Clark v. McDonald [2000] ScotSC 35 (21 December 2000)

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Dundee, 21^st. December, 2000. The sheriff, having resumed consideration of the cause, and, in particular, the motion for the defenders, number 7/4 of process, grants same, and in terms thereof, makes an award out of the Scottish Legal Aid Fund to the defenders of their whole expenses in the cause as the same shall be taxed by the Auditor of Court, including the expenses occasioned the application for this order.

"(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 the 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 assisted person.

This was an action wherein the pursuer sought an order for contact with her grandson who, at the time the proceedings were initiated, was about 2 years and eight months of age. The pursuer is the child's paternal grandmother. She resides in Arbroath, some 17 miles from the home of the child and his parents in Dundee. The crave of the writ sought contact each alternate weekend from 6.00p.m. on Fridays until 6.00p.m. on Saturday. I observe that there was a crave to find the defenders liable in the expenses of the action "in the event of opposition hereto."

It was averred in the writ that the pursuer had had contact with the child until August, 1999, but not since. Prior to that date, what was averred was that the pursuer had regular contact with the child at her home in Arbroath, including occasions when the child was there overnight. She averred that she lived alone. It was further averred that a relationship had built up between grandmother and child and that it would be in the child's interests to have the relationship restored. In what respect it would be in his interests is not averred. The pursuer went on to aver that the defenders were offering her contact with the child at their home in Dundee but this was inoperable since she suffered from agoraphobia and was thus unable to travel to Dundee. Though it was not craved, as a matter of practicality, the defenders, it would appear, would have been expected to convey the child to Arbroath and collect him at the end of the contact period, two round trips of 34 miles a fortnight.

In their defences lodges on 21^st. March, 2000, put shortly the defenders aver that the pursuer is not a fit person to look after a child. It is explained that, though the first defender is her natural son, she did not bring him up, nor any of her other natural children, and so there was no bond between them. In fact, there had been very little contact for a significant period. It was averred, in effect, that the pursuer's attitude changed as soon as she heard that the second defender was expecting a baby and she demanded the right to see the child, threatening proceedings if she were prevented. She insisted that they should visit her in Arbroath. When they did, she constantly complained about the infrequency and short duration of their visits. She paid no regard to the defenders' limited means. On the last occasion they visited, she had been insulting, suggesting they were only interested in her money. In a subsequent telephone conversation, she had told the defenders not to come back to her home. It was averred that the pursuer was emotionally unstable, and had attempted suicide. They did not consider that she truly suffered from agoraphobia. She appeared to be able to attend family social occasions both in Dundee and Arbroath. She appeared to be able to visit public houses regularly. In any event, by now the child was a complete stranger to her. She and her co-habitee both smoked. The defenders did not wish their young child exposed to cigarette smoke. The pursuer had nothing to offer the child. The action was motivated by malice towards them rather than on account of any affection for or interest in the child.

Against this background of factual dispute, my colleague, Sheriff Ian Dunbar, faced with a motion for interim contact, on 21^st. March, 2000, deferred consideration of the motion to a Child Welfare Hearing already assigned for 6^th. April and appointed Mrs. Lesley McDonald, Solicitor, Dundee, to act as curator ad litem to the child. The pursuer was found liable at first instance for her fees and outlays. The cause was continued to a continued Child Welfare Hearing before me on 27^th. April at which, after having the benefit of Mrs. McDonald's report, and hearing from parties' procurators (in the presence of the defenders) the motion for interim contact was allowed to drop from the roll and the action was sisted to enable the defenders to apply for legal aid.

Mrs. McDonald, in her conclusion to her report, stated that, in her view, the potential problems arising out of forcing contact outweighed by some distance any benefit to the child. She said that there appeared to be some force in some of the criticisms levelled at the pursuer and, in any event, given the level of alienation between the defenders and the pursuer, it would be unreasonable to put the child in the middle of that alienation. All contact with the pursuer had taken place in the presence of the defenders and if they were not prepared to promote contact, it simply would not work. I do not mean any disrespect to Mrs. McDonald in saying that these are statements of the obvious. It must only be in cases which are unusual in their nature that a court should consider compelling parents to permit contact to their child to some third party against their wishes.

To her credit, the pursuer recognised the wisdom of the curator's comments and subsequently abandoned the action. In an interlocutor of mine of 15^th. August, 2000, she was found liable to the defenders for their expenses as taxed. Thereafter, in terms of Section 18(3) of the Legal Aid (Scotland) Act, 1986, her liability for expenses was assessed at nil. I was told at that time that the pursuer held a legal aid certificate on a nil contribution. I have not noted details of her financial position, but my impression is that the pursuer was a pensioner existing on benefits with no capital. In any event, in the light of that decision, there was no prospect of the defenders effecting recovery of their expenses from her.

That brings me to a consideration of the present motion which was duly intimated to the Scottish Legal Aid Board whose Mr. Shearer appeared and who argued that the motion should be refused. In support of the motion, Miss Dommer, Solicitor, Dundee, for the defenders, had lodged an affidavit by the first defender together with her firm's draft account of expenses in the sum of £2,839.49 prepared on a party and party basis, as I understand it.

According to the affidavit, the first defender was employed as a fabricator. They had one child who was born in August, 1997. He earned about £9,000 gross per annum i.e. about £170 gross per week. The second defender was also in employment and earned about £12,000 per annum gross or about £230 per week. They also received child benefit of £57.60 per month. They owned the flat they occupied subject to a mortgage of £275 per month. They had to pay a childminder £70 per week. Council tax was £105 per month. They had a home improvement loan at £26 per month. They had a bank loan being repaid at £65 per month. They had once had a car but could not afford the running expenses and had sold it. Their monthly commitments were of the order of £815 leaving around £600 per month to feed and clothe the three of them. They just about managed. They had no capital or property. They had been offered legal aid on a contribution of £1,476 payable in ten instalments of £147.60. They could not afford to pay the instalments. If they were left to pay their solicitor's account, they would require to borrow commercially to do so and would have difficulty continuing to make their income exceed their expenditure.

Miss Dommer, in moving the motion, referred me to all this material and explained that there had been a lengthy meeting at which the perils of not taking up the offer of legal aid had been explained to the defenders whose position had remained constant that they simply could not afford to meet the monthly commitment necessary to obtain the certificate. They were a decent, hard working young couple, with a child to care for, who had not invited these proceedings but who had had no choice but to defend them and who would clearly suffer severe financial hardship if they were obliged to meet her account without any recovery from the Scottish Legal Aid Board having been effected.

Mr. Shearer took no issue with the information supplied on behalf of the defenders. The main thrust of his opposition focused on the defenders' failure to take up to the offer of legal aid made to them, albeit it was subject to a substantial contribution. If they had done so, that would have been the limit of their liability, whereas they were now facing an account of approximately twice that sum. Had their solicitor succeeded in persuading them to take up the offer of legal aid, on a comparison with the party and party account lodged, the solicitor, in term of the payment available under the civil legal aid fees provisions would only have been £1,477.32. The liability of the public purse would, accordingly have been restricted to the difference between that sum and the defenders' total contribution of £1,476, to wit, £1.32, as opposed to £2,800. It was unreasonable that the public purse should have to meet that very much more substantial amount. To some extent, by not taking up the offer of legal aid, the defenders were the authors of their own misfortune. It would not be just and equitable to make this award from public funds. The motion should be refused.

He directed me to the three authorities referred to at the outset of this Note, most particularly Sheriff Principal McLeod's decision in Kelly. That case referred to a divorce action abandoned at a relatively early stage by a wife pursuer. The defender sought expenses as an unassisted party from the Legal Aid Fund. It had been accepted at first instance that the defender would be in severe financial difficulty if required to meet his legal costs entirely from his own resources, but the sheriff had concluded that that situation arose because the defender had not taken up an offer of legal aid. That being so, the sheriff had taken the view that to make an order for payment out of the Fund would not be just and equitable. The rationale of the Sheriff Principal, following the sheriff, was that if the severe financial hardship caused by having to meet his own legal costs could have been alleviated by taking up the offer of legal aid subject to a contribution, then in not taking up that offer of legal aid, the defender was the author at least to some extent of his own misfortune and it would not be just and equitable for his expenses to be met from public funds.

A similar approach was adopted by Sheriff McCallum in the Learmonth case. In that case, which went to proof, the defender who was ultimately successful, had refused two offers of legal aid. He said, " The defender's solicitors had continued to act for her in the knowledge that she was unassisted and that she would not be able to pay the expenses out of her own funds unless by instalments over a lengthy period. .....They accepted the risk that they might not be paid by the defender....In my view, it would be unjust and inequitable to allow unassisted parties who were eligible for legal aid to proceed in this way."

By way of contrast and in accordance with his duty to the court, Mr. Shearer also directed my attention to the decision of my colleague, Sheriff A.L. Stewart, QC., in Stewart v Snee. That decision was complicated by the consideration of detailed argument about whether the defender would suffer severe financial hardship if the award was made whereas here I do not understand Mr. Shearer's position to be that the defenders would not suffer severe financial hardship were they obliged to meet their own legal costs. The issue in the present case turns on whether it is just and equitable to make an award from public funds where an offer of legal aid on a substantial contribution has not been taken up so that it can be argued that the defenders will thus suffer severe financial hardship consequent upon their own failure. In any event, I am in no doubt that the defenders would suffer severe financial hardship if they were required to meet costs approaching £3000 from their own modest resources.

In Stewart v Snee, Sheriff Stewart was dealing with circumstances where, as I understand his judgment, the defender chose not to apply for legal aid, although it was argued on the basis of what the financial contribution she would have had to make would have been had she done so. He felt thus able to distinguish that case from those where an offer of legal aid had been made but not taken up and expressly reserved his judgment on the point, commenting, obiter, that it could reasonably be argued that there is nothing inherently unjust or inequitable in finding a party entitled to a payment out of the Legal Aid Fund after he has been successful in defending an action where he would have been found entitled to payment from the Fund if he had applied for legal aid at the outset of the action. That may be so but it is, of course, only an unassisted party who can invoke section 19. However, following Sheriff Stewart's logic, one of the questions begged in the present case is why these defenders, had they taken up the offer of legal aid and paid a contribution of £1,476, should be unable to recover that contribution, as a matter of equity, on their successfully defending the action, where plainly having to make a payment of £1,476 would have caused them severe financial hardship.

Miss Dommer made this point in responding to the opposition to her motion. In the present case, there could be no criticism of the defenders' conduct so far as concerned the litigation. They were obliged for the sake of their child to defend the action and had no real choice but to do so. They inevitably thus would incur the costs of professional representation. Whether they should be entitled to recover from the Fund was entirely a matter for judicial discretion subject to their meeting all the statutory tests. It was submitted that they did. They had successfully defended the proceedings. An award of expenses had been made against the pursuer but her liability to meet those expenses had been assessed at nil in accordance with the provisions of section 18(2) of the Act. An order for expenses could and, indeed, had been made in the action. The defenders were defenders in an action at first instance. Having to meet their legal bill would cause them currently grave financial hardship and it was at the present time and in relation to their present circumstances that the test had to be applied. It would be unjust and inequitable for them not to receive payment from the Fund.

It seemed to me that the argument advanced by Mr. Shearer depended on several propositions which do not stand up to close examination. The first issue, in my opinion, is whether it was reasonable to issue a legal aid certificate to this pursuer and thus put the defenders into a situation where they had to defend the proceedings and incur professional expenses in so doing. It remains the law, in terms of section 14(1)(b) of the Legal Aid (Scotland) Act, 1986, that legal aid is only to be made available if it is reasonable in the particular circumstances of the case. While, of course, I do not know the content of the application for legal aid, I cannot help but think that it is prima facie unreasonable to grant legal aid to a grandmother to pursue proceedings for contact to such a young child where at least by inference the parents were opposed to contact. Certainly, in the days when applications for legal aid were considered by local legal aid committees comprising experienced local court practitioners, I venture to suggest that this application would have been likely to have been refused on the ground that it was unreasonable in the circumstances. It seems to me at least arguable that one of the components in determining whether the grant of legal aid is or is not reasonable is what the effect of that grant of legal aid would be to the prospective opponent, especially in the context of a family action. There is a strong hint of that type of thinking in the decision of Sheriff C.N. Stoddart in McGovern v Brooks 1992 SCLR 915 at page 919 in circumstances which, I accept, were more extreme than in the present case.

Further, it seems to me to be fallacious to suggest that there is something inherently improper in declining to take up an offer of legal aid and yet, if an action were to be successfully defended, seeking to recover expenses from the Fund. With all due respect to the former Sheriff Principal of Glasgow and Strathkelvin, from whose opinion I would normally only demur with diffidence, what is unfair is that the statute precludes someone who is an assisted person but on a substantial contribution who successfully defends an action brought by an assisted person making a recovery from the Fund. Accordingly, in my opinion, it is a red herring whether someone has had an offer of legal aid which has been declined when it comes to determining whether an award from the Fund would be just and equitable.

There is a further unfairness although the unfairness is truly to the solicitor of the unassisted person, particularly in this type of situation where legal aid is offered on a substantial contribution, a set of circumstances which creates a conflict for the solicitor. It is a well recognised professional duty upon a solicitor to advise their client to the right to legal aid but I respectfully agree with the comment by Ms. Jane Ryder in her extremely usefully text on Professional Conduct for Scottish Solicitors at page 94 that "the contractual relationship with funders cuts across the solicitor-client relationship and creates tensions which are not always easy to resolve." It seems to me that, in appropriate circumstances such as pertained here, solicitors have a professional obligation to advise their client about the provisions of section 19 and the prospects of recovery thereunder, leaving it to the client to make the final decision. In former times, when the dispartity between payment under the Civil Legal Aid(Scotland) (Fees) Regulations, 1989 and payment in terms of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) in its various versions from time to time was ten per cent, the decision was not one of huge materiality. Where, as now, the hourly rate chargeable under the former is £56.40 and the latter is £97.20 the disparity is rather more significant, particularly when the former does not even remotely represent a reasonable hourly rate for an experienced professional. Successive governments are responsible for the growth of the disparity. Why they should expect solicitors to, in effect, fund the court system I cannot explain, but see no good reason why, if both the client and the solicitor are prepared to take a chance on how a court elects to exercise its discretion, they should be criticised for ensuring that the solicitor achieves a reasonable remuneration for his effort, but the seeds of conflict are inherent in the tension, as Ms. Ryder puts it, occasioned by in that disparity.

I disagree with the inference emanating from Mr. Shearer that the defenders in not taking up the offer of legal aid have done anything improper. They would have been precluded from invoking section 19 had they done so, and that seems to me as good a reason as any for holding that they must be entitled freely to elect whether to take up an offer of legal aid or proceed without it. In all cases, it will be a decision of some delicacy and concern. In any event, in the present case, I am satisfied that it would be unjust and unreasonable not to grant the motion as, were I to decline to do so, the defenders here would suffer severe financial hardship which it would be inequitable for them to have to bear from their own resources when it was occasioned by an assisted person.

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Scottish Sheriff Court Decisions