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J. F. v. M.F. and G M B & ANOTHER [2000] ScotSC 2 (10th February, 2000)

JUDGMENT OF SHERIFF RICHARD A. DAVIDSON

In causa

J.F. Pursuer

Against

M.F. Defender

And

A.G.B. and Anr. Third parties

A149/93 Note to interlocutor of 2^nd. February, 2000.

Interlocutor of 2^nd. February, 2000.

" The sheriff ex proprio motu having raised the question of competency of the Motion 81 of Process and having heard Mr. Murray thereon, holds the motion to be competent. Having heard Mr. Murray further on the merits and having considered the Statement of Grounds and Account No.83 of process and being satisfied that the motion should be granted, Grants same; Grants an uplift in solicitor's fees of Fifty per cent (50%) in terms of Regulation 5(4)(a)(b)(c)(d) and (e) of the Civil Legal Aid (Fees) Regulations 1989."

Sgd. Richard A, Davidson.

Dundee, 10^th. February, 2000.

This note relates to a motion No.81 of process by the defender in which an increase is sought in terms of Regulation 5(4) of the Civil Legal Aid (Scotland)(Fees) Regulations 1989 as amended. I was informed by Mr. Murray who appeared for the defender that the motion had been duly intimated to the Scottish Legal Aid Board along with the statement of grounds for the application for the uplift and his account of expenses and that the Board had issued its usual response to the effect that it did not intend to oppose the motion and was content to leave the determination of it to the sheriff. The sheriff clerk here had drawn both Mr. Murray's and my attention to the decision in Beveridge and Kellas v Abercromby 1999 S.C.L.R. 533 and I was presented with a very full and able address on the issue by Mr. Murray as a consequence of which I have the misfortune to differ, both in the particular circumstances of this case, and generally from the conclusion reached by one of my most respected and experienced colleagues. Given the general importance of the issue to the profession and to family law practitioners, in particular, it was a matter of some regret to me that I had neither any contradictor nor any representation from the Board as to their position. I have however been asked to provide a Note to the interlocutor.

Mr. Murray explained to me that the motion arose out of the procedure pertaining to his minute to vary, number 72 of process, which had been dismissed on 23^rd. November, 1999 with no expenses due to or by any party. The defender is the mother of a child, J. In earlier proceedings, the court had awarded custody of the child to the defender's mother and stepfather who were third party minuters in the process, subject to an award of access to the defender. The defender suffered from Freiderich's Ataxia, a progressive disease which attacks the central nervous system, and she was wheelchair bound. There was concern about her practical ability to care for the child. The matter was further complicated by the fact that at yet another earlier hearing the presiding sheriff had reached the conclusion that

there was cause for concern that the child may have been sexually abused by her father, the pursuer in this litigation. It can already be seen that this was a case with a number of exceptionally difficult features in which, at various times, evidence had been led and reports had been obtained from a variety of professionals, a curator-ad-litem, a very experienced local solicitor, had been appointed to the child and there were stages when the court, the local social work department and the curator-ad-litem all held different opinions, not to mention those of the parties, as to what was the appropriate way forward. I had had significant involvement in the case at an earlier stage and was familiar with the background and the difficulties pertaining to the defender who had to be visited at home and from whom the process of obtaining instructions was, I could readily accept, one of no little difficulty.

Unfortunately, subsequent to the hearing when I was considering the content of this Note, and I perused the terms of the Minute, No. 72 of process, it was obvious that, despite the description on its backing sheet, and despite the description applied to it by Mr. Murray, it is not, in fact, a minute to vary but a minute seeking to have the third parties called before the court to explain their alleged failure to obtemper the interlocutor of 1^st. September, 1997. That renders some aspects of the argument advanced by Mr. Murray inept.

Mr. Murray addressed me firstly on the competency of the motion. He told me that the motion was subject to a statutory framework to be found in the Act of Sederunt (Civil Legal Aid Rules), 1987, and the Civil Legal Aid (Scotland)(Fees) Regulations, 1989. The latter set out the framework for payment of a solicitor's fees and outlays where a civil legal aid certificate has been issued. In particular, he directed me to Regulations 4, 5(4) and 8 and he agreed with me that there was also an argument that Regulation 12 might be of some consequence in the circumstances. Again, in view of the importance of the matter, I now set out the terms of these regulations in full.

"4. Subject to the provisions of regulations 5 and 7 regarding the calculation of fees,

regulations 6 and 7 regarding the calculation of outlays, and the provisions of

regulation 8 regarding the submission of accounts, a solicitor shall be allowed

such fees and outlays as are reasonable for conducting the proceedings in a proper

manner, as between solicitor and client, third party paying. (my emphasis).

5(4) In all Court of Session proceedings a fee, additional to those set out in Schedules

1 and 3, may be allowed at the discretion of the Court to cover the responsibility

undertaken by a solicitor in the conduct of the proceedings. In the sheriff court,

in proceedings of importance or requiring special preparation, the sheriff may

allow a percentage increase in a cause on the Ordinary Roll, not exceeding 50

per cent, and in a cause on the Summary Cause Roll, not exceeding 100 per cent,

of the fees authorised by Schedules 2 or 3 to cover the responsibility undertaken

by the solicitor in the conduct of the proceedings. The Court of Session in

deciding whether to allow an additional fee and the Auditor in determining that

fee or the sheriff in fixing the amount of a percentage fee increase shall take into

account the following factors:-

the complexity of the proceedings and the number, difficulty or novelty of the questions involved;

the skill, specialised knowledge and responsibility required of and the time

and labour expended by the solicitor;

the number and importance of the documents prepared or perused;
the place and circumstances of the proceedings or in which the solicitor's

work of preparation for and conduct of it has been carried out;

the importance of the proceedings or the subject matter thereof to the client;
the amount or value of money or property involved; and
the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing; and
any other fees and allowances payable to the solicitor in respect of other items in the same proceedings and otherwise charged for in the account.

8.(1) Subject to paragraph (2) below, accounts prepared in respect of fees and

outlays allowable to solicitors shall be submitted to the Board not later than

6 months after the date of completion of the proceedings in respect of

which that legal aid was granted. (my emphasis)

The Board may accept accounts submitted in respect of fees and outlays later

than the 6 months referred to in paragraph (1) if they consider that there is a

special reason for late submission.

12.(1) If any question or dispute arises between the Board and a solicitor or counsel

as to the amount of fees or outlays allowable to the solicitor, or as to the

amount of fees allowable to counsel, from the Fund under these Regulations,

other than regulation 11 above, the matter shall be referred for taxation by the

auditor.

(2) A reference to the auditor under paragraph (1) above may be at the instance of

the solicitor concerned or, where the question or dispute affects the fees

allowable to counsel, of the counsel concerned, or of the Board, and the

auditor shall give reasonable notice of the diet of taxation to the solicitor or

counsel as appropriate and to the Board.

The Board and any other party to a reference to the auditor under paragraph

above shall have the right to state written objections to the court in relation

to the auditor's report within 14 days of the issue of that report, and may be

heard thereon; and where the court is the Court of Session rule 349 of the Act of Sederunt (Rules of Court, consolidation and amendment) 1965 shall apply to the determination of any such objections.

For the purposes of this regulation the expression "the court" means -

in relation to any report to the Auditor of the Court of Session, the Court of Session;
in relation to any report of the auditor of a sheriff court, the sheriff; and
in relation to any report of the Auditor of the Scottish Land Court, the Chairman of the Scottish Land Court."

It was to be observed, said Mr. Murray, that regulation 4 specifically brought in regulations 5 and 8.

Mr. Murray then directed my attention to the terms of the Act of Sederunt (Civil Legal Aid Rules) 1987, and, in particular, to Rules 7 and 8 thereof, which are in the following terms:-

"7.(1) An application to the court for an additional fee or a percentage increase under

regulation 5(4) of the Civil Legal Aid (Scotland)(Fees) Regulations shall be

made by motion in the cause.

(2) There shall be lodged with a motion made under paragraph (1)

the account of expenses, or an estimate of the probable amount of those

expenses (specifying the amount chargeable to fees and outlays respectively)

as the case may be; and

a statement of the grounds on which the application is made, specifying which of the factors in regulation 5(4) of the Regulations mentioned in

paragraph (1) are relied on.

The court may dismiss the application or, where it does not do so, it shall order the applicant to intimate to the Board a copy of -

the motion;
the account of expenses, or the estimate of those expenses, as the case may be; and
the statement of the grounds on which the application is made.

The Board may-

appear and be represented at any hearing to consider an application in

which there has been intimation under paragraph (3); and

cite any party to the cause to attend such a hearing.

Intimation to the Board under these Rules shall be made not less than 14 days

before the date fixed for the hearing of the motion."

Mr. Murray remarked that these provisions pertaining to motions made in this context were markedly different to the procedure embodied in Rule 15 OCR 1993 and Rule 57 of the 1983 Rules and, in effect, set out a specific and rigid procedure and timetable for dealing with this type of motion.

Mr. Murray also directed my attention to paragraphs 13.4 and 13.5 of the Scottish Legal Aid Board's handbook - A Commentary on Legal Aid - which, interestingly in this context, juxtaposes applications to the court for additional fees or percentage increases with rendering of accounts. Otherwise, however, it does not add any further guidance for solicitors to the terms of the Regulations or the Act of Sederunt.

Mr. Murray then turned to the judgment in the case of Beveridge and Kellas v Abercromby (supra.) He reminded me that the judgment was not binding upon me but recognised, given its source, that it would be highly persuasive. It was an action by agents for fees against a legally aided defender. The case was eventually settled by Joint Minute on a no expenses due to or by basis on 18^th. February, 1998. On 17^th. August, 1998, almost six months later, (in fact on the last day, in terms of Regulation 8 of the Civil Legal Aid (Scotland)(Fees) Regulations, for lodging an account of expenses within six months of the date of completion of the proceedings) a motion similar to that in the present case was enrolled and intimated to the Scottish Legal Aid Board who chose not to be represented. The motion was refused as incompetent by the learned sheriff on the basis that, on the foregoing history, so soon as authority was interponed to the Joint Minute, there was no longer a depending cause, where paragraph 7 of the Act of Sederunt (Civil Legal Aid Rules) 1987 required a motion for an uplift in fees to be made by "motion in the cause."

It appeared from the contents of the judgment that the learned sheriff was proceeding on the basis that there was no time limit provided either expressly or, in any event, by implication, within which such a motion should be presented to the court and that that was a matter of the utmost significance to him in reaching the conclusion which he did, said Mr. Murray. However, in the present cause, Mr. Murray said that he proposed to advance three lines of argument, two of which would, he hoped, demonstrate that the learned sheriff in Beveridge and Kellas had reached the wrong conclusion because he did not appear to have been directed by counsel to the relevant parts of the Civil Legal Aid (Scotland)(Fees) Regulations 1989 and, in any event, had apparently failed to appreciate there was a distinction to be drawn between agent and client accounts and party and party accounts.

The three lines of argument were:-

that in the present case, which could thus be distinguished from Beveridge and

Kellas, there was still a subsisting cause;

that, in any event, there is an implied time limit for the enrolment of a motion for an uplift in fees in terms of Regulation 5(4) of the Civil Legal Aid (Fees) Regulations 1989; and
in any event, neither the legislature nor the Scottish Legal Aid Board intended that motions under said Regulation 5(4) must, nor even should, be considered prior to a decerniture for expenses.

Mr. Murray also commented that it would be impracticable for solicitors to conform with the procedures if they had to make applications by motion under Regulation 5(4) prior to a cause ceasing to be in dependence.

He expanded on the first line of his argument as follows. Rule 7 of the Act of Sederunt required the application to be by motion in the cause. In Beveridge and Kellas it was decided that that had to mean an existing cause. There was a definition of the word "cause" to be found at Section 3(d) of the Sheriff Courts (Scotland) Act, 1907, namely that, "In construing this Act (unless where the context is repugnant to such construction) (d) 'action' or 'cause' includes every civil proceeding competent in the sheriff court." This definition was of some consequence in dealing with a family action, as the present case was, for it begged the question, especially where orders potentially subject to variation or recall subsisted, whether such a cause could ever be said not to be in dependence while that potential subsisted.

He then directed my attention to the provisions of section 39 of the Act which makes provision for the procedure in all civil causes to conform to the rules of procedure set forth in Schedule One to the Act. The present case, because of its history, was an "old Rules case" i.e. the process was one still subject to the Ordinary Cause Rules promulgated in 1983. The procedure in respect of which the present motion had been enrolled was procedure by Minute in the existing process. Rule 129 governed that procedure. So far as relevant, Rule 129 provides:-

"(1) Subject to paragraph (4), applications to which paragraph (2) applies shall be

made by minute lodged in the original process in which decree was pronounced

or an order granted.

(2) This rule applies to applications for -

(e) the recall or variation of any decree regulating the custody of or access to

legitimate or illegitimate children;"

Such a minute, said Mr. Murray, was therefore a "branch line" of the original cause and that, therefore, in any family action, the cause subsists until it is no longer possible for there to be a variation or recall of any current order.

In the present case, not only was such variation or recall still a possibility but the history of this case suggested it was a distinct likelihood. In any event, although the minute by the defender, No.72 of process, to which the present motion pertained, had been disposed of by joint minute, including the resolution of expenses, so that it could be said that that minute was no longer in dependence, there was still an outstanding minute at the instance of the pursuer, No.43 of process, in respect of which the "cause" had been sisted by interlocutor of 23^rd. November, 1999. There was, accordingly, on both these foregoing bases, a continuing cause in this case to be distinguished from the situation in Beveridge and Kellas.

His reference to Rule 129 in this context was misconceived, as the Minute No.72 of process with which we are most immediately concerned does not fall within any of the types of application to the court specified in Rule 129(2). However, it seems to me on reflection that a minute of the type with which we are in fact concerned very well makes the point that, so long as there is an operating interlocutor in a family action requiring someone to do something, which can be the subject of a finding of contempt of court in the event of the person obliged to do the thing wilfully disobeying the requirement, then you have a subsisting cause, for the Minute calling upon the court to have the defaulter ordained to appear at the bar and explain his behaviour is undoubtedly a minute in that process.

His second line of argument was based on what he said was a misconception on the part of the learned sheriff in Beveridge and Kellas about the absence of either an express or implied time limit. He directed me to page 536 of the judgment in that case and, particular, to a passage at D where the learned sheriff had said:-

" In my opinion, rule 7(1) of the rules, by prescribing that an application under regulation 5(4) 'shall be made by motion in the cause,' imposes an implicit time limit; that the motion must be made while the cause is in dependence. I think it must be self-evident, that in the absence of some provision to the contrary, a motion cannot be made in a cause which is not in dependence, because if the cause is not in dependence, the court is functus officio. Thus, once the cause has ceased to be in dependence, it is incompetent to decern for expenses: Macgillivray v Mackintosh (1891) 19R. 103. Maclaren's Court of Session Practice states at p.463, under reference to Aitken v Dick (1863) 1M. 1038 and Alston v Macdougall (1887) 15R. 78: 'An action is a pending process at any time between its execution (i.e. the execution of the summons) and an interlocutor finally disposing of the merits and expenses.' That is what the interlocutor of 18^th. February, 1998 does: it 'assoilzies the defender from the crave of the initial writ and finds no expenses due to or by either party.' The action would have remained in dependence if the court had found one party liable to the other in expenses and had remitted the account thereof to the Auditor for taxation. In that situation the action would have remained in dependence until the expenses were paid: Flannigan v British Dyewood Co. Ltd. 1971 S.C. 110."

In the judgment, said Mr. Murray, the learned sheriff went on to consider three cases, namely Marks & Spencer Ltd. v British Gas Corporation 1985 S.L.T. 17; U.C.B. Bank plc v Dundas & Wilson, C.S., 1990 S.C. 377; 1991 S.L.T. 90; and McVey v Secretary of State for Scotland O.H. 2/8/96. Mr. Murray said that all these cases related to aspects of party and party expenses and were accordingly, in his submission, irrelevant to a consideration of a set of circumstances involving agent and client expenses which was how regulation 4 described the relationship among a solicitor, his client and the Scottish Legal Aid Board, where the client had the benefit of a civil legal aid certificate.

In Marks & Spencer Ltd and U.C.B. Bank plc the motion being considered by the court was for an additional fee, as was McVey's case, according to the judgment in Beveridge and Kellas. In Marks & Spencer, an action for damages was settled by way of joint minute in terms whereof the defenders were found liable to the pursuer in expenses. Thereafter the pursuer enrolled a motion for an additional fee which was opposed as incompetent coming as it did after the joint minute. The Second Division however determined that the motion was competent in that expenses offered as part such a settlement must be those considered to the appropriate to the case, including any additional fee to which the pursuer might be found entitled. At page 18 of the Opinion of the Court given by the Lord Justice Clerk (Wheatley), it was said that:-

"In making an award of expenses in an interlocutor the court is determining the basis on which expenses are awarded as between the parties. Thus, while in litigation a finding of expenses is normally on a party and party basis, and is so deemed, the court in particular circumstances may award expenses on an agent and client basis, or subject to a specified modification or on a percentage basis, to mention some examples. The court in its interlocutor does not deal with the content and details of such an award. Thus when a court makes an award of expenses on a certain basis, that award relates to such expenses as are approved by the auditor as the expenses to which the party is entitled on that basis."

In U.C.B. Bank plc v Dundas & Wilson C.S., an action for damages for breach of contract was settled by joint minute. Authority was interponed thereto by the Lord Ordinary and in terms of it, he assoilzied the defenders from the conclusions of the summons and assoilzied each of three third parties from the terms of third party notices, finding the defenders liable to the pursuers and the second and third named third parties in expenses. Seven months later, the pursuers and the second and third named third parties enrolled motions for additional fees. The defenders opposed the motions as incompetent, alleging that, since the interlocutor interponing authority to the joint minute was "final" the court was thereafter functus. It struck me that, given that that approach to the issue of competency resembled the approach of the learned sheriff in Beveridge & Kellas, that the First Division's rejection of that approach must be germane to the present circumstances. The First Division concluded that, although the decerniture was final and the decree therein contained was incapable of alteration, an allowance of an additional fee did not imply any alteration or recall of the decerniture but was entirely consistent with what had been decerned.

In giving his judgment in the Outer House, Lord Clyde, at page 92, referred to the case of Sim (James) Ltd. v Haynes 1968 S.L.T. (Sh.Ct.) 68, about which he said, " In the case of Sim the account had been taxed and the court granted decree for the taxed amount of the expenses. Only after that did the defenders disclose that they were assisted persons and moved for modification of their liability under section 2(6)(e) of the Legal Aid (Scotland) Act, 1967. (now section 18 of the Legal Aid (Scotland) Act, 1986.) That case is clearly different from the present, not only in relating to legal aid but also because a decree for a final sum had been granted. The former seems to me to be a critical consideration. (my emphasis) The effect of an application under section 2(6)(e) is to depart from the measure of assessing the expenses contained in the decree, namely taxation by the auditor, and to introduce a new measure, namely the amount awarded under the section."

He went on to point out that, in granting the motion in the circumstances before him, for an additional fee, he considered that, "There is nothing in that which involves a recall of the decerniture already granted nor is there an innovation on the terms of that interlocutor so far as they go." He also noted that there was no time limit in Rule 347(d), the rule relating to an additional fee, while expressing the opinion that it would be preferable for the court to have to deal with such motions at the same time as determining questions of expenses.

Lord President Hope, in giving the Opinion of the First Division, following the appeal by the defenders of the Lord Ordinary's decision, agreed at page 94, with the proposition that the decerniture following upon the joint minute had been final and was not capable of alteration, but that an allowance of an additional fee does not imply any alteration or recall of the decerniture. On that basis the reclaiming motion was refused.

In Beveridge v Kellas reference had further been made to the decision of the First Division in Mains v Uniroyal Engelbert Tyres Ltd (No.2) 1995 S.L.T. 1127. This related to additional remuneration for a skilled witness. Rule 42.13 of the 1994 Rules of the Court of Session provided that such a motion should be granted at the time at which a court awards expenses. In this case, however, the motion came after a successful reclaiming motion, though in seeking expenses against the defenders, the pursuer's legal representatives omitted to move for certification of the skilled witnesses. The motion ultimately lodged asked the Division to exercise its dispensing power in terms of rule 2.1. The motion was unopposed and there was no contradictor. However, the pursuer's counsel drew the court's attention to an earlier case where it had been held, in similar circumstances, that the court had no power to exercise its dispensing power, being functus officio.

The First Division, expressly following the UBC Bank plc decision, reiterated that to grant a motion of this type "would not imply alteration or recall of the decerniture for expenses and would not change the basis of taxation."

In dealing with these cases in Beveridge & Kellas at page 536, the learned sheriff said:-

" It is precisely the fact that that was not the situation in the present case (i.e. that the court was not functus officio) which distinguishes it very sharply from Marks & Spencer Ltd., UCB Bank plc and Mains. In Marks & Spencer Ltd. and UCB Bank plc the motion was for an additional fee: in Mains it was for certification of skilled witnesses. The distinguishing features of each of these cases are that one party has been found liable to the other, or others, in expenses as taxed, and the motion was made before taxation by the Auditor. The fact that taxation had not yet taken place is apparent in Marks & Spencer Ltd from Lord Justice-Clerk Wheatley's observation at the end of his opinion on page 19 that the amount of the additional fee was a matter for the Auditor; in UCB Bank plc from the opinion of the court at [p827F] p.93E-F, and in Mains from the shortness of the interval between the date of the interlocutors disposing of expenses (1^st. June 1995) and the date of disposal of the motion (14^th. June, 1995.) In UCB Bank plc the court states (at[p.827F;] p.93E-F) that it would have been too late for an additional fee after taxation of the account by the Auditor had been completed.

In the present case, however, there was no remit to, and no taxation by, the Auditor. The solicitor acting for an assisted person does not lodge his account for taxation by the Auditor: he submits it to the Scottish Legal Aid Board. Accordingly, the case cannot return to the sheriff after taxation in order that he may pronounce an interlocutor decerning for the taxed amount of expenses. (The practice of the sheriff court differs in this respect from the modern practice of the Court of Session: see Sheriff Court Practice, p.642, paragraph 19-04; UCB Bank plc at [pp.827F-828F;] p.93F-K) This distinction clearly appears from the opinion of Lord Clyde, the Lord Ordinary in UCB Bank plc at [1990S.C.L.R. p.327A;] p.92B-C. Thus, in the present case, the court, having pronounced the interlocutor of 18^th. February, 1998, was in my opinion functus."

The learned sheriff was correct to say that, in the three cases to which he had referred, the motions had been enrolled prior to taxation and that in the present case, since there was no remit to taxation, there was a distinction to be drawn, but the true distinction, said Mr. Murray, was that the present case was not a case where what was being resolved was the liability or the extent of the liability of one party to a litigation for the expenses of another party or parties to that litigation, but the responsibility of the Scottish Legal Aid Board to remunerate a solicitor, on an agent and client basis, for the work carried out by the solicitor. There was, accordingly, neither need nor point in the question of an uplift in accordance with the provisions of Regulation 5(4) being dealt with prior to any final decerniture for expenses in the cause for there was no question of the Board's liability to the solicitor being determined in the process of taxation between parties to a litigation. There was provision, in Regulation 12 of the Civil Legal Aid (Scotland)(Fees) Regulations for a remit to the auditor of court to resolve disputes about the appropriate awards to be made to solicitors and counsel, but that was in relation to the application of the table of fees in accordance with which solicitors and counsel would be paid by the Scottish Legal Aid Board, as set out in the Schedules to the Regulations and nothing to do with recovery from opponents. Where the court was concerned with regulating what might be recoverable from an opponent, having regard to its responsibility to keep the costs of litigation within reasonable bounds, it was entirely appropriate, said Mr. Murray, to impose a limit to the point where, for example, a litigant's liability could be dramatically altered, but that was not the position here. If the defender in the present case had not had the benefit of a legal aid certificate, subject only to the rules relating to prescription and limitation, her agent could have rendered to her his account whenever he felt like it and that would not have affected her liability to pay. As Mrs. Janice Webster states, in her 1996 text on Professional Ethics and Practice for Scottish Solicitors at page 27, "Written fee charging arrangements are now common and section 61A of the 1980 Act provides that fees charged under them do not need to be taxed." This, said Mr. Murray, was the proper comparator with what happened to accounts submitted to the Scottish Legal Aid Board, rather than comparison with the way the court had dealt with problems pertaining to expenses between litigants.

Mr. Murray went on to refer to the learned sheriff's judgment in Beveridge & Kellas at p.537C where he said:-

" I consider that it is also material that neither the Regulations nor the rules have made any provision for the making of a motion after the date of an interlocutor which finally disposes of the merits and expenses in such a way as would ordinarily render the action no longer in dependence. Regulation 5(b) of the Act of Sederunt of 1993, quoted above, is apt to cover the case of such an interlocutor, but there is no similar provision in the Regulations or the rules. The absence of any time limit appears to indicate a practical scheme which assumes that the motion is to be made while the case is in dependence and the relevant details are still fresh in remembrance and which does not envisage that it may be made months or even years later."

He made two criticisms of this passage. Firstly, in relation to the reference to Regulation 5(b), this was to the said Regulation in the First Schedule to the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions)1993, which regulated the procedure where a motion was sought for a percentage increase in fees where a party is not in receipt of legal aid and which required that such a motion be made "not later than seven days after the date of any interlocutor disposing of expenses." This, said Mr. Murray, was the same wrong comparison as had been made with the series of decisions on expenses in the Court of Session because the regulation pertained to party and party expenses, where what was being sought was additional expenses from the party liable for expenses. Secondly, in Regulation 8 of the Civil Legal Aid (Scotland)(Fees) Regulations, there was an implied time limit for a motion under Regulation 5(4), namely the six month period from the "completion of the proceedings" by which accounts in respect of fees and outlays payable to solicitors had to be submitted to the Scottish Legal Aid Board. The "completion of the proceedings" was the equivalent, he submitted, of the cause no longer being in dependence. In any event, it appeared that the time limit in Regulation 8 had not been drawn to the attention of the learned sheriff in Beveridge & Kellas and he had accordingly misled himself in fixing the implicit time limit which he had on the cause ceasing to be in dependence.

Mr. Murray then turned to his third line of argument. The effect of the in Beveridge & Kellas was such that, the minute a case was the subject of a final decerniture, unless the legal representative of a legally aided party was walking about armed with an estimate of expenses, a statement of reasons to justify an uplift and a written motion for such, he could lose the right to seek such an uplift. A case might, for example, be resolved at debate or, at least, in a judgment following such, which might deal with expenses and might on the face of it render the court functus officio. The same difficulty might arise if terms of settlement were agreed on the morning of a proof, if the terms were, for example, that there should be no award of expenses due to or by either party and, I suppose, the same would be true where an interventionist sheriff resolved matters at, for example, a child welfare or options hearing.

In this particular case, which was thus a good illustration of the type of difficulty which could arise, said Mr. Murray, settlement had been achieved after several days of discussion prior to an Options Hearing, by way of a joint minute to which effect had been immediately given by the court. That statement of the position does not accord with the interlocutor which says nothing about a joint minute but merely records that the defender was no longer insisting upon the minute No.72 of process and therefore was consenting to its dismissal with no expenses due to or by either party. However, that seems academic and I am perfectly content to accept from Mr. Murray that the case settled, as it did and when it did, both to reflect and implement terms of settlement which all the agents concerned and the curator-ad-litem considered to be in the child's best interests, before any party had any further thoughts on the matter. That type of resolution would undoubtedly be inhibited if agents had to consider whether they could conclude a piece of litigation without first being sure that to do so would inadvertently prevent them from seeking, where it would otherwise be entirely justified, an uplift in the fees payable to them by the Scottish Legal Aid Board.

There was no logic, said Mr. Murray, in the court having to deal with such a motion while a cause was in dependence; in fact the obvious time for such a motion was at the conclusion of proceedings, when all the potential bases for a percentage increase in fees would be fully known and could be brought properly to the attention of the court. The procedure envisaged by paragraph 7 of the Act of Sederunt was quite different from that envisaged for a normal motion in a cause. The true practical scheme involved the submission to the Scottish Legal Aid Board of accounts of expenses, together with a certified copy of any interlocutor granting an uplift in the fees, within six months of the completion of the proceedings.

I should decline to follow the reasoning of the learned sheriff in Beveridge & Kellas. It appeared from the terms of the report that he recognised that he had not been adequately addressed in connection with the issue of the competency of the motion and, in particular, had not been addressed on the import on Regulations 8 or 12, as he says at p.537D onwards. Regulation 12 at least gave rise to the possibility of the cause coming back to the sheriff for determination in the event of disagreement about the account requiring to be resolved following objections to an auditor's report, by the court. Arguably, on that approach, it could be said that there was a depending cause until the Scottish Legal Aid Board and the solicitor concerned had agreed the solicitor's account in any given case where a civil legal aid certificate existed.

In any event, it was unfortunate that matters rested upon such a poorly argued case, said Mr. Murray, as the matter was one of some general importance to the profession and one of particular importance to family law practitioners. It was unfortunate that the learned sheriff appeared to have failed to appreciate the true distinction between a case being dealt with to resolve expenses between parties to a litigation on the one hand and where on an agent and client basis, where legal aid had been granted, a solicitor was seeking an increase in fees on an agent and client basis.

For all these reasons, Mr. Murray invited me to determine that the motion was competent.

He then turned briefly to the merits of his motion. The Minute, No.72 of process, which sought to have the third parties ordained to appear at the bar of the court, had been enrolled as it was considered that the third parties, who had been awarded custody of the defender's daughter, J, the first third party being the defender's mother and, obviously, the child's grandmother, had not been adhering to the court order on access to the defender. As has already been explained, the defender suffers from a progressive illness which is attacking her central nervous system and which has already rendered her substantially immobile and unable wholly to look after herself, never mind a child. No effort had been made by the third parties to vary the terms of the existing order, so it was a reasonable inference that they were wilfully failing to comply with the order. However, explained Mr. Murray, it turned out on closer examination of the circumstances that it was really the child, J, no doubt wearied by this apparently never ending conflict about her custody and arrangements to have contact with her mother, who had been reluctant to attend for access periods. Following what Mr. Murray described as sterling work by Mrs. Foulis, Solicitor, Dundee, in her capacity as J's curator-ad-litem, however, once more there had been a gradual resumption of contact which was now working to everyone's benefit.

Mr. Murray had prepared a very full statement of grounds for the uplift in fees, No. 83 of process. I need not rehearse its terms. The proceedings were complex because of the various inter-relationships coming into play and the range of different views as to the best solution to the problem. There was a considerable labour element on Mr. Murray's part because of the practical difficulties of obtaining instructions from the defender on account of both her physical and associated psychological difficulties. The defender, in addition, has problems both with speech and hearing. A number of reports by various professionals had to be considered. The subject matter of the Minute was of critical importance to the defender. Her morale had been damaged by the award of custody to the third parties; loss of contact would have been a desperate blow for her. Strenuous efforts, which were eventually successful, were made to settle the action. I had no reservation about granting the motion and allowing an increase of 50% on the fees otherwise recoverable, having regard to the provisions of sub-paragraphs (a), (b), (c), (d) and (e) of Regulation 5(4) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989.

On the question of the competency of the motion, I considered that Mr. Murray was, broadly speaking, correct on each of the three bases he advanced in support of his position. While he was unable to direct me to any authority wherein the meaning of a "cause" was considered, particularly in regard to its subsistence, it seems to me to be incontrovertible that a "cause" in relation to a family action or any other action where variation or recall of any order pronounced by the court remains a possibility, continues to subsist while such variation or recall is theoretically possible. That certainly consists with the Minute procedure set out in Rule 129 of the Ordinary Cause Rules of 1983, albeit the provisions of that rule do not apply to this particular minute, and require any minute seeking to vary the terms of the order to be by minute lodged in the original process. It also seems to me, however, that a minute to have a party ordained to appear at the bar of the court to explain failure to comply with an interlocutor in a particular process must also be a minute in that process. In the 1993 Ordinary Cause Rules, there are specific provisions, to be found, for example, in Rule 33.44, for the lodging of a minute, after final decree has been pronounced, for or for the variation or recall of an order under section 11 of the Children (Scotland) Act, 1995, "in the process of the action to which the application applies." Similar provisions are to be found in Rules 33.51 and 33.52 relating respectively to orders for financial provision and order relating to setting aside financial agreements and to avoidance transactions. I was reminded that it was formerly the practice of the court in any relevant process making, for example, any order pertaining to a child to reserve its right to vary or recall the order until, usually, the child's sixteenth birthday. I confess to being unsure both when and why that practice ceased, but the right to vary remains substantially unaltered. I accordingly conclude that, because in this action there remains the possibility of variation or recall of the interlocutor pertaining to Jodie's custody and access, that this is a subsisting cause in which a motion under Regulation 5(4) can competently be made, such a conclusion being consistent with the express terms of Paragraph 7(1) of the Act of Sederunt.

In any event, in this particular case, because of the continuance of the action, albeit in its state of being sisted, by virtue of the as yet outstanding issue of the disposal of the pursuer's minute, No.42 of process, this is also a cause still in dependence, and on that basis also, the circumstances in this case are distinguishable from those in Beveridge & Kellas, and on this basis also, I determine that the defender's present motion is competent.

Further, I am of the opinion that a motion under Regulation 5(4) can competently be made even when the court is functus officio, notwithstanding the terms of paragraph 7 of the Act of Sederunt. In the first place, I consider that the words in paragraph 7(1) "shall be made by motion in the cause," relate more to how and where such a motion is to be made rather than when. In the second place, as Lord Clyde observed in the UCB Bank plc case, in the case of Sim (James)Ltd., to which he referred, the fact that the motion referred to legal aid was a "critical consideration," from which observation I infer that he considered the fact that the motion involved considerations arising from the legal aid legislation took it out of the normal run of things. In the third place, as I understand the approach of the Inner House in the three cases of Marks & Spencer Ltd; UCB Bank plc and Mains, the general thrust was away from pointless technicality to pragmatism. Marks & Spencer's case is simply described as an action for damages. It was settled by joint minute. It appears that in terms of the joint minute the defenders were to be liable to the pursuers in the expenses of the cause as taxed. The main argument on the competency of the motion for an additional fee enrolled after the court had interponed authority to the joint minute appears to have been based upon the terms of ss. 17 and 21 of the Court of Session Act which prescribed for the Outer and Inner Houses respectively that on determining the cause, the court would also determine the question of expenses. Such orders were said to be "final." Since the order in the instant case dealt with the merits and expenses it was accordingly "final" and could not be altered by the terms of a subsequent motion. Lord Justice-Clerk Wheatley, at page 18, described the additional fee as " just a fee in the table of fees which a party may claim by virtue of an award of expenses in his favour, and there is accordingly no requirement for a reference to it in the interlocutor granting expenses to make it valid. That disposes of the competency argument which I hold to be ill founded." Putting that another way, it seems to me that what he was saying was that the grant or refusal of an additional fee is not a matter which affects the substantive disposal of the action and need not form part of that substantive disposal but can be dealt with later. The UCB Bank plc case was an action for damages for breach of contract which was settled by a joint minute to which the court interponed its authority assoilzing the defenders and three third parties and finding the defenders liable to the pursuers and the second and third third parties for the expenses as taxed. Seven months later these three parties entitled to expenses from the defenders enrolled motions for an additional fee. Again a plea to the competency of the motions was taken, this time it being specifically argued that the court was functus when it interponed authority to the joint minute. It was argued that the granting of the motions would involve a recall of the prior interlocutor on expenses, which prior interlocutor was a final decerniture and that it was at that time that the motions for an additional fee should have been considered. Lord Clyde, at first instance, dealing with this issue at page 92, said, " An allowance of an additional fee does not touch on the fact of the liability of the pursuer, and the fixing of the amount, if any, of the additional fee is a matter for the auditor within the process of taxation. There is nothing in that which involves a recall of the decerniture already granted nor is there an innovation on the terms of that interlocutor so far as they go."

In the Inner House, the Lord President, in giving the Opinion of the Court said, at page 93, " In our opinion the Lord Ordinary was right to reject this argument ( that a motion for an additional fee had to be made no later than the time of decerniture of expenses.) The decerniture is, of course, final and the decree which it contains is not capable of alteration. So the court has no power, once it has decerned for payment of expenses as taxed by the auditor, to alter its decerniture at some later date such as by modifying the expenses to some lesser amount......"

And at page 94, "....But an allowance of an additional fee does not imply any alteration or recall of the decerniture. On the contrary, it is entirely consistent with what has been decerned, because the fixing of the additional fee is a matter for the auditor....."

So long therefore as what is enrolled for does not interfere with the final decerniture in a cause, the court is not functus so far as concerns the contents of such a motion and the motion would not be incompetent. The First Division applied the same reasoning in the case of Mains which involved a late motion for certification of skilled witnesses. In applying that reasoning, they expressly departed from a decision of Lord Morison's in Hodge v British Coal Corporation OH 18 February 1992, unreported, in which he had declined to exercise the court's dispensing power in similar circumstances taking the view that the court was functus officio. At page 1129 in the Opinion of the Court it is stated that, " Certification of these two witnesses as skilled witnesses would not imply any alteration or recall of the decerniture. Its effect would be to enable the auditor to make a determination under rule 42.13(2), when taxing the account, as to the rate at which charges are to be allowed for the investigations carried out by these witnesses. It will not change the basis of the taxation, but it will enable something to be done which is consequential on the award of expenses. For these reasons it is not incompetent for the matter to be raised at this stage."

In my opinion, what is true of motions ancillary to decernitures for expenses between or among litigants must a fortiori be true in relation to an agent and client account, third party paying, where the third party is the Scottish Legal Aid Board, and where their Regulations permit application to be made in the cause for an additional fee. Accordingly, on this basis also, I consider that the present motion is competent. I accept that, in Beveridge & Kellas, the learned sheriff was of opinion that there was no subsisting cause of any description. I have held that the facts of the present case are different from the situation there, but nonetheless, and particularly on a consideration of the provisions of Regulation 8, I see no reason why a cause cannot be reincarnated, if that is what is required, for the purpose of dealing with a motion under Regulation 5(4) for the court, as with the series of cases in the Court of Session, cannot be said to be functus in relation to this wholly ancillary matter.

It was further submitted to me that the learned sheriff in Beveridge & Kellas was wrong to conclude that the only implicit timetable apposite to a motion under Regulation 5(4) was that the motion must be made prior to final decerniture. I agree with the submission. Regulation 8 makes it quite clear that the Board require accounts of expenses to be lodged within six months of the completion of the proceedings for which the legal aid certificate was issued. Provided the motion is made at such a time as would permit the account so to be lodged, it is difficult to see how otherwise the timing of the motion could be critical. Further, Regulation 8(2) at least contains a potential escape clause from the six month limit "if there is a special reason for the late submission." In any event, if the Board does not require accounts to be submitted until after the completion of the proceedings, it is hard to see why a motion for a percentage uplift in the fee so payable need be determined prior to the completion of the proceedings.

Finally, there is the issue of practicality. In this respect, I need hardly add to the submissions made by Mr. Murray beyond saying that, broadly speaking, I agree with his submissions. There are many circumstances, especially in family law actions, where opportunities for solutions to a variety of problems arise because the parties are, for one occasion or another, at the door of the court. It would be counter-productive if agents were discouraged from drafting and lodging "instant" joint minutes on these occasions for fear of irrevocably prejudicing a claim for a percentage uplift in their legal aid fees. It may be that a method of surmounting such a difficulty could be devised, but that would involve an unnecessary contrivance. In the interests of common sense and pragmatism, I am persuaded that it would be contrary to justice to conclude that this motion was incompetent.

I have accordingly granted the motion. It only falls to me now to express my gratitude to Mr. Murray for his generally helpful and well researched submissions which have assisted me in reaching this conclusion.