STIRLING, 11th July 2008.
The Sheriff, having resumed
consideration of the Cause, MAKES the
following awards of expenses :- FINDS the pursuers liable to the first
defenders in the expenses of the action, allows the first defenders to make up
an account of expenses and lodge it in process, and upon that being done remits
the account to the Auditor of Court to tax and to report.; FINDS the pursuers
liable to the second defenders in the expenses of the action, allows the second
defenders to make up an account of expenses and lodge it in process, and upon
that being done remits the account to the Auditor of Court to tax and to report;
CERTIFIES the cause as suitable for the employment of senior counsel; REFUSES the
first defenders motion to have the expenses taxed on an agent/client basis; and
Decerns
NOTE:
[1]
When this matter called on 20 June 2008, I had a very full and helpful
submissions in relation to the expenses on issues arising from my judgement of 23
April 2008. Mr Smith for Stirling Council had prepared
written submissions in connection with his motion for the expenses of the cause
to be awarded against the Pursuers in both actions, payable on an agent/client
basis.
[2] In
the first place, Mr Smith confirmed that there was no requirement for any
further order to be made, the gate having been opened satisfactorily to
Stirling Council. The only outstanding
matter remained after the expenses, He
moved in terms of the written submissions that the Pursuers be found liable in
the expenses of the action. The
Pursuers were unsuccessful. The usual
rule of expenses following success should be applied. He further sought certification for the
employment of Senior Counsel (a matter that was not opposed).
[3] Finally,
he moved that the expenses be payable on agent/client basis rather than a
party/party basis and this was because the conduct in facts of the litigation
was such that expenses should not be restricted to the judicial scale. Without such order there would be a
significant shortfall between the expenses awarded and the expenses
incurred. In support of the application he
submitted that the Defenders had sought to resolve matters from an early stage
and prior to the issuing of the notice and they continued to attempt to resolve
matters by negotiation even during the conduct of the proof. He submitted that it was plain from Mr
Snowie's evidence that he was intransigent and would not agree to anything that
involved the gate being opened. The
area ultimately allowed to him was less than offered in Court by the
Defenders. Finally, and the thrust of
the submission was that the general conduct of the litigation was
unreasonable. The Snowies and the Rosses
entered into a lease of the gates for what he described as questionable reason
perhaps in an effort to frustrate the litigation, and raising serious issues
about the Pursuers' fidis(?). The delay
in lodging the production, the back-dating of the lease and the consequent
necessity of bringing the Rosses into the action all indicated an attitude of
"gamesmanship" on the part of the Pursuers.
[4] His
submission then dealt with the law reminding the Court that the general rule in
relation to expenses is that expenses follow success (Shepherd v Elliott 1896 23R 695 at 696). Ordinarily an award of expenses is made on a
party/party basis but the Court has a discretion deciding the scale in which expenses are
awarded and that may apply where an unsuccessful party has acted
unreasonably. Lord McFadyen in The Court of Session Practice put it thus:
"The agent and client scale
was normally awarded against a party as a matter of the court's disapproval of
the way in which the action or defence has been conducted. This scale allows a party considerably more
than simply reasonable expenses for the conduct of the case looked at
objectively. Rather a fair and
reasonable sum would be allowed for any work reasonably incurred."
[5] He submitted that unreasonable
conduct might include conducting a proof in a manner which prolonged the
litigation or making unreasonable or unsubstantial claims on record. Reference was made to authorities. He referred to McKie v Scottish Ministers 2006 SC 528 where Lord Hodge laid
down 5 propositions in relation to assessing whether expenses should be awarded
on the higher scale, to which I will return.
[6] He then referred to a helpful
chronology that had been prepared in relation to the case from March 2005 when
the first complaints were received about the gates being closed to the proof
which proceeded on 21 May 2007, in particular drawing my attention to the
interruption in the relatively smooth progress of the action by the letter of 5
September 2006 from the Pursuers' agents to the Defenders intimating the
existence of the lease between the Rosses and the Snowies in relation to the
gate. He submitted that it was quite
plain the council were not looking for any right of way rather there was an
invitation to Mr Snowie to unlock the gate and nothing more would arise. He accepted it was perfectly reasonable of
Mr Snowie to say that he did not want this and he accepted there is a
presumption of reasonableness but the "shenanigans" as he described them of the lease had
elevated reasonable conduct to unreasonable conduct and, in his view, these
could be seen as a device to try and frustrate the council's action. He described Mr Holden's evidence as a waste
of time. He submitted that it had to be
paid for and while it might be reasonable to attempt to vindicate a right in
what was essentially a legal vacuum, the conduct of litigation and in
particular the introduction of the Rosses and the lease meant that the
reasonableness was undermined. He moved
for the expenses on an agent/client basis.
[7] Miss
McCartney addressed me briefly to adopt Mr Smith's argument with exception of
the sanction for counsel which she did not of course seek and that there was no
involvement in the Rosses' process. She
reserved the right to respond to anything Mr Campbell may have to say.
[8] Mr
Campbell in his primary submission invited the Court to find that there should
be no expenses due to or by either party;
his secondary position was that if the Pursuers were to be liable it
should be for one set of expenses only, that is without any liability to the
Ramblers and on a party/party scale.
[9] Mr
Campbell submitted that the action had a slightly odd and inverted process in
that any contradictor to the notice has to proceed by way of summary
application. There was no other option
given to Mr Snowie following upon service of the notice which he did not
accept. It was therefore unfair to
criticise Mr Snowie for bringing the matter to Court as that was the only
option available to the disappointed recipient of a notice. In his submission Mr Smith's whole approach
assumed omniscience by the council who had been "right all along". He described that as a bold submission given
the absence of jurisprudence in this area of the law. The peculiarity, as he saw it in this case, was
that the Court was not simply considering access to land in the vicinity of one
house but a total of eight houses involving a particularly discriminatory
approach and in his submission the proof achieved that although the result was
obviously disappointing to Mr Snowie and was justified by the consideration
which arose.
[10] He
further submitted that once the matter was in Court, consideration had to be
given as to whether the conduct was on the whole proper, with a reasonable
economy and without irrelevance. He
accepted without hesitation the normal rule in terms of expenses (and intimated
that certification was not opposed) but submitted that the fact that a party
came in vigorously asserting his position and called on his behalf a witness
whose evidence was not accepted, could hardly elevate this to an unreasonable
case. These were circumstances the
Court dealt with day and daily and it was the function of the Court to assess
and characterise the evidence as either credible or reliable. If there were not stark differences in
factual position, the Court would not require to adjudicate. The Courts are accustomed to doing so. Mr Smith could not point to the evidence of
Mr Holden as something establishing unreasonableness. He accepted that there were attempts for
litigation to resolve the matter informally but thereafter it was important for
the Pursuers to conduct their cases fairly and properly and resist legitimately
an invitation to open the driveway to all and sundry. For Mr Snowie, access to the state and
privacy were synonymous.
[11] In his submissions, the law under
the 2003 innovated on the right to privacy and provides no assistance to a
judge in relation to a large estate.
There was no authority or reported case or assistance in either act or
regulation in relation for example to the half-moon driveway which services
Boquhan House and each case has to turn on its own circumstances. Mr Snowie had paid, as he said in evidence,
a significant sum of money for the house and was reasonably expectant of
privacy, subject to the rights of way which he knew about but he then received
service of a notice. He entered the
process in March 2006.
[12] Mr Campbell then sought to take me
through the procedure to proof; I asked him about the lease. He explained the lease as follows. The Rosses' property is a separate heritable
title. The Rosses are not tenants,
their property sits on both sides of the driveway and it is key to the
assessment of Section 6 whether the sufficient adjacent land, and Mr Snowie
considered that it was not for him to dictate to the Rosses what was sufficient
to secure their own privacy. As the
gate opened immediately at their property, it seemed to Mr Snowie that the Rosses
should be in control of the gate.
Otherwise, the Rosses would be disenfranchised from involvement in the
case which had significant issues for them. Accordingly in his submission, by
making the Rosses in charge of the gate,
that enabled them and "enfranchised" them to resist the insistence on the gate
being opened. A separate deed was
necessary as a result of their separate heritable title. The back-dating (from August to May 2006) was to allow the lease to date
from the time when practical consequences of the locked gate had dawned on the
Snowies and the Rosses. There was an
element of trust implicit in the lease.
The Snowies trusted the Rosses to be reasonable in connection with the
opening and closing and in particular locking of the gate. The alternative was the completely untenable
situation of someone having control over the Rosses' private land immediately
adjacent to their house. It was wrong
to categorise the lease as cynical. The
conjunction of the interests of the Rosses and the Snowies made it sensible for
there to be a conjunction of processes and indeed a combined
representation. The lease is
explicable. It may be odd on one view
but it was an intelligible response by conveyancers faced with litigation in
circumstances where someone with a separate title had a plain interest in the
gates. Without that they would have had
no voice in relation to their own privacy.
[13] Returning
to the Court action, he said that the purpose of the action was to clarify
whether 70 acres could be regarded as private, included as it did Boquhan, seven
cottages and other buildings such as the stables.
[14] He
submitted that following the pattern in the Gloag case and in the absence of
clearer guidance, Mr Snowie had given evidence about himself and his security
concern and led evidence from a senior ex-policeman who had prepared and
produced a report. In the absence of
jurisprudence, providing a witness of this kind was sensible, when the Court
was being asked to exclude from the general law a large part of the estate, it
was nothing to the point that that evidence was rejected by the Court. The report was not worthless, it gave a
clear description of the subject and some of the risks that any occupier might
be exposed to. As it happened, his
evidence was not accepted but did that make it irresponsible to proceed on the
basis of that evidence? Without such
evidence, the whole case was periled on Mr Snowie's own evidence but his
personal security required some expertise and thus a senior former policeman
was an obvious witness to chose, even if his performance as a witness was not
impressive to the Court. The evidence
did help to inform the Court in the ultimate determination.
[15] He
suggested that the final extent of ground actually declared as private was not
a factor which assisted the assessment of unreasonableness. The fact is that if offers are not beaten,
that does not make any litigation irresponsible. There was a bona fide litis contestatio which gave rise to a judicial decision.
[16] In
his submissions there were three matters which pointed to the propriety of the
proof. That was the vigorous need for
privacy by Mr Snowie, the consideration and then rejection of Mr Holden's
evidence, and the brief consideration of interests of the tenants; all of these
point to the need for a judicial determination where there had previously been
none.
[17] He
then looked at the cases to which Mr Smith had referred. He urged me to treat the Plasticiisers case with caution
in respect that the Court did not review the award of expenses.
[18] Thereafter
he examined Lord Hodge's opinion in the McKie case. He took no issue with the first 2
propositions (although he did not accept Mr Smith's submission that the
party/party expenses would fall some 50% short of the actual outlay. He submitted that 33% was nearer the figure.)
[19] So
far as the third proposition is concerned, in relation to incompetence or
unreasonableness, competence was not
challenged so the Defenders must be relying on the unreasonableness of
the conduct of litigation to justify an agent/client award. He then asked what was said to have been
unreasonable in the case. The lease is
described as questionable. An issue was
taken with Mr Snowie's bona fides. In his submission it would have been obvious
for the council at an early stage that they should have recognised the Rosses
as having interests from the start. The
Rosses should have been convened at the outset. Stirling Council, by their own failure,
could not now regard the Rosses' insistence on being part of the litigation, as
unreasonable.
[20] He
submitted that the case proceeded expeditiously, was focussed and with limited
witnesses. I put to him that the letter of 5 September 2006 inviting the council to withdraw the
notice against the Snowies or dismiss the action clearly implied that the
council had come after the wrong man.
He agreed that it was worded inelegantly but said that that was not what
it meant but simply that the priority of the parties on whom the notice should
be served must be revisited. In his submission,
for the layman, this action was about security and privacy. There was a driveway leading to one place and
one place only, being Boquhan House. It
is reasonable for those persons most effected, being the Rosses and the Snowies
to challenge that. Lord Hodge's fifth
proposition had no relevance.
[21] Accordingly,
the issue for the Court, if the Court is satisfied that there should be any
award of expenses, is the question of whether the conduct by the Snowies and
the Rosses was unreasonable. It was
wrong to characterise this as an unreasonable means of proceeding. He took issue with the use of the word "shenanigans". The council sought to have the gate open on
the basis that it was public. No more
analysis than that was carried out by the Defenders. The only way that matter could be resolved
was through the Court.
[22] He
recognised that the judgement relied heavily on the decision of Sheriff
Fletcher in the Gloag case, particularly looking at whether the assessment was
an objective or a subjective one. In
his submission, he read that Sheriff Fletcher's test was subjective in that it
applied different considerations depending on the property. He did accept that perhaps a better word was
"tailored". In his submission, even
having read the judgement, it was difficult for both Stirling Council and the
parties to reach a reasonable view as to what would be sufficient. They had discussions but no-one knew why the
area delineated had been delineated as it was.
It was not a template but rather a determination of what was reasonable
in the circumstances but if parties cannot know in advance, it cannot be
unreasonable of them to seek by proof to have the matter determined. It was absolutely necessary in the face of
the council's notice to bring the matter to Court. He was not going so far as to say that Mr
Snowie was acting in the public interest, as he was acting in his own interest
but his action had helped to fill the legal vacuum and provide guide posts for
the mythical man on the Clapham Omnibus or indeed the Stirling Omnibus. In his primary submission, on that basis,
there should be no expenses due to or by and mutatis metandis not payable on an agent/client basis.
[23] So
far as the second respondents were concerned, in his submission the Court
should find the Pursuer liable for one set of expenses only. He referred me to Bolton Metropolitan Council v Secretary of State for the Environment
1996 1LER 184 and the speech of Lord Lloyd effectively determining that
it was not a matter of right for a second respondent to cover expenses even if
successful. In Mr Campbell's view, the
law recognised that where the interest of parties are incongruent (that is sit
together and are not distinguishable) there should be no duplication of the
award of expenses. In his submission,
that was the position which was obtained in this case. The Ramblers' Association came in
voluntarily and nothing was said in evidence or submissions which were
different from the council's
position. Their interest could be put in the following
way "The gates should be unlocked so people can avail themselves of that". The Court must discriminate between the
respondents and not allow expenses against the Ramblers. He sought support also from the case of Renewable Energy v Moray Council
Innerhouse Decision 4
January 2007
where Lord Justice Clerk Gill held that
the first stage judicial appeal, respondents whose interests were identical to
those of the principal respondent need not expect to have their expenses
paid. The interests had been
identical. The Court could have reached
a conclusion without their involvement (stressing that this was no reflection
either on Mr Morris or Miss McCartney's representation). Their presence was not necessary. The
Pursuers should not have to pay for it.
[24] Miss
McCartney then responded on behalf of the Ramblers. She referred me in the first place to the Act
of Sederunt (Summary Application etc. Rules) 1999, which was the machinery
whereby any party with an interst can seek to be a party to the action. She
considered that the Ramblers' motion for expenses should only be resisted if it
was held to be unreasonable. She said
that the interests of the Ramblers and Stirling Council were not identical,
they had separate interests in relation to access. Stirling Council are a statutory body
acting with statutory duties, balancing a whole range of interests, having
duties of best value and have responsibilities to landowners. The second Defenders are a registered
charity who had involvement in the preparation and drafting of the legislation
in Scottish Parliament. They have a
direct interest in the way that it is implemented and applied. They are involved in the National Access
Forum. They have regular meetings with
the government, including government ministers, in connection with the
Act. They have a direct interest in
understanding how access can operate on the ground, a matter which would not be
met by a watching brief as that would deprive them of direct involvement in discussion
and negotiation. They have locus,
opportunity and expertise to lend to the process.
[25] She
submitted there were differences in approach in the weeks before proof between
the Ramblers and Stirling Council in connection with how the matter might best
be resolved. They did not know how the
first Defenders were going to approach the matter until the proof was up and
running. In her submission, the
approach of the Ramblers had been successful in this litigation and if the
Court was to depart from awarding expenses, there must be some material to
justify that departure (MacPhail
Paragraph 1908). The Ramblers
involvement would give rise to a reasonable modest award of expenses on either
scale as there was no counsel, no experts and only one witness and no
prolongation of the proof in that respect. She looked briefly at the cases
referred to asking the Court to distinguish planning cases from the instant
case in that both these matters had been subject to planning enquiries where
there had been evidence led and submissions made. The Court applied different considerations
at the appellate stage rather than at the stage of first instance and although
this was an appeal by way of summary application against a notice, it was the
first opportunity for evidence to be led and submissions made. The cases recognised that representation by
other parties could give rise to expenses consideration and recognised it was a
matter for the discretion of the Court.
[26] Mr
Smith responded briefly, in the first place to confirm that negotiations
between the Ramblers and the Snowies were at odds with the negotiations between
Stirling Council and the Snowies to the point of irritation. He accepted that Mr Snowie could have been
seen to act reasonably but in his submission the key to the reasonableness was
the question of the lease. He was still
mystified as to its relevance. So far
as the suggestion that the council should have known of and incorporated the
Rosses' interests at an earlier stage, he
referred to the letter, Production No 22, where Mr Barron had written to Mr
Ross. It was not clear who the
keyholder actually was and it was not evident until the proof that the gate was
jammed rather than locked, why did Mr Snowie not immediately on receipt of the
notice say to the council that it was the Rosses' responsibility. Dr Ross, on evidence, seemed to be mystified
about why the lease was backdated. All
of the circumstances surrounding that pointed to unreasonable conduct Mr Smith recognised ultimately that it was a
matter entirely for the discretion of the Court.
[27] Finally, Mr Campbell also
recognised that there were discrete heritable interests to both the Rosses and
the Snowies. He accepted that the lease
was not a model of crystal clarity but he considered that he had explained
intelligibly why it was entered into
[28] After
hearing submissions, I made Avizandum.
Discussion
and Decision
[29] The
first issue is whether an award of expenses should be made. I have come to the conclusion that the First
Defenders should be entitled to their expenses in respect of each of the two
applications by Mr and Mrs Snowie and by Professor and Dr Ross. The Defenders succeeded in establishing what
they had wished to establish from the outset, which is that the gate should be
open in terms of the Land Reform Act.
In addition, in relation to the Snowies' case, the Snowies were
unsuccessful in relation to the extent of ground which they wished to be
excluded from public access and in all the matters where there was an issue
between the parties, such as whether there had been previous access or what
requirement there was for privacy or security, the Defenders were
successful. In these circumstances, the
Defenders are entitled to their expenses in relation to both these
applications.
Sanction
for Senior Counsel
[30] This
is a matter which was not opposed but I should make it clear, without intending
any disrespect to Miss McCartney's very focussed and helpful contribution, that
the involvement of senior counsel was invaluable in a matter of such novelty Sanctions are accordingly granted.
Award
of Expenses in Respect of the Ramblers Association
[31] This
relates to the Snowie case only, the Ramblers not having sought to be convened
in the Ross case.
[32] Miss
McCartney's submission was very straightforward in respect that they had
succeeded and were entitled to their expenses unless the Pursuers could show
some other cause. I should say that I discount the fact that the expenses would
be "modest". There may be circumstances where the amount is relevant to
liability, but such consideration played no part in my decision.
[33] Mr
Campbell, in his submission, referred to two cases. As I understand each of these cases, the
questions related to the expenses at the appellate stage, where the issue of
coincidence or congruence of interests is much clearer and, in each of these
cases, the Court laid down parameters for such a decision.
[34] That
is not the case here. This was a hearing
at first instance involving the leading of evidence, including evidence from
The Ramblers Association. I accept that
whatever the position may have been ultimately during the course of the Proof,
there are different interests in respect of The Ramblers Association and
Stirling Council. I accept from Mr
Smith that, from the Council's point of view, the involvement of The Ramblers
Association was not unequivocally helpful.
I was advised, and this was not contradicted, that the discussion which
The Ramblers Association had with the Snowies with a view to resolving it, were
unhelpful to the position adopted by Stirling Council. Further, Miss McCartney is I think right in
the context of the first instance application to recognise that Stirling Council's
interests relate to a variety of matters.
The Ramblers' interests may be seen, loosely as for the general public
interest of access to land without for example the necessity of reconciling
such a position with a core path plan or other responsibilities which Stirling
Council had to take account.
[35] Accordingly,
I find that in this case The Ramblers Association is entitled to their expenses
from the Pursuers.
The
Nature of the Award
[36] Mr
Smith argued strongly for expenses to be awarded on an agent/client basis to
reflect the Court's disapproval of the conduct of the action. He accepted that the issue was not one of
competence but rather one of reasonableness and, as I understood the position,
he founded the issue of reasonableness almost entirely upon the questionable
lease entered between the Rosses and the Snowies. This demonstrated, in his view, bad faith
and elevated the conduct to such a level of unreasonableness as to justify an
agent/client award.
The
Test
[37] I
accept, as did Mr Campbell, the test as laid down by Lord Hodge at Page 530 of McKie as follows:
"Where one of the parties
has conducted litigation incompetently or unreasonably and thereby cause the
other party unnecessary expense, the Court can impose as a sanction against
such conduct, an award of expenses on the solicitor and client scale. In its consideration of the reasonableness
of the parties' conduct of an action, the Court can take into account all
relevant circumstances, including the parties' behaviour before the action
commenced, the adequacy of preparation, the strength or otherwise of a parties'
position and the substantive merits of the action, the use of the Court action
for an improper purpose and the way in which parties use Court procedure for
example to progress or delay the resolution of the dispute."
[38] One
thing which is striking from a look at the authorities is the language used in
relation to the test for unreasonableness.
In North East Ice and Cold
Storage Company Ltd v Andrew Third, an opinion of Lord Penrose from 23
February 1998, he comments (Page 5, Second Paragraph),
"The Pursuers in this case
have behaved disgracefully in my opinion .....
I consider it is clear that the present litigations are properly seen as
an abuse of the procedures of the Court to put pressures on individuals of
limited resources with a view to denying them the benefit of the judicial
decision on the serious allegations made by them."
In Ewos
Ltd v Mainland and Another, Lord Drummond at Paragraph [5] made the
following observation;
"I consider that the
Pursuer's conduct of the action as a whole was open to serious criticism
.... The abandonment of the case of
fraud ..... shows seriously defective
preparation of the case. That failure
to prepare was especially culpable in view of the fact that allegations of
fraud had been made.... The averments
relating to the causation and quantification of loss caused by breach of
warranty or negligent misrepresentation were manifestly defective in
fundamental respects."
[39] At
Paragraph [9] he observes:-
"I consider it important
that the Court should have a wide power to order expenses, should be taxed on
an agent/client basis to enable it to impose a sanction against conduct of
litigation that is plainly inadequate or defective."
[40] In
McKie, Lord Hodge recorded the
matters raised by Mrs McKie's counsel to show that the Scottish Ministers had
acted unreasonably; her counsel criticised their failure to identify their
vicarious liability, a failure to make available relevant documentation, the
lodging of an "unnecessary and nitpicking" reclaiming motion and the dilatoriness
and lack of co-operation in settlement and negotiation; however, the principal argument in terms of
the unreasonableness was that the Scottish Ministers had failed for several
years to admit what they knew or had reason to believe, namely that a
particular fingerprint was not the Pursuer's and that the relevant Scottish
Criminal Records Office of officials had been guilty of what was ultimately
alleged to be "malicious conduct".
[41] The
opinion concluded with Lord Hodge holding that he was not satisfied the
Scottish Ministers had behaved unreasonably or reprehensibly.
[42] It
seems to me that the test from the three decisions from which I have quoted is
a very high test, given the terminology and vocabulary used. Indeed, Mr
Campbell in his submissions had used the word "irresponsible" as describing the
kind of behaviour which may justify an award on an agent/client basis; the
excerpts from the opinions above quoted show that as an apt description.
[43] In
the current case, Mr Snowie, as Mr Campbell observed, had no option but to
raise proceedings if he sought to challenge the notice. There was no other
forum in which this matter could be determined if he was unable to agree with
Stirling Council and in any event, the only basis for seeking a decision about
the extent of ground to which the public would have access was by way of this
type of application.
[44] The
lease remains an unexplained feature in this case, despite Mr Campbell's best
efforts to explain it. It is no longer
useful to speculate, but it can have had no bearing in relationship between the
Snowies and the Rosses if, as Mr Campbell said, it proceeded on the basis of
trust. The timing of the lease and its
backdating are curious and still unexplained in any satisfactory way. However, in the context of the overall
litigation it did not seem to me to especially protract proceedings. There would have required to have been proceedings
in any event, perhaps not involving the Rosses and I deal with this
underneath.
[42] So far as Mr and Mrs Snowie are
concerned, I cannot find that anything done could give rise to legitimate
criticisms that the Snowies have behaved disgracefully or have abused the
procedures of the Court, nor has there been defective preparation nor
inadequate conduct. In all the
circumstances I find that expenses in the Snowie case should be on a
party/party basis. I deal with the expenses in the Ross case in a separate note
