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SECOND DIVISION, INNER HOUSE, COURT OF
SESSION
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Lord Justice Clerk
Lord Johnston
Lord Marnoch
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[2007] CSIH 60
A730/04
OPINION OF THE LORD
JUSTICE CLERK
on the MOTION by
the Defenders
in the cause
ROBERT BELL
Pursuer and Reclaimer;
against
(First) INKERSALL
INVESTMENTS LIMITED; (Second) PROSPER
PROPERTIES LIMITED; and (Third)
MICHAEL WOODCOCK
Defenders and
Respondents:
_______
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For pursuer and reclaimer: O'Neill QC, Nicoll; Drummond Miller
For defenders and respondents: Joughin; Digby
Brown
13 July 2007
Introduction
[1] By
Interlocutor dated 15 March 2006 this court refused a reclaiming motion by the
pursuer against an interlocutor of Lady Paton dated 12 April 2005 by which she
recalled an interim interdict that
had been granted to the pursuer (Bell v
Inkersall Investments Ltd, 2006 SC 507).
The interdict was obtained ex
parte on the pursuer's averment that he had an agricultural tenancy of the
whole of the defenders' estate. It
effectively excluded the defenders from the estate.
[2] In
my Opinion in the case, with which my colleagues concurred, I set out the
history, discussed the inadequacy of the pursuer's pleadings and criticised the
conduct of the pursuer and of those advising him. I should mention at the outset that the
pursuer's present solicitors are not those who acted for him at first instance
and that senior counsel for the pursuer has not been involved in the case until
now.
The motion
[3] The
defenders have moved for the expenses of the reclaiming motion on the basis of
agent and client, client paying. The
pursuer concedes that he should be found liable in expenses, but he moves (1)
that he should be liable as an assisted person; (2) that his liability should
be modified to nil; and (3) that if he should not be found liable as an
assisted person, he should be found liable as between party and party
only.
The legal aid framework
The Legal Aid (Scotland) Act
1986
[4] Section
16(2) of the Legal Aid (Scotland) Act 1986 (the 1986 Act), so far as relevant to
this case, defines a "legally assisted person" as "a person in receipt of civil
legal aid in the proceedings in question" (cf Act of Sederunt (Civil Legal Aid
Rules) 1987 (SI No 492), rule 1(2)). Section 17 provides for the payment of a
contribution to the Fund by an assisted person and for payment by the assisted
person to the Scottish Legal Aid Board (the Board) of any net liability
incurred by the Fund out of any property recovered or preserved.
[5] Sections 18
and 19 provide inter alia as
follows.
"18(2) The liability of a legally assisted person under an award of
expenses in any proceedings shall not exceed the amount (if any) which in the
opinion of the court or tribunal making the award is a reasonable one for him
to pay, having regard to all the circumstances including the means of all the
parties and their conduct in connection with the dispute.
(3) None of the following, namely a legally assisted person's house,
wearing apparel, household furniture and the tools and implements of his trade
or profession shall-
(a) be taken into account in assessing
his means for the purposes of
subsection
(2) above ...
except
in so far as regulations made under this section may prescribe.
19(1) In any proceedings to which a legally
assisted person is party and which are finally decided in favour of an
unassisted party, subject to subsections (2) and (3) below, the court may make
an award out of the Fund to an unassisted party of the whole or any part of any
expenses incurred by him (so far as attributable to any part of the proceedings
in connection with which another party was a legally assisted person)
(2)
Before making an order under this section, the court
shall consider making an award of expenses against the legally aided person.
(3)
An order under this section may be made only if -
...
(c) in
any case, the court is satisfied that it is just and equitable in all the
circumstances that the award should be paid out of public funds ..."
The Civil Legal Aid (Scotland)
Regulations 2002
[6] The
Civil Legal Aid (Scotland) Regulations 2002 (SSI No 494) (the 2002
Regulations) provide inter alia as
follows.
"18(1) The Board may make legal aid available
for specially urgent work undertaken before an application is determined, if it
is satisfied that at the time such work was undertaken there was probabilis causa litigandi and it
appears to the Board that it is reasonable in the particular circumstances of
the case that the applicant should receive legal aid, in either of the
following circumstances:-
(a) where any step specified in
paragraph (2) below has required to
be
taken as a matter of special urgency to protect the applicant's position; or
(b) in any other circumstances where the
Board is satisfied on
application
that steps require to be taken as a matter of special urgency to protect the
applicant's position.
(2) The steps referred to in paragraph (1)(a)
above are-
...
(t) initiating or opposing appellate
proceedings other than such
proceedings
in the House of Lords or the Judicial Committee of the Privy Council ...
(5) Where work is carried out by a solicitor in the circumstances
described in paragraph (1) above-
(a) Section 17 (contributions and payments out of property
recovered)
of the Act shall be modified so that-
(i) a legally assisted person for the
purposes of that section includes a person for whom such work is carried
out; and
(ii) the requirements of that section
apply in respect of specially urgent work undertaken before an application for
legal aid made in terms of section 14 of the Act is determined ...
34 Where, after proceedings have been
instituted in any court, a party thereto becomes an assisted person, the
provisions of section 18(2) of the [1986] Act shall apply to so much of the
expenses of the proceedings as were incurred while that party was an assisted
person."
The Scottish Civil Legal Assistance
Handbook - February 2006
[7] The
Board's Handbook sets out the Board's interpretation of the legislation. In relation to the authorisation of specially urgent work and the applicant's liabilities in
respect of it, the Handbook says inter
alia -
"10.6
Effective date
... A grant of legal aid will only cover work
done before the effective date if it has been done in accordance with the
special urgency provisions ...
15.8
Status of applicant
For the purposes of section 17 of
the [1986] Act only, regulation 18 [sc of
the 2002 Regs] provides that a person for whom work is carried out under
special urgency is a legally assisted person.
This means they are now liable to pay a contribution for work carried
out as a matter of special urgency whether or not we grant legal aid ...
19.10
Modification of
assisted person's liability
... Where work is undertaken under the special
urgency provisions of regulation 18, modification cannot be sought unless civil
legal aid is subsequently granted and covers these steps ... "
The pursuer's application for legal aid
[8] After
the reclaiming motion was marked, the pursuer applied to the Board for special
urgency cover in advance of an application by him for legal aid. In the special urgency mandate dated 25 October 2005 that he signed, he
stated that his total income and disposable capital were nil. On 7
February 2006 the Board, by telephone, authorised special urgency
cover. On 6 March 2006 it issued a certificate of special urgency
cover for certain specified work, which in effect covered his opposition to the
reclaiming motion. The pursuer's
solicitors began the specially urgent work and in due
course applied for legal aid.
[9] The
Board granted legal aid on 14
September 2006. The certificate states inter alia -
"This is to certify that subject to the provisions
of the Legal Aid (Scotland) Act 1986 and any regulations made thereunder, legal
aid has been made available to the person designed below as the assisted person
effective from the date shown hereon and for any urgent work undertaken before
that date under Regulation 18 of the [2002 Regulations], provided that all the
necessary conditions imposed by or under that regulation have been complied
with ... "
The effective date of the
certificate is also 14 September 2006.
The expenses incurred by the defenders
[10] The defenders' account of expenses in connection with the reclaiming
motion is likely to be about £6,000 on a party and party basis and about £7,500
on an agent and client basis, client paying.
The latter figure represents the expenses that the defenders have
actually incurred. I understand from
counsel that, except for a trivial amount, the expenses of the reclaiming
motion were incurred in the period between the grant of special urgency
sanction and the grant of full legal aid.
Events since the grant of the interim
interdict
[11] After the interim interdict was granted, the
pursuer occupied the whole estate. Despite
the refusal of the reclaiming motion he has continued to occupy the estate,
apparently on the basis that his claim to the tenancy is the subject of the sheriff
court litigations to which I referred in my earlier Opinion (Bell v Inkersall Investments Ltd, supra, at para [4]).
[12] By having occupied the subjects in this way, the pursuer has
become eligible for and has obtained the Single Farm Payment (SFP). In about April 2006 he was paid about £60,000. He was paid a further £53,000 in January
2007. According to counsel for the
defenders, a further payment is due in about six months time. The right to the SFP is a saleable
commodity. The pursuer has also obtained
grants under the Less Favoured Areas Support Scheme (LFASS). He has also behaved disgracefully towards
third parties on the estate (ibid, at
para [11]).
The financial information provided by the pursuer
[13] The pursuer's accountants have prepared a statement of the
pursuer's financial position. They
summarise his assets and liabilities as follows.
"Assets Notes £
Tenant's Improvements 1 50,147
Implements and Farm Machinery 2 51,020
Stock - Livestock 2 140,400
Stock - Crops 2 6,300
Grants / Subsidies due 3 68,052
Value Added Tax 4 2,000
_______
317,919
Liabilities
Bank Overdraft 5 22,210
Loan - Mrs Morrison 6 100,000+
Creditors 7 88,504
Hire Purchase Agreements 8 38,470
_______
249,184
Net Worth 68,735"
[14] The grants and subsidies referred to as assets of the pursuer
are the SFP, in the sum of £53,051.57, and the LFASS estimated at £15,000, in
line with the previous year's payment of £15,032.99.
[15] On these figures, the pursuer's major liability is the figure
of "£100,000+" described as "Loan - Mrs Morrison." In answer to an enquiry by the court, counsel
for the pursuer explained that Mrs Morrison is a former partner of the pursuer.
The pursuer has failed to produce any
document of debt. He has not specified
the date or dates on which this liability was incurred. There is no suggestion that Mrs Morrison has
pressed for repayment of the alleged debt.
The sole evidence of it is a letter dated 10 January 2007 from Mrs Morrison to the pursuer's
accountants in the following terms.
"I understand that you require
confirmation of outstanding loans made by me to Robert Bell. I can confirm that the total is in excess of
£100,000. The precise amounts and dates
are available should you require them.
Please do not hesitate to ring if you require any further information."
This letter does not disclose Mrs
Morrison's address and gives only a mobile telephone number. Counsel for the pursuer was unable to gave us any further information as to the circumstances in
which the alleged debt was incurred.
The submissions for the parties
For the defenders
[16] Counsel for the defenders submitted that the pursuer could not
be found liable as an assisted person for any expenses incurred before the
effective date of the certificate.
Although the Board had made legal aid available to him for the
reclaiming motion as "specially urgent work" (2002
Regs, reg 18(1)), he did not thereby become a legally assisted person. Where the Board authorised such work, it was
incumbent on the pursuer's solicitor to apply for legal aid no later than 28
days from the commencement of the work, otherwise that work would be excluded from
any legal aid that might be available (2002 Regs, reg 18(4)). In the event, the legal aid certificate was
not backdated to include any such work. Regulation
34 of the 2002 Regulations provides in effect that when a party "becomes an
assisted person" during the proceedings, modification of liability is available
to him only for expenses incurred while he is an assisted person, that is to
say after the effective date.
[17] The pursuer had conducted the litigation incompetently and
unreasonably and had used the procedures of the court improperly. He had put the defenders to unnecessary
expense. His grounds of appeal had been
unspecific. He knew that his prospects
were poor. The interim interdict related to circumstances that applied more than a
year before the hearing of the reclaiming motion. If there had been any merit in the pursuer's
position, he should have applied for a further interim interdict. He had
shown no concern about the cost to the defenders. That may have been an added attraction to him
in his proceeding with the case.
[18] The defenders could not afford to meet this liability
themselves. They had had to forego the
major part of the income from the estate since the dispute began. Before the pursuer claimed a tenancy of the
whole estate, the defenders had been receiving £80,000 per annum from the pursuer alone for the grazing lets. The pursuer's statement of assets and
liabilities showed that he could pay the maximum likely amount of an award of
expenses.
For the pursuer
[19] Counsel for the pursuer submitted that on a true interpretation
of regulation 18 of the 2002 Regulations, the pursuer was to be regarded as
having been an assisted person from the date on which special urgency cover was
granted, the specially urgent work having been subsumed within the subsequent
grant of legal aid. The Board had power
to issue a legal aid certificate covering a period in which legal services were
provided to the pursuer before the Board granted legal aid (cf Milne MacKinnon & Peterkins v Scottish
Legal Aid Board, 1989 SCLR 454 (Sh Ct)).
The Board had decided to grant legal aid despite the defenders'
objections and despite the decision of this court. The defenders had not sought to have the
decision judicially reviewed.
[20] Since the pursuer was a legally assisted person with effect
from the date on which the specially urgent work was
authorised, he was eligible for modification of his liability for the expenses
incurred after that date.
[21] The court should not refuse modification to mark its
disapproval of matters for which the pursuer was not personally
responsible. The primary drain on the
pursuer's assets was the funding of his defence to at least nine sheriff court
actions raised by the defenders, all but two of which were continuing. The defenders had used arrestments against
assets such as the pursuer's SFPs and his LFASS grants in order to restrict the
cash flow to his business. The value of
his tenant's improvements was problematical and his implements and machinery
were to be disregarded under section 18(3).
In the circumstances he had little or no net worth. His liability should be modified to nil. Any other decision might force him into
bankruptcy. The defenders could apply
for payment of their expenses out of the Legal Aid Fund under section 19 of the
1986 Act.
[22] If the pursuer was not an assisted person in respect of the
expenses before the date of the certificate, the scale of expenses was in the
discretion of the court. There was
nothing to justify an award on any scale other than party and party (McKie v Scottish Ministers, 2006 SC 528 (OH), at para [3] and cases cited; Fourie
v Le Roux and Ors, [2007] UKHL 1).
Conclusions
[23] There are four issues in this case; namely (1) whether the
pursuer is to be treated as having been an assisted person in respect of the specially
urgent work relating to the reclaiming motion; (2) if he is to be so treated,
whether he is entitled to apply for modification of his liability for the
expenses of the reclaiming motion; (3) if he is, whether the court should
modify his liability and, if not, on what basis he should be found liable; and
(4) if he is not to be treated as an assisted person in respect of the
expenses, on what basis he should be found liable.
[24] Our consideration of these difficult issues has been hampered
by the inadequacy of the presentation by counsel for the defenders. She has given us only the most cursory review
of the legislation.
(1) The pursuer's status as an
assisted person
[25] The pursuer's legal aid certificate gives 14 September 2006 as the effective date. Specially urgent
work undertaken in terms of regulation 18 of the 2002 Regulations is not work
done under a grant of legal aid. An
applicant who is granted authorisation for such work must apply timeously for
legal aid, and his application must be granted, before such work can be covered
by legal aid. The legal aid certificate in
this case covers any specially urgent work undertaken
before the effective date if all the necessary conditions imposed by or under
regulation 18 have been complied with.
It is not suggested that those conditions have not been complied
with.
[26] I do not accept the proposition of counsel for the defenders
that the date of the certificate conclusively determines the extent of the
pursuer's legal aid cover. In my opinion, the logical and satisfactory
interpretation of the 1986 Act and the 2002 Regulations, so far as they relate
to specially urgent work, is that a party who is granted authorisation for such
work takes the risk that he may not be granted legal aid. If he is not, he will be liable to repay the cost
of the work to the Fund (reg 18(5)). But
if he is in due course granted legal aid, he is to be treated as having been an
assisted person in respect of that work, notwithstanding the date of the certificate.
(2) The pursuer's entitlement to apply for modification
[27] In this case, the application for legal aid was made after the
proceedings had been instituted.
Regulation 34 therefore had the effect that the right to apply for
modification applied only to so much of the expenses of the proceedings as were
incurred while the pursuer was an assisted person. Since I consider that the subsequent granting
of legal aid has the effect that the pursuer is to be regarded as having been
an assisted person in respect of the specially urgent work when it was done, it
follows, in my view, that he is entitled to apply for modification of his
liability for the expenses with which we are concerned. I can think of no good reason why an assisted
person in his position should be denied that right. I agree with the view taken by the Board on
this point.
(3) Whether the court
should grant modification and, if not, on what basis the pursuer should be
found liable
[28] It is a basic principle of the legal aid scheme that a grant of
legal aid covers only the fees and outlays of the assisted person's solicitor
and counsel. It is not an indemnity
against any expenses for which the assisted person may be found liable. The assisted person remains personally liable
for any such expenses.
[29] When an award of expenses is made against an assisted person,
the interlocutor records that that person has been found liable "as an assisted
person." A mere finding in those terms
gives the assisted person no protection.
Its only significance is that it marks his right to apply for
modification of his liability under section 18(2) of the 1986 Act. The assisted person has no right to
modification. That is a matter for the
discretion of the court.
[30] The court's discretion to allow modification is not unfettered
(Cullen v Cullen, 2000 SC 396). Section 18 of the 1986 Act envisages that the
court may not make an award that exceeds what in the circumstances would be a reasonable
sum for the assisted person to pay; that in making that decision the court has
to have regard to the means of the parties and the amount of the expenses; and
that, having assessed what might be reasonable, the court may still modify the assisted
person's liability to less than that sum and even to nil. In making its decision the court has to
consider how the parties conducted the litigation, and, in particular whether
the assisted person has used his position to obtain an unfair advantage. It should not modify to nil or to a nominal
figure as a matter of course; but it should not modify to a figure so high as to
be beyond the assisted person's resources, even if his conduct has been
improper (Armstrong v Armstrong, 1970
SC 161; Orttewell v Gilchrist, 1998 SLT (Sh Ct) 63; Masson v Masson
(Assessment of Liability) (No 1), 2001 Fam LR 138 (Sh Ct)).
[31] The fact that the defenders are entitled to apply under section
19 of the 1986 Act for payment of their expenses out of the Fund is irrelevant,
in my view. That right arises only after
the court has considered the question of an award of expenses against the
assisted person. In any event, there
could be no justification for the making of an application under section 19
where, as here, there is every indication that the assisted person is able to
meet the liability himself.
[32] The defenders' estimate of the amount of the pursuer's
liability on either of the scales mentioned is not disputed. So the next step, in my view, is to consider the
pursuer's means. Three items in his
statement of assets and liabilities require special consideration. The first is his alleged asset of £50,147
representing the value of his "tenant's improvements." In my opinion, this item should be disregarded
for the purposes of this motion. The de quo in this action is whether the
pursuer is a tenant of an agricultural holding (Agricultural Holdings
(Scotland) Act 1991, s 1 (the 1991 Act)).
If he is not, his occupation is, in the circumstances of this case, in mala fide. He will therefore have no claim at his
waygoing for the value of any improvements that he may have carried out (Trade Development Bank v Warriner &
Mason (Scotland) Ltd, 1980 SC 74; Waugh v More Nesbitt, (1882) 19 SLR 427). Even if
he is held to be a tenant, the nature of his alleged improvements is such that
he will have no claim for compensation since, as senior counsel appeared to
accept, he has not fulfilled the statutory preconditions of such a claim (1991
Act, Part IV).
[33] I am further of the opinion that by reason of section 18(3) of
the 1986 Act (supra), the pursuer's
machinery and implements should be disregarded in the assessment of his means.
[34] On the other hand, the pursuer's statement of liabilities is
realistic only if the alleged liability of "£100,000+" is genuine. In the present state of the evidence and in
the light of the pursuer's failure to vouch the alleged debt, I am not prepared
to take this item into consideration.
This liability and the two assets that I think should be disregarded
cancel each other out. When these items
are left out of account, it remains the case that the pursuer has a substantial
farming enterprise, with a surplus of assets over liabilities, and that a
substantial element in his income results from his having obtained occupation
of the defenders' land. There is no
indication that the pursuer does not have, or cannot obtain, the money to pay
the defenders' actual expenses.
[35] The next step therefore is to consider the conduct of the
pursuer and of his advisers. I remain of
the view that this action was brought, and that the interim interdict was obtained, improperly (Bell v Inkersall Investments Ltd, supra, at paras [19]-[25]).
Despite this court's view of the relevancy of the action (ibid, at paras [22]-[24]), no attempt
has been made to revise the pursuer's pleadings by way of reply to the detailed
averments of the defenders.
[36] The suggestion that the court should not refuse modification if
the blameworthiness lies with the assistant person's advisers and not with
himself is, in my view, unsound. There
may well be circumstances in which an assisted person may have to suffer the
consequences of the wrongful conduct of his advisers. But that question does not arise in this
case, because it is clear that the pursuer himself has been directly involved
in the obtaining of the interdict and in its consequences. When he instructed these proceedings, he knew
that his claim to the tenancy was inconsistent with the grazing lets that he
had signed and with his own previous dealings with third party tenants on the
estate. After the interdict was granted,
the pursuer misused it by infringing third party rights in the ways that I described
(Bell v Inkersall Investments Ltd, supra, at para [11]). There is every reason to think that the
reclaiming motion was marked to keep open his negotiating position and that he
applied for legal aid in order to minimise his liability in expenses if the
reclaiming motion should fail. The
pursuer also used the occupation that the interdict secured for him to obtain
substantial grants and subsidies to which the defenders would otherwise have
been entitled.
[37] But it is not only the advantages that the pursuer has gained
that matter at this stage. There are
also the losses that the defenders have suffered. Before the pursuer claimed a tenancy of the
whole estate, the defenders were receiving grazing rents from the pursuer alone
of about £80,000 yearly. As a result of the interdict they have lost
that income. As in all situations of
this kind, they have been unable to accept rent from the pursuer in respect of
his present occupation since they deny the existence of the alleged tenancy. They have also become disentitled to apply
for the grants and subsidies to which I have referred. The amounts of the pursuer's gains and of the
defenders' losses are out of all proportion to the modest amount of expenses
that the defenders seek to recover.
[38] Having regard therefore to the wrongful conduct of the pursuer
and his advisers in obtaining the interim
interdict, and to the benefits that the pursuer has gained and the losses that
the defenders have suffered thereby; and having regard to the pursuer's
apparent means, I can see no reason why we should modify the pursuer's
liability at all.
[39] If the pursuer fails to obtain modification of his liability in
expenses, he is in no different position from any other unsuccessful
litigant. He can be found liable in
expenses on whatever basis, and to whatever extent, the court may in its discretion
determine.
[40] In all the circumstances that I have described, I consider that
the pursuer should be found liable in expenses on the basis of agent and
client, client paying.
(4) Scale of expenses if the pursuer had not
been an assisted person
[41] If the pursuer had not
been an assisted person in respect of the expenses claimed, I would have come
to the same conclusion for the same reasons.
Disposal
[42] Since we are agreed that on any view we should not modify the
pursuer's liability in expenses, and since we are agreed on the scale of that
liability, I propose to your Lordships that we should simply find the pursuer
liable to the defenders in the expenses of the reclaiming motion; that we
should refuse to modify his liability; and that we should find him liable on
the basis of agent and client, client paying.
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SECOND DIVISION, INNER HOUSE, COURT OF
SESSION
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|
Lord Justice Clerk
Lord Johnston
Lord Marnoch
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[2007] CSIH 60
A730/04
OPINION OF LORD
JOHNSTON
on the MOTION by
the Defenders
in the cause
ROBERT BELL
Pursuer and Reclaimer;
against
(First) INKERSALL
INVESTMENTS LIMITED; (Second) PROSPER
PROPERTIES LIMITED; and (Third)
MICHAEL WOODCOCK
Defenders and
Respondents:
_______
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For pursuer and reclaimer: O'Neill QC, Nicoll; Drummond Miller
For defenders and respondents: Joughin; Digby
Brown
13 July 2007
[43] I have had the opportunity of reading the Opinion of your
Lordship in the chair and I am in complete agreement with the disposal on the
question of modification your Lordship proposes.
[44] However, when it comes to the issue of the interrelation
between a certificate of specially urgent work by the
legal aid authorities in terms of Regulation 18 of the 2002 Regulations and a
subsequent grant of a full legal aid certificate in the same case I would wish
expressly to reserve my opinion. Given
the disposal that is proposed, the determination of this issue is not essential
to the disposal of the case and I do not consider the question an easy
one. More importantly, I would wish to
consider the matter after having heard full and comprehensive argument which
did not happen in this case. Counsel for
the defenders and respondents' grasp of the legislation was wholly inadequate.
[45] With this reservation I accordingly endorse the disposal of
this appeal as stated by your Lordship in the final paragraph of your Opinion.
|
SECOND DIVISION, INNER HOUSE, COURT OF
SESSION
|
|
Lord Justice Clerk
Lord Johnston
Lord Marnoch
|
[2007] CSIH 60
A730/04
OPINION OF LORD
MARNOCH
on the MOTION by
the Defenders
in the cause
ROBERT BELL
Pursuer and Reclaimer;
against
(First) INKERSALL
INVESTMENTS LIMITED; (Second) PROSPER
PROPERTIES LIMITED; and (Third)
MICHAEL WOODCOCK
Defenders and
Respondents:
_______
|
For pursuer and reclaimer: O'Neill QC, Nicoll; Drummond Miller
For defenders and respondents: Joughin; Digby
Brown
13 July 2007
[46] While
Regulation 18 (5) of the Civil Legal Aid (Scotland) Regulations 2002 deems a
person in receipt of special urgency Legal Aid to be an "assisted person"
for purposes of Section 17 of Legal Aid (Scotland) Act 1986, it makes no
similar provision for the purposes of either Section 18 of that Act or, perhaps
more importantly, Regulation 34 of the same Regulations. While, however,
this may seem at first sight anomolous, a possible
rationale is that it might be thought unsatisfactory if a successful litigant
were to be deprived of a full award of expenses at a time, or over a period,
when he has no notice that his opponent is legally aided. In these
circumstances, notwithstanding the view expressed by the Scottish Legal Aid
Board, I prefer meantime, in common with Lord Johnston, to reserve my opinion
on the first of the three issues referred to by your Lordship in the
chair. If and when it becomes necessary to decide that issue it is
to be hoped that the Court will have the benefit of a much fuller argument than
we had in this case including, perhaps, comparative references to the statutory
regime in force prior to 1986.
[47] All
that said, I am in respectful agreement with your Lordship that even on the
basis that the pursuer falls to be treated as throughout an "assisted person"
there should, for the reasons given by your Lordship, be no modification of the
award of expenses made against him. I am further in agreement with
your Lordship regarding the appropriate scale of expenses in this case and
am accordingly content that matters should be disposed of in the manner which
your Lordship has proposed.
