THE COURT

(Lord McGhie, Sheriff R J MacLeod, Mr J A Smith)

OOSTERHOF & CO v SCOTTISH MINISTERS

(Application RN SLC 69/10 – Order of 10 June 2011)

AGRICULTURE – APPEAL – SUBSIDIES – RURAL PAYMENTS – EXPENSES – DIVIDED SUCCESS – PARTIAL SUCCESS – EFFICIENT CONDUCT OF LITIGATION – MODIFICATION

An appellant sought an award of expenses on the basis that he had been successful in the appeal. The respondents resisted such a finding on two main grounds: first that the appellant was not wholly successful because he had had the original penalty reduced rather than set aside and second because the appellant had raised some seven grounds of appeal and had only been successful on one.

HELD that the appellant was entitled to expenses modified by 20%. The Court made various OBSERVATIONS as to the justification for the rule of expenses following success; certain circumstances where modification would be appropriate including reference to unreasonable conduct in relation to the litigation and inefficient conduct of the litigation; and the relevance of partial and divided success.

The Note appended to the Court’s order is as follows:

[1] The appellant sought an award of expenses on the basis that he had been successful in the appeal. The respondents resisted such a finding on two main grounds. First, it was contended that the appellant was not wholly successful because he had had the original penalty reduced rather than set aside. Second, it was pointed out that the appeal raised some seven grounds of appeal and the appellant was only successful on one. It was submitted that this brought the case into the category of “divided success”. The respondents sought either a finding of no expenses due to or by, or some modification to reflect the proportions of success.

[2] We think it important to bear in mind that although reference to expenses following success is a convenient enough label, the underlying question is who caused the parties to have to incur the legal expense of litigation: see MacPhail, Sheriff Court Practice 3rd Ed para. 19.07. An adverse finding in expenses is not intended as a penalty; expenses are necessarily incurred in any litigation and the essential issue is who should most appropriately bear the burden of paying them. Although it is normal to address this question on a broad basis, there may be circumstances where the Court should look at particular aspects of the litigation and, for example, ask who caused the expense of a particular hearing or who caused the case to run for five days instead of two. If a successful party has caused additional expense by taking points quite unnecessarily, it may be that that party should bear the cost. However, that is not to say that a successful party will have to bear the cost of advancing any point on which he or she is unsuccessful.

[3] It is appropriate to make it clear at the outset that there is no suggestion of any impropriety or unreasonableness about the conduct of parties in this case and we are not concerned with modification of expenses based on consideration of blameworthy conduct. It may be comparatively easy to find justification for modification of a successful party’s expenses where it can properly be said that he or she has caused expense unreasonably. It is more difficult in the normal case where a point has been taken reasonably but has failed, or where a party has adopted a line of evidence or examination which has not proved in any way relevant to the eventual decision. A court will not be too quick to disallow items of expense where there is no doubt that the successful party had to litigate to establish or defend a right. When a right is challenged a party may well feel it necessary to invoke a range of arguments to support it. The courts will not attempt to apportion expenses by close examination of the arguments. The dominant question is success in relation to the practical outcome. But there may be times where it is clear that some identifiable extra expense has been incurred unnecessarily. This may merit some form of modification: see, for example Gray v Lanarkshire Health Board 1998 SLT 1378 at 1382.

[4] Ultimately this will be a matter for the exercise of judicial discretion and it is difficult to set out further guidelines without running the risk of fettering that discretion. Much will turn on the facts of individual cases. We are satisfied that, in cases under the Rural Payments (Appeals) (Scotland) Regulations 2009, where an appellant has been successful in the sense of obtaining a finding more favourable than the decision appealed against, he should normally be entitled to expenses. But we recognise that there may be circumstances where some modification is appropriate.

[5] Although reference to the concepts of “incomplete success” or “divided success” may be useful in some cases, we think it may be helpful in understanding the nature of the exercise of discretion to attempt to analyse more fully the issues involved.

[6] The expression “incomplete success” may be thought self-explanatory. The successful party has not got as much as was asked for. But if that party has had to litigate to get what he, or she, did get, the fact that success was incomplete does not, of itself, provide any reasoned basis for modification of expenses. We do not think it a helpful concept in the context of assessing who should bear responsibility for expenses.

[7] We think that the term “divided success” is best reserved for cases where the parties have been disputing about distinct issues and where the result cannot readily be reduced to a single outcome such as a bottom line cash figure. In other words, where it is clear from the terms of the interlocutor or order of the court that one side has won on one issue and one on another, it may well be helpful to refer to “divided success” when considering who should bear the cost. In such a case, the Court would have to consider various factors including the relative importance of the issues, the time spent on each, and the weight of each in terms of preparation and anxiety.

[8] The term “divided success” is sometimes used in relation to success on distinct issues of law even where that success has not had a practical outcome. There is some risk of confusion in such usage. The proper measure of success is the decree or order pronounced by the Court rather than the supporting note. Generally speaking, Scottish Courts have not been prepared, in the context of expenses, to engage in careful scrutiny of individual arguments and the time spent on them. A party claiming or defending a right in face of challenge is normally given a wide latitude in relation to arguments reasonably advanced to support their position. Unless a distinct and significant chapter of time and effort can be identified as having been wasted on defective argument, all will fall under the broad head of the expenses of the litigation necessitated by the need to overcome the challenge.

[9] When considering the matter of who should pay for the litigation, we are satisfied that where a party has been successful in relation to the practical outcome at the end of the case, but has advanced arguments which have not all been accepted by the Court, it is more helpful in considering expenses to view things in terms of inefficient litigation rather than as divided success. The Court is entitled to take account of inefficient litigation when assessing expenses even where the points have been reasonably taken. The expenses of a separate debate are, perhaps, a classic example. Where distinct legal issues are dealt with at debate, the party who has been successful on these issues is normally found liable in the expenses of debate. No question of the reasonableness or otherwise of the points taken normally arises. The expression “divided success” is commonly used in that context. However, on closer examination the underlying reason for treating the expenses of debates and procedure roll hearings separately from the overall merits will usually be seen to lie in identification of such a hearing as a separate chapter of the procedure in the case. It may more accurately be expressed as an aspect of efficient conduct of the litigation. If the ultimate winner has advanced an argument which is wrong and which has taken an identifiable amount of time and effort, it may not be reasonable to find the other side liable to pay for the time and effort spent on it.

[10] We are happy to note that the respondents have expressly accepted that there was nothing about the appellant or his representative to give him the character of an improper litigant and we are satisfied that there was nothing unreasonable about his conduct of the litigation. However, the fact remains that the majority of the arguments advanced were unsuccessful. It can be said that this led to waste of time not only in that the submissions relating to these arguments took time at the hearing but because they took the time of the parties and their legal representatives in considering and preparing to deal with them.

[11] In the present case, various distinct chapters of argument can readily be identified. The appellant failed on most. We accept that this can properly be taken into account. However, we also consider it relevant to have regard to the fact that there is a public aspect to appeals under these Regulations. The procedure cannot properly to be treated as exactly equivalent to straightforward and uncomplicated litigation between ordinary parties. The proceedings arise out of the administrative role of the Scottish Ministers. There may well be circumstance in which it is appropriate for the State to bear the cost of resolving difficult issues even where successful. We do not consider it appropriate to take too critical an approach to the success or otherwise of an appellant’s individual arguments.

[12] There is, of course, a distinction between liability to pay expenses and modification of entitlement to recover expenses. In relation to the latter we bear in mind that the paying party does not get the benefit of any modification in relation to the expense they themselves have incurred. The modification applies only to what they must pay to the successful party. Weighing all the elements in the present case, including the confusion caused by the explicit admission as to identity of the individual animal, referred to at paragraph [4] of our Note of 11 February 2011, and the time spent on the question of a supposed need for domestic legislation to give effect to European Regulations, we consider it reasonable to modify the appellant’s entitlement by 20%.

[13] An entirely separate issue is the determination of appropriate remuneration for Dr Banks in terms of Rule of Court 98. For the avoidance of doubt, it should be said that we think him entitled to charge his own client whatever sum has been agreed between them or such sum as may be recovered from the respondents, whichever is greater. In relation to the charge against the respondents we consider it appropriate to allow remuneration at two-thirds of the sum allowable to a solicitor under the current table of fees. This, of course, is the maximum allowed for a party litigant under the provisions of Rule 99.

[14] In the context of remuneration there is no relevant distinction to be drawn between a party litigant and a person who is not a lawyer but who has been allowed to appear on behalf of a litigant. Party litigants can come from all walks of life. Many have professional qualifications of one sort or another. The Land Court is unusual in allowing litigants to be represented by persons who have no formal legal qualifications and are not members of the professional bodies who regulate litigation practitioners. Accordingly, there is no established body of practice in other courts as to an appropriate level of remuneration. Responsibility for taxing of accounts rests with the Auditor. It is necessary to have some benchmark and Rule 99 seems to us satisfactory for that purposes. We are satisfied that in this particular case Dr Banks should be found entitled to the maximum which would be allowed by the Rule had the accounts been prepared on the basis of work done by a solicitor.