Case No SA68/06

 

 

SHERIFFDOM OF NORTH STRATHCLYDE AT GREENOCK

 

STRATHCLYDE JOINT POLICE BOARD GORDON RITCHIE & CO

PURSUER DEFENDERS

 

Greenock: 25^th July 2006

 

The Sheriff having resumed consideration of the cause

 

FINDS IN FACT

 

1. The pursuers are Strathclyde Joint Police Board constituted by the Strathclyde combined area amalgamation scheme order 1995 (SI 1995 No: 2842).

 

 

2. The defenders are Messrs Gordon Ritchie & Co, Solicitors, having a place of business at 3 Jamaica Street, Greenock.

 

 

3.                  Acting on the instructions of Joseph Cunningham the defenders cited Sergeant Gavin Judge to Greenock Sheriff Court as a witness for the defence at a Trial on 7^th February, 2005. The pursuers are the employers of Sergeant Gavin Judge.

 

4.                  Joseph Cunningham was in receipt of legal aid. The Scottish Legal Aid Board make payment of expenses incurred by an employer of a police witness on the production of an account provided by an employer to the defence solicitor.

 

5                     The expenses of Gavin Judge for his attendance at Court amount to £75.50. Gavin Judge has had his expenses reimbursed by the pursuers.

 

 

6. The pursuers issued account number A0016155 in the sum of £75.50 representing the expenses of Sergeant Judge. Said account was addressed to the defenders. Said account was issued on 17^th March 2005 with further requests for payment on 21^st April, 5^th May and 12^th May 2005. The account has not been paid.

 

 

FINDS IN FACT AND IN LAW

 

The citation of the witness Sergeant Gavin Judge has resulted in a loss to the pursuers of £75.50, for which the defenders are liable.

 

 

THERFORE grants decree for payment by the defenders to the pursuers in the sum of SEVENTY FIVE POUNDS AND FIFTY PENCE (£75.50) STERLING with interest thereon at the rate of eight per centum per annum from the date of citation until payment; finds no expenses due to or by either party.

 

 

Signed .................................

 

Sheriff John N McCormick

 

 

NOTE

 

Background

 

[1] This is a small claim which called before me for a full hearing at Greenock on 6^th June 2006.

 

 

[2] The case concerns a claim by Strathclyde Joint Police Board against a firm of solicitors for the sum of £75.50 plus interest. The circumstances giving rise to the claim are succinct.

 

 

[3] A Sergeant Gavin Judge, employed by the pursuers, was cited by the defenders to give evidence as a witness for the defence at the criminal trial of Joseph Cunningham at Greenock Sheriff Court on 7^th February 2005.

 

 

[4] The pursuers issued account number A0016155 to the defenders in the sum of £75.50 which the pursuers claim as reimbursement of the cost of the time and travelling expenses of the Police Officer. For the purposes of the proof, the level of these expenses is not in dispute.

 

 

[5] The parties lodged a Joint Minute of Agreed Facts.

 

 

Evidence

 

[6] On behalf of the pursuers, I heard evidence from two witnesses. The first was Marie Reilly, an Office Manager in the pursuer's Finance Department.

 

 

[7] Marie Reilly gave evidence as to the procedure employed by the pursuers. When a Police Officer is cited by the defence, the Police Officer is reimbursed his expenses by the pursuers before an invoice is issued to the solicitor who instructed the citation. This procedure was followed in this case. The invoice amounting to £75.50 remains outstanding.

 

 

[8] It was elicited from this witness in cross examination that a Police Officer does not suffer financial loss if he or she is cited as a witness for the defence. The Police Officer does not claim reimbursement of expenses from the solicitor but rather the pursuers continue to pay the Police Officer (and, where appropriate, reimburse his or her travelling expenses) and pursuers - not the witness who has been cited - send an invoice to the solicitor.

 

 

[9] This can be contrasted to the situation where a Police Officer is cited as a crown witness. No claim for reimbursement of wages or travelling expenses is sent to the crown.

 

 

[10] The second witness for the pursuers was Ian Baptie. He is an Accounts Specialist at the Scottish Legal Aid Board dealing with solicitors expenses and accounts.

 

 

[11] He gave evidence to the effect that there is a maximum level of expenses authorised by the Scottish Legal Aid Board for "civilian" witnesses but that the Scottish Legal Aid Board have always paid the expenses incurred by a Police Officer without question.

 

 

[12] The expense of citing a Police Officer is not paid by the Scottish Legal Aid Board to the employer of the Police Officer or to the Police Officer direct. The Scottish Legal Aid Board have no power to do so. It is for the solicitor to submit proper vouching to the Scottish Legal Aid Board at the conclusion of the case.

 

 

[13] The Scottish Legal Aid Board decide whether to pay or abate the solicitor's account. This means the defence solicitor might pay expenses to a witness in the hope of reimbursement by the Scottish Legal Aid Board (before the Scottish Legal Aid Board has adjudicated on the level of expenses of a witness).

 

 

[14] To the knowledge of Mr Baptie the Scottish Legal Aid Board have never refused to reimburse a solicitor for the expense incurred by citing a Police Officer.

 

 

[15] When deciding whether or not to pay the expenses of a witness, the Scottish Legal Aid Board is obliged to have regard to the amount which would be payable to crown witnesses. There is a maximum daily rate paid by the crown to witnesses but there is provision within the Scottish Legal Aid Board Regulations to go beyond that. Mr Baptie referred to The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 and in particular Regulation 8(1)(b) as amended by The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2002.

 

 

[16] Prior to these proceedings, Mr Baptie was unaware that the pursuers made no claim against the Crown in respect of Police Officers cited by the Crown. The Regulations do not refer specifically to Police Officers. Police Officers are not considered to be either expert witnesses or ordinary civilian witnesses.

 

 

[17] Both witnesses for the pursuers were credible and reliable.

 

 

[18] The defenders led no evidence.

 

 

Submissions on behalf of the pursuers

 

[19] I was referred to Stirling Park & Co-v-Digby Brown 1996 S.L.T. (Sh Ct) 17. I did not consider that this case was particularly relevant. This case concerned whether a solicitor who instructs a Sheriff Officer occurs personal liability for payment of the Sheriff Officers fees and outlays.

 

 

[20] In the current case, the defenders agree that they are personally liable but the issue is to whom? The pursuers claim that the defenders are liable to them as employers of the witness whereas the defenders claim that they are solely liable to the witness personally.

 

 

[21] I was referred to the Stair Memorial Encyclopaedia, Volume 13, Paragraph 1201 at Page 478 for the proposition that while solicitors act as disclosed agents and therefore may not be liable contractually, the obligations of professional ethics impose personal liability for the fees of those instructed on behalf of a client. The examples given include the expenses of witnesses. As I have said, the defenders do not take issue with this proposition.

 

 

[22] I was also referred to the case Fraser-v-Stronach 1885, 23 S.L.R 76. The issue before the court according to Lord McLaren at Page 77 concerned whether the solicitor liable for the expenses of a witness cited to a commission in a Court of Session case was the Edinburgh Agent or the Glasgow Agent on whose instructions the Edinburgh Agent was acting. Lord McLaren considered that the Edinburgh Agent was liable.

 

 

[23] However, it does not appear to me that this case is particularly relevant except for the general proposition that the solicitor is liable for the expenses of the witness whom he or she cites which, as I have said, is not in dispute.

 

 

[24] I was also referred to the Police (Scotland) Act 1967 Section 17 (1) for the general functions of Police Officers. These of course include attending court for the purposes of giving evidence. It was submitted that police have an imperative duty to attend court.

 

 

[25] In this case the Police Officer was cited by the defence. The Police Officer who attended was on duty. It is submitted that there is or should be, a guarantee that expenses will be met by the solicitor acting in the cause. The solicitor is the agent for his client.

 

 

[26] I was referred to MacDonald-v-MacNab and another (No.2) 2000 SLCR 145 at Page 150. In particular I was referred to the second paragraph of the decision which reads "we accept that, at taxation, witness fees are not to be treated as a claim by the witness but a claim by the party who has paid the fees to the witnesses". Read in context this does no more than state that at taxation witness expenses are simply a claim for reimbursement of an outlay by one party (usually the successful party) against another. The MacDonald case concerned a party litigant. In that case the expenses of a witness were treated as an outlay in terms of Rule 99 of the Land Court Rules 1992.

 

 

[27] It was submitted that although there was no contract between the defenders and the pursuers, the pursuers are entitled to payment of the cost incurred by the Police Officer in respect of his obligation to attend court in answer to a citation by the defence. The defence solicitor is personally liable for that outlay.

 

 

[28] The Scottish Legal Aid Board reimburse the solicitor the cost of the outlay upon the production of a voucher from the pursuers.

 

 

[29] It had been agreed by Joint Minute that the basis of the pursuers' claim is quantum lucratus. The defenders benefited from the service provided by the Police Officer.

 

 

[30] The defenders are entitled to reimbursement from the Scottish Legal Aid Board under The Criminal Legal Aid (Scotland) Act (Fees) Regulations 1989 as amended by The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2002. I was referred to the Regulations and to the explanatory note attached to the 2002 Regulations. Payment to a witness is not restricted to sum paid by the crown. The Scottish Legal Aid Board is only obliged to have regard to the level of expenses paid by the crown.

 

 

Submissions for the defenders

 

[31] Mr Ritchie confined his submissions to two issues. The first branch of his submission was that the pursuers are the employer of the witness and accordingly have no title to sue. Secondly, even if there is title to sue, the defenders are only obliged to pay the same figure as would have been paid had the witness been cited by the crown. In this case, nil.

 

 

[32] Mr Ritchie submitted that solicitors are bound by the 1989 Regulations, as amended. A defence solicitor is obliged to act in the best interest of his client having due regard to economy. The solicitor is obliged to pay fees and outlays based on Regulations. Here the regulations permit a solicitor to pay outlays specifically to a witness. It does not permit expenses to be paid to an employer of a witness. The pursuers are an employer of a witness and therefore have no right or title to sue.

 

 

[33] If Sergeant Judge had submitted an expenses claim he would have been paid. The provisions only provide for reimbursement to a witness. Mr Ritchie observed that Mr Baptie had not been aware of the fact that the crown did not reimburse Police Officers in respect of their expense of attending Court.

 

 

[34] The second line of Mr Ritchie's submission was that if the Court were satisfied that the Defence solicitor is obliged to pay the employer under the Regulations it is not "fair and equitable" for a defence solicitor to be liable for the expenses of a Police witness where the crown would not receive a claim for reimbursement of expenses from the pursuers.

 

 

[35] The Police are present in Court as a public duty. Where a Police Officer is cited by the crown, he is not giving evidence for the crown but rather giving evidence to the Court. If the Police Officer does not seek reimbursement from the crown the same approach should apply in respect of expenses where a Police witness is cited by the Defence.

 

 

[36] None of the cases to which the pursuers had referred involved Police Officers. Police Officers are in a different category of witness. They are neither expert or civilian witnesses, according to the Scottish Legal Aid Board.

 

 

[37] Having regard to the fact that no claim for reimbursement of expenses is made to the Crown in respect of Police witnesses, the defence solicitor and the Scottish Legal Aid Board are being asked to pay a significant cost in contrast to the crown. Mr Ritchie postulated as to whether the Scottish Legal Aid Board may have adopted this practice only because it was unaware that the crown did not pay Police Officers.

 

 

[38] In this case, the defence solicitor is being asked to reimburse the employer of a Police Officer in the hope that the solicitor will in turn receive reimbursement from the Scottish Legal Aid Board.

 

 

[39] In summary, I was invited to take a strict interpretation of the Regulations governing legal aid in relation to the payment by the defence to the witness, not the employer of the witness or alternatively, to restrict any figure due to nil.

 

 

Decision

 

[40] The provisions of Regulation 8 (1)(b) of The Criminal Legal Aid (Scotland) Fees Regulations 1989, as amended read as follows:-

 

 

"A solicitor shall be allowed the following outlays, due regard being had to economy-

 

 

(b) Fees paid to witnesses who are not on the Crown list, which fees shall not exceed such sums are considered by the Board to be reasonable having regard to the sums payable from time to time by the Crown to witnesses of the same category;"

 

 

[41] It is perhaps significant to note that the words "such sums are as considered by the Board to be reasonable having regard to" were inserted by The Criminal Legal Aid Board (Scotland) Fees Amendment Regulations, Regulation 3 in 2002. (SSI 2002 No. 246). Accordingly, it seems to me that the Scottish Legal Aid Board are entitled to have regard to - but are not bound by - the level of expenses paid to witnesses by the Crown.

 

 

[42] The crown do not reimburse the pursuers for the time spent by Police Officers in giving evidence at Court. Prior to the amendment in 2002, it may not have been possible for the defence solicitor to claim reimbursement of the cost of a Police Officer from the Scottish Legal Aid Board because, on the evidence presented to me, the Police Officer would not have claimed expenses from the crown. As Police Officers claimed no expenses from the crown, the Scottish Legal Aid Board could have refused a claim by the Defence solicitor for the expense of a Police Officer attending Court.

 

 

[43] That situation changed in 2002. However, Sergeant Gavin Judge was cited to attend Greenock Sheriff Court on 7^th February 2005, namely after the amendment to the Regulation and accordingly the Scottish Legal Aid Board are entitled to have regard to the fact that the crown do not reimburse Police Officers but they are not obliged to follow that.

 

 

[44] Regulation 8 (1)(b) refers to "fees paid to witness". On a strict interpretation, it would appear that the solicitor is only entitled to claim reimbursement from the Scottish Legal Aid Board for fees paid to the witness directly and not to the employer of the witness. I consider this interpretation to be overly restrictive.

 

 

[45] If a strict interpretation were to be applied, the only person who could claim reimbursement and who would have title to sue, is the Police Officer. However, the Police Officer has not lost income in the sense that his employer has continued to make payment to him. He has been cited in his capacity as a serving Police Officer. Accordingly, the actual loss has been incurred by the employer of the Police Officer and it seems to me that the employer is entitled to claim reimbursement. It would be an unreasonable interpretation of the provisions that a witness had to intimate and pursue a claim personally for reimbursement of expenses when the loss has been incurred by his or her employer.

 

 

[46] On the evidence before me, it was not disputed that the Scottish Legal Aid Board do make payment of expenses incurred by an employer of Police Witnesses (such as the pursuers) on the strength of an account provided by the employer, not the witness. This seems to be sensible and pragmatic.

 

 

[47] Accordingly, the pursuers are entitled to raise and pursue the proceedings and there are sound public policy reasons for doing so. The citation has resulted in a loss to the employer rather than to the witness. If an employer were to refuse to indemnify the witness in respect of his or her loss, there would be nothing to prevent the witness seeking payment of his expenses personally.

 

 

[48] However, in a situation where the employer is prepared to indemnify the witness in my opinion it is perfectly reasonable that the employer should be able to claim reimbursement of those expenses. In this case the level of the expenses has not been challenged and the Scottish Legal Aid Board have indicated that upon production of an account such as that produced in this case they would reimburse the solicitor for the expense of the witness.

 

 

[49] Furthermore, the witness may not have the time nor the resources to pursue a claim for a modest sum such as in this case. In my opinion the proper administration of justice requires that the employer of a witness who answers a citation should be entitled to claim reimbursement of reasonable witness expenses in a situation where that employer has indemnified the witness in respect of those expenses.

 

 

[50] In the unlikely event that a request for reimbursement of expenses is received from a witness and from his or her employer it is probably correct to say that the primary obligation to account is to the witness rather to the employer. However, that is not the situation here. In this case all that has happened is the employer has submitted a claim instead of the witness.

 

 

[51] That being so, I can see no colourable reason why a solicitor should not be liable to an employer of a witness for witness expenses where it is not disputed either that the expenses are reasonable or that the expenses have indeed been paid by the employer to the employee.

 

 

[52] During the course of his submissions, I was invited by Mr Ritchie to conclude that it was not "fair and equitable" for a defence solicitor to be liable for the expenses of a police witness where the crown pay no expenses. I do not consider that this argument is sustainable.

 

 

[53] There may be a number of reasons why a witness - or the employer of a witness - decides to seek reimbursement if they are cited as a witness for the defence but not by the crown, or vice versa.

 

 

[54] The fact that a decision has been made along those lines may appear inconsistent but where a witness is cited by a solicitor, the solicitor accepts personal liability for the reasonable expenses incurred by that witness unless the witness chooses not to submit a claim. It is not for the court to decide whether the actions of the pursuers are "just and equitable". The pursuers are entitled to seek reimbursement of the costs of having one of their Officers attend court to answer a citation whether at the instance of the crown or of the defence.

 

 

[55] The decision which the pursuers have taken not to recover the expenses of Police Officers when cited by the crown is a decision for the pursuers to take and it seems to me that it would be inappropriate for the court to comment on the procedures applied by the pursuers in this context.

 

 

[56] The fact that the pursuers choose not to render a claim for expenses to the crown, does not absolve the defenders from liability.

 

 

[57] Accordingly, the pursuers are entitled to Decree for the sum of £75.50.

 

 

[58] Both parties requested that I write on the issue which I agreed to do. Expenses are not awarded in cases of this value (Sheriff Courts (Scotland) Act 1971, Section 36B and Small Claims (Scotland) Order 1988 (S.I.1988 No. 1999, Paragraph 4(2)).

 

 

 

..................................Sheriff

Sheriff John N McCormick