Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Reed Lord Marnoch	[2009] CSIH 43 P1067/05 OPINION OF THE COURT delivered by THE LORD PRESIDENT in reclaiming motion by (FIRST) GLOBAL SANTA FE DRILLING (NORTH SEA) LIMITED AND OTHERS Interested Parties and Reclaimers; against THE LORD ADVOCATE Petitioner and Respondent: _______

Act: O'Neill, Q.C.; CMS Cameron McKenna (Scotland) LLP ((Interested Parties and Reclaimers)

Alt: Martin, Q.C., Mure; Scottish Government Legal Directorate (Petitioner and Respondent)

27 May 2009

Introduction

[1] This reclaiming motion is brought against an interlocutor of the Lord Ordinary dated 1 August 2007 whereby, in proceedings for judicial review, he reduced as ultra vires an award of expenses made by the sheriff at Aberdeen Sheriff Court on 14 December 2004. That award was made against the Lord Advocate in favour of Global Santa Fe Drilling Co. (North Sea) Limited, its sister company Global Santa Fe International Services Inc. of Panama and an individual, James Smith, ("the interested parties") at a fatal accident inquiry into the death of William Geddes Smith ("the deceased").

Legislative framework

[2] Section 1(1) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (as amended) ("the 1976 Act") places a duty upon procurators fiscal for their respective districts to investigate deaths occurring in the course of an individual's employment, and to apply to a sheriff for the holding of a fatal accident inquiry into the circumstances of such deaths. If criminal proceedings have been concluded against any person in respect of the death, and the Lord Advocate is satisfied that the circumstances have been sufficiently established in the course of such proceedings, the obligation to hold an inquiry does not apply (section 1(2)). Where an inquiry is held, the sheriff is required to make a determination setting out prescribed circumstances of the death so far as they have been established to his satisfaction. These circumstances include the cause, location and time of death, and the reasonable precautions, if any, whereby the death might have been avoided (section 6(1)); but the determination is not admissible in evidence nor can it be founded on in any judicial proceedings arising out of the death (section 6(3)).

[3] The conduct of a fatal accident inquiry is regulated by section 4. Section 4(7) provides:

"Subject to the provisions of this Act and any rules made under section 7 of this Act, the rules of evidence, the procedure and the powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses at the inquiry shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone"

Section 7 of the 1976 Act provides, inter alia, that:

"(1) The Lord Advocate [now the Scottish Ministers] may, by rules, provide in relation to inquiries under this Act -

...

(h) as to the payment of fees to solicitors and expenses to witnesses and havers;

...

(k) as to such other matters relating to procedure as the Lord Advocate thinks appropriate."

[4] The Fatal Accident and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 ("the 1977 Rules") were made under the authority of section 7. They make no specific provision for the payment of fees or of expenses. Rule 17 provides the sheriff with a dispensing power. It states:

"The sheriff may in his discretion relieve any person from the consequences of any failure to comply with the provisions of these rules if the failure resulted from mistake oversight or any cause other than wilful non-observance of these rules and in granting such relief may impose such terms and conditions as appear to him to be just; and in any such case the sheriff may make such an order as appears to him to be just regarding extension of time, lodging or amendment of papers or otherwise, so as to enable the inquiry to proceed as if such failure had not happened"

Background to the sheriff's decision at the fatal accident inquiry
[5] The deceased was killed in an accident while working on an oil rig in the North Sea. He was employed by Global Santa Fe International Services Inc. In January 2004 Global Santa Fe Drilling Co (North Sea) Limited, the owner of the rig, was prosecuted for a number of contraventions of the Health and Safety at Work etc Act 1974 in connection with the deceased's death and was acquitted. James Smith was working on the oil rig as a driller at the time of the deceased's death.

[6] In April 2004 the procurator fiscal initiated proceedings for a fatal accident inquiry. The interested parties were represented at that inquiry. Solicitors acting for the owner of the rig had written to the Lord Advocate in March 2004 questioning whether it was in the public interest to hold such an inquiry as, it was suggested, the circumstances of the death had been established at the criminal trial. At a preliminary hearing on 30 April 2004 this concern was repeated by the solicitor for the interested companies. The procurator fiscal identified three topics which, he claimed, would be raised at the inquiry: the adequacy of the risk assessment; the systems put in place following the accident - to identify retrospectively defects in the system of working; and supervision and training. In the event, not all of these issues were raised at the inquiry. Where they were raised, the evidence in relation to them had been presented at the criminal trial.

[7] The inquiry was due to begin on 17 May 2004. Shortly before that date the procurator fiscal added an expert witness, Mr Beale, an inspector with the Health and Safety Executive, to the list of his witnesses. Mr Beale was contacted by the solicitor acting for both companies on 13 May 2004, but indicated that he had not been told to attend the inquiry and knew nothing about its subject matter. Evidence was led from 18 to 20 May 2004, when the procurator fiscal made a motion to adjourn the inquiry to enable Mr Beale to be cited and to prepare a report. That motion was granted, the inquiry being adjourned until 3 August 2004. On that date the procurator fiscal sought leave to lodge 11 new productions amounting to over 300 pages of documentation, relating to Mr Beale's evidence, which were not readily decipherable and had only been provided to parties two working days beforehand. The inquiry was again adjourned to the following day so that parties could consider that documentation and speak to Mr Beale. On that date there was a further adjournment to allow parties more time to consider the documentation. The solicitors acting for the interested parties understood that Mr Beale would be available at court on that date for precognition, but he was discharged by the procurator fiscal. A further meeting had to be arranged and significant additional preparation made. Mr Beale subsequently gave evidence without having heard, or seen transcripts of, the earlier testimony at the inquiry; his evidence, in part, contradicted or introduced matters extraneous to that testimony. He produced no expert report.

[8] At its conclusion, the interested parties moved for an award of expenses relating to such parts of the inquiry as took place after 20 May 2004. The procurator fiscal opposed that motion, submitting that such an award was not competent at a fatal accident inquiry.

The decision of the sheriff on expenses at the fatal accident inquiry

[9] The sheriff decided that, fatal accident inquiries being proceedings before a court, the motion was competent. She made reference to the court having an "inherent power" to award expenses, even in administrative proceedings. In acceding to the motion, she noted that the inquiry had canvassed nothing which had not been the subject of evidence at the criminal trial, had been unnecessary and had served no public interest. She also agreed with the submission that, through the evidence of Mr Beale, the procurator fiscal had attempted to lay some blame for the deceased's death on Mr Smith. She stated (2005 S.C.L.R. 355 at page 364):

"In the whole circumstances, if the Crown's decision to hold this inquiry did not amount to oppression, in my view it came very close. The way in which it was conducted was, in my opinion, oppressive. I am of the clear opinion that there was no justification for the holding of this inquiry and that the Crown's position can properly be regarded as vexatious.

[The interested parties] restricted their claim for expenses to the procedure after the adjournment in May 2004. In my view these expenses were occasioned entirely by the actings of the Crown and could have been avoided had the Crown prepared and presented the evidence appropriately and in accordance with the traditionally fair and even-handed approach to be expected of the Crown.

An award of expenses in any proceedings before a court is not a reward for success or a sanction for failure. Rather expenses are awarded to redress the balance between the party causing unnecessary and unjustified expense and the party incurring it.

An award of expenses against the Crown in a fatal accident inquiry will be very rare given the necessity for such inquiries in the public interest and to protect the workforce from avoidable accident, whatever the expense to parties. It seems to me, however, that for all the foregoing reasons, in the public interest an award should be made in this case."

The decision of the Lord Ordinary

[10] In deciding that the sheriff's award of expenses was ultra vires the Lord Ordinary indicated that, while there might be an inherent power to award expenses in most proceedings, that was not the correct approach in fatal accident inquiries. They were proceedings sui generis. The 1976 Act provided a self-contained set of provisions and made no provision for expenses. He stated:

"[252] I am not persuaded that fatal accident inquiries fall to be treated as ordinary actions, civil proceedings or administrative applications in relation to awards of expenses.

[253] Fatal accident inquiries are statutory proceedings sui generis.

[254] There is no lis.

[255] Proceedings are not adversarial.

[256] Representation is optional.

[257] There is no 'success' for expenses to follow.

[258] The judicial / administrative dichotomy may be helpful in certain situations but it does not have the effect of conferring a power on the sheriff to award expenses in a fatal accident inquiry.

[259] If anything, fatal accident inquiries are more akin to criminal trials and fall to be treated in a similar way - with the public interest warranting no award of expenses in such proceedings.

[260] If a power to award expenses had been intended it would have [been] a simple matter for Parliament to say so expressly"

[11] While deciding that the sheriff had no inherent jurisdiction in fatal accident inquiries, he also stated that the power to award expenses was, in any event, excluded from the 1976 Act by necessary implication. In particular, he noted that the reference to the power of the sheriff to deal with contempt of court in section 4(7) of the 1976 Act would not have been necessary if the inherent powers of the sheriff were already included by implication.

[12] By his interlocutor the Lord Ordinary sustained the first plea-in-law for the Lord Advocate (that the sheriff's finding "being unlawful, ultra vires and unreasonable" should be reduced) and repelled the interested parties' first plea (to the relevancy of the Lord Advocate's averments) and second plea (to the factual foundation of these averments).

Submissions on behalf of the interested parties

[13] Mr O'Neill for the interested parties, in inviting us to recall the interlocutor of the Lord Ordinary, observed that the Lord Advocate only challenged the competency of the award of expenses, not its reasonableness or the finding that the Crown's behaviour had been oppressive and vexatious. In conducting an inquiry the sheriff was acting in a judicial capacity. In particular, he was empowered to deal with contempt of court, which was specific to the dignity of judicial proceedings (section 4(7) of the 1976 Act). The absence of a lis was not determinative. As a judge the sheriff had an inherent jurisdiction to exercise any powers necessary for the effective operation of the proceedings before him (Erskine, Institute, vol I, ii, page 8; Hall v Associated Newspapers Ltd 1979 J.C. 1, per Lord Justice General Emslie at page 9; Moore v Scottish Daily Record and Sunday Mail Ltd 2009 S.L.T. 27, per Lord Justice Clerk Gill at paras [13] - [14], [18]; Newman Shopfitters Ltd v MJ Gleeson Group plc 2003 S.L.T. (Sh.Ct.) 83, per Sheriff Principal Macphail at paras 23 - 25, 36; cf "Abuse of Process: where are we now?" 2009 S.L.T. (News) 8-11, Iain Drummond, referring to "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 23-52, Sir Jack Jacob). That included a general power to award expenses (Dobie, Law and Practice in the Sheriff Courts in Scotland, (1952) at page 310; Maclaren, Expenses, at page 3; Ledgerwood v McKenna (1868) 7 Macph. 261. Reference was also made to Rooney v Cormack (1895) 23 R 11; Pollich v Heatley, 1910 S.C. 469, per Lord President Dunedin at page 482; McQuater v Fergusson, 1911 S.C. 640, per Lord President Dunedin at page 646. That power could be exercised unless expressly taken away or qualified by statute (Rooney v Cormack, per Lord McLaren at page 13; Thomson v Edinburgh and District Tramways Co Ltd (1901) 3 F 355, per Lord President Balfour at page 357). An award of expenses had previously been awarded against a party due to its behaviour at a fatal accident inquiry, and was only overturned following an undefended petition for judicial review (George Robertson Keggans, unreported, 12 June 1997). Where there was no lis, it was probably only a party's vexatious conduct that justified such an award. Even if his primary submission was wrong and the sheriff was not acting in a judicial capacity, but rather in an administrative or ministerial capacity, the power to award expenses was retained where a party acted in a vexatious manner (Liddall v Ballingry Parish Council, 1908 S.C. 1082, per Lord McLaren at pages 1091-1092, referring to County Council of Dunbartonshire v Clydebank Burgh Commissioners (1901) 4 F. 111, per Lord President Balfour at page 122; Milton v Argyll and Clyde Health Board 1997 S.L.T. 565, per Lord Gill at pages 568-9; Tobermory Burgh Council v Capaldi, 1938 S.L.T. (Sh.Ct.) 38, per Sheriff-Substitute Chalmers at pages 38 and 39).

[14] The Lord Ordinary had been wrong to construe the 1976 Act as a self-contained statute. Section 4(7) of the 1976 Act was not the source of a sheriff's powers in an inquiry: it merely regulated ex abundanti cautelâ that the powers listed be exercised in accordance with civil, rather than criminal, procedure. The maxim "expressio unius est exclusio alterius" did not apply. Other necessary features of fatal accident inquiries were derived from the inherent powers of a sheriff rather than the statutory scheme: witnesses were put on oath; objections were ruled upon; cross-examination was permitted; practice notes in some jurisdictions permitted preliminary hearings; and it had been held competent to hear evidence by way of letter of request (Lockhart, Petitioner 1991 S.C.L.R. 215). In any event, if a basis for the power to award expenses were needed, section 4(7) provided it: normal civil procedure would involve an award of expenses. Moreover, the power to award expenses had not been excluded by necessary implication. The strict test which that involved had not been addressed by the Lord Ordinary: to meet that test the inclusion of a power to award expenses would have to render the 1976 Act, and in particular section 4(7), "unmeaning" (Lord Advocate v Dumbarton District Council 1990 S.C. (H.L.) 1, per Lord Keith of Kinkel at page 16, quoting Gorton Local Board v Prison Commissioners [1904] 2 K.B. 165 (Note), per Day, J at page 167 and Wills, J at page 168; cf R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, per Lord Hobhouse of Woodborough at para 45).

[15] The intention of Parliament in section 7(1)(h) was more likely to have been the regulation of awards inter partes than the regulation of fees charged to clients by solicitors. If an alternative interpretation was that it contained a power to make rules regulating the payment of solicitors' fees from public funds, that power had not been exercised. Instead the probabilis causa litigandi test had been adopted in relation to civil legal aid. As the power had not been exercised, the inherent power remained and was exercisable. The possibility of the sheriff awarding expenses against a party, albeit in exceptional circumstances, was a function of justice and helped ensure that the overall purpose of an inquiry was achieved. An award of expenses was not inimical to the nature of an inquiry: there were other examples (Section 40 of the Inquiries Act 2005; Section 3(6) of the Notice of Accidents Act 1894; cf Dobie, Law and Practice in the Sheriff Courts in Scotland at pages 457, 460, 461).

Submissions on behalf of the Lord Advocate

[16] Mr Martin for the Lord Advocate invited the court to adhere to the interlocutor of the Lord Ordinary, although he accepted that the decision to repel the second plea-in-law of the interested parties may not have been justified. He confirmed that the only issue which the Lord Advocate raised was the competency of an award of expenses in a fatal accident inquiry. The distinction between judicial and administrative proceedings did not assist: the Lord Advocate supported the Lord Ordinary's conclusion that fatal accident inquiries should be treated as proceedings sui generis. Inherent power or jurisdiction was pars judicis and inhered in a court of law according to the nature and requirements of the proceedings before it: it did not inhere in the person of the sheriff per se (Macphail, Sheriff Court Practice (3^rd ed.) at paras. 2.05, 19.03; Maclaren, Expenses at page 3). In presiding at a fatal accident inquiry a sheriff was not acting as a court of law. The statutory precursors to the 1976 Act (the Fatal Accidents Inquiry (Scotland) Act 1895 and the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906) envisaged self-contained statutory schemes. Reference was made to a number of provisions of the 1976 Act and the 1977 Rules, which, it was submitted, referred to matters normally covered by a sheriff's inherent powers: that would not have been necessary had these been implied. Any other powers exercised were inherent only insofar as they were necessary for the purposes of an inquiry and could be implied from the statutory code (e.g. the power to administer the oath; cf Rule 10 of the 1977 rules regarding written evidence). The 1976 Act did not provide the basis for a power to award expenses. Section 4(7) set out the framework in which evidence could be adduced, and regulated the procedure and power to be applied in dealing with the attendance of witnesses and contempt of court. Even if it was interpreted as providing that the general procedure at inquiries followed that in ordinary civil procedure, one did not import on that basis all the powers of a sheriff sitting as a court of law. If, as suggested, expenses could only be awarded in limited circumstances as a sanction, then one had to take into account that the two powers expressly referred to in section 4(7) were analogous to sanctions: the maxim expressio unius est exclusio alterius applied. If, by reference to the word "procedure" in section 7(1)(k), the power in section 7(1)(h) was also concerned with procedural matters, that suggested a rule concerned with the level of fees. However interpreted, it said nothing about awarding expenses and had not been exercised. The dispensing provision in rule 17 made no mention of such a power. In contrast, other comparable inquiry schemes involved an express statutory power to award expenses (cf Merchant Shipping Act 1995, section 268(7); Inquiries Act 2005, section 40(2)). It was of note that there was no other example of an award of expenses being upheld in a fatal accident inquiry (cf Keggans).

[17] Much of the case law on the scope of the power of the court to award expenses was founded upon the fact that there was an "action" or lis, or that "the court" was determining the relative rights and obligations of parties before it (Ledgerwood v McKenna, per the Lord Ordinary (Lord Kinloch), at page 263, per Lord Cowan at page 264, per Lord Ardmillan at page 266 and per Lord Kinloch at page 267; cf Thomson v Edinburgh and District Tramways Co Ltd, per Lord President Balfour at page 357; Mitchell v Baird (1902) 4F 809, per Lord Kinnear at page 811; Rooney v Cormack, per Lord McLaren at page 13; Brownlie v Tennant (1855) 17D 422, per Lord Cowan at pages 428-429; Pollich v Heatley, per Lord President Dunedin at page 482; McQuater v Fergusson, per Lord President Dunedin at page 646; Moore v Scottish Daily Record; Newman Shopfitters Ltd v MJ Gleeson Group Plc ). Those circumstances were absent from a fatal accident inquiry. Similarly, the administrative cases referred to by the reclaimers all involved a sheriff exercising a shrieval jurisdiction of the court (Milton v Argyll and Clyde Health Board; Liddall v Ballingry Parish Council; Dunbartonshire County Council v Clydebank Burgh Commissioners; Tobermory Burgh Council v Capaldi; cf Summary Applications, Statutory Applications and Appeals etc. Rules 1999 (S.I. 1999/929)). In White v Magistrates of Rutherglen (1897) 24 R. 446 the opinion of the court with regard to expenses was encapsulated in Lord Young's brief comment "This is not a litigation" (at page 458). That might have been authority for the view that if there was no litigation there was no authority for expenses, but it was no more than that. In County Council of Dunbartonshire v Clydebank Burgh Commissioners Lord President Balfour had referred to White, but stated that it was not doubtful that the court had power to award such expenses (at page 122). Lord McLaren, in effect, reserved his opinion on whether the jurisdiction extended to an award of expenses incurred in the inferior court, noting that that point had not been taken (at page 122). Both cases were extremely limited in terms of the reasoning presented. Indeed the opinion of the Lord President seemed to suggest that the award was, to some extent, based on the success of parties, and not on vexatious conduct in the proceedings. In Liddall v Ballingry Parish Council the comments of Lord McLaren regarding the competency of an award for vexatious conduct were obiter, as no finding of such conduct was actually made and no expenses awarded (pages 1091-1092). Moreover, these cases could be distinguished: they concerned vexatious conduct related to the merits of the issue before the sheriff, whereas the present case concerned vexatious conduct related to the procedure (cf Maclaren, Expenses at page 401).

[18] Esto a sheriff at a fatal accident inquiry could have exercised an inherent power, his right to do so could be expressly taken away, or qualified by statute (Maclaren, Expenses, page 3). In the present case it had been excluded by necessary implication, although it was accepted that the Lord Ordinary had not addressed the correct test in that regard. Parliament having expressly conferred the power to award expenses at inquiries under other statutory regimes, the omission of such a power in the 1976 Act had to be given a meaning. Moreover, where the Lord Advocate acted in the public interest there was generally no liability for expenses (HMA v Aldred 1922 J.C. 13; Gallacher, Petitioner 1990 J.C. 345). In criminal proceedings that privilege was not available to procurators fiscal (Hume, vol ii, page 134; but cf the Summary Jurisdiction (Scotland) Act 1908, section 52). In the present case the award had been made against the Lord Advocate, rather than the procurator fiscal. She did not, however, seek to take the point that the award had been made against the wrong party.

Reply by Mr O'Neill

[19] Mr O'Neill in reply referred to a Department of Transport report into the inquiry following the sinking of the "Herald of Free Enterprise". There a High Court Judge appointed as a Wreck Commissioner had made an award of costs which penalised parties for the manner in which they conducted themselves at the inquiry, as well as an award against the government. He also referred to Black v Scott Lithgow Ltd 1990 S.L.T. 612, in which it was expressly recognised that, in conducting a fatal accident inquiry, a sheriff was performing a judicial function (per Lord President Hope at page 616).

Discussion

Domestic issues

[20] In Maclaren, Expenses at page 3 the learned author observes that in Scots law expenses "were merely an accident of the process, and it was pars judicis to deal with them." He adds - "This independent right of a judge to award expenses in a cause is a common law right, and was imported from the jus civile." The right was fortified by a series of pre-Union Acts of the Scottish Parliament. He continues, "Notwithstanding these statutory provisions, however, there still exists a common law right inherent in every civil Court to award expenses in any cause that comes before it, and the right may be exercised unless expressly taken away or qualified by statute."

[21] A number of authorities are cited in support of that inherent right. The first of these is Ledgerwood v McKenna, where one of the issues was whether justices of the peace had power to award expenses. The process which was first before them was of a statutory nature (under the Nuisances Removal (Scotland) Act 1856). The court found that, in terms of that statute (as amended), there was express power to award expenses. Certain observations were, however, made in relation to the inherent power vested in justices at common law by virtue of their being "a judicial tribunal". The opinions on that issue (which it was unnecessary to resolve) were not unanimous, although Lord Cowan, whose views were concurred in by Lords Benholme and Neaves as well as by Lord President Inglis, had "the impression" (page 264) that the Lord Ordinary (Lord Kinloch) was right in his view (page 263) that the justices had power to award expenses in the statutory process by virtue of "a power inherent in all judicial tribunals". Lord Ardmillan (at page 266) opined that justices of the peace had power at common law to award expenses in any common law proceedings before them. He regarded it as doubtful whether they had such power in the exercise of their jurisdiction under the Nuisances Removal Act. Lord Deas founded his conclusion solely on the statutory provisions.

[22] None of the other authorities cited by Maclaren was concerned with a statutory process. While, thus, it is clear that in all common law processes courts (including sheriffs) have an inherent power to award expenses, there is no clear authority that the sheriff has a similar general power where his jurisdiction is statutory.

[23] In White v Magistrates of Rutherglen the Magistrates had passed a resolution to extend the burgh boundaries and, by a petition under section 12 of the Burgh Police (Scotland) Act 1892, had sought confirmation from the sheriff of that resolution. Objections were lodged by various parties. The sheriff confirmed the resolution. He made no order for expenses. Petitions for recall were then presented under section 13 of the Act to the Second Division. These petitions were successful and the petitioners moved for expenses. Only two members of the court are recorded as having made any observation on that motion. Lord Traynor said, "I think not. The Magistrates were quite entitled to pass this resolution." Lord Young said, "I think so too. This is not a litigation." No award of expenses was made.

[24] These observations were noticed in County Council of Dunbartonshire v Clydebank Burgh Commissioners, another process under the 1892 Act for extension of burgh boundaries. There the Commissioners presented an application to the sheriff under section 11 for an extension, the application being opposed by various parties. After a proof the sheriff pronounced a deliverance in the applicants' favour. Against that determination petitions under section 13 were presented to the First Division. The sheriff's deliverance was recalled. The successful parties moved for expenses. Lord President Balfour said:

"It appears to me that the case of White v Magistrates of Rutherglen is not an authority for the proposition that under no circumstances can or should expenses be awarded to the persons who have successfully resisted an application of this kind. A similar application was made by the Burgh of Clydebank in 1890, and it was successfully resisted, the petition having been refused by Sheriff Blair in 1891, and the persons (or the interests) who were then successful have had to defend themselves again. I think it is not doubtful that the court has power to award expenses, and that this is a clear case for awarding them.

Serious oppression might result if suburban owners or administrative bodies could be called upon to defend themselves again and again from such applications by a wealthy burgh.

Whether this is a litigation or an administrative proceeding, the unsuccessful applicant should in the circumstances of the present case pay the expenses of the parties whom they convened and who successfully defended themselves. I propose that the burgh of Clydebank should be found liable in the expenses both here and before the Sheriff."

Lord McLaren said:

"My only doubt is whether, seeing that this is a statutory proceeding, our jurisdiction extends to the awarding of expenses incurred in the inferior Court. That is a question of the terms of the statute, and it is never safe to express an opinion on the construction of a statute without having it read and hearing argument on it. As this point was not taken, I do not need to consider it for the purposes of the case. As to the expenses in this Court, I concur in the most unqualified sense that the objectors should be found entitled to them."

Lords Adam and Kinnear are noted as having concurred. The court found the petitioners entitled to the expenses incurred by them in the proceedings before the sheriff and in the Court of Session. The 1892 Act made no express provision for an award of expenses to any party in relation to proceedings concerning burgh boundaries.

[25] In Liddall v Ballingry Parish Council an application had been made by the Council to the sheriff under section 10 of the Burial Grounds (Scotland) Act 1855 to have a portion of land designated for the purposes of a burial ground. Objections were lodged by a neighbouring proprietor. After inquiry the sheriff repelled the objections and found the Council entitled to expenses against the objector. Having been charged for payment of these expenses, the objector presented in the Court of Session a Note of Objection to the charge. The Lord Ordinary (Lord Johnston) held that the sheriff in dealing with the application was acting "ministerially" and that so acting he had no power at common law to make an award of expenses; the statute not authorising such an award, the Lord Ordinary suspended the charge. In the Inner House the Council's reclaiming motion was refused. The leading opinion was given by Lord McLaren. He categorised the proceedings as "administrative" and the opposition to the application as being "not necessarily of a litigious character" (page 1090). He added:

"Again, in an ordinary action expenses are awarded on the ground that the party is entitled to be indemnified for the expense to which he has been put in defending his rights or enforcing his claim, but this ground of judgment is not available where the proceedings are administrative. I say nothing as to cases in which the right to appear is abused and as to whether expenses should be awarded in such cases."

In discussing County Council of Dunbartonshire v Clydebank Burgh Commissioners he said at pages 1091-2:

"I have every reason to believe that the judgment in the circumstances of that case was sound, and that it is an authority for the proposition that in a case of vexatious opposition expenses may be awarded in an administrative proceeding. The ground upon which the Lord President's judgment proceeds is that the application was vexatious, being the second application upon grounds quite insufficient to support the proposed extension. I should like to consider it, if possible, an open question, whether the question of expenses is wholly a circumstantial question to be raised afresh in every case, or whether it is a general rule that parties appearing before the Sheriff in such proceedings are not liable in expenses. But in any case I am prepared to hold that in the absence of such special circumstances as justified the Court in coming to the conclusion that the party puts himself in the position of a contentious litigant there is no ground or authority for awarding expenses against such a party merely because his application has been unsuccessful."

Lords Kinnear and Dundas agreed, the latter observing:

"I agree generally with the Lord Ordinary, and with what has been said by your Lordship in the chair. I think the Sheriff-substitute was sitting in a purely administrative, and not in his judicial, capacity; and that he was not, in the circumstances, entitled to award expenses against [the objector]."

[26] The distinction for the purposes of expenses between ordinary actions before the sheriff and administrative or ministerial processes before him is thus recognised and applied. In the latter the general rule that expenses follow success does not apply. But in certain circumstances - where conduct of a party can be described as vexatious (or an abuse of process) - it will be open to the sheriff in such a process to make an award. This distinction is noticed in Dobie, Sheriff Court Practice at page 310 (see also Maclaren, Expenses page 401, Macphail, Sheriff Court Practice (3^rd ed.) para 26-47). It has been acknowledged as a "principle" in the Outer House of the Court of Session (Milton v Argyll & Clyde Health Board, per Lord Gill at pages 568-9), where its application in several sheriff court cases is acknowledged (see also Glengarnock Iron and Steel Co Ltd v McGregor (1904) 6 F. 955 at page 961). It is unnecessary to decide whether the principle imports that a sheriff is vested at common law with a general power to award expenses but should do so in administrative processes only where the conduct of a party is vexatious (Dobie's preferred view) or whether it is ultra vires for the sheriff to make an award in such a process except where there is such conduct (McLaren's view). The power to do so, however, seems clear. The rationale behind it may be that the sheriff should, by being armed with such a power, be able effectively to control the proceedings before him.

[27] The distinction between administrative or ministerial proceedings before the sheriff on the one hand and judicial proceedings before him on the other is not restricted to issues of expenses. In Arcari v Dunbartonshire County Council 1948 S.C. 62 (where the issue was whether a decision of a sheriff on an appeal to him under section 5(2) of the Town and Country Planning (Interim Development) (Scotland) Act 1943 was appealable in turn to the Court of Session) Lord President Cooper at page 66 observed that the Sheriff has been employed "in the discharge of multifarious functions which are more administrative or ministerial than judicial ... In every case the answer [to the question whether a given determination is of the former or the latter character] must be found in the provision of the statute in question." There is no suggestion that the sheriff's determination at the conclusion of a fatal accident inquiry is appealable to any higher court. Of the two categories mentioned the former more readily fits with the scheme of the 1976 Act.

[28] A fatal accident inquiry is a statutory procedure. It differs in important respects from a litigation between parties. Although a sheriff presiding at it has judicial duties (Black v Scott Lithgow Ltd, per Lord President Hope at page 616), he does not sit to determine the rights or obligations of parties. His determination is not admissible in evidence nor may it be founded on in any judicial proceedings (section 6(3)). Parties are not cited to the proceedings - although the procurator fiscal is obliged to intimate the holding of the inquiry, and the time and place fixed for it, to the spouse or nearest known relative of the deceased and, where death has occurred in the course of an employment, to the employer; in certain circumstances intimation must be made to certain public bodies; public notice of the holding of the inquiry must be given (section 3(2) and the Fatal Accident and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, rule 4). The hearing need not be in a courthouse (section 3(1)(a)).

[29] Although the inquiry takes place on the initiative of the procurator fiscal and he has the primary responsibility for adducing evidence with regard to the circumstances of the death (section 4(1)), section 4(7) provides:

"... the rules of evidence, the procedure and the powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses at the inquiry shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone."

Thus, with respect to each of the rules of evidence, the procedure and the specified powers, the inquiry is directed to be conducted in a way closely related to civil causes before a sheriff. For example, the law of corroboration does not apply and hearsay is (now) admissible; witnesses give evidence on oath, the power in the sheriff to administer it being implicit under this statute (cf Fatal Accidents (Inquiry) Scotland Act 1895, section 5(4)). The powers of the sheriff to deal with contempt and to enforce the attendance of witnesses are likewise broadly equiparated to those in a civil action. We do not see these latter powers as exhaustive of the sheriff's powers at an inquiry; rather the provision is to make clear that they are to be exercised on a civil rather than on a criminal basis. Although on one view it could be said that the 1976 Act provides its own self-contained code, it does so by drawing heavily on that in ordinary civil proceedings.

[30] These provisions are subject to other provisions in the Act and to any rules made under section 7. No other provision of the Act deals expressly with expenses as between parties. Section 7(h) empowers the Lord Advocate (now the Scottish Ministers) to make provision "as to the payment of fees to solicitors". The solicitors referred to must be agents acting for a party other than the procurator fiscal, since the latter may appear only on his own behalf or be represented by an assistant or depute procurator fiscal or by Crown counsel (rule 7(1)). The power to make such provision has not been exercised. What appears to be envisaged is a power in the Lord Advocate to regulate in fatal accident inquiries the level of fees chargeable for professional services - see Hansard, First Scottish Standing Committee, 18 March 1976, columns 99-100. But whether this is restricted to fees incurred as between solicitor and client or extends to an award between parties is uncertain. The ambiguity is such that, in our view, no confident conclusion can be drawn from this provision as to whether the legislature envisaged an award of expenses being made in respect of a fatal accident inquiry.

[31] In short there is no clear guidance from the terms of the statute as to whether it is open to the sheriff in any circumstances to make an award of expenses. Rule 17 of the 1977 Rules (the terms of which are set out above) is framed in similar terms to rules of court which would, in ordinary course, allow for payment of expenses as a term or condition; but a provision in subordinate legislation which is itself unclear is not a satisfactory guide to the interpretation of the statute.

[32] Mr Martin drew our attention to section 268(8) of the Merchant Shipping Act 1995 and to section 40(2) of the Inquiries Act 2005. The former empowers a sheriff holding a formal investigation into a marine accident "to make such awards as he thinks fit with regard to the ... expenses of the investigation and of any parties by whom those ... expenses are to be paid". The latter empowers the chairman of an inquiry under that Act to award "reasonable amounts to a person ... in respect of expenses properly incurred, or to be incurred, in attending, or otherwise in relation to, the inquiry" (including amounts in respect of legal representation). These powers are broadly drawn. While of interest, they are not inconsistent with the proposition that, in the absence of an express statutory power, the law may recognise a limited jurisdiction in the sheriff when disposing of administrative or ministerial proceedings before him. The fact that an employment tribunal, which has no inherent power to award expenses, may do so when a party has acted "frivolously, vexatiously, abusively, disruptively or otherwise unreasonably" (Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993, Rule 12(1)(a)) may reflect, rather than be inconsistent with, an implicit power in a sheriff in certain proceedings to do likewise.

[33] A fatal accident inquiry can, of course, be distinguished from the situations in cases such as County Council of Dunbartonshire v Clydebank Burgh Council. There the Council was seeking from the sheriff confirmation of an administrative decision already taken by it. But, if the sheriff can, in holding a fatal accident inquiry on the application of the procurator fiscal, properly be said to be acting administratively or ministerially (as we think he can), then, in the absence of any clear contrary indication in the governing statute, the "principle" exemplified by such cases would appear to be equally applicable. Although the statutory regime which applies to a fatal accident inquiry has a number of features which are special to it, we are satisfied that the distinguishing features are not such as to take it out of the class of proceedings to which that "principle" can properly be applied. A sheriff is, by reason of the holding of that office, a judicial officer. It would be consistent with the statutory selection of such an officer to preside at an inquiry which is to have in effect many of the incidents of a civil cause that he should have some, albeit limited, power to award expenses.

[34] Mr Martin did not seek to support the Lord Ordinary's view that "fatal accident inquiries are more akin to criminal trials" (para [259]). And, while supporting the Lord Ordinary's view that, in any event, any inherent power in the sheriff to deal with expenses had, in relation to fatal accident inquiries, been excluded by necessary implication, he recognised the distinction drawn by Lord Hobhouse in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax at para 45, following Lord Hutton in B (A minor) v Director of Public Prosecutions [2000] 2 AC 428 at page 481) between a necessary implication and a reasonable implication. Lord Hobhouse said:

"A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. An necessary implication is a matter of express language and logic not interpretation."

One therefore must find in the relevant statutory provisions express language from which as a matter of logic the implication (here of the exclusion of power in any circumstances to make an award of expenses) necessarily follows. We are unable to find express language in the 1976 Act which meets that exacting test.

[35] In the whole circumstances we are of opinion that a sheriff may award expenses against a party to a fatal accident inquiry whose conduct before him has, as the sheriff here found, been vexatious.

Human rights

[36] In addition to the foregoing issues, it was also contended on behalf of the interested parties that the competency of a sheriff's making an award of expenses in the context of a fatal accident inquiry was supported by considerations relating to Convention rights. A number of arguments were advanced in that regard.

[37] It was argued in the first place that fatal accident inquiries constitute one of the means by which the United Kingdom fulfils its obligations under Article 2 of the European Convention on Human Rights to investigate deaths, in circumstances where an investigation is required by the Convention: R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, at para 60 per Lord Hope of Craighead. Article 2 might require that the family of the deceased should be legally represented at such an inquiry: Edwards v United Kingdom (2002) 35 EHRR 19 at paras. 84 and 87. This might require that arrangements be in place to provide for the public funding of such representation. In the absence of any power to waive the financial limits imposed on the availability of legal aid, an award of expenses could be an appropriate method of providing such funding. Since the 1976 Act required to be interpreted so as to avoid any incompatibility with Convention rights, in accordance with section 3 of the Human Rights Act 1998, it should therefore be interpreted as permitting the awarding of expenses. So ran the argument. We are however unable to accept it. The fundamental flaw in the argument is that the interpretative duty under section 3 arises only where the ordinary construction of the legislation would result in a breach of Convention rights in the particular case in question (R (Hurst) v London Northern District Coroner [2007] 2 AC 189). Since there is admittedly no question in the present case of a breach of Article 2, no recourse can be had to section 3. We would in addition observe that, if the absence of public funding of legal representation into a death might in certain circumstances be incompatible with Convention rights, it does not necessarily follow that the appropriate means of addressing that problem would be to interpret the 1976 Act as permitting a sheriff to make an award of expenses (cf Kennedy v Lord Advocate (No 2) [2009] CSOH 1). That is not, however, a matter that need be considered further for the purposes of the present case.

[38] A second argument, somewhat faintly advanced, was that where a fatal accident inquiry was held after the conclusion of criminal proceedings, as in the present case, the presumption of innocence guaranteed by Article 6(2) of the Convention might require the sheriff to award expenses to any individual who had previously been tried and acquitted of criminal responsibility for the death. Whatever the merits of this contention might be in other circumstances (as to which we express no opinion), it has no relevance to the circumstances of the present case. Although the sheriff found that there had been an attempt by the Crown at the inquiry to establish fault on the part of the interested party James Smith, Mr Smith had not been a party to the earlier criminal proceedings. No issue therefore arose under Article 6(2).

[39] Thirdly, it was argued that the inability of a person participating in a fatal accident inquiry to recover his expenses might constitute an unlawful interference with or deprivation of property, contrary to Article 1 of Protocol No. 1 to the Convention. Reference was made in that regard to the judgment of the European Court of Human Rights in Stankiewicz v Poland [2007] 44 EHRR 47.

[40] That case arose out of a scheme intended to compensate persons who had been forced to abandon property in territories which had formed part of Poland prior to the Second World War. Under the scheme, such persons were entitled to have the value of the abandoned property deducted from the price of property in Poland purchased from the State Treasury. This entitlement was described as a "right to credit". The applicants had purchased property under the scheme in 1992, and had subsequently sold it in 1994. The public prosecutor, acting on behalf of the State Treasury, brought civil proceedings against them on the ground of unjust enrichment, on the basis that the value of the abandoned property had been over-estimated at the time of the purchase under the scheme. In the event, the public prosecutor was unsuccessful both at first instance and on appeal. The applicants were however refused any award of expenses, on the basis that the public prosecutor could not be regarded as a mere party to civil proceedings. Before the European Court, the applicants' principal contention was that the refusal of an award of expenses was in breach of their right to a fair hearing as guaranteed by Article 6(1) of the Convention. That contention was upheld by the Court. It observed that the prosecuting authorities enjoyed a privileged position with respect to the costs of civil proceedings, and that although such a privilege might be justified, it should not be applied so as to put the other party to such proceedings at an undue disadvantage. The Court continued:

"70. Further, in the Court's view, the general factual and legal background to the case should not be overlooked in the assessment of whether the applicants in the present case had a fair hearing within the meaning of Article 6 of the Convention. The Court recalls in this respect its judgment in Broniowski v Poland, in which it found that there had been a violation of Article 1 of Protocol No. 1 to the Convention, originating in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the 'right to credit' of Bug River claimants (see Broniowski v Poland [GC], no.31443/96, §§ 180-187, ECHR 2004-V).

71. In the present case, the Court notes that the applicants managed to have their 'right to credit' for the property in Trembowla recognised by purchasing the property from the State Treasury in 1992 by auction. Subsequently, the legal certainty of the ownership they had thus acquired was threatened by the prosecutor's civil action. Had the action of the prosecuting authorities been successful, the applicants would have had to reimburse the full price they had received when in 1994 they had sold to a third party the property purchased in exchange for their 'right to credit' (see paragraph 18 above).

72. The Court further notes that expert opinions were commissioned by the first-instance court in order to establish the value of the property purchased by the applicants and of the abandoned property. The Court observes that the law did not determine the method of estimating the price of the abandoned property, as observed by the court in its judgment of 18 December 1997 (see paragraphs 14-15 above). Hence, it was left to the court to determine the values concerned, choosing a method which it judged best suited to the circumstances of the case, one which involved obtaining the opinion of experts in the valuation of real property."

In these circumstances, the inability of the applicants to obtain reimbursement of the cost of professional legal assistance and representation was held to be in violation of Article 6(1). The applicants also advanced a further contention that the circumstances of the case gave rise to a violation of Article 1 of Protocol No. 1. In that regard the Court stated:

"79. The Court notes that this complaint is linked to the one examined above and must therefore be declared admissible.

80. Having regard to its finding relating to Article 6(1) of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 to the Convention."

[41] In the present case, it was conceded that the proceedings at the fatal accident inquiry fell outside the scope of Article 6(1) of the Convention. It was, however, argued, as we have explained, that the inability of the interested parties to recover the expenses which they had incurred in those proceedings might contravene Article 1 of Protocol No. 1, on the authority of the Stankiewicz judgment. One difficulty with that argument is that, as we have explained, the European Court did not examine in its Stankiewicz judgment the complaint under Article 1 of Protocol No. 1, beyond declaring it to be admissible and therefore, by implication, to be not manifestly ill-founded (cf Article 35(3) of the Convention). The judgment does not explain the nature of the complaint under Article 1 of Protocol No. 1. It is however clear from paragraph 71 of the judgment that the proceedings brought by the public prosecutor were regarded by the Court as threatening the applicants' title to the property they had purchased in 1992 in exchange for the "right to credit" which they had received as compensation for the loss of their property at the end of the Second World War. The proceedings also threatened, in consequence, the applicants' right to the proceeds of the sale of the property in 1994. In these circumstances, the relevance of Article 1 of Protocol No. 1 is readily apparent, since that article provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ..."

We also note the court's reference in paragraph 70 to its Broniowski judgment, and in particular to paragraphs 180-187 of that judgment. In Broniowski, the Court held that the "right to credit" under the compensation scheme was a "possession" falling within the scope of Article 1 of Protocol No. 1, that any deprivation of that possession had to be in accordance with the rule of law (paragraph 147), and that the effective exercise of the right of property, in relation to that possession, had to be possible under domestic law (paragraphs 80-187). Against that background, it is unsurprising that the Court in Stankiewicz found it unnecessary to consider separately the complaint under Article 1 of Protocol No. 1: the aspects in which the Polish proceedings might be considered to have failed to secure the applicants' rights under that provision had already been fully examined under Article 6.

[42] On examination, therefore, the judgment in Stankiewicz does not in our opinion provide support for the contention that an inability to obtain reimbursement of legal expenses incurred in respect of proceedings unrelated to "possessions", within the meaning of Article 1 of Protocol No. 1, is in itself a violation of that guarantee. In the present case, it is not suggested that the fatal accident inquiry was concerned in any way with possessions or property of the interested parties. In these circumstances, we reject the argument that an inability to obtain an award of expenses in those proceedings would be incompatible with Article 1 of Protocol No. 1.

Disposal

[43] However, for the reasons earlier given we shall allow the reclaiming motion, recall the Lord Ordinary's interlocutor, sustain the first plea-in-law for the interested parties and dismiss the petition.