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Cite as: [2004] ScotSC 55
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SHERIFFDOM OF LOTHIAN AND BORDERS
A1993/02
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
ALASTAIR RICHARDSON and OTHERS
Pursuers and Respondents
against
LYNDA RIVERS
Defender and Appellant
Act: Braid; Morton Fraser
Alt: Holroyd, Advocate; Lindsays WS
EDINBURGH, 23 August 2004
The Sheriff Principal, having resumed consideration of the cause, allows the appeal; recalls the interlocutor of 19 February 2004 complained of in so far as it finds no expenses due to or by either party; quoad ultra adheres to the said interlocutor; reserves all questions of expenses and appoints parties to be heard thereon on a date to be afterwards fixed.
NOTE
Introduction
[1] This is an appeal against an interlocutor in an ordinary action finding no expenses due to or by either party on the abandonment of the action by the pursuers. I have decided to recall that finding and to remit the cause to another Sheriff for a hearing on all questions relative to the expenses of the cause at first instance except in so far as these expenses have already been dealt with. [2] The action was brought against the heritable proprietor of a flat in an Edinburgh tenement by the heritable proprietors of other flats in the tenement. The pursuers sued the defender for payment of £50,000. They averred that they were liable to pay for works required by a statutory notice served by the local authority, and that these works were at least in part necessary as a consequence of an unauthorised conversion of the defender's flat. The action was raised in June 2002 and was originally undefended. The pursuers obtained decree in absence on 2 August 2002, but on 14 November 2002 the defender was reponed and the cause was sisted for investigation. On 30 April 2003 the sist was recalled, and after further procedure a diet of proof was assigned for 11 and 12 March 2004. [3] On 3 February 2004 the pursuers' solicitors lodged a minute of abandonment and a motion. The minute of abandonment (no 11 of process) was in the following terms:Main for the pursuers stated and hereby states to the Court that the pursuers abandon the cause and consent to decree of absolvitor in terms of rule 23.2(1)(a) [correctly rule 23.1(1)(a)] of the Ordinary Cause Rules.
The motion (no 7/3 of process) was in these terms:
The pursuers move the Court to grant decree in terms of minute of abandonment no 11 of process and to fix a hearing on the expenses of said abandonment.
The defender's solicitors lodged a notice of opposition to the motion and the Court assigned 19 February 2004 as a diet for hearing the motion. The pursuers lodged a second inventory of productions (no 5/2 of process) on 4 February 2004 and a third inventory (no 5/3 of process) on 17 February 2004, two days before the hearing of the motion.
[4] After hearing parties on 19 February 2004 Sheriff Horsburgh QC pronounced the following interlocutor, which is the interlocutor under appeal:The Sheriff, having heard parties' solicitors, grants the pursuers' motion, number 7/3 of process, allows the minute of abandonment to be received and form no 11 of process, interpones authority thereto and in terms thereof abandons the cause and assoilzies the defender from the crave of the initial writ; discharges the diet of proof previously assigned for 11 and 12 March 2004; finds no expenses due to or by either party.
The defender now appeals against the finding of no expenses due to or by either party.
The hearing of the motion before the Sheriff
[5] There is a very substantial difficulty at the outset of determining this appeal in that there is a radical and most unfortunate dispute between the parties as to what occurred at the hearing of the motion before the Sheriff. It is clear that the pursuers' solicitor moved to abandon the action, but instead of also moving the Sheriff to fix a hearing on the expenses of the abandonment, as in the motion no 7/3 of process, he moved for a finding of no expenses to or by either party. It is also clear that the Sheriff proceeded to hear parties on the latter motion. The pursuers' solicitor addressed the Sheriff fully on the motion, referring to some 10 documents in the recently lodged inventories and citing three authorities. The parties differ sharply, however, as to the position adopted by the defender's solicitor. [6] It is maintained in the defender's amended grounds of appeal (no 13 of process) that the defender's solicitor submitted to the Sheriff that that was the wrong time to entertain and determine the question of expenses; that the motion intimated by the pursuers had been to fix a hearing on expenses; and that he had opposed the motion as intimated for three reasons. The first was to ensure that the date fixed for a future hearing on expenses was a convenient one, the second was to seek clarification of the scope of the future hearing on expenses and the third was to advise the Court that at that future hearing the defender intended to move for the certification of an expert and for an uplift or percentage increase in the expenses recoverable by the defender. The defender's solicitor further submitted that due to his justified expectations about the nature of the hearing on 19 February 2004 he was not prepared for a motion to determine expenses nor was he in a position to address the Court on the arguments of the pursuers' solicitor or on the documents and authorities on which that solicitor had founded. At the hearing of the appeal counsel for the defender strongly maintained the veracity of this account in the amended grounds of appeal and offered to support it with affidavit evidence. [7] Most unfortunately, the defender's account is not accepted by the Sheriff or by the pursuers' solicitor. The Sheriff wrote a note dated 11 March 2004 ('the first note') in response to a request in the original note of appeal (no 12 of process). After hearing parties at the opening of the appeal on 27 April 2004 I invited the Sheriff to write a second note relative to the amended grounds of appeal. I refer to my interlocutor and note of 7 May 2004. The Sheriff accordingly provided a second note ('the second note') dated 20 May 2004. In these notes the Sheriff firmly repudiates the defender's account of events at the hearing on 19 February 2004. The pursuers' solicitor supports the Sheriff on this matter. [8] The gist of the grounds in the original note of appeal was that the Sheriff had been in error in allowing the hearing of the motion to proceed to a hearing on expenses for which the defender's solicitor had not been prepared. In his first note the Sheriff gives 'some short account of the response made by the solicitor for the defender' to the pursuers' motion for a finding of no expenses due to or by either party. He writes (paragraph numbers supplied):(6) [The defender's solicitor] said that the defender was pleased that a decision had been taken to abandon a spurious action. This should have been done some time ago. The minute of abandonment made no mention of offering to pay any expenses. The defender had incurred expense in vindicating her position, and accordingly she was entitled to full expenses. He stated he had not looked at the authorities, and the second and third inventories had been 'produced' to him after the minute of abandonment had been lodged. He said that attempts had been made on behalf of the defender to resolve various issues from December 2003 onwards, but there had been no response on the pursuers' part. There had been delay and distress to the defender. Her GP had been treating her for depression as a direct result of the action having been raised. The extent of the defender's responsibility was as set out in the second inventory. The pursuers were aware of this, and had made no attempt to contact the defender's predecessor in title. The Murray & Muir report [a report by a firm of chartered surveyors, no 5/17 of process, in the pursuers' third inventory lodged on 17 February 2004] was disputed by the defender. She had got an opinion from a Professor of Conveyancing to the effect that the cost of repairs should be shared equally. There had been no dispute on expenses until today. There had been additional expense incurred by the defender to her solicitors. He added that he would have enrolled a motion to certify the expert who had given a report and for a % increase in fees. He understood that thereafter there would have been a hearing on expenses.
(7) As noted above, the grounds of appeal are directed towards supporting the argument that I was in error in considering the motion made at the bar for expenses. I have two comments to make on that.
(8) Firstly, at no point did the solicitor for the defender take any objection to the pursuers' motion on expenses being dealt with, on the ground that there was lack of correspondence between the motion enrolled and that argued. At no point did he seek an adjournment because he had been taken by surprise and needed time to consider fresh material. At no point did he seek to have the motion continued to another date to allow him further time for preparation. The closest he came to expressing surprise came in the last comment he made. That could be taken as applying to what he anticipated would happen if he had enrolled the motion he had in contemplation. But even if it did not, and indicated surprise at the motion made on the pursuer's behalf, it fell far short of an expression of opposition to the matter of expenses being dealt with. I have neither note nor recollection of the solicitor for the defender submitting that the purpose of the hearing 'was to fix a hearing on expenses'.
(9) Secondly, I found it hard to understand why the motion as enrolled had been marked as opposed in the first place, unless that opposition related to the matter of expenses. That suggested to me that the motion about expenses made at the bar was one with which the solicitor for the defender was not entirely unprepared to deal. In fact, as noted above, he presented argument which was directed towards the merits of the motion. He also claimed that the defender was entitled to full expenses against the pursuers, although a motion to that effect had not been enrolled.
(10) In my view these circumstances did not point to any prejudice to the defender or any need to defer hearing argument upon, and deciding, the motion made at the bar on behalf of the pursuer in relation to expenses.
(3) Having heard the solicitor for the pursuers and the solicitor for the defender in reply, I applied my mind to whether the motion orally made, that the issue of expenses be determined, should be dealt with. That motion had been made at the bar, and thus was properly before the court. It is a common occurrence for motions to be made at the bar without prior intimation, and these are commonly dealt with by the court where no objection to that being done is taken by the other side. Often opposition to motions made at the bar being dealt with is indicated by interruption of the mover's argument, or is stated as soon as it is completed. When that has happened I have never had any difficulty in deciding that the appropriate course is to continue the hearing of the motion to another date. In this case the defender's solicitor did not take any step of that sort. Instead he replied to the motion, in the terms referred to in the sixth paragraph of my note of 11 March. I did not understand that response to be taking objection to the issue of expenses being determined. It offered the defender's view on the outcome of the action. It asserted her claim to full expenses. It referred to her efforts towards compromise, and to the effects of the litigation on her. It mentioned the basis of her defence. As indicated in the ninth paragraph of my last note, its thrust was towards answering the pursuers' solicitor's argument, not indicating an inability or unpreparedness to do so.
(4) In my opinion the assertion now made for the appellant that '[t]he motion made by the pursuers on 19 February 2004 for expenses was presented as the motion as intimated, not as a distinct motion' is incorrect. The motion orally made was quite plainly different from that which had been intimated. I find it hard to understand how, as now seems to be maintained, that [sic] it only dawned on the defender's agent at a late stage in the development of the pursuers' argument that a determination on the issue of expenses was being sought. As narrated below, the pursuers' solicitor made that abundantly clear at the very start of his submission.
(5) I always endeavour to take as comprehensive and as accurate notes as I can. At no point did the defender's solicitor say to me that he was not prepared to deal with the motion to determine expenses. At no point did he say that he was not in a position to address me on the arguments presented by the pursuers' solicitor. I am absolutely clear on that.
Submissions
[11] The defender's counsel presented detailed and careful submissions which in general followed the lines of the grounds of appeal. First, the Sheriff had erred in allowing the pursuers' solicitor to make the oral motion for a finding of no expenses due to or by without leave: Ordinary Cause Rules 1993, rule 15.1(1)(a). Secondly, even if that motion was competently before the court, no sheriff acting reasonably would have determined the motion there and then but would instead have required that the motion be heard on another day. The Sheriff should have considered what the defender's solicitor had said, even on the Sheriff's own narrative, about his lack of preparedness for the motion. He should also have considered the contents of the pursuers' detailed factual allegations and submissions, which clearly required a considered response; and he should have noted that the absence of the defender from the hearing made it impossible for her solicitor to take instructions from her about these matters. If the Sheriff had taken these matters into account, he would have concluded that the hearing ought to be postponed. That would not have caused injustice to the pursuers, but any small injustice could have been addressed by a small award of expenses. There had been an absence of natural justice (Kennedy v Kennedy 1992 SLT (Sh Ct) 39) and equality of arms (European Convention on Human Rights article 6(1); Neumeister v Austria (No 1) (1968) 1 EHRR 91; Ruiz-Mateos v Spain (1993) 16 EHRR 505; Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213; Van de Hurk v The Netherlands (1994) 18 EHRR 481; Mantovanelli v France (1996) 24 EHRR 370; Robins v UK (1997) 26 EHRR 527; W J v Austria (1999) 27 EHRR CD 83; Fischer v Austria (no 3382/96) 17 January 2002). Counsel also referred to articles 13 and 14 and article 1 of the First Protocol to the Convention. Counsel referred in detail to the responses that could be made on the defender's behalf to the various allegations and factual and legal submissions advanced by the pursuers before the Sheriff. He also referred to criticisms that could be made of the conduct of the pursuers. He founded on the tests for the setting aside of a discretionary decision summarised in the commentary on the Rules of the Court of Session at page C298/1 of The Parliament House Book and he cited the following authorities on appeals on questions of expenses: Bowman's Trs v Scott (1901) 3 F 450; Barrie v Caledonian Railway Co (1902) 5 F 30; Caldwell v Dykes (1906) 8 F 839; D Macdonald & Bros Ltd v Cosmos Decorators Ltd 1969 SLT (Sh Ct) 9. A new point could be argued on appeal: Varney (Scotland) Ltd v Lanark Town Council 1974 SC 245; cf Aird v School Board of Tarbert 1907 SC 22. This court could recall the Sheriff's finding and either deal with the question of expenses itself (Kennedy, above) or remit the cause to another Sheriff (cf Royal Bank of Scotland v Malcolm 1998 SLT 331). The latter course was to be preferred. [12] The pursuers' solicitor submitted that expenses had been within the discretion of the Sheriff (Macphail, Sheriff Court Practice (2nd ed) p 618, para 19.03; Charles Rogers & Sons v G & H Mullen 1957 SLT 23; Peacock v Sutton 1999 SLT (Sh Ct) 69). The present case did not fall within any of the categories of cases where an appeal against an award of expenses might succeed (Aird, Kennedy, Peacock, D Macdonald & Bros Ltd, above). New material should not be placed before an appellate court to enable it to exercise its discretion differently from the court below. If the Sheriff had not exercised his discretion properly on the material before him, it was that material alone which could be looked at again. The pursuers' motion for expenses had been properly before the Sheriff, and the Sheriff had not erred in hearing it that day. The defender had intimated opposition to the pursuers' written motion from which it was clear that the pursuer was not making any offer of expenses. The defender's solicitor knew that the court had power to deal with expenses whether or not they had been craved. If he had been taken by surprise he could have signalled surprise or asked for an adjournment, but he did not. He had moved for expenses and, if successful, he could have lodged motions for certification and an additional fee at a later date. There had been nothing to indicate to the Sheriff that he had not been prepared to deal with the pursuers' motion. The principle of 'equality of arms' meant equality of opportunity to know and comment on the other side's case: it was not breached if the advocate on one side was better than the advocate on the other. The pursuers' solicitor went on to explain the submissions made and the material placed before the Sheriff on behalf of the pursuers relative to the factual history of the action, pre-litigation attempts at resolution of the dispute, the reasonableness of raising the action and the attempts to resolve it. He said that copies of the authorities to which he had referred had been passed to the defender's solicitor at the hearing. The Sheriff could not be criticised for deciding to hear the motion. He had not exercised his discretion unreasonably when determining the merits of the motion. The pursuers' solicitor referred in detail to the matters which the Sheriff had and had not taken into account. The Sheriff had fairly recorded all the submissions made for the defender and had weighed them against those made for the pursuers. There was no basis for interfering with his exercise of his discretion.Discussion
[13] It is important to avoid the error of reviewing the proceedings before the Sheriff with excessive reliance on the benefit of hindsight. It seems clear, however, that before the hearing the parties should have taken the following steps. The pursuers' motion should have been a motion for leave to abandon and for a finding of no expenses to or by either party, because that was the order they were seeking. The defender's solicitors should have intimated opposition to that motion and should have lodged a motion of their own for decree of absolvitor, for a finding of expenses in their favour and for certification of their expert and a percentage increase in their fee. If these motions had been lodged they would have been heard together and there would have been no room for misunderstanding about the wishes of either party. [14] The motion the pursuers lodged, however, was in unorthodox terms: it sought decree in terms of the minute of abandonment and 'to fix a hearing on the expenses of said abandonment' (paragraph [3] above). Then at the hearing before the Sheriff their solicitor did not move that motion but instead made no reference to it and made an oral motion at the bar for a finding of no expenses due to or by either party. That was a very unusual motion. Where a pursuer abandons an action without reservation, '[t]he proper decree in such circumstances is one of absolvitor and an award of expenses against the pursuer will usually follow, though not necessarily' (Hutchison v Hutchison 1962 SC 596 at 598). A pursuer who abandons an action with no intention of re-raising it normally concedes that he is liable to the defender in expenses. I was referred to only three reported cases in modern times where such a pursuer has obtained a finding of no expenses to or by: Hutchison, above; Petty v Harris 1977 SLT (Notes) 27; and Aberdeen Drilling Schools Ltd v Davis 2002 SLT (Sh Ct) 147. Not only was the pursuers' motion at the bar an unusual one: no notice of it had been given to the defender's solicitor in the correspondence between the agents prior to the hearing. [15] The Sheriff records that at the hearing the pursuers' solicitor said 'by way of introduction' that 'the pursuers sought to abandon the action under rule 23(2)(1)(a) [correctly rule 23.1(1)(a)], and for a finding of no expenses due to or by either party.' (Second note, paragraph (6).) The Sheriff says in paragraph (3) of his second note, 'That motion had been made at the bar, and thus was properly before the court.' (Paragraph [9] above.) That is in my view incorrect. It seems clear that the Sheriff and both solicitors overlooked rule 15.1(1)(a) of the Ordinary Cause Rules which provides:15.1. - (1) A motion may be made -
(a) orally with leave of the court during any hearing of a cause; ...
The pursuers' oral motion was made without any application for leave, and neither the Sheriff nor the defender's solicitor called attention to that fact. It is of course true that every day motions are made orally at the bar without application for leave and are nevertheless entertained by the court and responded to by the other side without reference to the fact that leave has not been sought. The present case, however, illustrates the value of the rule. While it may be disregarded of consent when routine oral motions are presented, it should be observed in unusual cases such as this where a party wishes to depart from an unorthodox written motion and to present instead an important, materially different and highly unusual new oral motion. If the pursuers' solicitor had asked for leave, the attention of the Sheriff and the defender's solicitor would at once have been drawn to the fact that he was departing from his written motion and the Sheriff would have had to hear the defender's solicitor on the application for leave. Any misunderstanding of the defender's position would thus have been avoided. I therefore consider that the Sheriff should have insisted on an application for leave.
[16] It is apparent from the Sheriff's notes that he assumed that the defender's solicitor had no objection to the entertainment of the oral motion for no expenses to or by. It is nevertheless clear from the Sheriff's own accounts of the hearing that the defender's solicitor was in an uncomfortable position. When he replied to the pursuers' motion 'he stated he had not looked at the authorities, and the second and third inventories had been "produced" to him after the minute of abandonment had been lodged.' He commented that 'there had been no dispute on expenses till today.' 'He added that he would have enrolled a motion to certify the expert who had given a report and for a % increase in fees. He understood that thereafter there would have been a hearing on expenses.' (First note, paragraph (6): see paragraph [8] above.) [17] It seems obvious from these remarks that the defender's solicitor was unprepared for a hearing on expenses. The making of the oral motion on that morning had been the first indication to him that there was a dispute on expenses. He had intended to lodge a motion for certification of his expert and for a percentage increase in fees. He had not looked at the authorities relied on by the pursuers. He did not refer to any of the 10 documents in the pursuers' inventories on which their solicitor had founded. His reply was much shorter than the pursuers' speech. The Sheriff records at the end of his second note:In addition, the solicitor for the defender did not present any satisfactory direct answers to the arguments for the pursuer.
In the circumstances disclosed in the Sheriff's notes, that was not surprising.
[18] The Sheriff also records, however, that the defender's solicitor did not object to the pursuers' motion being dealt with, nor did he move for an adjournment or continuation (first note, paragraph (8): paragraph [8] above). That is indeed mystifying; but sometimes agents in the sheriff court fail, through diffidence or inexperience or for some other reason, to make a motion that is necessary for the protection of their clients' interests. It was therefore necessary in my opinion for the Sheriff to have regard not merely to the technical issue of whether there was any such objection or motion but to the substance of what was taking place before him. It was his duty to conduct a fair hearing. I consider that in the exceptional circumstances of this case, when it became clear that the defender's solicitor had had no notice of the pursuers' unusual motion, had intended to lodge motions of his own relative to expenses, had not had an opportunity to consider the authorities and documents founded on by the pursuers and was unable to present a satisfactory response, it was for the Sheriff to ask him whether he wished to seek leave to move for a continuation of the hearing. While in a case with no special features such a judicial intervention may be unnecessary, it was in my opinion necessary here for two reasons. First, it was important that the court should ensure that the defender had an opportunity equivalent to that of the pursuers for the presentation of her case and that she should not be prejudiced by the fact that her solicitor was understandably unprepared to deal with the expenses issues. Secondly, if the court did not have the benefit of a considered and full response to the submissions for the pursuers, there was a serious risk that the court would reach an incorrect result. The court might decide the case in ignorance of material facts. And the pursuers' authorities and documents might not be correctly evaluated and understood if they were not the subject of considered submissions from both sides of the bar. I therefore consider that the Sheriff should have given the defender's solicitor an opportunity to ask leave to move for a continuation of the hearing. [19] The Sheriff's duty to give the defender's solicitor such an opportunity arose from his duty to conduct a fair hearing. That duty was imposed both by the common law and by the Human Rights Act 1998. At common law it is the duty of the presiding judge to safeguard the public interest in the administration of justice by ensuring that the litigation is carried on fairly between the parties, and that each party has a full opportunity to present his case according to the practice and procedure of the court (Thomson v Glasgow Corporation 1962 SC (HL) 36 at 51-52 per Lord Justice-Clerk Thomson; Macphail, Sheriff Court Practice (2nd ed) vol 1, page 531, paragraph 16.38). [20] Under the Human Rights Act 1998 it is unlawful for the court, as a public authority, to act in a way which is incompatible with a Convention right (section 6(1), (3)(a)). In this case the relevant Convention right is the defender's right under article 6(1) to a fair trial or, in the language of article 6, a fair hearing in the determination of her civil rights and obligations. These include her rights and obligations relative to the payment of expenses (Robins v UK (1997) 26 EHRR 527). That right is also a common law right. As Lord Woolf CJ observed of the law of England and Wales in R (DPP) v Acton Youth Court [2001] EWHC Admin 402, [2001] 1 WLR 1828 at paragraph 34, 1838:In general, article 6 reflects the obligations long recognised in this jurisdiction of the need to provide a fair trial.
The concept of a fair trial has, however, been developed in the jurisprudence of article 6. It includes the right to equality before the law, or equality of arms, 'which demands that all parties before the court should be given the same procedural facilities for advancing their case' (A Zuckermann, Civil Procedure, page 95, paragraph 2.112). The requirement of equality of arms, in the sense of a fair balance between the parties, applies in principle to both civil and criminal cases (Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213 at 229, paragraph 33). It has been explained in these terms:
Both parties must be afforded an equal and reasonable opportunity to present their own case and to learn their opponent's case and respond to it, under conditions which do not substantially advantage or disadvantage either side. (A Zuckermann, Civil Procedure, page 96, paragraph 2.114.)
Accordingly, each party must have an opportunity to have knowledge of and to comment on all evidence adduced or observations filed with a view to influencing the court's decision and must be able to participate properly in the proceedings before the court (Mantovanelli v France (1996) 24 EHRR 370 at 383, paragraph 33). The opportunity to have knowledge and comment must be a genuine one (Van de Hurk v The Netherlands (1994) 18 EHRR 481 at 501, paragraph 57). The party should have a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (W J v Austria (1999) 27 EHRR CD 83 at 88; Fischer v Austria (no 3382/96) 17 January 2002, paragraph 18). A formal opportunity will not suffice, because justice must be seen to be done: 'the case law of the European Court of Human Rights attaches great importance to appearances and emphasises the increased sensitivity of the public to the fair administration of justice' (Ruiz-Mateos v Spain (1993) 16 EHRR 505 at 528, paragraph 95; Fischer).
[21] It is scarcely necessary to say that I do not suggest that the careful and experienced Sheriff in this case was unaware of his duty to conduct a fair hearing or that he intended to act in a way that was not Convention-compliant. Indeed he makes it very clear in paragraph (3) of his second note (paragraph [9] above) that if the defender's solicitor had moved for a continuation of the motion he would have granted it. An act which is incompatible with a Convention right includes, however, a failure to act (Human Rights Act 1998, section 6(6)). In the peculiar circumstances of this case the court's failure to act consisted in permitting an imbalance which had emerged between the parties to continue without regulating that imbalance by affording to the prejudiced party an opportunity to present her case under conditions that did not place her at a substantial disadvantage vis-à-vis her opponent. That is not to say that section 6(1) of the Act imposes on a court a duty to cosset the advocates before it and make good any deficiencies in their skills. It remains the advocate's duty 'fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client's case' and to fulfil his obligations to the court, to the standards of his profession and to the public (Rondel v Worsley [1969] 1 AC 191 per Lord Reid at 227-228). Thus the duty to secure equality of arms for a litigant rests primarily upon his or her advocate. The court's duty to intervene by virtue of section 6(1) as in this case will arise only in exceptional circumstances where it is clear to the court that there is a substantial inequality of arms which the advocate has taken no effective steps to remedy. There may be a question as to the liability in expenses of an advocate who has culpably been the cause of such an intervention. The need for such intervention may therefore be rare. [22] I am satisfied that in this case the result of the absence of an opportunity for a continued hearing was that materials and submissions relevant to the disposal of the pursuers' motion were not placed before the court. The defender's counsel drew attention to these matters at the hearing of the appeal. I do not particularise them here because I do not wish to influence in any way the further hearing on expenses which I have decided is necessary. Suffice it to say that there are relevant considerations upon which the defender is entitled to be heard. It will be for the Sheriff at the further hearing to decide what weight should be attached to them. The fact that the defender had no opportunity to place them before the court at the hearing of the pursuers' motion on 19 February 2004 means that there was on that occasion an obvious miscarriage of justice. That is one of the grounds upon which an appellate court may set aside a finding on expenses: Caldwell v Dykes (1906) 8 F 839 at 840 per Lord President Dunedin).Result
[23] I have therefore recalled the Sheriff's interlocutor in so far as it finds no expenses due to or by either party. While I would be entitled to deal with the question of expenses myself as in Kennedy v Kennedy 1992 SLT (Sh Ct) 39, I think it is preferable that I should remit the matter to be disposed of at first instance. Any party who wished to appeal the decision made at the further hearing would then have the advantage of a relatively quick and inexpensive appeal to me rather than an appeal to the Court of Session. While I have no doubt that Sheriff Horsburgh would continue to deal with the case with his customary impartiality, I think it is desirable that the expenses issues should now be heard afresh by another Sheriff. I would recommend that for the avoidance of any doubt both parties should lodge written motions specifying exactly what orders as to expenses they wish the court to pronounce. [24] At the hearing of the appeal the parties were agreed that the expenses of the appeal should be reserved. I have therefore appointed parties to be heard on these expenses. Once I have disposed of that question I shall remit the cause to another Sheriff for a hearing on all questions relative to the expenses of the cause at first instance except in so far as these expenses have already been dealt with.