Scottish Sheriff Court Decisions

(F495/05)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

in the appeal

in the cause

 

MICHAEL JOHN O'NEILL

Pursuer and Appellant

 

against

 

TRACEY ANDREA ELIZABETH BLAKE or GILHOOLEY

 

 

Act: Burns, Solicitor, Keegan Walker & Co

Alt: Sabir, Solicitor, Somerville & Russell

 

EDINBURGH,  8 December 2006

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor dated 3 May 2006; finds the pursuer and appellant liable to the defender and respondent in the expenses occasioned by the appeal and remits the account thereof when lodged to the Auditor of Court to tax and to report thereon; remits to the Sheriff to proceed as accords.

 

(signed) EFB

 

 

NOTE:

1. This appeal raises, in my view, certain matters of practical importance.

 

2. The case is one in which the pursuer seeks a residence order to the child of the parties' relationship who is now 11 years of age. On 22 December 2005 the case called before a part-time sheriff in Linlithgow and amongst the orders made was a call for a report to be prepared by a solicitor on the circumstances of the child, with a direction that the pursuer should instruct the reporter and be responsible in the first instance for the fees and outlays of the report. The report was duly prepared and lodged by 30 January 2006. The reporter's fees and charges came to £4,659.70. Thereafter further orders were made including an interim residence order in favour of the pursuer.

 

3. By motion lodged on 6 April 2006 the pursuer moved the Court: "To find the defender liable for the fees and outlays of the reporter". That motion called before Sheriff Johnston, sitting as a part-time sheriff, on 3 May 2006. The motion was refused for reasons which I shall narrate later. Within seven days the pursuer lodged a motion seeking leave to appeal the interlocutor pronounced by Sheriff Johnston on 3 May 2006. That motion was dealt with and granted by Sheriff Muirhead on 24 May 2006.

 

4. At the hearing of the appeal the solicitor for the defender and respondent challenged the competency of the appeal, arguing that one sheriff could not competently grant leave to appeal another sheriff's interlocutor. He maintained that section 27 of the Sheriff Courts (Scotland) Act 1907 pointed to this conclusion in respect that it spoke of interlocutors "against which the sheriff - (substitute)...grants leave to appeal". Paragraph 18.47 of the second edition of Macphail, Sheriff Court Practice sets out that: "If a party applies for leave to appeal, the application should be made by motion to the sheriff who pronounced the interlocutor, not to the appeal court". Reference was made to the case of Umair v Umair 2002 SC 153. In the concluding paragraph of the Opinion of the Extra Division it was stated, with reference to section 27 of the 1907 Act that: "While it is obviously assumed that the sheriff who heard the main argument should normally decide the question of leave to appeal, we would be reluctant to read the section as excluding the possibility that a different sheriff might deal with the question of leave, if, for example, the first sheriff was, for one reason or another, not available to deal with it within a reasonable time". The solicitor for the defender and respondent submitted that in consequence it was only competent for one sheriff to grant leave to appeal against another sheriff's interlocutor if it was shown that there was a practical impediment to the original sheriff being able to deal with the matter within a reasonable time. Sheriff Johnston was known to be sitting in Kirkcaldy as a part-time sheriff around the time the application for leave to appeal was dealt with. There was in consequence nothing to prevent the motion for leave to appeal being dealt with by him and it was consequently incompetent for Sheriff Muirhead to have dealt with it.

 

5. It is perhaps curious that there is no prior decision on this issue, and it may be that it is highly unusual to find leave to appeal having been granted by one sheriff against an interlocutor pronounced by another. I am quite satisfied however, that the point taken is not a good one. The sentence referred to in Macphail does not advance matters since it merely confirms that a motion for leave to appeal should be made to the court of first instance and not to the appeal court. The principal issue raised in Umair (supra) was whether a decision by a sheriff to refuse leave to appeal against his own interlocutor amounted to a contravention of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms in respect that a reasonably well informed observer might have legitimate doubt as to the impartiality of the tribunal in a situation where a judge decided that his interlocutor ought not to be the subject of appeal. The court rejected that argument in relation to a decision to refuse leave to appeal against an order for interim contact on the basis that the original order could be reviewed if circumstances changed and that there was a right to appeal the final decision. The thrust of the appellant's argument was that the motion for leave to appeal ought to have been heard by a different sheriff; the court rejected this contention holding that the sheriff who heard the substantive issue was normally best placed to decide whether to grant leave to appeal.

 

6. What is significant for the purposes of this case is the court's "reluctance" to read section 27 of the 1907 Act as excluding the possibility that a different sheriff could deal with the motion for leave to appeal if the original sheriff was not available. Although not a decisive interpretation of the terms of section 27 it does constitute an authoritative view of it with which I am respectfully disposed to agree. On the view that the section does not exclude the possibility of a different sheriff dealing with a motion for leave to appeal against an earlier interlocutor it cannot be said that the actings of the second sheriff are "incompetent".

 

7. It is obvious, as was indicated in Umair, that a sheriff who hears a substantive motion will normally be best placed to deal with a motion for leave to appeal against it, and a sheriff who is not in that position should approach the task with caution. However, the practicalities of the operation of courts, particularly those which are heavily dependent on the use of part-time sheriffs, mean that there will inevitably be situations arising where there are difficulties in securing a subsequent attendance of a part-time sheriff even if such an arrangement could not be regarded as wholly impractical. Where a motion for leave to appeal is straightforward, as it was in this case, there is no reason why any sheriff should not deal with it.

 

8. I accordingly turn to the substance of the appeal. As I have indicated the motion which came before Sheriff Johnston was "To find the defender liable for the fees and outlays of the reporter". The sheriff was told that the reason for the motion being made was that when the interlocutor ordering the report was pronounced neither party had the benefit of legal aid. That situation had changed, legal aid having been awarded to the defender. Sheriff Johnston took the view that the motion was in effect an attempt to change the original interlocutor and considered that he did not have power to take that step. Further he considered that it would be inappropriate to make an order conferring liability on the legal aid fund in effect retrospectively, there having been no such liability at the time the original order was made.

 

9. The basis of the submission on behalf of the pursuer and appellant was that what was sought was not a change to the earlier interlocutor; it was a review of the position in the light of a change of circumstances. Such a review was competent because liability for the expenses of the report was, in terms of the earlier interlocutor, specifically stated to be "in the first instance".

 

10. The authority for ordering a report in circumstances such as the present is contained in section 11 of the Matrimonial Proceedings (Children) Act 1958. Sub-section 5 thereof provides: "Any expenses incurred in connection with the preparation of a report by a local authority or other person appointed under this section shall form part of the expenses of the action and be defrayed by such party to the action as the court may direct, and the court may certify the amount of the expenses so incurred". Ordinary Cause Rule 33.21, which gives effect to certain observations by Sheriff Principal C G B Nicholson QC in Di Resta v Di Resta 1991 SCLR 865, provides (at sub-paragraph (2)) that on making an appointment under section 11 of the 1958 Act "The sheriff shall direct that the party who sought the appointment or, where the court makes the appointment of its own motion, the pursuer or minuter, as the case may be, shall - (a) instruct the local authority or reporter; and(b) be responsible in the first instance, for the fees and outlays for the local authority or reporter appointed".

 

11. The use of the words "in the first instance" in the interlocutor ordering the report which reflect those in the Rule of Court were, in the submission of the pursuer's solicitor, permissive of an application to the sheriff to make a different ruling on a change of circumstances. He maintained that the original order was no longer fair. Not only was it the position that the defender now had the benefit of legal aid, but the pursuer's position in seeking an interim residence order had been vindicated by the recommendation of the reporter. On the principle that expenses should follow success it was proper that liability for the report should fall on the defender's shoulders. The pursuer should be given immediate relief from the burden of paying the reporter's fee. The potential for injustice could not be cured by taking the view that at the end of the day the defender might be found liable in expenses. As an assisted person she would be entitled to seek modification of her liability; if such a motion were to be granted the burden for paying for the report would remain with the pursuer. As an alternative the solicitor for the pursuer maintained that an order should have been made finding the parties equally liable for the cost of the report.

 

12. Whilst I have considerable sympathy for the underlying position of the pursuer in this matter I am of the view that the application to the sheriff, and in consequence this appeal, are misconceived. It is clear from the terms of section 11(5) of the 1958 Act that the expenses of obtaining a report fall to be treated as part of the expenses of process. Ultimate liability for those expenses therefore fall on the party against whom a finding for expenses covering the relative part of the proceedings is ultimately made. The direction as to the responsibility for payment "in the first instance" is intended to secure early payment of the reporter's fees and outlays, whilst reserving the position of ultimate liability. It is not intended to act as a reservation of the right to either party to seek a variation on a change of financial circumstances. The motion, in the terms in which it was presented, was presumably intended as an attempt to alter responsibility for payment of the reporter's fees and outlays "in the first instance". The sheriff was accordingly correct to view it as an attempt to alter an order previously made.

 

13. Moreover, having regard to the relevant statutory provisions including section 18 of the Legal Aid (Scotland) Act 1986, it is far from clear that the grant of the pursuer's motion in the terms sought would have had the desired effect. An interlocutor reflecting the terms of that motion, and by operation of the terms of section 11(5) of the 1958 Act, would have constituted a finding in expenses against the defender. That would, as her solicitor pointed out, bring into play the provisions of section 18(2) of the 1986 Act which provide that: "The liability of a legally assisted person under an award of expenses in any proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties under conduct in connection with the dispute".

 

14. What was presumably intended was that there should be an order that the fees and outlays of the reporter be paid out of the legal aid fund. Such an order would not, in my judgment have been competent, simply because section 11(5) of the 1958 Act specifically provides that such an expense shall form part of the expenses of the action. The pursuer's remedy, if there be one, is to be found in the terms of section 19 of the 1986 Act whereby the court may make an award out of the legal aid fund to an unassisted party of the whole or any part of any expenses incurred by him. An application under that section may however only be made when the proceedings are finally decided in favour of an unassisted party. That stage has not been reached. Whilst I do not consider that it was intended, the consequence of the pursuer's motion, if granted, would have been to subvert the provisions of that section.

 

15. In these circumstances, the court having given a direction in terms of Rule 33.21(2), I do not consider that it was open to the pursuer to seek to have it "reviewed" as his solicitor suggested. In these circumstances the appeal falls to be refused.

 

16. As I indicated, I have sympathy for the position of the pursuer in this case. The burden of a report costing over £4,500 is a significant one for most litigants, and there is nothing to suggest that the pursuer's means are other than modest. I do not, of course, know if he was given any indication of the extent of this likely outlay before the order for a report was made. The fees of a reporter are not, as I understand the position, subject to taxation or to the level of scrutiny of a solicitor's judicial account of expenses. There is a responsibility on all in the profession to ensure that such outlays do not burden litigants to the extent that justice becomes prohibitively expensive, and the issue of the cost of reports borne by non-legally aided litigants is a matter which could become one of legitimate public concern. Sheriffs should, I consider, be alive to the level of cost of such reports, and should be slow to burden an unassisted party with such cost without some general enquiry as to the ability of that party to pay.

 

(signed) EFB