcement
officer. The institutional failure in independence and impartiality was not remedied by
appeal to the domestic courts which could not conduct a full rehearing and remedy the
shortcomings of the disciplinary chamber. The petitioner submitted that similarly the
Tribunal constituted under section 21 does not comply with the objective requirements of
impartiality and independence given the lack of transparency in appointment of its lay
member and such failure cannot be remedied by the Court's limited powers on judicial
review.
[27]
When considering the respondents' refusal to provide legal funding, the Court
should apply the same tests as have been summarised by the CJEU in Case C-156/12 GREP
GmbH v Freistaat Bayern [2015] ILPr 29 at paragraphs 35-47. The court should consider
whether the refusal constitutes a limitation on the right of access to the courts which
undermines the very core of that right, whether it pursues a legitimate aim, whether there is
a reasonable relationship of proportionality between the means employed and the legitimate
aim. The Court must take into account the subject matter of the litigation, whether the
petitioner has a reasonable prospect of success, what is at stake for the petitioner, the
complexity of the applicable law and procedure, and the petitioner's ability to represent
himself effectively. The Court may also take into account the amount of the costs of the
12
proceedings in respect of which advance payment must be made and whether or not those
costs might represent an insurmountable obstacle to access to the courts (paragraphs 60-61).
[28]
The petitioner submitted that the case law relied upon showed that the prospects of
the Tribunal's decision being overturned on judicial review were very high and that it was
unsustainable to suggest otherwise. The case is important not just to the petitioner as an
individual but, as the case law confirms, to society at large which has an interest in the issue
of when, how, by whom and for what disciplinary proceedings may properly be instituted
against judges. The law in this area is undoubtedly complex and in a high stage and degree
of development at a European level. The petitioner is not in a position to present the case
himself. The Strasbourg Grand Chamber has stated that an individual who is legally
qualified may almost be the worst person properly to defend himself in person before a
[29]
The Court had already been provided, within the context of the protective expenses
order (PEO) application, with an estimate of the expenses involved in the judicial review.
The petitioner prays in aid the ECHR jurisprudence in relation to access to the court not
being rendered prohibitively expensive by the costs of litigation including court dues and
the lack of availability of legal aid which the petitioner is not eligible for. The test of
whether the costs might represent an insurmountable obstacle to access to the courts is not a
purely subjective one but also an objective assessment (Gibson v Scottish Minister 2016
SLT 675). As has been previously submitted during the PEO application, there is nothing at
common law to prevent the Court from relieving the petitioner of liability for Court fees
which form part of the expenses of the proceedings. Such an order is within the Court's
inherent discretion at common law (McArthur v Lord Advocate 2006 SLT 170).
13
The respondents' submissions
[30]
The respondents moved the court to sustain their pleas-in-law, repel the petitioner's
pleas-in-law and to refuse the petition. The Tribunal correctly recognised that to ensure
compliance with the Convention and retained EU law it is necessary that judicial office
holders have the possibility of challenging decisions by a Tribunal constituted under
section 21 by way of judicial review. It does not follow that any decision made by the
Tribunal is valid and effective only if sustained by the Court in a subsequent petition for
judicial review. On the contrary, decisions made by the Tribunal in exercise of the powers
under section 21 are valid unless or until reduced by a court of law. The fact that the
Tribunal recognised that its decisions may be challenged in a petition for judicial review was
not an acceptance that judicial office holders are compelled or required to challenge the
decisions of the Tribunal by judicial review as some integral part of the process before the
Tribunal. An extraneous challenge of that kind, especially if unfounded, is clearly not an
integral part of the process before the Tribunal.
[31]
Section 23(6)(a) confers a discretion on the respondents to pay such expenses as they
alone consider are reasonably required to be incurred to enable the Tribunal to carry out its
functions. The jurisprudence of the Strasbourg court, as adopted by the EU institutions,
indicates that the right of access to the Court must be real and effective but that it is not
absolute. Accordingly, it may be acceptable to impose conditions on the grant of legal aid
based inter alia on the financial situation of the litigant. It is not incumbent on the State to
seek through the use of public funds to ensure total equality of arms between the assisted
person and the opposing party as long as each side is afforded a reasonable opportunity to
present his or her case under conditions that do not place him or her at a substantial
disadvantage vis-a- vis the adversary (Steel and Morris v UK (2005) 41 EHRR 22; Del Sol v
14
France (2002) 35 EHRR 38). That may often mean, as in the present case, that an individual
whose financial resources are too great to entitle him to receive legal aid nevertheless must
be viewed as having real and effective access to the Court where his personal circumstances
indicate that he is capable of presenting his own case effectively to the court.
[32]
Fisher v Law Society of Scotland 2003 SC 562 where the court stated that the appropriate test is
that of legal indispensability. It is for the petitioner to demonstrate that at the hearing the
provision of legal representation on his behalf would be indispensable. The petitioner is an
experienced advocate and part-time Sheriff who would be able to present his case without
the assistance of a lawyer. He has had the advice of senior counsel with specialist
knowledge in the relevant field of law. He has already presented a petition for judicial
review to the Court. Senior counsel prepared a note of detailed submissions for the Tribunal
hearing addressing the Tribunal's jurisdiction.
[33]
The petitioner's position is not enhanced by reference to retained EU law.
Article 47(3) does not require the respondents to fund the petitioner's judicial review. In
relation to the provision of legal aid the CJEU has stated that it is for national courts to strike
a fair balance in order to ensure applicants relying on EU law have access to the courts but
without favouring such applicants over others: DEB Deutsch Energiehandels-Und
Beratungesellschaft mbH v Bundesrepublik Deutschland (at paragraph 56).
[34]
The petitioner has the right, which he has exercised, to challenge decisions of the
Tribunal by way of judicial review on grounds which may or may not be well-founded. He
has had, and has, access to the Court. In doing so he has no absolute entitlement to have his
legal expenses funded by the respondents. The Court is entitled to take into account that
Scotland has an ECHR and EU law compliant legal aid scheme in terms of which those who
15
lack the financial resources to pay for litigation are entitled to legal aid for petitions for
judicial review. It appears the petitioner's income and assets take him outwith an
entitlement to that assistance. There is no legitimate reason for favouring the petitioner over
all other litigants whose financial resources exclude them from legal aid.
[35]
In assessing whether the petitioner retains the core right of access to the Court, and
whether that access is materially impeded or prevented by a lack of funding from the public
purse, the Court is entitled to have regard to the fact that the petitioner has alienated
substantial assets in favour of his wife and other family members. The petitioner has been
an advocate since 1997 and a part-time Sheriff since 2010. He is well equipped to deal
personally with any issues relating to his fitness to hold judicial office which might arise
before the Tribunal. Should his petition be held to be unfounded, he has no entitlement to
have any adverse award of expenses made against him met by the respondents. No
authority has been cited by the petitioner which would require the Court to excuse the
petitioner from the normal consequences in expenses of insisting in a petition which is
ultimately held to be ill-founded. Nor is there any requirement in terms of ECHR or EU law
for the respondents to assume such a responsibility.
[36]
The fact that the respondents have agreed, as a matter of fairness, to meet the
petitioner's Tribunal expenses does not lead to a conclusion that they must fund his
expenses for the judicial review. It does not give rise to any legitimate expectation to that
effect as the respondents made it clear the only reason they agreed to pay the Tribunal
expenses is that they consider it fair and reasonable in light of the letter of 26 April. That
does not apply to the petitioner's proceedings for judicial review.
[37]
The petitioner's second and fourth craves are unnecessary since the respondents
have agreed to meet the petitioner's reasonable expenses before the Tribunal.
16
[38]
The respondents contended that it is not competent for the Court to make an order
for specific performance as third craved requiring the respondents to cover the petitioner's
liability for Court fees. Liability for Court fees under the 2014 Act is to the Court and not to
another party. Section 107 of the 2014 Act and the relevant Fees Order provide the statutory
scheme for imposition of and exemption from Court fees. Express statutory provision for
exemption from Court fees excludes the possibility of exemption in other circumstances.
The inherent jurisdiction of the Court to make orders in respect of expenses does not extend
to modification of liability for Court fees (Moore v Scottish Daily Record and Sunday Mail Ltd
2009 SC 178). Unreported Outer House decisions to the opposite effect have been wrongly
decided. Accordingly, the petitioner will be liable for Court fees in the petition . If the Court
is persuaded to make an order regulating expenses, that can include funding to cover Court
fees incurred by the petitioner.
Decision
The obligation to pay the costs of representation before the Tribunal
[39]
I deal first with the respondents' decision to cease to fund the petitioner's legal
representation before the Tribunal because the respondents have now determined that those
expenses will be paid. The respondents' position is that although as a matter of generality
they are not obliged under section 23(6)(a) to meet a judicial office holder's expenses before
the Tribunal, they concede that given the terms of the letter of 26 April, as a matter of
fairness, they are obliged to do so for the petitioner. That provides the petitioner with the
remedies he seeks in statement 4(2) and (4) of the petition, namely payment of his expenses
before the Tribunal. The respondents made an oral submission that, for the purposes of any
order, the obligation to meet those expenses only arose once the respondents had sight of the
17
letter of 26 April 2021. I do not consider that is consistent with the concession made by the
respondents. The respondents accept that the obligation arose as a matter of fairness,
because the Tribunal wrote to the petitioner on 26 April 2021 advising him his expenses
would be paid. Any such obligation must therefore have arisen once the letter was
intimated to the petitioner. That is when the petitioner understood payment was to be made
and any question of fairness arose. The respondents could have discovered what the
Tribunal had undertaken had they made enquiry of the Tribunal about that before they
made a decision to refuse to pay expenses beyond the preliminary hearing. I also reject the
respondents' submission that it is unnecessary for the Court to make any order since they
accept they are under an obligation to pay the petitioner's expenses before the Tribunal. The
matter was contested until the morning of the hearing. It is appropriate to provide the
petitioner with certainty of the respondents' position by making an order reflecting the
concession made. I will put the case out by order for parties to advise on the precise terms
of that order.
The obligation to pay the expenses of the judicial review proceedings
[40]
Section 23(6)(a) provides:
"(6)
The Scottish Ministers--
(a) must pay such expenses as they consider are reasonably required to be
incurred to enable a Tribunal constituted under section 21 to carry out its
functions,"
[41]
Whilst there is an obligation to pay expenses, there is also a discretion conferred on
the respondents to pay only those expenses which they consider to be reasonably required
to enable the Tribunal to carry out its functions. The Tribunal's functions are to investigate
and report on whether a judicial office holder is unfit to hold office. The petitioner's
18
challenge by judicial review is not part of any proceedings before the Tribunal. It is
extraneous and separate from the Tribunal proceedings. Until such times as a court of law
declares otherwise, the Tribunal's decisions are valid and it remains free to perform its
functions. Any argument in any petition for judicial review to the contrary are of no effect
unless upheld by a court of law. The fact that the Tribunal recognised that its decisions may
be challenged in a petition for judicial review was not an acceptance that such a challenge is
part of the Tribunal proceedings or requires to be made to enable it to carry out its functions.
The costs of those proceedings are not, on a plain reading of section 23(6), expenses
reasonably required to be incurred to enable the Tribunal to carry out its functions.
[42]
The fact that the respondents have agreed, as a matter of fairness, to meet the
petitioner's Tribunal expenses does not give rise to any legitimate expectation that the
respondents must pay the expenses of the judicial review. The respondents made it clear
that they only made that concession in relation to the Tribunal expenses as a matter of
fairness in light of the terms of the letter of 26 April. That letter related only to expenses
before the Tribunal and not to the substantive petition.
[43]
The petitioner argues that section 23(6)(a) should be read down in a manner
compliant with EU retained law and the Convention to impose an obligation on the
respondents to fund the substantive petition. The parties did not dispute much of the
relevant legal framework. They agreed that this Court is obliged under the terms of the
European Union (Withdrawal) Act 2018 to ensure that domestic legislation continues to be
applied and interpreted compatibly with the requirements of retained EU law or disapplied
if and insofar as incompatible with (directly effective) EU law rights. It was accepted that
the respondents and the Tribunal must act in a manner compliant with EU retained law and
the Convention. It was also accepted that the petitioner is entitled to an effective remedy at
19
common law as well as under the EU principle of effectiveness (Anwar v Secretary of State for
Business, Energy and Industrial Strategy paragraphs 9 and 52).
[44]
The parties also agreed much about the application of Article 47 of the EU Charter of
Fundamental Rights. Article 47 provides:
"Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal previously established by law.
Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as
such aid is necessary to ensure effective access to justice."
[45]
Under Article 47 legal aid must be provided in so far as necessary to ensure effective
access to justice. As the parties agreed, that right is not absolute. It is for national
authorities, under the supervision of the national courts, to determine the conditions,
consistent with proportionality, under which legal aid may be available in a particular case.
In
DEB Deutsch Energiehandels-Und Beratungesellschaft mbH v Bundesrepublik Deutschland ,
the Court
referring to the ECHR case law mentioned below, held that the principle of effective judicial
protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that it is
not impossible for legal persons to rely on that principle and that aid granted pursuant to
that principle may cover, inter alia, dispensation from advance payment of the costs of
proceedings and/or the assistance of a lawyer. It further held:
"60.
In that connection, it is for the national court to ascertain whether the
conditions for granting legal aid constitute a limitation on the right of access to the
courts which undermines the very core of that right; whether they pursue a
legitimate aim; and whether there is a reasonable relationship of proportionality
between the means employed and the legitimate aim which it is sought to achieve.
20
61.
In making that assessment, the national court must take into consideration
the subject-matter of the litigation; whether the applicant has a reasonable prospect
of success; the importance of what is at stake for the applicant in the proceedings; the
complexity of the applicable law and procedure; and the applicant's capacity to
represent himself effectively. In order to assess proportionality, the national court
may also take account of the amount of the costs of the proceedings in respect of
which advance payment must be made and whether or not those costs might
represent an insurmountable obstacle to access to the courts."
[46]
Accordingly, the CJEU has recognised that fundamental rights enshrined in
Article 47 do not constitute unfettered prerogatives and may be subject to restrictions. Such
restrictions must correspond to the objectives of public interest pursued by the measure in
question and must not constitute, with regard to the aim pursued, a manifest or
disproportionate breach of the rights thus guaranteed. In considering the proportionality of
the measure, the Court must take into account the various criteria referred to in
paragraph 61 above. The Court reiterated the same criteria in its most recent jurisprudence
(GREP GmbH v Freistaat Bayern).
[47]
The parties also agreed Article 6(1), under its civil head, applies to disciplinary
proceedings against judges. That is so notwithstanding that some of the sanctions imposed
may be close to criminal penalties (Olujic v Croatia (2011) 52 EHRR 26). Article 6(1) provides:
"1.
In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law. ......"
[48]
Article 6(1) leaves states with a free choice as to the means to be used to guarantee
the rights protected. The test for deciding whether funding for legal representation requires
to be provided in order to fulfil the requirements of a fair hearing under Article 6(1), has
been described by the European Court of Human Rights and the domestic courts as a test of
"indispensability". In McVicar v UK [2002] 35 EHRR 22 the Court held that Article 6(1) may
sometimes compel the State to provide for the assistance of a lawyer when such assistance
21
proves indispensable for effective access to court, either because legal representation is
rendered compulsory or by reason of the complexity of the procedure or of the case. The
question whether or not that Article requires the provision of legal representation will
depend upon the specific circumstances of the case and, in particular, upon whether the
individual would be able to present his case properly and satisfactorily without the
assistance of a lawyer (paragraphs 47- 48). The same test was applied in Sutherland Fisher v
Law Society of Scotland 2003 SC 562 at paragraph 20 per Lord Kirkwood.
[49]
provision of legal aid was necessary for a fair hearing would depend, amongst other things,
on the importance of what was at stake for the applicant, the complexity of the law and
procedure, and the ability of the applicant to represent him or herself effectively
[paragraph 61]. It was acceptable to impose conditions on the grant of legal aid based,
amongst other things, on the financial situation of the litigant or the prospects of success.
The State did not have to use public funds in order to ensure total equality of arms, as long
as each side was afforded a reasonable opportunity to present its case under conditions
which did not place it at a substantial disadvantage vis-à-vis the adversary [paragraph 62].
[50]
The case law illustrates how fact specific the requirements of Article 6(1) are.
Sutherland Fisher v Law Society of Scotland involved allegations of professional misconduct
before the Scottish Solicitors Disciplinary Tribunal which were of the utmost seriousness
and could have affected the petitioner's right to practice as a solicitor. The petitioner had no
experience in the practice of the Tribunal and would be materially disadvantaged without
legal representation. Nonetheless, the Court found that provision of legal representation
was not indispensable: the petitioner was a lawyer with personal knowledge of the matters
22
before the Tribunal, had the services of an accountant who had prepared a report and the
subject matter was not particularly complex.
[51]
In Airey v Ireland 2 EHRR 305 the Court upheld Mrs Airey's claim that she had been
denied an effective right of access to the court by the refusal of legal aid to raise proceedings
for separation from her husband. The procedure and law was complex, the proceedings
involved proof of fact and the possible tendering of expert evidence and examination of
witnesses. Marital disputes involved an emotional involvement that was scarcely
compatible with the degree of objectivity required by advocacy in court. Mrs Airey was not
a lawyer and it was most improbable that she could effectively present her own case.
[52]
In McVicar v UK, the applicant was a defendant in a libel action brought against him
by a wealthy and famous individual. The proceedings had attracted media and press
interest. The applicant had to prove the allegations were true, examine and cross examine
witnesses and expert evidence. The Court recognised he had no formal legal training and
that the libel trial must have taken significantly greater physical and emotional toll on him
than would be the case an experienced legal advocate. Despite all of these factors, the Court
held that the applicant was a well-educated and experienced journalist who would have
been capable of formulating cogent argument. The law of defamation was not sufficiently
complex to require a person in the applicant's position to have legal assistance. The Court
took into account that the applicant was previously represented by a defamation specialist .
The applicant's emotional involvement was not incompatible with the degree of objectivity
required by advocacy in court, notwithstanding there was an emotional toll (paragraphs 50
to 55, 60 and 61). It followed that there had been no violation of Article 6(1).
[53]
By contrast in Steel and Morris v UK the Court held there had been a breach of
Article 6(1) notwithstanding the applicants were, like Mr McVicar, denied legal aid as
23
defendants in a libel action. The Court took into account that the applicants had not chosen
to commence the action themselves. The proceedings were not straightforward: the trial had
lasted 313 court days and the appeal hearing 23 days. Significant damages had been
awarded against the applicants. They had to prove a highly complex factual case involving
130 witnesses and many scientific questions. Over 100 days were devoted to legal argument
resulting in 38 separate written judgments. Although the applicants had received some
legal assistance and a certain amount of latitude from the courts, the Court held that in an
action of that complexity, however, there was no substitute for competent and sustained
representation by an experienced lawyer familiar with the case and the law of libel. The
disparity between the respective levels of legal assistance enjoyed by the parties was of such
a degree that it could not have failed, in what was an exceptionally demanding case, to have
given rise to unfairness [paragraphs 63 - 69].
[54]
The petitioner relied on Zustovic v Croatia (2022) 74 ECHR 3 which concerned the
applicant's inability to obtain reimbursement of the costs of judicial review proceedings
against the state notwithstanding that she was successful in her application for judicial
review. The Court found a violation of her right to a fair hearing under Article 6(1) and a
restriction on her right of access to the court. The Court found that where the state makes an
error that requires to be corrected through litigation, the domestic court cannot transfer the
costs of bringing that litigation to the applicant. It did not make any finding that the
applicant is entitled to have all her costs met in any application for judicial review
irrespective of its merits and the outcome. I did not find it of assistance.
24
Application to the facts and circumstances
[55]
Does the denial of funding for legal representation for the judicial review constitute a
limitation on the petitioner's right of access to the Court which undermines the very core of
that right and makes it impossible or extremely difficult for him to have access to the court?
Does it pursue a legitimate aim and is there a reasonable relationship of proportionality
between the means employed and the aim that is sought to be achieved? Is legal
representation indispensable in the sense that the petitioner would not receive a fair trial
without it?
[56]
As is evident from the above case law, there is much overlap between the various
criteria considered to be relevant under common law, the EU law and the Convention.
Whether there is an obligation on the state to provide funding for legal representation in any
one case is highly fact dependent.
[57]
The context is significant, particularly the nature of the proceedings and what is at
stake for the petitioner. The substantive petition raises questions about the constitution of
the Tribunal investigating the petitioner's fitness for judicial office. It includes an argument
that the Tribunal is not established in accordance with law. The proceedings are important
to the petitioner since they concern an investigation into an office he holds and his
professional livelihood. They are also of public importance given the importance of having
a judicial disciplinary scheme that is in accordance with law and protects the independence
of the judiciary and the rule of law. Nonetheless the substantive petition is a challenge to
the Tribunal's legal decisions at a preliminary hearing. It does not challenge any assessment
of evidence by the Tribunal nor the appropriateness of any penalty that it has imposed such
as removal from office. What is at stake for the petitioner in a decision on whether this
particular Tribunal can as a matter of law investigate his fitness for office.
25
[58]
The respondents in oral submission suggested that I should not make any
assessment of the merits of the substantive petition because the petitioner has not made any
averments about that in the pleadings. It seems clear to me from the ECHR and CJEU case
law mentioned above, particularly
DEB Deutsch Energiehandels-Und Beratungesellschaft
mbH v Bundesrepublik Deutschland
which the respondents themselves cited, that the Court
should take into account the prospects of success when considering whether the restriction
on legal aid is justified. I have therefore considered such an assessment to be relevant.
[59]
In oral submission senior counsel described the prospects of the substantive judicial
review as "very high" and submitted that it as "unsustainable" to suggest otherwise. He
understandably emphasised the need for rigorous scrutiny of judicial disciplinary schemes.
He relied on a series of cases illustrating the failures of some disciplinary schemes to provide
the necessary protections. The complaints in these cases are however far removed from the
petitioner's.
[60]
In Olujic v Croatia the applicant was a judge removed as President of the Supreme
Court following disciplinary proceedings. The applicant's request for a public hearing was
refused and he was unable to lead a defence witness. Three members of the disciplinary
body made public statements showing bias against the applicant, including a statement by
one member that he was opposed to the applicant's appointment as a judge. The Court
found a violation of Article 6(1) on account of the lack of objective impartiality of the
members, the unjustified exclusion of the public from the proceedings, the lack of equality of
arms and the excessive length of proceedings.
26
[61]
In Gumenyuk v Ukraine the Court found a breach of Article 6(1) where judges were
deprived of judicial office through the operation of legislation with no right to appeal
against their removal.
[62]
In Ramos Nunes de Carvalho e Sá v Portugal, the applicant was a judge made subject to
three sets of disciplinary proceedings and a financial penalty. She complained about a lack
of an oral hearing as well as a lack of sufficient review of the disciplinary body's findings.
Ultimately the Court found there was a breach of Article 6(1) as a result of the combination
of both these factors: the absence of an oral hearing and the lack of a review on facts and
law.
[63]
In Grosam v Czech Republic the complaints were as to the lack of transparency and
impartiality of lay assessors who were enforcement officers in disciplinary proceedings
against an enforcement officer. The remuneration of the lay members depended directly on
the Ministry of Justice whose head was also the disciplinary petitioner in the case. The
Court found that where the Minister of Justice brought disciplinary proceedings against an
enforcement officer, it created a risk that at least two of the lay members (the enforcement
officers) or three (if a public prosecutor is appointed) may not be wholly impartial toward
the enforcement officer being disciplined. This lack of independence and impartiality was
increased by the lack of procedural guarantees concerning how the lists of the lay assessors
were put together and also, a lack of guarantees against outside pressure once appointed to
sit on a concrete case (paragraphs 136 -139).
[64]
These are all examples where the Court held that the necessary guarantees and
protections for a fair hearing before an independent and impartial tribunal were not present.
But none of these are analogous to the petitioner's complaints. The petitioner does not
complain about legislation removing judges without appeal, nor has he made allegations of
27
public statements showing bias nor of a lack of an oral hearing whether as part of the
tribunal proceedings or the judicial review.
[65]
Whilst Grosam v Czech Republic held that there was a lack of transparency and
impartiality in the appointment of lay members, it does not support the proposition that
having a lay member on a Tribunal investigating a judicial office holder without the
availability of a review of the body's decisions on fact and law necessarily breaches
Article 6(1). The problems there included the degree of connection between the Ministry of
Justice and the enforcement officers as lay members of the disciplinary body investigating
another enforcement officer, a lack of transparency in the pre-selection process as well as a
lack of protection of members from outside influence. The makeup of the Tribunal
investigating the petitioner is prescribed by section 21 of the 2014 Act. Appointments are
made by the First Minister but only with the agreement of the Lord President. The link
between the lay member and the First Minister is very limited. Whilst it is not known
whether the appointment of the lay member is from a list of names or otherwise it is not
suggested in Grosam v Czech Republic that such lack of transparency in itself establishes a
breach of Article 6(1).
[66]
As the Court recognised in Ramos Nunes de Carvalho e Sa . v Portugal at
paragraphs 176-178 the requirement that a court or tribunal should have "full jurisdiction"
will be satisfied where it is found that the judicial body in question has exercised "sufficient
jurisdiction" or provided "sufficient review" in the proceedings before it. It is not the role of
Article 6, in principle, to guarantee access to a court which can substitute its own assessment
or opinion for that of the administrative authorities. Whether the review is sufficient will
depend on the argument that the petitioner wishes to make. In the substantive judicial
review, the petitioner complains about a decision of law made by the Tribunal. The
28
petitioner has the means by judicial review of having that decision fully reviewed and
authoritatively determined by the Court. The Court can quash or reduce the Tribunal's
decision. That is sufficient review in the case before it.
[67]
It is plain that the case law does not prescribe any one disciplinary scheme. Whether
the Tribunal fulfils the requirements of law requires an assessment of the disciplinary
scheme as a whole, taking into account amongst other things, the make-up of the body, its
method of appointment, the procedural guarantees in place and the sufficiency of review of
its decisions, particularly in light of the matter that the applicant wishes to challenge. The
Tribunal set out the position fully in its preliminary decision:
"[27] It is clear from the cases cited to us that they do not prescribe any single model
as setting the parameters for a valid judicial disciplinary scheme. The critical issues
are whether, both in form and substance, the regime guarantees the independence of
those called to adjudicate on disciplinary matters, respects the rights of the defence,
and applies rules which enable it to function effectively and impartially, without
being open to undue influence, directly or indirectly, especially (but not only) in
respect of influence from the legislature or executive. Whether a disciplinary regime
meets these safeguards is not to be determined by isolating specific components for
example its ad hoc nature or absence of oath-taking- but must be looked at in the
round, having regard to inter alia, the nature and method of appointment,
qualifications, powers, and procedures of the tribunal.
[28] As noted above, factors which require to be taken into account will include the
method of appointment of the panel, its competencies, the rules under which it
carries out its task, and the degree of autonomy granted to it. The presence of
judicial officers on the disciplinary panel is an important consideration. It has, for
example, been held that where at least half of the membership of a tribunal is
composed of judges, including the chairman with a casting vote, this will lead to a
strong indicator of impartiality" (Le Compte, Van Leuven and De Meyere v Belgium
[29] Having regard to these general principles the Scottish disciplinary regime is in
our view consistent with retained EU law. The scheme is a statutory one. The
statutory requirement is for 50% of the panel to be judicial office holders, with the
chairing member as one such having a casting vote. The powers of the First Minister,
in relation to the creation of a tribunal or appointment of its members, are very
restricted. If the Lord President asks her to constitute a tribunal, she has no option
but to do so. The qualifications of those who may be selected to sit are specified in
the legislation. In selecting appropriately qualified persons to sit on the panel, the
29
First Minister must not merely consult the Lord President but must obtain his
agreement to the appointment of the relevant individuals. The tribunal is vested
with the greatest degree of autonomy in conducting its proceedings. The tribunal
will require to be guided by authorities such as In re Chief Justice of Gibraltar
which confirm that the tests for misbehaviour and unfitness are high ones.
[30] As the Presenting Officer submitted, there are numerous other safeguards: rules
regulating the procedure of the panel provide for the appointment of an independent
Investigating Officer, who must produce a written report, and state whether in his
view further procedure is required; all documents relied upon, including the
Investigating Officer's report and Statement of Reasons, must be provided to the
judicial office holder; a Presenting Officer independent of the Investigating Officer
and of the panel will be appointed; the Presenting Officer has power to instruct the
Investigating Officer to carry out further investigation; both Investigating Officer and
Presenting Officer are under obligations of disclosure towards the judicial office
holder, including disclosure of material which may undermine the case against the
judicial office holder; the Presenting Officer must keep this under review throughout
the proceedings; at any stage of the proceedings the tribunal is entitled to determine
that it cannot be established that the judicial office holder is unfit to hold office,
either on its own motion, or on the basis of representations by the Investigating
Officer, Presenting Officer, or judicial office holder; the Presenting Officer is obliged
to recommend in writing and with reasons that no further proceedings should
follow, if at any time he considers that it cannot be established that the judicial office
holder is unfit for office; there is no burden of proof on the judicial office holder; and
a judicial office holder may only be removed from office if the tribunal has reported
that the individual is unfit for office. The judicial office holder has the right but is
not obliged to submit a written response to the Investigating Officer's report or to
request further specification of the reasons; may indicate any issues of law which he
wishes to raise; and is entitled to be represented by an advocate or solicitor of his
choosing, or another person authorised by the tribunal; and may call witnesses at a
hearing, or lodge productions."
[68]
Nothing in the case law relied upon by the petitioner undermines the reasoning of
the Tribunal. When all aspects of the scheme are considered, it is difficult to argue that the
Tribunal with all the safeguards identified in its reasoning is not properly constituted. The
prospects of success in the substantive petition are poor.
[69]
Although the petitioner has relied on some very recent and developing European
case law as mentioned above, the subject matter of the judicial review and the procedure is
not overly complex. The substantive judicial review could be expected to be dealt with
30
following a procedural and substantive hearing. There has been no indication that it would
involve the leading of evidence, examination of witnesses or questioning of experts.
[70]
The petitioner has already had significant assistance with the substantive petition .
He has the benefit of full submissions drafted by senior counsel with specialist knowledge of
this area of law which have already been presented to the Tribunal. He has the reasoning of
the Tribunal on his arguments. He has the pleadings in this petition supported by a 20 page
note of argument and a 57 page speaking note, the latter setting out the EU and ECHR case
law in some detail on questions that arise in the substantive petition. The substantive
petition is not an excessively demanding case as the Court described in Steel and Morris v
UK. The proceedings involve a self-contained legal argument which has already been fully
explored and rehearsed before the Tribunal and to some degree before this Court too .
[71]
The petitioner is an experienced advocate who called to the Bar over 25 years ago.
His experience suggests that he would be well able to effectively present the legal arguments
himself. I recognise from his affidavit that he has suffered ill health in the last 5 years which
took him almost two years to recover from. He has not returned to practice since. Although
reference is made to other health conditions, no submission was made that he would be
medically unable to present the petition to the Court. Nor was there any discussion about
whether measures could be taken to assist him with that. Senior counsel emphasised that an
individual who is legally qualified may almost be the worst person properly to defend
himself in person before a judicial tribunal (Correia de Matos v Portugal). However that was a
case where the applicant was defending himself against a criminal charge. It is the
petitioner himself who has chosen to raise the substantive petition where he is not defending
a charge but challenging a legal decision. The petitioner is an experienced lawyer with
personal knowledge of the matters before the Tribunal. The questions raised in the petition
31
do not touch upon the merits of the investigation into him as a judicial office holder but are
distinct legal questions on the constitution of the Tribunal.
[72]
The costs of the proceedings if the petitioner is to pay for legal representation are
significant and estimated to be in the region of £90,000. He has significant equity of over
£300,000 in a jointly owned matrimonial home and of £180,000 in an Edinburgh property,
although he has chosen to agree with his wife that she is entitled to all the equity in these
properties. The petitioner accepts he rents out the Edinburgh property at below market
rates. He has significant equity available to him which could fund proceedings, particularly
the Edinburgh property which is not the main family home.
[73]
Considering all these factors, particularly what is at stake for the petitioner, the low
prospects of success, the lack of overly complex law and the relatively straightforward
procedure, the petitioner's legal experience and qualifications, the professional assistance
already provided to him by senior counsel with expertise in this area of law, and the
significant resources available to him, I conclude that the petitioner has a reasonable
opportunity to present his case to the Court without funding for legal representation being
provided by the respondents. The costs of the substantive petition are not prohibitively
expensive and it is not unreasonable for the petitioner to proceed with the judicial review
without funding from the respondents. The respondents' refusal to spend limited public
funds on meeting the costs of the substantive petition is in all the circumstances
proportionate. The petitioner has not established that it is indispensable that the
respondents fund the judicial review for him to be secured effective access to the Court and
an effective remedy. The denial of funding for legal representation for the substantive
petition does not constitute a limitation on the petitioner's right of access to the Court which
undermines the very core of that right and makes it practically impossible or excessively
32
difficult for him to exercise his rights. Accordingly, there is no obligation for the
respondents to provide funding for his judicial review on a reading down of section 23(6) in
accordance with EU law, the Convention or otherwise.
[74]
Since I have concluded the respondents have no obligation to pay the petitioner's
expenses in the substantive petition, the competency of ordering the respondents t o provide
funding to cover the petitioner's Court fees does not arise. Had I required to decide the
point, I would have held that such an order is competent. Liability for and exemption from
Court fees arise under section 107 of the 2014 Act and the Court of Session etc. Fees Order
2022 (as from 1 July 2022). Court fees are payable to the Court and not to another party. As
was held by a by the full bench in Moore v Scottish Daily Record and Sunday Mail Ltd 2009
SC 178 the Court has no residual power to charge fees beyond the statutory scheme. In that
case the Court purported to impose Court fees on one party as a penalty for late settlement
when these were not otherwise due. But in this case the petitioner does not ask the Court to
make such an order. He accepts that he is liable for the Court fees under the statutory
scheme but asks the Court in exercise of its wide discretion to regulate the expenses of
litigation, to order that the respondents pay the petitioner's legal expenses including
payment of the petitioner's Court fees.
[75]
Whilst there is no power for the Court itself to charge Court fees beyond the
statutory scheme, the legislative scheme does not preclude the common law power of the
Court in its discretion to make an order regulating the costs of litigation. In McArthur v
Lord Advocate 2006 SLT 170 Lord Glennie, at paragraph 9, described the discretion as a wide
one. Under reference to earlier case law, he observed that it has been doubted that the wide
discretion has ever been, or ever will be, imprisoned within rigid and unalterable rules and
that it is undesirable that it should be.
33
[76]
If a Court was to conclude that the respondents are under an obligation to pay the
petitioner's expenses in the substantive petition in compliance with EU, Convention or
common law, I can see no reason in principle why such an order could not also extend to the
payment of the petitioner's Court fees for the substantive petition .
[77]
Accordingly, I shall repel the respondents' pleas - in - law and the petitioner's first
plea in law. I shall sustain the petitioner's second plea in law and put the case out by
order for parties to advise on the terms of the order. It was agreed at the hearing that parties
would address expenses at a subsequent hearing too.
