Scottish Sheriff Court Decisions

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Cite as: [2001] ScotSC 23

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SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

2B 167/01

	JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC
	in the cause
	MILLER H CALDWELL, AUTHORITY REPORTER FOR DUMFRIES AND GALLOWAY
	Respondent
	N J L I & D E I
	Appellants
	and THE SCOTTISH LEGAL AID BOARD

Reporter, no appearance

For N J L I, Mrs Dougan of John Henderson & Sons, Dumfries

D E I, Miss Williams of Whitelaw Edgar & Baldwin, Dumfries

Scottish Legal Aid Board, Mr Haggarty of the Scottish Legal Aid Board

DUMFRIES: 27 December 2001

The Sheriff Principal, having resumed consideration of the appeal, answers question 1 in the stated case in the negative and question 2 in the affirmative; in terms of the Civil Legal Aid (Scotland) (Fees) Regulations 1989, Regulation 5(4) allows a 10% increase of the fees authorised by schedule 2 or 3 to cover the responsibility undertaken by the solicitors in the conduct of the proceedings; finds the Scottish Legal Aid Board liable to the appellants in the expenses of the appeal; allows an account thereof to be given in and remits the same when lodged to the Auditor of Court to tax and to report.

NOTE:

1. Background

1.1 This is yet another appeal caused by the perceived obscurity of Regulation 5(4) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 which provides in part as follows:

"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%, and in a cause on the Summary Cause Roll, not exceeding a 100%, of the fees authorised by Schedule 2 or 3 to cover the responsibility undertaken by the solicitor in the conduct of the proceedings."

There follow a number of factors which are to be taken into account in determining the amount of the percentage increase.

1.2 The Reporter referred the children concerned in this appeal to the Children's Panel. The grounds of referral were not accepted. Application was made to the Sheriff for a finding as to whether the grounds of referral were established. The matter went to proof before the Sheriff. The proof was not a simple one. The agents sought an increase in fees. The Sheriff, considering himself bound by a decision of my learned predecessor, refused to grant an increase in fees because he considered it to be incompetent to do so. The Sheriff has indicated that he would have allowed a percentage increase of 10% had he considered it competent to allow one. That percentage is not in dispute.

1.3 The issue is whether in this and a conjoined appeal: (a) such an application and (b) an appeal to the Sheriff from a decision of a Children's Hearing are properly to be regarded as causes "on the Ordinary Roll". The same difficulty has arisen in relation to fatal accident inquiries. Given the number of decisions to which this perceived difficulty has given rise it was to have been hoped that the Regulation would have been amended by now to clarify the issue. It remains unaltered.

1.4 During the appeals no argument was presented as to whether the learned Sheriff was bound to follow the decision of my predecessor, Sheriff Principal Cox, QC, in the case to which I have referred (Caldwell v Walker, Airdrie Sheriff Court, 1 September 1998). Because I am minded not to follow his decision in that case it is not necessary, for the purpose of determining these two appeals, to examine the extent to which a decision of a Sheriff Principal is binding on the Sheriffs in that Sheriffdom. I am prepared to accept that the Sheriff in this case was so bound. For that reason I have answered question 1 in the negative. The question asks if the Sheriff erred in law by regarding himself as bound by that decision.

2. Submissions on behalf of N I

2.1 The application in this case raised similar issues and should be dealt with similarly to that in the appeal by Tracy McIntosh. (That was agreed to by all the agents involved). The Sheriff had wrongly followed the unreported decision of Sheriff Principal Cox in Caldwell, supra. Further he was wrong to agree with his reasoning in that case. L, Petitioners (No 3) 1996 SLT 928 involved an application to the nobile officium of the Court of Session seeking an order that evidence relating to the grounds of referral should be reheard by the Sheriff. In that case the court had decided that, for the purposes of Regulation 5(4) of the 1989 Regulations, the proceedings before the Sheriff were proceedings in the Sheriff Court and that it was for the Sheriff to determine what percentage increase should be allowed, subject to the 50% maximum applicable to cases on the Ordinary Roll. The court (at page 932D) said:

"In our opinion the proceedings before the sheriff were proceedings in the sheriff court for the purposes of reg 5(4), and we are of that opinion irrespective of the basis upon which legal aid was being made available to the petitioners for the time being. It follows that it must be for the sheriff to determine what percentage increase should be allowed. Counsel for the first and second petitioners pointed out that, as proceedings under Pt III of the Social Work (Scotland) Act 1968 are sui generis, they could not with complete accuracy be described as proceedings in a cause on the ordinary roll. She suggested that it was unclear how the provisions of reg 5(4) were to be applied in this case. In our opinion these proceedings are sufficiently similar to proceedings on the ordinary roll for it to be appropriate for 50% to be regarded as the maximum percentage increase which the sheriff may allow. We should add that counsel for the board did not suggest that it was inappropriate for a percentage increase to be allowed in this case."

2.2 In that case the court had not explained why they had proceeded by analogy. However in Caldwell, supra Sheriff Principal Cox had reached the opposite conclusion on a construction of the Regulations. On a proper construction of Regulation 5(4) the reference to the "Ordinary Roll" should be treated as being a reference to all matters which were not summary causes (including small claims). The Sheriff Principal had confused the "Ordinary Roll" with ordinary causes. He should have followed the decision in L, Petitioners (No 3), supra. Sheriff Principal Cox's decision had not been followed in S H or D, Dundee Sheriff Court 27 May 1999, an unreported decision of Sheriff Dunbar nor James MacL and Nicola MacL, 24 January 2001, an unreported decision of Sheriff Stewart at Hamilton. Sheriff Kearney had also declined to follow the decision of Sheriff Principal Cox in Munro & McClure, Applicants 2000 SCLR 920. The Regulations should not be construed in such a way that there was an anomaly which resulted in a solicitor acting for a private client being entitled to an uplift in fees in such cases but a solicitor acting for a legally aided client not being so entitled. The effect of these decisions in the Sheriff Court was that L, Petitioners (No 3) was regarded as a decision of general application. This application should be granted.

3. Submissions for the Scottish Legal Aid Board

3.1 The issue was one of competency. The argument which had been put to the Sheriff in connection with these appeals had not been considered by the Court of Session in L, Petitioners (No 3). These appeals raised two questions. Firstly, what was the proper interpretation of the phrase "Ordinary Roll" and, secondly, whether the decision in L, Petitioners (No 3) was of general application or was restricted to its circumstances.

3.2 In the unreported case of David Bunting, Linlithgow, 18 December 1997, Sheriff Ross had considered the former similarity of the two sets of Regulations, one for legally aided cases and the other for privately funded cases. In 1993 the provisions of the Regulations relating to privately funded cases had been amended. (See Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993). Sheriff Ross had noted that the legal aid provisions for children were very different from those for civil legal aid. His conclusion had been that children's cases were not really causes on the "Ordinary Roll". But he had allowed the motion for an uplift in fees in Bunting because it had not been opposed by the Legal Aid Board. Sheriff Principal Nicholson had adopted a similar approach in relation to a fatal accident inquiry into the deaths of William Callachan and Ann Halloran, Linlithgow, 5 March 1997, unreported. Sheriffs Dunbar and Kearney in the cases referred to above had criticised Sheriff Principal Cox's decision because he had not concentrated on the meaning of the phrase "Ordinary Roll". In fact the Sheriff Principal had been addressed at length on that matter but had not dealt with it in his judgment. However he had concluded that the matter with which he was dealing could not be regarded as a cause either on the Ordinary Roll or on the Summary Cause Roll. He also accepted that proceedings such as these were sui generis. In L, Petitioners (No 3) the Court of Session had granted legal aid for the children retrospectively and had decided that an uplift in fees was appropriate. The view of the Legal Aid Board was that that case was unusual and that the decision of the court was restricted to its particular circumstances. What the Court of Session had done in that case to make an exceptional order which bypassed the relevant regulation. It was accepted that, if the passage from the decision of the court quoted above was a general statement of the law, then that case would be of wider application and is binding on inferior courts. However everything pointed in the opposite direction. The court in that case had had to deal with an unusual combination of circumstances which required its intervention.

3.3 The decision of Sheriff Stewart in James MacL v Nicola MacL to grant the motion had been justified by him on the basis that all sheriffs would then be adopting the same approach. He had clearly been unaware of how many sheriffs had concluded that it was incompetent to grant a motion in circumstances such as these. The decision of Sheriff Dunbar referred to an illogicality in the argument of one of the agents appearing before him. It was not clear what that supposed illogicality was. Sheriff Kearney had relied heavily on Sheriff Dunbar's decision. The Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 was irrelevant to the construction of the Act of Sederunt to which this application related. In Anne Forrest v The Children's Hearing for South Lanarkshire, an unreported decision of Sheriff Neilson at Hamilton, 22 September 1999, an application for an increase in fees in terms of Regulation 5(4) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 was refused as incompetent. Reference was also made to Chafer v C & O'R, an unreported decision of Sheriff Noble at Glasgow, 2 November 1999. It was accepted that that was an unusual case. So far as Sheriff Kearney's decision in Munro & McClure, supra was concerned his reliance on statements in MacPhail, Sheriff Court Practice, second edition, were simplistic. Applications in terms of sections 51 and 68 of the Children (Scotland) Act 1995 were sui generis and were not causes on the Ordinary Roll. Sheriff Principal Cox had held that the Regulation which he was required to construe had a plain meaning. If Parliament had intended to change it it would have done. The approach by Sheriff Principal Cox was sound, as had been the approach by Sheriff Ross in the present cases. The court should adopt the reasoning of Sheriff Neilson in Anne Forrest. The appeal should be refused. (The agent for D I adopted the foregoing submissions).

4. Decision

4.1 Regulation 5(4) allows for an increase of 50% for causes on the Ordinary Roll and 100% for causes on the Summary Cause Roll. The Regulation is drafted as it is to make it clear that for causes on the "Summary Cause Roll" the maximum increase is double that which may be allowed in those other civil causes which are properly to be regarded as causes "on the Ordinary Roll". The Regulation makes no provision that for certain types of civil cause no percentage increase may be allowed. In my opinion the phrase "Ordinary Roll" is not to be construed as meaning "Ordinary Cause Roll". The phrase used is "a cause on the Ordinary Roll" and not "a cause on the Ordinary Cause Roll". If it had been intended to restrict the provision to ordinary causes the Regulation could have made that clear. It is common, in my experience, for the ordinary roll in a Sheriff Court to include a variety of different types of application some initiated by initial writ, others by petition. I am of opinion that the application of Regulation 5(4) is not limited to ordinary causes. The next question is whether a children's referral or an appeal from a decision of the Children's Panel can properly be regarded as a cause on the Ordinary Roll. Sheriff Kearney in Munro & McClure, supra provides a persuasive basis for the view that the phrase "a cause on the Ordinary Roll" should not be narrowly construed. That that is the preferable approach may be deduced from the structure of the provisions for legal aid for children in cases such as these.

4.2 The Children (Scotland) Act 1995, section 91(1) provides that all proceedings to which that section applies are civil proceedings for the purposes of section 32 of the Sheriff Courts (Scotland) Act 1971. That section grants power to the Court of Session to regulate and prescribe the procedure and practice to be followed in any civil proceedings in the Sheriff Court. Amongst the matters which may be so regulated are the expenses which may be awarded by the Sheriff to parties in proceedings before him. See section 32(1)(i). That power has been exercised in the form of the Child Care and Maintenance Rules 1997. These Rules apply to appeals against decisions of Children's Hearings and to applications to a Sheriff for the establishment of grounds of referral. Accordingly, at least for these purposes, such matters are regarded as civil proceedings.

Regulation 3(1) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989, provides:

"These Regulations shall regulate the fees and outlays allowable to solicitors, and the fees allowable to counsel, from the Fund in respect of legal aid under the Legal Aid (Scotland) 1986, other than criminal legal aid, upon any taxation in accordance with regulation 12."

Legal aid granted in respect of children for the purposes of the Children (Scotland) Act 1995, sections 51 (appeals against a decision of a children's hearing) and 65 and 68 (applications for a finding as to whether grounds of referral are established) is granted in terms of the Legal Aid (Scotland) Act 1986, section 29(2). Section 29 forms part of Part VI of the Act. Criminal legal aid is dealt with in Parts IV and IVA of the Act. In my opinion Regulation 3(1) applies to legal aid granted in terms of section 29(2).

4.4 That opinion is consistent with Part III, Chapter 14 of The Scottish Legal Aid Handbook, Fifth Edition (April 2000) which is headed "Legal Aid for Children". Paragraph 14.1 is, in part, in the following terms:

"The ordinary rules of legal aid apply to any child who is a party to civil proceedings or who is accused in criminal proceedings brought under solemn or summary procedure. This note is concerned with the special provision which has been made for legal aid in connection with proceedings in relation to any matter arising under Chapter 2 or 3 of Part II of the Children (Scotland) Act 1995. Part II of that Act is concerned with the promotion of children's welfare by local authorities and by children's hearings etc. Chapter 2 (sections 39-51) deals with the formation and procedure of children's hearings, including appeals, while Chapter 3 (Sections 52-85) is concerned with the various measures available to ensure the protection and supervision of children. ..."

Paragraph 14.10.1 is, in part, in the following terms:

"The Children Regulations (i.e. the Legal Aid (Scotland) (Children) Regulations 1997) make no specific provision for the allowance of fees and outlays, but the proceedings dealt with in these regulations are essentially civil proceedings. The Civil Legal Aid (Scotland) (Fees) Regulations regulate the fees and outlays allowable to solicitors, and the fees allowable to counsel and solicitor-advocates, from the Legal Aid Fund in respect of legal aid under the 1986 Act, other than criminal legal aid, and these Fees Regulations accordingly apply to work done in respect of proceedings in relation to children in accordance with section 29 of the Act and the Children Regulations. ...

The Civil Fees Regulations contain detailed provisions regarding the calculation of fees and outlays, including the allowance of increased fees in certain cases, but in general a solicitor is to 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 . ..."

4.5 The reference to "The Civil Fees Regulations" must be a reference to the Civil Legal Aid (Scotland) (Fees) Regulations 1989. Regulation 4 provides that "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". Regulation 5(4) of these Regulations is the regulation with which these appeals are concerned. It appears that in its commentary the Scottish Legal Aid Board, which prepared the Handbook, contemplates that increased fees may be allowed in certain cases. The commentary in paragraph 14.10.1 applies to the special provisions referred to in paragraph 14.1 for legal aid in connection with matters arising under Chapter 2 or Chapter 3 of Part II of the Children (Scotland) Act 1995. Sections 51, 65 and 68 fall within these Chapters. In my opinion the commentary in The Scottish Legal Aid Handbook is a fair and correct summary of the provisions for legal aid in cases such as these. It lends support to the view that it is competent to allow an increase in fees in such cases.

4.6 In L, Petitioners (No 3) the court held that the proceedings before the Sheriff were proceedings in the Sheriff Court for the purposes of Regulation 5(4) and that it was for the Sheriff to determine what increase in fees should be allowed. The Sheriff could not allow more than 50% increase in fees in terms of that Regulation. The proceedings came before the Sheriff for findings as to whether the grounds of referral were established. (See L, Petitioners (No 1) 1993 SLT 1310). The Inner House must have regarded the proceedings before the Sheriff as proceedings which were either "a cause on the Ordinary Roll" or as sufficiently similar to such a cause with the result that Regulation 5(4) applied to them. So far as Regulation 5(4) was concerned the court remarked (at 1996 SLT 932 C-D):

"Here there is no complication about the distinction between civil legal aid and legal aid which has been made available under s 29 of the 1968 Act: See reg 3(1) of the 1989 Regulations." (Reg 3(1) is quoted above).

4.7 I accept that applications and appeals such as those involved in the present cases are to be regarded as sui generis for certain purposes. See McGregor v D 1977 SC 330 per Lord President Emslie at page 336. What was meant by that phrase was that such proceedings are procedurally self-contained and subject to their own code of rules. That being so, rules applicable to other types of procedure, such as ordinary causes, could not be imported into that code nor applied to them. But that is of little relevance to the question whether these appeals are properly to be regarded as causes on the "Ordinary Roll".

4.8 I have considered the decisions in the other cases to which I was referred. Some have reached the same conclusion as I have but for different reasons. Others have arrived at the opposite conclusion. I should explain briefly why I consider that I should not follow the decision of my predecessor, Sheriff Principal Cox, in Caldwell v Walker, supra. His opinion is entitled to considerable respect. It is in line with the opinion of several other sheriffs who have considerable experience in relation to legal aid. It cannot be pretended that there is an easy answer to the question which arises in this case.

4.9 Sheriff Principal Cox considered that:

"To anyone who has detailed knowledge of the procedure in the Sheriff Court it is apparent that these proceedings could not be described as "a cause on the Ordinary Roll" nor "a cause on the Summary Cause Roll"."

He considered that the use of capitals made the references very specific and restrictive. I regret that I am unable to agree, broadly for the reasons set out by Sheriff Kearney in Munro & McClure, supra. Later in his judgment Sheriff Principal Cox referred to the fact that three Sheriffs Principal had allowed an increase in fees under Regulation 5(4) in fatal accident inquiries. If Sheriff Principal Cox was right in his approach to the construction of the phrase "the Ordinary Roll" it is surprising that fatal accident inquiries are treated as falling within the ambit of Regulation 5(4) whereas children's referrals and appeals against decisions of Children's' Panels are not. Sheriff Principal Cox went on to contrast the Regulations which applicable to non-legally aided cases with the Regulations in issue in this case. He drew conclusions from the dissimilarity between these two sets of regulations following the amendment in 1993 of the regulations applicable in non-legally aided cases. In my opinion what requires to be construed is Regulation 5(4). I do not consider that I can properly find much assistance by comparing that Regulation with the provisions in the other, amended Regulations. They may have been amended for reasons of which I am unaware, reasons which have no bearing on the issues which arise in these appeals. The approach which I have adopted, and which I have set out above, is different from that of Sheriff Principal Cox but, in my opinion it clearly leads me to the opposite conclusion to his.

4.10 In the case of David Bunting Sheriff Ross said:

"Of course proceedings relating to children in terms of chapter 3 of the 1995 Act are not causes on either the Ordinary Roll or the Summary Cause Roll."

It struck Sheriff Ross, as it struck Sheriff Principal Cox and others, that treating such proceedings as causes on the Ordinary Roll involved stretching the language used to a considerable extent. The argument advanced to Sheriff Ross in that case was somewhat different from the arguments which have been addressed in the course of these appeals. It is not difficult to understand why he came to the conclusion which he did. But if his approach in that respect is correct a fatal inquiry might be thought to be even less likely to be a cause on the Ordinary Roll.

4.11 In Anne Forrest, supra Sheriff Neilson was required to consider whether the case before him, which was an appeal under section 51(1) of the Children (Scotland) Act 1995, was a cause on the Ordinary Roll. He felt bound by the decision of Sheriff Principal Cox in Caldwell, though he agreed with the opinion of Sheriff Smith which led to that appeal and which reached the same conclusion as the Sheriff Principal. He concluded that the appeal with which he was dealing was procedurally different from an ordinary cause and concluded that it was not a cause on the Ordinary Roll.

4.12 Several Sheriffs have had difficulty with one aspect of the opinion of the court in L, Petitioners (No 3). The court in that case expressed the view that the proceedings with which they were then dealing were "sufficiently similar to proceedings on the Ordinary Roll for it to be appropriate" that 50% be regarded as the maximum percentage increase. In the construction of Regulation 5(4) either the proceedings are a cause on the Ordinary Roll or they are not. If they are not I would not have thought that a percentage increase could be applied since the only basis for it is statutory. But the Court of Session was entitled to reach the decision which it did because it was dealing with an application to its nobile officium. It had power to make orders which would remedy any injustice which required to be remedied. That statement, while perfectly proper in its context, is to that extent not of general application. I am however of opinion that the court in that case was entitled to say that it was for the sheriff to determine what percentage increase should be allowed in a case such as that, provided that the circumstances were such that an increase was justified (as they clearly were in that case).

4.13 For the reasons set out above I am satisfied that Regulation 5(4) of the 1989 Regulations applies to the appeals in the two cases presently before this court and that it is competent for the court to allow a percentage increase. I have allowed the increase in fees which the Sheriff would have allowed had be considered it competent to do so.

4.14 When this opinion was in draft a copy of the decision part of it was circulated to the agents. They were asked if they wished to make further submissions. That course of action seemed appropriate because the draft decision was arrived at, in part, on a different basis from the submissions made during the course of the appeal. It relied on passages in The Scottish Legal Aid Handbook which appeared to be relevant but which had not been referred to in the course of these submissions. For various reasons it took some time to discover whether the parties wished to make further submissions. They have now all indicated that they do not wish to do so. Some changes in detail have been made to that draft.

4.15 It was agreed that, in the event that these appeals were allowed, the Scottish Legal Aid Board should be found liable in expenses.