SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

B35/12

JUDGMENT

of

SHERIFF PRINCIPAL R A DUNLOP QC

in the cause

SCOTTISH LEGAL AID BOARD

Appellant

against

MR KEN DALLING, SOLICITOR

Respondent

__________________________________________

Act: Mr Cownie, Solicitor, SLAB, Edinburgh

Alt: Mr Dalling, Solicitor, Stirling

STIRLING, 6 December 2012. The Sheriff Principal, having resumed consideration of the note of appeal by the Scottish Legal Aid Board, dismisses the appeal as incompetent; finds no expenses due to or by either party.

NOTE:

[1] The Criminal Legal Aid (Scotland)(Fees) Regulations 1989 (SI 1989/1491) makes provision for fees and outlays allowable to solicitors from the Scottish Legal Aid Fund in respect of criminal legal aid under the Legal Aid (Scotland) Act 1986. The Regulations are made by the Secretary of State in exercise of the powers conferred by section 33 of the 1986 Act.

[2] In terms of regulation 11(1) of the 1989 Regulations, if any question or dispute arises between the Scottish Legal Aid Board and a solicitor as to the amount of fees or outlays allowable to the solicitor in respect of legal aid in criminal proceedings in the sheriff court, "the matter shall be referred for taxation to the auditor of the sheriff court for the district in which those proceedings took place."

[3] In terms of regulation 11(3) the Board and any other party to such a reference "shall have the right to state written objections to ... the sheriff in relation to the report of the auditor within fourteen days of issue of such report and the Board and any such other party may be heard thereon."

[4] A dispute arose between the Board and Mr Dalling, solicitor, as to the amount of Mr Dalling's fees and a reference was made to the auditor of court for taxation of these fees. The auditor issued his report on 6 February 2012 and Mr Dalling stated objections thereto. The sheriff heard parties on the objections and on 2 April 2012 issued an interlocutor sustaining the objections in part.

[5] The Board then lodged a note of appeal and a preliminary question arises whether such an appeal is competent. Mr Dalling contends it is not whereas the Board contends that it is.

[6] In support of the competency of an appeal the solicitor for the Board submitted that any decision of the sheriff was subject to appeal unless excluded expressly or by necessary implication. Reference in this regard was made to Harper v Inspector of Rutherglen 1903 6F 23 and Jeffray v Angus 1909 SC 400. Under reference to Magistrates of Portobello v Magistrates of Edinburgh 1882 10R 130 it was submitted that, if the legislature gives jurisdiction to a court without any specific form of process being provided, it is presumed that the ordinary forms of that court will apply. It was submitted that this approach had been endorsed in Central Regional Council v B 1985 SLT 413 and Glasgow City Council v H 2003 SLT 948. It was conceded however that section 27 of the Sheriff Courts (Scotland) Act 1907 did not apply. It was further submitted that the provisions of regulation 11 were to be contrasted with other provisions in the legal aid legislation which made it clear when a decision was to be viewed as final.

[7] In responding to these submissions Mr Dalling submitted that a right of recourse to the sheriff would not exist but for the provisions of the regulations and that this was not a case in which the legislature had invoked an existing recognised jurisdiction. Section 27 of the 1907 Act had no application and accordingly the jurisdiction given under regulation 11 must be regulated by the conditions of the regulation itself which made no provision for appeal.

[8] In my opinion the submissions for Mr Dalling are to be preferred. In Magistrates of Portobello v Magistrates of Edinburgh the distinction is made between on the one hand the situation where a new and special jurisdiction is given to any court and on the other the situation where a well known and recognised jurisdiction is invoked by the legislature for the purpose of carrying out a series of provisions without any specific form of process being prescribed. In the former situation it is clear that the special jurisdiction given to the court "must be regulated entirely by the conditions of the statute under which it is conferred, and that in the general case remedies which might have been competent in an ordinary civil process are not to be presumed or inferred to be given by the particular statute" (per Lord Justice Clerk at page 137). In the latter situation the presumption is that the court has been chosen and selected because it is seen to be advisable that the ordinary rules of that court shall be applied to give effect to the provisions of the legislative act.

[9] In both Central Regional Council v B and Glasgow City Council v H the matter came before the court on a summary application, which was plainly an existing and well recognised jurisdiction of the sheriff to which the provisions of section 27 of the 1907 Act applied. In the present case however no such jurisdiction is engaged and it was common ground that section 27 of the 1907 Act did not apply. On that ground alone therefore these two cases can be distinguished. Beyond that point of distinction however there is in my opinion nothing in the regulation to suggest that the ordinary processes of the court were engaged or should apply. The process was initiated by a mere letter of reference to the auditor and the nature and extent of the process was specifically identified within the terms of the regulation. In these circumstances it is difficult to see how an appeal to the sheriff principal can be open. In saying that I have in mind the observations of the Inner House in Gupta v West Lothian Council 2012 CSIH 82 when considering the scope for a common law appeal outwith the provisions of section 27 of the 1907 Act. The question whether the sheriff's disposal of Mr Dalling's objections is susceptible to judicial review as part of the supervisory jurisdiction of the Court of Session was not a matter which was discussed.

[10] In my opinion the scope of regulation 11 must be seen as falling within the first type of situation discussed in Magistrates of Portobello v Magistrates of Edinburgh, namely a new and special jurisdiction which is governed by the provisions of the regulation itself which, according to its terms, makes no provision for an appeal to the sheriff principal. In these circumstances in my view the note of appeal is incompetent.

[11] Parties were agreed that there should be no expenses due to or by either party.