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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Justice Clerk
Lord Kingarth
Lord Wheatley
Lord Carloway
Lord Abernethy
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[2008] CSIH 66
A631/05
OPINION OF THE LORD
JUSTICE CLERK
in the
RECLAIMING MOTION
in the cause
CRAIG MOORE
Pursuer and Respondent;
against
THE SCOTTISH DAILY RECORD
AND SUNDAY MAIL LIMITED
Defenders and Reclaimers;
_______
|
Parties Participating at this hearing
For defenders and reclaimers: Dunlop, Pugh; Balfour and Manson
Amicus curiae: Mure; Scottish Government Legal Directorate
Non-participating parties
For pursuer and respondent; Harper MacLeod
9 December 2008
Introduction
[1] The
hearing in the reclaiming motion in this case was fixed for 19 and 20 March 2008. On 13 February 2008 at a By Order hearing, counsel for
the defenders intimated that the reclaiming motion would go ahead. On 11 March the defenders' agents notified
the court that the action had been settled.
On 19 March the case was called before an Extra Division. The parties lodged a joint minute disposing
of the action. They agreed that no
expenses should be found due to or by either party. The question then arose as to whether the
court should make an order against either or both of the parties of the kind
made by the First Division in Billig and
Anr v The Council of the Law Society of Scotland (No 2) (2008 SC 150 ("Billig")). The Extra Division was concerned as to the
competency of such an order. It remitted
the case to a court of five judges, ordered that intimation be made to the Scottish
Court Service (SCS) and invited the Lord Advocate to nominate an amicus curiae, if so advised. The pursuer has not taken part in the hearing
before us, but counsel for the defender and the amicus curiae have given us a comprehensive examination of the
legal issues.
The procedural history in Billig
[2] In
Billig the parties were given notice in
December 2006 that the hearing on the petitioners' reclaiming motion had been fixed
for 2 October 2007 and the
three following days. At about that time
the petitioners' counsel gave a pessimistic view of their prospects. In April 2007 the petitioners told the
respondents that they would not insist in the reclaiming motion. On 4 August they notified the respondents
that they were thinking of going ahead with it and would consult with English
counsel. On 29 August 2007 they gave notice at a By Order
hearing that they intended to proceed with the reclaiming motion and that all
four allotted days would be required. On
20 September 2007 at a
continued By Order hearing they confirmed that position. By then they had failed to lodge their
appendix in time. On that occasion an
Extra Division observed that the conduct of the petitioners came close to an
abuse of process and awarded the expenses of the hearing to the respondents. On 26 September 2007, after a consultation with new
Scottish counsel, the petitioners' agents gave notice to the court that the
reclaiming motion would not proceed.
[3] On
2 October 2007, at the
court's request, counsel addressed the First Division on the late abandonment
of the appeal. The court allowed the
reclaiming motion to be abandoned and awarded expenses to the respondents in
both the Inner House and the Outer House.
[4] Counsel
for the respondents moved that the expenses should be as taxed on an agent and
client (client paying) basis. The court refused
the motion, but made the novel suggestion that it might mark its
dissatisfaction by requiring the petitioners to pay to SCS a sum equivalent to
the court fees that would have been payable by the petitioners if the reclaiming
motion had gone ahead.
[5] I
think that it would have been better if the court, having floated that idea,
had continued the hearing to enable counsel to consider it and prepare
submissions. As it was, the discussion before
the First Division lasted for about an hour.
There was no reference to authority.
Counsel for the petitioners did not attempt to justify the petitioners' conduct;
nor did he submit that an order to pay money to SCS would be incompetent.
[6] The
court ordered the petitioners to pay to SCS £1,332. That sum represented the amount of the court
fees that would have been payable by the petitioners for a four-day hearing. The interlocutor, so far as relevant to this
case, was in the following terms.
"The Lords ... find the petitioners liable to the
Scottish Court Service in the daily court fees which would have been due had
the reserved diet not been aborted and that in the sum of ... [£1332]."
The decerniture for that sum was in
the following terms.
"The Lords decern against the petitioners ... for
payment to the Scottish Court Service of the fees found
due in said interlocutor."
[7] The
petitioners enrolled a motion to have the interlocutor corrected or altered (cf
RC 4.16(7)). On 19 October 2008, after a
hearing that lasted for about 15 minutes, the First Division refused the
motion. It took the view that, even if it
could alter the interlocutor, it had no reason to do so, since the interlocutor
was competent and appropriate.
The decision in Billig
[8] In
the Opinion of the Court delivered by the Lord President the court commented on
the disruption caused by late settlements and its impact on the court and on
other litigants. It referred to the
court's obligation under article 6(1) of the Convention to ensure that parties
have a hearing within a reasonable time.
It considered that "to allow litigants like the [petitioners] to act
with impunity and without sanction, in advising the court, at such short notice,
and with no just excuse, that a four-day hearing will not proceed, would
involve an acceptance by [the] court that it had no effective control over the administration
of its business" (at para [8]).
[9] The
court made the order expressly in the exercise of its inherent jurisdiction. It held that the measures available to
prevent or discourage abuses of its procedures would vary with
circumstances. Where an abuse was likely
to waste public resources, the appropriate measure might be to mulct the abuser
in a way that went some way to compensating the public purse. The statutory court fees might "provide a
touchstone, albeit an imperfect one, against which an appropriate compensatory
requirement [might] be tested" (at para [10]).
It was immaterial that the compensatory requirement was made in favour
of a third party. A decerniture in
favour of the body responsible for administering the court service was appropriate. Although the court found business to fill one
of the four reserved days, that did not mitigate the
seriousness of the petitioners' default.
[10] An Extra Division has since made an order in almost identical
terms (Slessor v Vetco Gray UK Ltd, unreported,
22 February 2008).
Imposition of court fees
[11] The Courts of Law Fees (Scotland) Act 1895
(s 2 (the 1895 Act)) empowered the court to regulate court fees with the approval of HM Treasury. The Divorce Jurisdiction, Court Fees and
Legal Aid (Scotland) Act 1983 (s
4 (the 1983 Act)) transferred that power to the Secretary of State. It is now held by the Scottish Ministers
(Scotland Act 1998, s 53). The court
fees payable by litigants are laid down in the Court of Session etc Fees Order
1997 (1997 SI No 688 ("the 1997
Order")), as amended. Under the 1997
Order each party pays court fees. Fees for
a hearing on the Summar Roll are charged in half-hour units (1997 Order, Sched
1, Pt I, para 17). If a hearing ends
prematurely, fees are not charged for the unused part of the allotted time. The Order provides for the payment of a
cancellation fee in the case of a diet of taxation before the Auditor of the
Court of Session (ibid, Sched 1, Pt
III, para 3), but not in the case of a hearing in the Court of Session
itself. The order made in Billig could not apply in relation to a legally
aided litigant or to a litigant who is exempt from court dues (ibid, art 5).
The scope of the inherent
jurisdiction
[12] The order made in Billig is without precedent.
It involves the granting in favour of a third party of a decree, which
neither the litigants nor the third party sought, for the payment of a sum of
money that the third party had no legal right to recover.
[13] The court has
an undoubted inherent jurisdiction to take action where there has been a
contempt of court or an abuse of process; or where for some other reason a fair
trial of a case has become impossible. In
the case of contempt of court the court has the power to fine. The court also has a wide discretion in the
awarding of expenses. In certain cases
it can award expenses against a third party, such as a dominus litis or a solicitor.
[14] In Billig, however, the
order for payment was granted on the basis that the petitioners had committed
an abuse of process. It is
well-established in Scots law that the court can exercise its inherent
jurisdiction in the case of an abuse of process by way of a procedural sanction
such as dismissal (Tonner v Reiach and Hall,
2008 SC 1). It is less clear whether the
court can exercise its inherent jurisdiction in such a case by ordering payment
of a sum of money, whether to a party to the action or to a third party, such
an order being a matter of substantive right (cf SmithKline Beecham plc v Apotex
Europe Ltd [2007] Ch 71, Jacob LJ at para 82; Moore v Assignment Courier Ltd [1977] 1 WLR 638; M S Dockray, The Inherent
Jurisdiction to Regulate Civil Proceedings, (1997) 113 LQR 120, at pp
128-131). There is no Scottish authority
on the point. In my view, it is
unnecessary for us to decide it because I consider that, even if there could be
circumstances in which the court might exercise such a power, the order made in
Billig was not competent in the circumstances
of that case.
Conclusions on the decision in Billig
[15] The
interlocutor in Billig expressly imposes a liability to pay "court
fees." In my opinion, the interlocutor
and the decerniture in favour of SCS that gave effect
to it constituted an exaction of court fees, which are in essence fees for services
rendered by the court through its officials (Carron Co v Hislop, supra, 1931 SC(HL) 75, Lord Thankerton at p 80).
[16] In my
opinion, the order was ultra vires. I do not
accept the suggestion of the amicus
curiae that the court may have retained some residual power to charge court
fees notwithstanding the 1983 Act. In my
view, the 1983 Act made a new start. The
current Order makes no provision for the charging of fees in the event of a
late settlement. The express provision
for a cancellation fee in the case of an aborted diet of taxation implies that
there is no such power in other cases. In
my opinion, in the face of the 1983 Act, the court cannot invoke the inherent
jurisdiction in order to charge court fees when Parliament has expressly deprived
it of the power to regulate fees and, in any event, when under the current
Order (supra) fees cannot be charged
for an aborted diet.
[17] I am further
of the view that the order, which was intended to be compensatory (Billig, supra, at para [10]), did not have that
effect. It compensated SCS only in
respect of those fees that would have payable by the petitioners
themselves. The court calculated the
amount of those fees on the basis of a full four-day hearing. It did not take into account the fees paid or
payable to SCS, if any, for the day on which the court conducted other business
(ibid, para [11]). I am not convinced that that would have been
an appropriate measure of compensation in either respect; but on the view that
I have taken on competency, that is a side issue.
[18] My own view is
that the court's disapproval of the petitioners' conduct in Billig would have been
appropriately marked by the severer penalty of an award of expenses to the respondents
on an agent and client (client paying) basis, as the respondents themselves had
sought.
The problem of late settlements and its context
[19] I shall use the expression "late settlement" to cover any last
minute procedural step that causes a diet to be discharged. The difficulties caused by late settlements
are notorious. They are particularly
acute in the Inner House. When an appeal
diet is discharged because of a late settlement, it is seldom possible to fix a
short notice diet to fill the gap.
[20] That problem has to be seen in the context of an
unsatisfactory, and deteriorating, situation in regard to waiting times. In 2006 the average waiting period for the
first available four-day diet, from the date of fixing to the date of the
hearing, was 29.17 term weeks. In 2007
the average was 36.83 term weeks. In the
period January to August 2008 it was 39.37 term weeks. These figures understate the position. The calculation of the real-time waiting
periods has to allow for 16 weeks of recess and vacation in every year.
[21] In this case, there was a loss of several days of judicial
sitting time; but that is not the whole picture. The judges of this court have a heavy burden
of chamber work. Late settlements give
the judges concerned an opportunity for other productive work, such as writing
judgments and reports, dealing with criminal appeal sifts and immigration
appeals, and preparing for other cases.
If it were not for late settlements, the judges would require a formal
allocation of time for such work, the consequences of which might impose even
greater strains on the system. I mention
this to emphasise that the idea that a late settlement wastes the judges' time
is an oversimplification.
[22] We should also bear in mind that from time to time Outer House
diets fixed well in advance have to be discharged because of the unavailability
of judges. In such cases, the
disappointed litigants have no remedy against SCS for the wasted expenses that
they incur (Steele, Ford and Newton v Crown
Prosecution Service (No 2) [1994] 1 AC 22; Meekison v Uniroyal Englebert
Tyres Ltd 1995 SLT (Sh Ct) 63).
[23] The occurrence of a late settlement, at any level of our
courts, does not of itself imply that there has been any abuse of the court's
procedures. On the contrary, the
settlement of an action at the doors of the court may be a responsible exercise
of professional competence. Late
settlements occur for countless reasons, not all of which are, or should be,
within the knowledge of the court.
However frustrating, late settlements are part of life in the civil
courts. They cannot be eliminated by
legislation or judicial decree.
[24] It is a legitimate and necessary function of the court to
minimise the occurrence of late settlements and their impact on its efficiency;
but I think that problems in this area should be remedied through the normal
processes of law reform.
[25] The principles on which court fees are charged and the amounts
of them are a matter for the Scottish Ministers. The basis of fee charging has been debated
for many years (cf Report of the Departmental Committee on Fees Exigible
in the Courts of Session and Justiciary, etc (the
Blackburn Committee) 1922). The current
wording of the 1997 Order incorporates amendments made with effect from 1
August 2008 in the light of a consultation paper on the principles of fee
charging published by SCS (Review of Fees
Charged by the Court of Session, etc, 11 Feb 2008) and the responses to it,
and the consideration by the Justice Committee of the Scottish Parliament of
the draft amendments to the Order. If it
were thought desirable that payments should be made to SCS for late
settlements, a proper and reasonable way to achieve this might be to amend the
1997 Order to provide for cancellation fees or for the "up-front" payment of
court fees when a diet is fixed, perhaps with a system of refunds for
settlements graded according to lateness (eg as in the Civil Proceedings Fees Order 2008 (SI No 1053, Sched 1, Fees 2.2 and 2.3)).
Conclusions in the present case
[26] If I had considered that the order made in Billig was competent, I would not
have regarded it as being appropriate in this case. The circumstances in Billig were special and, I think, uncommon. Counsel for the defender has given us a full
account of the circumstances in which this action was settled. In my view, both parties acted responsibly in
settling it when they did.
Disposal
[27] I propose to your Lordships that we should over-rule Billig, that we
should pronounce an interlocutor in terms of the joint minute and, as the parties
agree, find no expenses due to or by either of them.
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Kingarth
Lord Wheatley
Lord Carloway
Lord Abernethy
|
[2008] CSIH 66
A631/05
OPINION OF LORD KINGARTH
in the
RECLAIMING MOTION
in the cause
CRAIG MOORE
Pursuer and Respondent;
against
THE SCOTTISH DAILY RECORD
AND SUNDAY MAIL LIMITED
Defenders and Reclaimers;
_______
|
Parties Participating at this hearing
For defenders and reclaimers: Dunlop, Pugh; Balfour and Manson
Amicus curiae: Mure; Scottish Government Legal Directorate
Non-participating parties
For pursuer and respondent; Harper MacLeod
9 December 2008
[28] I have had the advantage of reading the Opinion of your
Lordship in the chair in draft, and I agree, for the reasons therein, that this
matter should be disposed of as your Lordship
proposes.
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Kingarth
Lord Wheatley
Lord Carloway
Lord Abernethy
|
[2008] CSIH 66
A631/05
OPINION OF LORD WHEATLEY
in the
RECLAIMING MOTION
in the cause
CRAIG MOORE
Pursuer and Respondent;
against
THE SCOTTISH DAILY RECORD
AND SUNDAY MAIL LIMITED
Defenders and Reclaimers;
_______
|
Parties Participating at this hearing
For defenders and reclaimers: Dunlop, Pugh; Balfour and Manson
Amicus curiae: Mure; Scottish Government Legal Directorate
Non-participating parties
For pursuer and respondent; Harper MacLeod
9 December 2008
[29] I agree with the Opinion of your Lordship in the Chair.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Kingarth
Lord Wheatley
Lord Carloway
Lord Abernethy
|
[2008] CSIH 66
A631/05
OPINION OF LORD CARLOWAY
in the
RECLAIMING MOTION
in the cause
CRAIG MOORE
Pursuer and Respondent;
against
THE SCOTTISH DAILY RECORD
AND SUNDAY MAIL LIMITED
Defenders and Reclaimers;
_______
|
Parties Participating at this hearing
For defenders and reclaimers: Dunlop, Pugh; Balfour and Manson
Amicus curiae: Mure; Scottish Government Legal Directorate
Non-participating parties
For pursuer and respondent; Harper MacLeod
9 December 2008
[30] I agree with the Opinion of your Lordship in the Chair and have
nothing useful to add.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Kingarth
Lord Wheatley
Lord Carloway
Lord Abernethy
|
[2008] CSIH 66
A631/05
OPINION OF LORD ABERNETHY
in the
RECLAIMING MOTION
in the cause
CRAIG MOORE
Pursuer and Respondent;
against
THE SCOTTISH DAILY RECORD
AND SUNDAY MAIL LIMITED
Defenders and Reclaimers;
_______
|
Parties Participating at this hearing
For defenders and reclaimers: Dunlop, Pugh; Balfour and Manson
Amicus curiae: Mure; Scottish Government Legal Directorate
Non-participating parties
For pursuer and respondent; Harper MacLeod
9 December 2008
[31] I also agree with the Opinion of your Lordship in the Chair and
have nothing useful to add.
