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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bovey, Re Petition For Judicial Review [2005] ScotCS CSOH_154 (18 November 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_154.html
Cite as: [2005] ScotCS CSOH_154, 2006 SCLR 498, [2005] CSOH 154

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Bovey, Re Petition For Judicial Review [2005] ScotCS CSOH_154 (18 November 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 154

P1154/05

OPINION OF LADY DORRIAN

in the Petition

of

MUNGO BOVEY, QC

Petitioner;

for Judicial Review of a decision of the

Auditor of the Court of Session

 

 

 

________________

 

 

Petitioner: Doherty, Q,C.; Shepherd & Wedderburn

Respondent: Clancy, Q.C. for S.L.A.B.

18 November 2005

Background

[1]      In April 2001, the petitioner appeared before the Judicial Committee of the Privy Council on behalf of a Mr Peter McLean. Mr McLean was in receipt of criminal legal aid. The Privy Council made no order for costs. The petitioner's fee note was issued on 25 April 2002. A dispute arose between the petitioner and the Scottish Legal Aid Board as to the amount of fees allowable to him from the Scottish Legal Aid Fund in respect of the Privy Council proceedings. The petitioner proposed a joint submission to either the registrar of the Privy Council or the Auditor of the Court of Session for taxation. The Board rejected that proposal. By letter dated 23 November 2004 the Registrar of the Privy Council advised that he had no jurisdiction to tax the fee, since no order for costs had been made. A hearing on the competency of the taxation of the fee by the Auditor of the Court of Session took place before the auditor on 9 February 2005. The Board contended that the petitioner had no right to taxation before the Auditor of the Court of Session in the absence of express provision for the same. The auditor agreed with those submissions and concluded that in terms of the Criminal Legal Aid (Scotland) Regulations 1989 he had no jurisdiction to tax the fee.

The Legislation

The Legal Aid (Scotland) Act 1986

[2]      Section 4 of this Act provides for the establishment and maintenance of the Scottish Legal Aid Fund, out of which shall be paid ...

"(a) such sums as are, by virtue of this Act or any regulations made thereunder, due out of the Fund to any solicitor or counsel in respect of fees and outlays properly incurred ... in connection with the provision, in accordance with this Act, of Legal Aid or advice and assistance;"

Section 21 provides that:

"'Criminal Legal Aid' includes legal aid consisting of representation by a solicitor and counsel in connection with: ... (1)(c) Any reference, appeal or application for special leave to appeal to the Judicial Committee of the Privy Council under paragraph 11 or 13(a) of Schedule 6 to the Scotland Act 1998".

That subsection was inserted by Regulation 11(2) of the Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999, which, by Regulation 11(5), made a similar extension in respect of civil legal aid.

Section 33 of the principal Act provides:

"(1) Subject to sub-sections (3A) and (3B) any solicitor or counsel who acts for any person by providing legal aid ... under this Act shall be paid out of the Fund in accordance with Section 4(2)(a) of this Act in respect of any fees ... properly incurred by him in so acting.

(2) The Secretary of State may, by regulations made under this section, make such provision as seems to him appropriate in respect of the fees and outlays of solicitors and counsel - (a) acting in any proceedings for a person to whom legal aid has been made available; ...".

The Criminal Legal Aid (Scotland) (Fees) Regulations 1989

[3]      These were made in pursuance of section 33 of the principal Act. The relevant parts of those regulations as originally enacted were as follows.

Regulation 3 provided:

"These Regulations shall regulate the fees and outlays allowable to solicitors, and fees allowable to counsel, from the Fund in respect of criminal legal aid under the 1986 Act, upon any taxation in accordance with Regulation 11, in respect of which the proceedings are concluded on or after 31 August 1989"

Regulation 4(1) provided that "the fees allowable to solicitors shall be those specified in Schedule 1", which schedule contained a table of fees for solicitors.

Regulation 10(1) provided:

"Counsel shall be allowed such fee as appears to the auditor to represent reasonable remuneration, calculated in accordance with Schedule 2, for work actually and reasonably done, due regard being had to economy."

Regulation 11(1) provided:

"If any question or dispute arises between the Board and a solicitor or counsel as to the amount of fees or outlays allowable to the solicitor, or as to the amount of fees allowable to counsel, from the Fund in respect of legal aid in criminal proceedings in the High Court, including appeals, the matter shall be referred for taxation to the Auditor of the Court of Session:  ..."

Paragraph (2) of Regulation 11 provided that any similar dispute in respect of legal aid in criminal proceedings in the Sheriff or District Court shall be referred for taxation to the Auditor of the Sheriff Court for the relevant district.

Regulation 2(1) provided that, unless the context otherwise requires, "auditor" means the appropriate Auditor of Court specified in Regulation 11; and "High Court" means the High Court of Justiciary.

[4]     
Those regulations were the subject of amendment on several occasions. In the first place amendments were made to take account of the position of solicitor advocates with the result that Regulation 2(1) of the 1989 Regulations contained additional definitions to the effect that "Counsel" included a "Solicitor Advocate"; a "Solicitor Advocate" referred to a solicitor when he was exercising his "right of audience" and "right of audience" meant a right of audience in the High Court of Justiciary. Thus matters stood at the introduction of the Scotland Act 1998.

[5]     
Following the introduction of the Scotland Act 1998, further amendment took place in terms of the Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999. Apart from amending the principal Act as noted above, these regulations amended the 1989 regulations. The definition of "right of audience" in Regulation 2(1) was amended to include a reference to a right of audience in "the Judicial Committee of the Privy Council" and the title to Schedule 1, which had read "description of work and fees for calculating remuneration of solicitors in the High, Sheriff and District Courts", was amended to read "description of work and fees for calculating remuneration of solicitors in the Judicial Committee of the Privy Council and in the High, Sheriff and District Courts". The definition of "Court" in that Schedule was also amended to include the Judicial Committee of the Privy Council.

No amendment was made at that stage to Regulations 3,10 or 11, with the effect that counsel's fees allowed under the Regulations continued to be those appearing to the auditor" to represent reasonable remuneration. Regulation 10 was later amended by the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005 to provide that the fees allowable to Counsel were such as "appears to the Board, or at taxation the auditor" to represent reasonable remuneration. This amendment only applies to proceedings concluded on or after 4 April 2005. It appears from the Petition that the relevant proceedings in this case were completed prior to that date and so the amendment would not apply.

Submissions for Counsel for the Petitioner

[6]      Counsel for the Petitioner submitted that the auditor had erred in law in his construction of the 1989 Regulations. On a proper construction, the auditor did have jurisdiction to tax the fee note. Counsel sought declarator in terms of article 3(a) of the petition, decree in terms of 3(b) and reduction in terms of 3(d). His arguments were (1) that adopting normal canons of construction, the auditor had jurisdiction within the Regulations and (2) if he was wrong about that, Section 3 of the Human Rights Act 1998 required the Regulations to be construed in a way consistent with convention rights. Such a construction would include a right to taxation.

[7]     
This case had involved an appeal to the Privy Council in terms of paragraph 13(a) of Schedule 6 to the Scotland Act 1998. Prior to the introduction of this new jurisdiction, the Criminal Legal Aid (Scotland) Regulations 1989 made no reference to the Privy Council. The Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999 amended the Legal Aid Scotland Act 1986 to make provision for legal aid to be available for appearances before the Judicial Committee of the Privy Council in both civil and criminal matters. These Regulations, in paragraphs 16 and 17, also amended both the criminal and civil legal aid regulations of 1989. The definition of a "right of audience" was extended to include reference to the Judicial Committee of the Privy Council (17(2)). Schedule 1, which provided for remuneration of solicitors (as opposed to solicitor advocates) was amended to cover work "in the Judicial Committee of the Privy Council" (17(3)). The effect of this was to make express and clear provision for work in the Privy Council, done by solicitors, to be remunerated under the 1989 Regulations. The extended definition of rights of audience made it clear that the intention was to bring work done by counsel for cases before the Privy Council within the scope of the 1989 Regulations.

[8]      The scope of the regulations is set out in Regulation 3 which provides that:

"these regulations shall regulate the fees and outlays allowable to solicitors, and fees allowable to counsel, from the Fund in respect of criminal legal aid under the 1986 Act, upon any taxation in accordance with Regulation 11.....".

Counsel submitted that unless the regulations give a right to taxation they have no operative effect. Regulation 11(1) provides that in a dispute regarding the amount of fees from the Fund "in respect of criminal proceedings in the High Court, including appeals," reference should be made to the Auditor of the Court of Session for taxation. The position of the Board and the auditor is that proceedings before the Judicial Committee of the Privy Council are not "criminal proceedings in the High Court, including appeals". The result of such an argument would be that the amendments making reference to appeals or references to the Privy Council were ineffective to confer any right to rely upon them because if no right to taxation exists, then the 1989 Regulations do not apply. The regulation of fees before the Privy Council would thus fall outwith the scope of the regulations and would not have been dealt with. That is neither a necessary construction nor an appropriate one having regard to the normal canons of statutory construction. It is necessary to give the regulations a purposive construction, having regard to the intention of Parliament that work done by solicitors and counsel for the Privy Council be within the scope of the regulations and that there be a right to taxation in respect of such work.

[9]      Counsel submitted that the wording of Regulation 11 admits of a construction which would bring the regulation of work done before the Privy Council within the scope of the 1989 Regulations. The phrase "including appeals" is susceptible of extending to proceedings before the Judicial Committee of the Privy Council from the High Court. "Including" is generally a word of enlargement. Construing the phrase thus would be enough to cover appeals from the High Court to the Privy Council. This was a meaning of which the words admit and was more consistent with the intention of Parliament. The words would be wide enough to cover all proceedings in the Privy Council, be they by way of reference or appeal, because the intention of the amendments was to bring legal aid for both sorts of proceedings within the scope of the regulations.

[10]      It may be said that Regulation 11(1) is in its original and unamended form and since the phrase "proceedings in the High Court, including appeals" could not, when originally drafted, include appeals or references to the Privy Council it can not now have a different meaning. That is not the correct approach to adopt. The amended regulations as a whole require to be construed and they contain different provisions from when they were first enacted. Regulation 11 thus has a wider ambit than when it was enacted originally. Regulation 10 which provides that "Counsel shall be allowed such fee as appears to the auditor to represent reasonable remuneration" appears to envisage taxation for all fees allowable to counsel. Regulation 11 is more extensive in its operation than Regulation 10. Reading the two together it is clear that a right to taxation of Counsel's fees is envisaged. If the Respondents are correct, Regulation 11 would exclude fees for the Privy Council from the ambit of Regulation 10. The construction which the auditor and the Board have taken is one which results in anomaly and absurdity, flouting the clear principle of statutory interpretation that it is to be presumed that absurd results are not intended. There is no rational basis for taxation for all other fees, but not those relating to the Privy Council. The petitioner's construction would avoid absurdity or anomaly and would give effect to all provisions [11] Counsel then proceeded to his Human Rights argument. He submitted that Counsel's right to remuneration from the Fund is a possession in terms of Article 1 of the First Protocol. If the Respondents are correct there is discrimination between the treatment of counsel who appear before the Privy Council on criminal legal aid and such counsel who appear on civil legal aid, or in the House of Lords more generally on legal aid, in that only those appearing on criminal legal aid have no right to taxation or to an independent adjudication of fees. The Regulations require to be construed in a way which avoids breach of convention rights and discrimination. Counsel pointed out that in terms of sections 4 and 33 of the Legal Aid (Scotland) Act 1986 there is an obligation on the Board to make payments out of the Fund in respect of fees properly incurred by counsel acting to provide legal aid services and there is a corresponding right of counsel to payment. That right is a right falling within the ambit of Article 1 of the First Protocol. The Petitioner has been discriminated against on the basis of status contrary to Article 14 of the European Convention on Human Rights.

[12]     
Reference was made to Ambruosi v Italy 2002 35 EHRR 125, Darby v Sweden 1991 13 EHRR 774 and Clayton and Tomlinson, The Law of Human Rights, second annual supplement page 310, paragraph 17.139. Under reference to Clayton, counsel submitted there were four questions to be addressed:

(1) Do the facts fall within the ambit of the substantive convention provision?

(2) Was there different treatment compared with a comparator?

(3) Was the comparator in an analogous situation?

(4) Does the difference have an objective and reasonable justification?

The answer to the first three questions was in the affirmative. The comparators are counsel in receipt of civil legal aid in Judicial Committee of the Privy Council and the House of Lords. In both cases, where civil legal aid is available, there is a right to taxation. Reference was made to the Civil Legal Aid (Scotland) (Fees) Regulations 1989, Regulations 9 and 12, which gave an unqualified right to taxation in the House of Lords and the Privy Council. The answer to the fourth question was in the negative. Nothing had been said to provide any basis for suggesting a reasonable or objective justification. There is plainly none. The difference in treatment does not pursue a legitimate aim.

Submissions for Counsel for the Respondent

[13]      For the Respondents, counsel began by emphasising that section 33 of the Legal Aid (Scotland) Act 1986 gave a statutory right to payment from the Board of fees properly incurred. That is a standalone right which is actionable. The petition deals with a separate "right", which is a right to taxation. It is often concomitant but it is a separate legal right. If there is any such thing as a right to taxation by the Auditor of the Court of Session it must be a creature of statutory provision. The changes made to the Regulations by the 1999 Order were minor. No amendments whatsoever were made concerning counsel's fees. The extension of the definition of counsel to include Solicitor Advocate was an amendment which predated the Scotland Act and has nothing to do with amendments consequent on that Act. The fact that the provision regarding counsel's fees remained untouched from the date the regulations came into force means that there could not be an intention to create a right of taxation in respect of Privy Council jurisdiction. Had such been the intention that could have been made clear by the simple expedient of amending Regulation 11. It is conceivable that there was an omission or oversight, but it is not for the court to fill in the gap. Counsel's fees for work in the Privy Council were regulated by section 33 of the principal Act. In the event of a dispute it had to be settled by litigation under that Act.

[14]     
The petitioner's argument that the words "including appeals" are wide enough to include the Privy Council jurisdiction is wrong. When searching for a meaning, the first and most important task is to look for the plain meaning. In this case the plain meaning is a reference to all aspects of the High Court jurisdiction, not the jurisdiction of the Privy Council. Furthermore, it could not have been intended to have the meaning the petitioner suggests at the stage when it was introduced. It may be suggested that Parliament looked at it and decided that it was wide enough to cover the Privy Council jurisdiction when amending in light of the Scotland Act, but surely they would have made it clear and not left it to inference. Regulation 2 provides that "unless the context otherwise requires" High Court means the High Court of Justiciary. It might be suggested that the words "unless the context otherwise requires" introduce a sufficient degree of flexibility to support the petitioner's argument. However, a leap from a meaning confined to High Court of Justiciary to one involving a completely different court which had not featured in the Scottish system in any way is so great that any degree of flexibility is not sufficient to bridge the gap. The context does not require this as the meaning is plain and intelligible. Such an interpretation could only be a requirement if the starting point is that a right to taxation for Privy Council fees does exist.

[15]     
Counsel submitted that the Privy Council jurisdiction is not the only form of proceeding where legal aid is available and in respect of which a right of taxation is not conferred. The Board's position is that no such right exists in civil proceedings before the Privy Council. In addition, even if the petitioner were correct it would not by any means follow that the Auditor of the Court of Session would be the appropriate auditor anyway, in which case the petition would fail.

The Board's argument did not strip the amendments of content because they clarify the position regarding solicitors' fees in the Privy Council by alterations to Schedule 1. It does not impinge on the statutory entitlement to fees properly incurred which can be litigated. It is not absurd to exclude the auditor of the Court of Session from taxing Privy Council accounts as the auditor has no track record of taxing such accounts.

[16]     
There was possibly an error in the Regulations in failing to specify a further right of taxation, although it is perfectly possible to postulate constitutional sensitivities in inserting Scottish provisions which would govern an area of procedure in the Privy Council. The provisions of Regulation 10 that Counsel shall be allowed such fee as "appears to the auditor" to represent reasonable remuneration, is subject to important limitations which make it clear it does not confer a right to taxation of Privy Council accounts. "Auditor" is defined in Regulation 2 as the appropriate auditor in Regulation 11 which in turn only specifies Sheriff Court for Sheriff Court and District or Court of Session for High Court of Justiciary. Read with that definition imported into it, it is clear that it does not envisage taxation by the Auditor of the Court of Session in Privy Council proceedings.

[17]     
Counsel submitted that there were other points in favour of the respondent's position. The basis for calculation of Counsel's fees is Schedule 2, which is entirely intelligible on an approach which confines it to the High Court, Sheriff Court and appeals. "Appeals" covers High Court appeals but would not square with the Privy Council jurisdiction. It is true that paragraph 2 of the Schedule says that where there is not a provision for an item of work it should go to the auditor, but it would be extraordinary, he submitted, if taxation of Privy Council accounts depended on that phrase. The correct position is that the 1989 Regulations do not confer a right of taxation in the Privy Council jurisdiction.

[18]     
For the purposes of the Human Rights argument counsel was prepared to concede that the right to payment of fees can properly be regarded as a right to possession for the purposes of Article 1 of the First Protocol but it was the Section 33 right, the right to fees properly incurred. To succeed under Article 14, it is not enough to suggest discrimination in a vacuum - it must be on the ground or grounds stipulated in the Article. None of the specific Article 14 grounds applies here so the petitioner has to fall back on "other status" which requires to be covered by the eiusdem generis rule. However one categorises the difference between counsel in civil cases in the Privy Council and those in criminal cases, it is never going to be a question of status within the meaning of that Article.

[19]     
In any event, the Board's position is that there is no right to taxation in civil proceedings before the Privy Council. Reference was made to the Civil Legal Aid (Scotland) (Fees) Regulations 1989. Regulation 2 defines auditor for the Court of Session, House of Lords and certain other tribunals as the auditor of the Court of Session but there is no reference to the Privy Council. Regulation 9 provides for fees allowable to counsel, subject to regulation 10. Regulation 10(2) deals with Counsel's fees in the Judicial Committee of the Privy Council and other bodies, including the Child Support Commissioners and the Social Security Commissioners. Regulation 12 provides that in the event of a dispute the matter shall be referred to the auditor. The definition of auditor in Regulation 2 not only excludes the Privy Council, it excludes the Child Support Commissioners and Social Security Commissioners which are two of the three other jurisdictions where taxation is excluded. The third is the Prescribed Organisations Appeal Commission.

[20]      In the absence of a right to taxation in civil cases before the Privy Council there can be no discrimination. There would in any event be a reasonable basis for not allowing taxation by the Auditor of the Court of Session, in that he has no track record in relation to the Privy Council.

[21]     
Solicitors are in a slightly different position under the 1989 Regulations by virtue of the amendment to Schedule 1, but they too are not entitled to taxation.

Response for the Petitioner

[22]     
Counsel for the Petitioner submitted that the Respondents' approach avoids any critical analysis of the definition of the scope of the regulations in Regulation 3. If there is no taxation under Regulation 11, there is no provision regulating remuneration of any party. It won't do to say there can be no taxation for the Privy Council but that amendment nevertheless sets out what the solicitor's remuneration would be.

[23]     
So far as the Civil Legal Aid Regulations 1989 are concerned, it is clearly and expressly provided in Sections 9 and 10(2) that counsel shall be remunerated for proceedings in the judicial committee and the fees will be 90% of what would be allowed on a private taxation. There is clear provision for remuneration, for the rate of it and in Regulation 12 for any dispute to be referred to taxation by the auditor. Any dispute regarding fees under 10(2) gives rise to a right to refer the matter to the auditor. Regulation 12 would be construed as requiring reference to the Auditor of the Court of Session. Both the Social Security Commissioners and the Child Support Commissioners would in the same way be governed by Regulation 12(1) under reference to Regulation 10(2).

Further submissions

[24]      Following the initial hearing in this case I put the case out By Order in order that Counsel could make any submissions they felt appropriate in the light of comments anent the jurisdiction of the Judicial Committee of the Privy Council in the cases of HMA v Touati 2001 SLT 1195 and Montgomery v HMA 2001 SC (PC) 1.

[25]      In HMA v Touati 2001 SLT 1195 it was held that a reference to the High Court continued to be part of the procedure in the case in which it is referred. In delivering the opinion of the Court, the Lord Justice General said:

"The reference is of a devolution issue which arises in the criminal proceedings before the court concerned. The procedure is designed to allow a court, when faced with an issue of some general importance, to refer the issue to this court. As the terms of the paragraph show, it is the original court, and not the parties, which decides whether to make a reference. This is because the reference procedure is designed, not for the benefit of the parties as such, but to assist the court in dealing with the issue before it. The procedure can therefore be seen as simply a stage in the proceedings before the original court; when this court has determined the issue in the reference, the original court will then use the guidance given by this court to reach its decision on the issue confronting it. ... We stress that it is for the original court to make the reference and ultimately to make the operative decision. This is clearly indicated by the terms of rule 40.10 which provides for the procedure when the original court receives the determination of a devolution issue."

[26]     
The paragraph referred to in the third sentence is paragraph 9 of Schedule 6 to the Scotland Act which enables a court to refer a devolution issue arising in criminal proceedings before it to the High Court. The parallel paragraph allowing for reference from the High Court is paragraph 11 which allows the High Court to refer any devolution issue "arising in proceedings before it ... to the Judicial Committee." It is of course paragraph 13(a) of Schedule 6 which covers appeals from the High Court to the Judicial Committee. Rule 40.10 is a reference to the Act of Adjournal (Criminal Procedure Rules) 1996 which is apt to cover references to both the High Court and the Privy Council, and which provides that:

"(1) Where on a reference of a devolution issue, the High Court of Justiciary, or as the case may be, the Judicial Committee has determined the issue and the determination has been received by the clerk of the court which made the reference, the determination shall be laid before the court.

(2) On the determination being laid before the court, the court shall then give directions as to further procedure, which directions shall be intimated by the clerk with a copy of the determination to each of the parties to the proceedings."

So far as disposal of appeals are concerned, Rule 40.11 provides that:

"The High Court of Justiciary shall, on the application of any party to the proceedings, fix a diet for the purpose of disposing of any matter in consequence of a judgement of the Judicial Committee on an appeal under paragraph 13(a) of Schedule 6."

It was this latter rule which was referred to by Lord Hope of Craighead in Montgomery at page 31 when he observed that "the terms of any order that falls to be made in the light of the disposal of an appeal under paragraph 13(a) ... is a matter for the High Court of Justiciary."

Submissions for Petitioner

[27]      Counsel noted that in Montgomery it had been observed (p10) that "the inference is that devolution issues are to be conducted under the existing procedures" but otherwise did not seek to draw any assistance from the case. It is clear that the Judicial Committee has the same powers as the High Court and can make substantive orders such as quashing convictions. See for example Holland v HMA 2005 SCCR 417 @ p442, paragraph 86 and Sinclair v HMA 2005 SCCR 446 @ p459, paragraph 38.

[28]      However, Counsel submitted that the case of Touati assisted in approaching the proper construction of Regulation 11 of the 1989 Regulations. According to Touati the correct characterisation of reference proceedings was that they continue to be proceedings in the originating court. A reference to the Judicial Committee from the High Court therefore comes within the meaning of "proceedings in the High Court" for the purpose of Regulation 11 without having to rely on the words of enlargement "including appeals".

[29]      Counsel also referred to section 25AB(4) of the Legal Aid (Scotland) Act 1986. Section 25AB made provision for criminal legal aid to be available for both appeals and references. However, in relation to references, subsection 4 provides that no separate legal aid cover is required for a reference if legal aid has been granted in respect of the initiating proceedings.

Submissions for Respondent

[30]     
Counsel for the respondent disputed that the effect of Touati was as suggested for the Petitioner. He submitted that when the jurisdiction of the Privy Council was introduced, legislation made a clear and careful distinction between references and appeals. That is recognised in section 25AB(4) of the Legal Aid (Scotland) Act 1986 which simply recognises that references for legal aid purposes are to be treated as part of the original proceedings. That does not mean that taxation is available for fees incurred on a reference. In respect of taxation Parliament, by accident or design, did not make the necessary adjustments to the regulations. It would be a curiosity if they intended the phrase "including appeals" to cover references.

[31]     
Apart from the amendments already noted, the Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999 also amended the Criminal Procedure (Scotland) Act 1995. It provided for bail to be allowed by the High Court "pending the determination of any appeal under paragraph 13(a) ... and the disposal of the proceedings by the High Court thereafter" (Schedule 1, paragraph 13(2)); it provided for suspension of disqualification, forfeiture etc to be competent until an appeal under paragraph 13(a) is determined, stating that "references to an appeal being determined are to be read as references to the disposal of proceedings by the High Court following determination of the appeal" (paragraph 13(3)); and it made similar provision in relation to suspension of certain sentences, providing in addition that where, for such purposes, reference is made to a part appearing at the "hearing of the appeal" that is to be read as a reference to any subsequent hearing in the High Court in relation to the proceedings"(paragraph 13 (4)). Counsel submitted that it was significant that Parliament has made express changes to the Criminal Procedure legislation but not to the legal aid Regulations.

Discussion

[32]     
It will be seen that immediately prior to the 1999 regulations, all fees allowable from the Fund to solicitors, solicitor advocates or advocates in respect of legal aid in criminal proceedings in the Sheriff or District courts or the High Court, including appeals, were governed by the 1989 regulations. The fees allowable to solicitors were those specified in schedule 1 with any dispute thereanent being referred to the auditor for the appropriate court. Under Regulation 10 the fees allowable to counsel, including Solicitor Advocates, were those which appeared to the auditor to represent reasonable remuneration, calculated according to schedule 2. It is difficult to see what role the auditor could play in terms of this Regulation unless there was in fact an entitlement to taxation. Regulation 11 provides for such taxation to take place. It appears therefore that immediately prior to the passing of the Scotland Act 1998 there was an automatic entitlement for all criminal legal aid fees of Counsel to be taxed by the auditor, in the absence of agreement.

[33]     
What then is the position after the introduction of the new jurisdiction? One thing is clear, namely that solicitors' fees are regulated according to the 1989 Regulations. Regulation 4 provides that the fees allowable to solicitors shall be those specified in Schedule 1. That schedule was specifically amended to be the method for calculating remuneration for all fees allowable to solicitors (excluding solicitor-advocates) including those for work in the Judicial Committee of the Privy Council. It would be an anomaly of a high degree that a solicitor would be entitled to a taxation of fees in relation to the High Court or in any summary procedure but despite his fees before the Judicial Committee being calculated according to Schedule 1 of the 1989 Regulations, he would not be entitled to taxation of those fees under the regulations. That would be the effect of the submissions advanced for the Respondent, who argued that although solicitors' fees were within the ambit of the regulations by virtue of schedule 1 they could not be taxed by the auditor since the phrase "High Court, including appeals" could not include a reference to any case which advanced to the Privy Council.

[34]      I agree with Counsel for the Petitioner that the fact that the phrase could not when drafted, have been meant to include the Privy Council is not a conclusive point. One must now read that phrase in terms of the amended regulations as a whole. It would be a further anomaly if the fees of solicitors only and not those of counsel were intended to be covered by the regulations. The terms of Regulation 10 are certainly wide enough to cover such fees. Furthermore, the fact that for the purpose of these regulations it was made clear that "right of audience" does include a solicitor exercising his right of audience before the Privy Council suggests that the intention was to bring counsel's fees in the Privy Council within the ambit of the Regulations.

[35]     
The question then is whether the phrase "proceedings in the High Court, including appeals" can reasonably be read to include cases which go to the Privy Council on appeal or reference. So far as references are concerned, the reasoning in Touati which related to references to the High Court is equally applicable to a reference made from the High Court to the Judicial Committee of the Privy Council. Such a reference would simply be part of the proceedings in the original, i.e. High, Court. I conclude therefore that a reference to the Privy Council from the High Court is indeed capable of falling within the description "proceedings in the High Court".

[36]      What then of appeals? The situation in relation to appeals is less straightforward. It is clear that the Judicial Committee has the powers of the High Court and can quash appeals and make similar decisions. However, even in such a case the jurisdiction of the High Court is not necessarily spent. Rule 40.11 provides that "The High Court of Justiciary shall, on the application of any party to the proceedings, fix a diet for the purpose of disposing of any matter in consequence of a judgement of the Judicial Committee on an appeal under paragraph 13(a) of schedule 6 ...". In both Holland and Sinclair, supra, the Judicial Committee remitted the cases back to the High Court on the question of whether to grant authority to bring a new prosecution. It appears that it would also be for the High Court to re-impose disqualification, issue a warrant where bail had been granted in respect of an unsuccessful appeal and the like. It would again be highly anomalous if the 1989 Regulations covered references to the Judicial Committee, as I hold it does, but did not cover appeals. In my opinion the context requires that the phrase "proceedings in the High Court, including appeals" requires to be read as including appeals to the Privy Council.

[37]      I do not accept Counsel's submission that his argument is supported by the fact that the 1999 Order made express amendments to the Criminal Procedure (Scotland) Act 1995 but did not make an express amendment to Regulation 11 of the 1989 Regulations. The amendments were necessary to allow suspension of penalties pending resolution of an appeal under paragraph 13(a) of Schedule 6. I do not consider that anything further can be read into them. Furthermore, as far as the amendment to Section 25AB of the Legal Aid (Scotland) Act 1986 is concerned this relates only to an application for legal aid, not in any way to the allowance of fees. It makes perfect sense that for the purpose of applying for legal aid references and appeals should be treated differently, as in the case of a reference no issue of probablis causa will arise.

[38]     
Counsel for the Respondent argued that it could not have been intended to include Counsel's fees in the 1989 Regulations since the table of fees which forms part of schedule 2 could not apply to fees in the Privy Council. However where no fee is prescribed for any item of work, paragraph 2 of the Schedule permits the auditor to allow such fee as appears to him to be appropriate. Counsel suggested that it would be extraordinary if the taxation of Counsel's fees in the Privy Counsel were to be determined in this way. However, in the first place, it should be noted that there is not anywhere else a table of fees indicating what should be allowed to Counsel in a legal aid case before the Privy Council. In the second place it should be noted that in determining what fee to allow under paragraph 2 the auditor is required to take into account the general level of fees which are set out in the table. There is thus at least a framework against which the appropriate level of Privy Council fees could be assessed. The consequences of the argument for the Respondent would in my view be even more extraordinary. It would mean that Counsel's fees in the Privy Council were governed by the Principal Act section 33 of which states that Counsel shall be paid "in respect of any fees or outlays properly incurred by him in so acting". It follows that any dispute between Counsel and the Board as to allowance of a fee would require to be settled by litigation. The Act does not specify how the level of these fees are to be determined. No table is contained in the Act and so unlike schedule 2 there is not even a framework against which the appropriate level of fee may be determined. The end result would surely be that in a litigation the court would have to remit the matter to the auditor. I cannot accept that such a cumbersome procedure was intended when the 1989 regulations can properly be read so as to make the simpler option, i.e. taxation under those regulations, available.

[39]     
That is enough to dispose of the Petition. The Human Rights argument is thus no longer a live one for me to decide. In any event I consider that the auditor does have jurisdiction to tax civil legal aid accounts in relation to cases before the Privy Council. On a proper reading of Regulations 3 and 12 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 only criminal legal aid is excluded. Solicitors fees in the Privy Council fall to be assessed by reference to Regulation 5(3) and schedule 5 and the method of assessment for Counsel's fees in the Privy Council is set out in Regulation 10(2) as being calculated by reference to the fee which would be allowed on a private taxation. It would be anomalous for that to be the method of calculation if a dispute on the level of the legal aid fee could not be determined by the auditor on taxation in terms of Regulation 12. Regulation 12 does not limit the scope of disputes which can be referred to taxation other than in relation to payments to account. It covers all legal aid except criminal legal aid. The fact that the auditor does not have a track record in relation to the Privy Council is of no account, given the track record which he does have in relation to the House of Lords. Having regard to all these factors the context requires that "auditor" for the purposes of taxation under Regulation 12 of Privy Counsel fees to be interpreted to mean the auditor of the Court of Session.

[40]     
Given that I have decided that there is no differentiation between those appearing in the Privy Council on criminal legal aid and those appearing in receipt of civil legal aid no issue of different treatment arises. Had it done so I would have agreed with Counsel for the Respondent that any differentiation was not on the basis of status within the meaning of article 14.

Conclusion

[41]     
In my opinion the auditor does have jurisdiction, in terms of the Criminal Legal Aid (Scotland) Regulations 1989 as amended, to tax fees incurred by Counsel in respect of criminal legal aid in proceedings which result in appearance before the Judicial Committee of the Privy Council. Accordingly I will pronounce declarator in terms of paragraph 3(a) of the Petition, decree in terms of paragraph 3(b) and reduction in terms of paragraph 3(d).


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