Scottish Sheriff Court Decisions

JUDGMENT OF SHERIFF FOULIS

 

IN THE CAUSE

 

F487/06 DAVID ROBERT FLEMING v LYNNE ADELE WHIITAKER OR BRADSHAW

 

Perth, 11^th May 2010.

The Sheriff, having resumed consideration of the cause, continues consideration of the motion number 7/3 of process until 2^nd July 2010 at 10am; meantime appoints the sheriff clerk to intimate a copy of the interlocutor and note to the Chief Executive, Perth and Kinross Council, 2, High Street, Perth in order that they can consider whether they should meet the Defender's share of the curator ad litem's fees; meantime remits the business account of the curator ad litem to the Auditor of Court to tax and report.

 

 

 

 

NOTE

 

The motion, number 7/3 of process, called before me initially on 30^th October 2009. At that stage I considered that the motion raised an important issue of practice and having regard to the time constraints in court that date, I indicated to the parties that it would be better if it was continued. Both parties acceded to this suggestion and it became clear that time was likely to be available on 6^th November 2009 as indeed turned out to be the case. It also seemed to me when the motion initially called, that the parties had not really applied their minds to the authorities which might be of some assistance. On 6^th November 2009 the curator ad litem moved me to grant the motion. Mr Morris, solicitor, Perth, appeared for the Defender. To all practical purposes, he was, however, resisting the motion on behalf of his firm.

 

The curator advised that she had been appointed by interlocutor of 29^th June 2007 to be curator ad litem to David Ross Fleming. She received a letter dated 2^nd July 2007 from Messrs McNabs, the Pursuer's solicitor, advising her of her appointment. Messrs Condies, acting for the Defender, wrote to her on 3^rd July 2007 confirming that they agreed the terms of the letter from Messrs McNabs. She had rendered her account to both firms of solicitors on 7^th January 2008. She had not received payment of the one half of her account from the Defender in terms of the interlocutor of 29^th June 2007.

 

She referred me to the unreported decision of Beaumont Petr 2006 CSDH 27. The circumstances of that case were very similar to the present albeit it dealt with the fees in respect of a report prepared by a reporter appointed by the court. She also referred me to Stirling Park & Co v Digby Brown & Co 1995 SCLR 375. She submitted that it was the universal custom that a report prepared was in fact paid for by the solicitors for the parties to the action. The only difficulty she had experienced was when a solicitor had ceased to act for a party. She had been appointed curator ad litem to a child. It would be inappropriate to sue that child's parent.

 

In resisting the motion, Mr Morris submitted that there was no authority to support the motion. He advised that the hearing on 29^th June 2007 had been lengthy and fraught. There had been allegations of abuse on the part of the Defender or persons connected with her. There were said to be concerns about the care of the child. As a result of these concerns, I had decided to appoint a curator ad litem and for her to report. The liability for the curator's fee had been argued. Mr Morris had not volunteered to pay for any proportion of the curator's fee. There was a clear issue concerning the cost of the curator for the Defender. She considered that whoever had been responsible for the allegations should meet the cost of the curator as her son had not been at risk. He conceded that as a result of the curator's work, the parties had become more focussed on the needs of their son. This had resulted in his undergoing psychiatric and psychological assessments. The whole exercise had brought the parties together and the parties' son was now getting the assistance he required. He was now at a residential school. The Defender considered that the allegations had instigated a wild goose chase and in effect saw no reason as to why she should pay for the cost of a curator. Notwithstanding her view, Mr Morris indicated that she was unquestionably liable for her share of the curator's fee.

 

He referred me to the decision of Sheriff Principal Bowen in O'Neill v Gilhooley Edinburgh Sheriff Court 8^th December 2006. This was authority for the proposition that once an interlocutor had been pronounced regarding liability for the cost of a report, this could not be varied. He sought to distinguish the decision in Stirling Park and Co v Digby Brown and Co. There had been instruction in that case. There was no question of his firm having instructed the curator in the present case. It was totally inappropriate to place a solicitor in the position of guarantor. He referred to Macphail Sheriff Court Practice paragraphs 4.23 - 4.28, and in particular paragraph 4.27. He considered that the decision in Beaumont Petr was irrelevant.

 

In response the curator referred to the final paragraphs of the opinion from Sheriff Principal McLeod in Stirling Park and Co v Digby Brown and Co. She advised that Mr Morris, at the relevant time, had advised her that he had applied for legal aid on behalf of the Defender, who was likely to have a large contribution if eligible. In the end, the Defender was refused legal aid. She had acted in good faith in carrying out her duties. Mr Morris confirmed that legal aid had been applied for but had been refused on financial grounds. He had sent a second set of legal aid forms to his client but she had not completed these.

 

It is perhaps useful to set out the background to the appointment of the curator ad litem in this litigation. The Pursuer raised an action for contact to the parties' eight year old son in December 2006. It was averred on his behalf that there had been contact but that this had been subsequently refused by the Defender. On 20^th December 2006 the Pursuer was found entitled to contact on an interim basis over the Festive period and the case was continued until mid January 2007. A Child Welfare Hearing was then assigned for late February 2007. At that hearing the action was sisted to enable the parties to attend mediation. In mid June 2007 the sist was recalled and a further Child Welfare Hearing assigned for 6^th July 2007. Prior to that hearing, however, the Pursuer enrolled the motion, 7/2 of process. This motion sought reduction of the notice period and for interim residence of the child to be awarded to the Pursuer. This was against a background that the child had been resident with the Defender since the parties separated in February 2000. On 29^th June 2007 the motion was argued and consideration of the motion for interim residence was continued whilst Mrs McKay, who was appointed as curator ad litem, investigated and reported. Both parties were found liable in the first instance for her fees.

 

Having retrieved my notes for 29^th June 2007, I have it noted that I was advised by the Pursuer's agent that the social work department advised him on 24^th June 2007 that the child was being sexually abused or exposed to very explicit sexual material. This information had been reported to the social work department by staff at Goodlyburn Primary School where the child was a pupil. I was advised that the social work department had intimated their intention to intervene and call a children's panel. I was moved to refer the matter to the Reporter in terms of section 54 of the Children (Scotland) Act 1995 and appoint a curator ad litem. I have it noted that Mr Morris advised me that the Defender was contacted by a social worker on 27^th June 2007 and told of the department's concerns. She categorically denied any question of sexual abuse or exposure to inappropriate material. I have noted that he had 'no problem re a curator ad litem.' I do not have anything recorded concerning payment of the curator's fees. That is not to say that some comment was not made but it would be unlikely to have been anything significant. If there had been, I would almost certainly have noted something. A significant part of the argument related to whether the child was to go on holiday to Turkey with the Defender and others in a matter of days.

 

As a result of her appointment, Mrs McKay received a letter from the Pursuer's solicitors dated 2^nd July 2007 setting out the background which had prompted her appointment. The Defender's solicitors wrote on 3^rd July 2007 to Mrs McKay confirming that they could add nothing further to the content of the said letter of 2^nd July 2007 and giving some contact details in respect of their client. When Mrs McKay's report became available, the motion for interim residence was dropped and a further Child Welfare Hearing was assigned for 29^th September 2007. On that date the Child Welfare Hearing was discharged and the cause sisted. The action remained sisted until the present motion was enrolled and argued before me.

 

The reason for the appointment of Mrs McKay as curator ad litem was the concern to which I have already referred. The concerns about the child were based on his extremely sexually explicit language, his acting out sexual matters, his reference to acts of bestiality, and to his being filmed or his face being obscured. His school also noted a significant difference in the child's behaviour when with the Pursuer as opposed to the Defender. The matter was further complicated by the fact that on 29^th June 2007 the Defender was going on holiday to Turkey with the child imminently. She did do so with the child returning on 15^th July 2007. The child then stayed with the Pursuer for a fortnight.

 

In addition, the child had complex needs. He was diagnosed as suffering severe attention deficit hyperactivity disorder with co-morbid conduct disorder, developmental co-ordination disorder, and sensory integration difficulties. He attended the Centre for Child Health in Dundee regularly. His behaviour in school was often erratic. He often used sexual words. He was aggressive and violent. He was excluded regularly from school. He was schooled alone in a mainstream primary. He was educated in a room with a CALM tent. If the child misbehaved, he was sent to this tent for ten minutes. Restraint techniques were used by staff when necessary.

 

Following investigations, Mrs McKay concluded that the manner in which the social work department and the primary school had undertaken matters was unfortunate, encouraging the Pursuer to seek interim residence without engaging the Defender. She could find no pattern to the child's behaviour. She was concerned as to the regularity of medication given to the child and the teaching regime. She noted in her recommendations that the parties were 'at war' over the child and had been for years. The problem which had prompted her appointment, she noted, might have resulted in the parents working to the same game plan. There was likely to be a day care assessment carried out by a Doctor Bonnar. In light of that, Mrs McKay recommended that the child remain with his mother meantime. I can only presume that in light of the subsequent procedural history all relevant persons, parents, social workers, and school staff, have since 2007 worked generally towards the same goal and as a result, paradoxically the 'crisis' which prompted Mrs McKay's appointment was the catalyst for progress.

 

Against that background, the child clearly was not 'a party to the action' in the normal sense of the phrase. Intimation of the action on the child was dispensed with in view of his age on application of the Pursuer. Mrs McKay met with him twice for the purposes of preparing her report. There is nothing in the report which suggests that he was unable to communicate in an age appropriate way at the time. The appointment of the curator ad litem required her to look after the child's interests and consider whether it was in the child's interests that she enter the process.

 

Dealing with the issue of the payment of the curator, Macphail at paragraph 4.27 observes that, if not assured of sufficient funds to enable the interests of the child to be safeguarded, the curator can apply to the court for an order on the appropriate party to supply him with funds. In this regard the author referred to four authorities. In both Studd v Cook 1883 10R (HL) 53 and Percy v Percy 1923 SLT 295 the curator's opponent was required to fund the curator to secure representation and represent the interests of the children in the litigation. In Smith v Smith's Tr 1900 8 SLT 226 and Cathcart v Cathcart's Trs 1906 13 SLT 909, cases which involved disputes regarding reduction of a trust deed and marriage contract respectively, the trustees were ordered to fund the curator's outlay in seeking legal advice and representation respectively. This practice appeared to be approved of by Lord President Clyde in Drummond's Trustees v Peel's Trustees 1929 SC 484 at 497. If no funds are available, then the curator may require to apply for legal aid. The author concluded that a curator is entitled to remuneration for the services provided.

 

Moving to the present, in L Petitioners (No 4) 1997 SLT 44 a curator was appointed in respect of a rehearing of a proof of grounds of referral in respect of a child. As a result of an oversight on the part of his solicitor, legal aid did not cover all his work. An order was made by the First Division that the curator's remuneration be settled from public funds as the curator required to be properly remunerated somehow for the important work undertaken.

 

The requirement to ensure that a curator ad litem is remunerated for the work carried out is reflected elsewhere. In Chapter 49 of the Rules of the Court of Session 1994 which relate to family actions, rule 49.27A makes provision for payment of the fees and outlays of a curator incurred during the period of appointment until the occurrence of three events. Two of these events cover the situation in which the curator decides to become a party to the action. No doubt the occurrence of these two events coincide with the curator either satisfying himself that the ward has sufficient funds to meet his fees from then on or alternatively will receive the benefit of legal aid. The third occurrence relates to the curator's discharge before becoming a party to the action. Until the occurrence of any of these events, a curator's fees are the responsibility of the Pursuer. This is logical because a curator will require to carry out a certain amount of work and investigation before ascertaining whether it is appropriate to enter the process and, where appropriate, that the tests of eligibility for legal aid on the ward's behalf can be satisfied. Accordingly, the curator's fees must be met from some source in all instances. To quote Sheriff Principal Bowen in O'Neill v Gilhooley at paragraph 12 the direction as to responsibility for payment 'is intended to secure early payment.' Reference is also made to the general note of the annotation to that rule of court in section C of the Parliament House Book.

 

Likewise, although there is no specific provision in the Ordinary Cause Rules relating to curators appointed to children in circumstances such as the present, OCR 33.21(2) makes similar provision regarding responsibility for the reporter's fees for the same reason. Whilst referring to OCR 33.21 it is worthwhile noting in passing that OCR 33.21(6) also provides that when a reporter has been appointed to investigate and report in respect of a child, no application for a section 11 order in respect of that child shall be determined until the report prepared as a result has been lodged. This simply confirms the importance of such a report to the determination of the issue(s) in dispute. I shall refer to this again later.

 

The duties of a curator ad litem appointed in a case such as the present are similar to the appointment of a curator ad litem in an adoption process. Further, the person appointed in an action such as the present is often not in court at the time of appointment albeit parties' representatives may have informally inquired as to that person's availability prior to proposing their appointment. In adoptions, the curator is normally appointed from a panel. In either event, the person appointed is unlikely to have any opportunity to express an opinion as to whether they wish to be appointed. Regarding the payment of such a person, in McNeill Adoption of Children in Scotland 3^rd Edit at chapter 14, the author makes reference to the general requirement of every local authority to meet the expenses of a curator ad litem and pay them an appropriate fee and allowance if the person appointed curator is a member of the panel of curators. It was further observed that a delay in payment of the curator had become a problem in some courts. Accordingly, solicitors were advised at the time petitions for adoption were lodged that payment of the curator was expected once the curator's report was lodged and that petitioners should put their solicitors in funds in cases in which they, as opposed to the local authority, were liable to pay. Whilst the legislation referred to is the Adoption (Scotland) Act 1978 and the related procedure, there does not appear to have been any change under the Adoption and Children (Scotland) Act 2007.

 

Earlier at paragraph 7.05 in McNeill, reference is again made to payment of curators. The text refers to curators potentially being unwilling to act in cases where there is a possibility of remuneration not being met by the local authority. This suggests that a person appointed curator could refuse to take up the appointment if there was a doubt as to payment. Reference is further made to courts being unwilling to appoint a curator from the local authority panel if there is any doubt about payment of the curator's fee. Bearing in mind the role the curator is being asked to perform, this may be considered regrettable, particularly as there is the potential for delay. It does, however, seem to support a principle that a curator requires to be paid for services provided.

 

Similarly in proceedings before the Children's Hearing under part 2 of the Children (Scotland) Act 1995, a curator ad litem can be appointed by the court. Whilst, unlike safeguarders as provided for by section 41(4) of the Children (Scotland) Act 1995, there is no equivalent duty to remunerate a curator by the local authority, it is interesting to note the reasoning behind the appointment of curators as set out in Kearney Children's Hearings and the Sheriff Court 2^nd Edit paragraph 4.04, namely the availability of legal aid for the latter but not the former and thus a more realistic rate of remuneration. Accordingly, it appears to me that the requirement of a curator to be remunerated is again confirmed. Indeed, this also suggests that a curator should be properly remunerated.

 

This is an unfortunate dispute. Persons such as the curator in this case perform a very important function in such cases. They carry out investigation on behalf of the court enabling an informed decision to be made at a stage in the court process where a contentious matter requires determination. Of necessity, these investigations are carried out as a matter of urgency. Often the investigation can at very least facilitate a resolution of issues relating to a child thus avoiding the expense, time, and emotional ordeal of a contested proof. It is essential that such persons are accordingly paid for the work they carry out as a result of an appointment by the court. As Lord President Lord Hope observed in L Petitioners (No 4) 1997 SLT 44 at 45K-L 'it would not be right for the curator not to be remunerated for the important work which has been undertaken.' I further refer to the observations made by Sheriff Principal Nicholson in Di Resta v Di Resta 1991 SCLR 865 at 868A - B.

 

The importance played by a reporter or curator ad litem in a litigation regarding a child cannot be over emphasised. It would appear clear in the present case that Mrs McKay's involvement brought about a meeting of minds regarding the care of the child. This importance has been generally recognised through the years with the Courts appointing a person to report on all the circumstances surrounding a child both in terms of statute and using an inherent power - Clive and Wilson Husband and Wife 1^st Edit page 574. The influence of such reports can be seen in Zagrodnik v Zagrodnik 1952 SC 258 and McClements v McClements 1958 SC 286. In the relevant section of the Stair Memorial Encyclopaedia The Laws of Scotland relating to Child and Family Law, Alison Cleland observed at paragraph 57 that the curator's role was to advise the court as to the action which best looked after the child's interests. Whilst narrating a child's views, the curator could advise that to follow such views would not be in the best interests of the child. That section also referred to research carried out by the Scottish Office which noted that solicitors generally preferred representing children in the capacity of their curator. A report from a reporter appointed by the court or a curator is often before a court at a Child Welfare Hearing in terms of OCR 33.22A. In addition to the terms of OCR 33.22A(4), a number of authorities from several Sheriffs Principal have made it clear that a dispute regarding children can be resolved on a final basis at such a hearing. I simply refer in passing to Hartnett v Hartnett 1997 SCLR 525 and Ross v Ross 1999 SCLR 1112. In some instances the content of such a report has been the basis for such a final decision. I refer to McCulloch v Riach and Sumpter 1999 SCLR 159 and O'Malley v O'Malley 2004 GWD 6-103 as examples.

 

From the foregoing I am quite satisfied that it is a well established principle that a curator ad litem is entitled to remuneration for the professional services provided in that office and courts will take a variety of steps to ensure that the curator is properly remunerated. I have not found any indication to the contrary. The reason for this principle is the importance of the role performed by the curator.

 

How does that principle operate in light of the motion for the curator ad litem in this instance? Before I address that matter, I consider that I should deal with a preliminary matter, albeit it was not raised before me. In Di Resta v Di Resta, a point was taken before Sheriff Principal Nicholson that the reporter had no locus to raise the issue in a Note in process or appear and be heard. That Note related to payment of the reporter's fees. In the present case, the curator never sought to enter the process. Sheriff Principal Nicholson observed that there appeared no provision for the reporter to intervene in the process and be heard even to that limited extent. As far as I can see that remains the position. However, he then went on to observe that the matter could have been brought to the sheriff's attention by way of a letter and the sheriff could properly have assigned a hearing. If I had adopted that procedure in the present instance, I would not have heard submission from the curator, but the problem for which she seeks a solution could still have been brought to my attention.

 

In considering whether the motion should be granted, I do not consider that O'Neill v Gilhooley assists Mr Morris. It does not appear to me that the purpose behind the present motion is to alter a prior interlocutor. Rather it is an attempt to achieve what OCR 33.21 seeks to achieve, namely to secure payment of the curator's fees and outlays. I do not consider that Beaumont Petr is of assistance to the curator. The issue there was one of professional practice. Further, the facts are different from the present. It involved a solicitor who was appointed reporter by the sheriff in Dunoon and after the appointment, crucially, the Petitioner instructed that reporter to prepare the necessary report, these instructions being accepted. The terms of the interlocutor appointing Mrs McKay do not require anyone to instruct her. Further, it cannot be said that either agent by their letters to the curator in early July 2007 formally instructed her.

 

The parties did not refer me to the decision of Sheriff Principal Risk in Catto v Lindsay and Kirk 1995 SCLR 541. In that case, a reporter in a custody action sued the solicitors who acted for a party to the action for their client's share of the fee for the report prepared. Sheriff Principal Risk at 545D observed that the liability for the fee was that of the party who was legally aided as opposed to the solicitor. These observations are strictly obiter to the decision and in any event were made in the context of an action raised against the solicitors as opposed to the process adopted by the curator here. I was however referred to the decision in Stirling Park and Co v Digby Brown and Co. That decision is not in point. The firm of solicitors concerned were instructing a firm of sheriff officers to execute diligence for a client. The basis of the decision against the solicitors was based on custom. From consideration of the authorities, I do not consider that the curator can found on custom. If, as a matter of practice, there was such a custom, I clearly cannot come to such a conclusion in the present circumstances, the motion was argued by means of ex parte submission. The observations by Sheriff Principal MacLeod at 381A to B in the Stirling Park and Co decision are, however, of significance to a degree. A solicitor knows the circumstances of his client. To paraphrase the remarks of the Sheriff Principal, if a solicitor knows the client does not have the means to meet a curator's fee, then he should leave the court in no doubt of that fact at the time a curator is appointed. Mr Morris, in his submission, submitted that liability for payment of the curator's fees had been argued and that he had not volunteered on behalf of the Defender to pay any proportion of the curator's fees. As I have already recorded, my notes from the hearing do not disclose that. If there had been any significant argument regarding liability for the curator's fees, I would have thought I would have noted something to indicate a resistance on the part of the Defender. Further, I can only observe that if I had been told categorically that the Defender could not afford to meet any proportion of the curator's fee, I very much doubt I would have pronounced the interlocutor in the terms I have. In any event, in light of the refusal of her legal aid application on financial grounds, this does not appear to be the case.

 

To conclude, I am satisfied that the curator has to be paid for the work she carried out. All authorities point to the requirement of a curator being paid. Further, whilst I have found no authority in which a court transferred primary liability for a curator's fee from the party to their solicitor, I consider that it ultimately is within the court's power to do so if this is necessary to ensure payment of the curator for the services provided. In L Petitioners (No 4) the Inner House seemed to me to look round for a candidate to ensure payment of the curator's fees. In the authorities referred to in Macphail paragraph 4.27 a variety of persons were made responsible to meet the curator's fees, even the opponent, again for the purpose of ensuring the curator was paid. It has to be remembered that the person appointed by the court as curator ad litem has an essential function to perform and thus requires to be paid for the work they have carried out in that role. I refer in particular to Di Resta and L Petitioners (No 4) once more. Solicitors should be well aware of this.

 

Although I have reached this conclusion, having taken account of all matters, I do not consider that it is appropriate to grant the motion at this stage. I am going to continue consideration of the motion. I have come to this conclusion for the simple reason that there is nothing to suggest that the Defender is unable to pay the curator's fees at this stage. Whilst Mrs McKay considered that it was inappropriate for her to sue the child's parent, a view with which I can sympathise, such action is not required. An interlocutor has already been pronounced finding the Defender liable for one half of the curator's fee. I do not consider that there is any reason why the curator's account cannot now be taxed and an interlocutor thereafter pronounced against the Defender for her share of the fee duly taxed. The distinct impression I gained was not that the Defender could not pay the fee but simply was not going to pay the fee. If in due course it becomes apparent that the Defender cannot pay the curator's fee then, in my opinion, consideration can be given to finding her solicitors liable for her share of the curator's fee. For reasons already expressed, I do not see any reason why this cannot happen. In addition, to follow the reasoning of the Sheriff Principal in Stirling Park and Co, the solicitors instructed should have a good idea of the financial position of their client. If subsidiary liability for a curator's report is to be avoided, then the court should be advised as to a party's financial position when appointing a curator and determining who will be responsible for paying the curator. If this duty is not undertaken, then there is always the potential that a person appointed as curator may well not be paid by the party to the litigation. This is quite frankly not acceptable and ultimately will result in persons not being prepared to undertake the duties incumbent upon a curator in cases such as the present. This has to be avoided and an order for payment against such a party's solicitor achieves that.

 

There are two final observations which I consider are appropriate to make. I am appointing this case to call on 2^nd July 2010. This will give sufficient time for the curator's account to be taxed. I further am appointing a copy of this decision to be sent to Perth and Kinross Council. I wish them to consider whether they should be meeting the Defender's share of the curator's fee. In L Petitioners (No 4) a proportion of the curator's fee was ordered to be paid from public funds. In this instance, the actions of the employees of Perth and Kinross social work department appear to have been the catalyst for the Pursuer's motion which was argued on 29^th June 2007. I note in paragraph 20 of Mrs McKay's report that the social worker advised the Pursuer that his department would support an application on his part for residence of the child. This must have occurred a matter of days before the hearing of the motion. However, it is now accepted that this stance on the part of the social work department turned out to be premature, the social worker having subsequently met and been impressed by the Defender and her partner. I fully understand that in this day and age social workers may feel that 'they are damned if they do and damned if they don't.' However, it may be that they did act prematurely and in a manner that was not even handed in this case. It accordingly appears to me that it is appropriate that the local authority be given the opportunity to consider their position and whether they should meet the Defender's share of the curator's fee on a 'no obligation' basis. I am giving the local authority sufficient time to consider the matter.

 

Secondly, I have certain observations to make regarding the actions of the Defender's agent. Firstly, I gained the impression from Mr Morris, and this may be mistaken, that it had not been made patently clear to the Defender that the curator had to be paid and it was her responsibility. Indeed the impression I gained, again perhaps mistakenly, was that no real pressure had been put on the Defender to settle Mrs McKay's fee when she took issue with her bearing any responsibility. It appears that other alternative avenues were explored other than the one from which there was no escape. The proper approach was to pay the curator and then potential means of reimbursement could be considered. I can understand the Defender's position but it appears to have been overlooked that as a result of the work carried out by Mrs McKay a lot of expense and anguish for the parties and the child have been avoided. Indeed, the child's position seems to have been improved. Against that background, it is undoubtedly regrettable that the Defender's solicitors did not consider settling the curator's fees or at least a portion thereof even although the Defender was being difficult. It may be that this observation in the early twenty first century is 'pie in the sky', and I am aware of the level of fee. However the solicitors, unlike their client, are aware, or should be aware of the status and importance of the curator.

 

Secondly, the first inventory of productions lodged on behalf of the curator appears to show a course of correspondence in which the curator's inquiries as to payment are ignored. Again, I refer to my final observation in the immediately preceding paragraph. The apparent lack of reply from Mr Morris after 14^th April 2008 would appear to be based on the premise 'if it is ignored, it might go away'. If there was indeed no reply, this shows a discourtesy to the role Mrs McKay had been asked to fulfil. Further it makes a mockery of the reason, as expressed by Sheriff Principal Bowen, for the provision regarding payment of the curator being in the interlocutor and indeed the intention behind the provisions of the relevant ordinary cause rules. A response might well have brought the matter to the court's attention far earlier.