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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McNaught Or Cullen v Cullen [2000] ScotCS 74 (17 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/74.html Cite as: 2000 SCLR 491, [2000] ScotCS 74

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[1] The defender has challenged the competency of the pursuer's reclaiming motion against the interlocutor of the Lord Ordinary by which, in terms of section 18(2) of the Legal Aid (Scotland) Act 1986, he modified the liability of the defender as an assisted person for certain expenses to the sum of £20,000.

Section 18(2) of the 1986 Act provides as follows:

The decision in Todd v. Todd 1966 S.L.T. 50 was concerned with a reclaiming motion against the assessment of a party's liability for expenses under section 2(3)(e) of the Legal Aid and Solicitors (Scotland) Act 1949, which was essentially to the same effect as section 18(2) of the 1986 Act. The reclaiming motion was refused as incompetent. Lord President Clyde, with whose opinion the other members of the court agreed, said at page 52:

In view of doubts which have been expressed as to the soundness of that statement of the law, and in particular by Sheriff Principal Nicholson in Orttewell v. Gilchrist 1998 S.L.T. (Sh. Ct.) 63, this court of five judges has been convened in order to consider the matter.

[2] The opinion expressed by Lord President Clyde contains two distinct propositions. The first is that it is not open to a court of appeal to make its own assessment of what is a reasonable sum. The second is that it is not open to a court of appeal to set aside the assessment made in the original court, as is indicated by his use of the words "or review". For the moment we are concerned with the second of these propositions which, if correct, inevitably means that the present reclaiming motion falls to be dismissed as incompetent. That the Lord President intended that his words should be so understood is confirmed by what he said in the later case of Armstrong v. Armstrong 1970 S.C. 161 at page 165. He was so understood by the Sheriff Principal in Orttewell v. Gilchrist. On the other hand in McInally v. Clackmannan District Council 1993 S.C.L.R. 482 the competency of such a reclaiming motion does not appear to have been questioned. In his primary submission Mr. Mitchell for the defender invited us to hold that the reclaiming motion was incompetent on this ground.

[3] In our view, however, the proposition is unsound. Assuming for the moment that an appeal court cannot substitute its own assessment for that of the original court, it does not follow that it is not able to review the decision made by it. The question of modification involves the exercise of discretion in the light of whatever factors are relevant. It is well recognised that an appeal court may review a wrong exercise of discretion, for example where the lower court has misdirected itself or has failed to take account of relevant factors. This is one example of the power of this court to hear a reclaiming motion under section 28 of the Court of Session Act 1988. Miss Wise, who appeared on behalf of the pursuer, submitted correctly that in order to deprive an appeal court of its power of review, there had to be legislation which expressly or by necessary implication had that effect (McCue v. Scottish Daily Record and Sunday Mail Limited 1998 S.C. 811 at page 820D-E). There is nothing in section 18(2) of the 1986 Act, or its predecessors, which has such an effect. The criticisms of the opinion of the Lord President which were expressed by the Sheriff Principal in Orttewell v. Gilchrist were well-founded. We therefore disapprove his opinion in so far as he indicated, by the use of the words "or review", that no reclaiming motion against an assessment of the liability of an assisted person is competent. We do not overrule the decision in Todd v. Todd, since it is plain that the reclaimer in that case was seeking to persuade the court to make its own assessment without demonstrating that the Lord Ordinary had wrongly exercised his discretion.

[4] Counsel for the parties were agreed that if, as we hold, there is no universal exclusion of the review of an interlocutor by which the liability of an assisted person in expenses is determined, the competency of the present reclaiming motion would depend on whether it involves the assertion that the Lord Ordinary wrongly exercised his discretion. We note that the first draft ground of appeal claims that he failed to take into account a certain matter, and that the third maintains that he erred in drawing a certain inference from the information before him. In our view that suffices to show that the pursuer is asserting that the Lord Ordinary wrongly exercised his discretion. Accordingly, we are satisfied that the reclaiming motion is competent.

[5] Counsel for the parties were not, however, in agreement as to the power of the court, in the event that the pursuer had satisfied it that the Lord Ordinary had wrongly exercised his discretion. This point of contention does not strictly arise as a live issue at the present stage, but since this court has been convened in order to consider the general question of the power of an appeal court in dealing with such a case, and since we heard full argument on the point, we will express our opinion on it.

[6] Miss Wise submitted that it would then be open to this court to make its own assessment of the liability of the defender de novo. She emphasised that a decision in regard to the assessment of liability was an integral part of a decision on expenses. At the same time, she accepted that in practice this court might prefer in many cases to remit the question to the Outer House. Mr. Mitchell, on the other hand, submitted that the assessment of liability could only be carried out in the Outer House, and accordingly, in the event that this court held that the Lord Ordinary had wrongly exercised his discretion, the matter of assessment would fall to be referred back to the Outer House with appropriate directions as to the correct approach in law which should have been followed.

[7] While there is attraction in the approach which was urged upon us by Miss Wise, we are not satisfied that it can be reconciled with the terms of section 18(2). According to that subsection the extent of the liability of the assisted person is not to exceed the amount, if any, which "in the opinion of the court or tribunal making the award" is a reasonable one for him to pay. These words do not include the opinion of any court or tribunal other than the one which made the award of expenses. It is in this respect that the opinion expressed by Lord President Clyde was correct. Miss Wise somewhat tentatively suggested that, in the case of a reclaiming motion, the same "court", namely the Court of Session, was involved throughout. However, this is plainly not a context in which the collegiate nature of the court is relevant. Such an approach does not square with the terms of the subsection, and in any event it would be of no relevance to other appeals such as appeals from the Sheriff Court.

[8] In these circumstances our view is that, in the event that the appeal court interferes with the decision of the original court, the reassessment of the liability of the assisted person falls to be carried out by the latter court, subject to whatever directions are considered by the appeal court to be appropriate. The evident intention of section 18(2) is that the original court would be expected to be particularly familiar with the circumstances of the case, including in particular the conduct of the parties in connection with the dispute.

[9] In the light of what we have said earlier in the opinion, this reclaiming motion will proceed, and we will make an order for the lodging of grounds of appeal.