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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pentland-Clarkfor, Re Judicial Review [2011] ScotCS CSOH_41 (02 March 2011)
Cite as: [2011] ScotCS CSOH_41, [2011] CSOH 41

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[2011] CSOH 41



in the Petition of




Judicial Review of a Taxation of Expenses in the cause A205/04 by the Auditor of the Court of Session


Petitioner: Party

First, Second and Third Respondents: Duthie, advocate; Balfour & Manson LLP

Fourth Respondent: Duthie, advocate; McGrigors LLP

2 March 2011

[1] This is a Petition for Judicial Review of Taxations of Expenses by the Auditor of the Court of Session. The expenses were awarded against the Petitioner in a wholly unsuccessful action at her instance. The Respondents to this Petition were successful Defenders in the action. The substantive proceedings are Court of Session Action A205/04. The Petition called before me for a First Hearing on
18 November 2010. The Petitioner represented herself assisted by her son James Clark. Mr Duthie, advocate, appeared for the First, Second and Third Respondents on the instructions of Messrs Balfour & Manson LLP, Solicitors, and for the Fourth Respondent on the instructions of Messrs McGrigors LLP, Solicitors. Answers have been lodged for these Respondents. The Auditor has not lodged Answers and was not represented at the First Hearing. By letter dated 14 October 2010, No 7/3 of Process, the Auditor favoured the Deputy Principal Clerk of Session with his comments on the Petition.

[2] The papers in the substantive proceedings A205/04 have been remitted to me. The Auditor taxed the Fourth Respondent's Account of Expenses, which the Petitioner is liable to pay, in the sum of 93,178.29 inclusive of VAT. By Note of Objections the Petitioner challenged four items in the Account being outlays consisting of fees charged by the in-house Solicitor Advocate instructed by McGrigors on behalf of the Fourth Respondent. The four disputed items were taxed at 7,500, 19,250, 15,000 and 13,500 giving a total of 55,250 exclusive of VAT. The Petitioner does not challenge her liability in principle to pay these items, only the amount. The Petitioner proposes abatements (see below), but even so the unchallenged amount of her liability in expenses to the Fourth Respondent is significant. She also has a liability to the other defenders in the action, including the First, Second and Third Respondents in this Petition, as yet unquantified.

[3] At the First Hearing of this Petition the Petitioner moved me to sustain the Petitioner's First, Second and Third pleas-in-law, to Repel the pleas-in-law for the First, Second and Third Respondents and for the Fourth Respondent respectively. Counsel for the Respondents made the counter-motion and moved for dismissal of the Petition.

[4] The Petitioner has also lodged a Note of Objections to the Auditor's Report. When the Petitioner and Mr Duthie appeared in connection with the Note of Objections on 2 December I invited them to give consideration to contacting my Clerk to arrange to make further submissions in this Judicial Review process specifically in relation to Article 6 ECHR. Neither did so and on 23 December I arranged for the Judicial Review process to be brought out By Order on
10 January 2011 for parties to make submissions on the Article 6 case law. On 10 January Mrs Pentland-Clark moved for a continuation, which I granted until 17 January. On 17 January parties made further submissions. Having made avizandum my conclusion is that, in substance, the prayer of the Petition should be granted. I have reached this conclusion with some reluctance.

Preliminary Points
[5] The Petitioner submitted that because the Auditor had not lodged Answers the Court should "grant decree in absence" in terms of the Petitioner's first three pleas-in-law. I reject that submission. The Petition was opposed by interested parties who had lodged Answers and who were represented at the hearing, namely the First, Second and Third Respondents together, and the Fourth Respondent respectively.

[6] The Petitioner submitted that the Answers lodged for the First, Second and Third Respondents failed to address Articles 5 (a)-(j) of the Petition which should be treated as unanswered and therefore established against those Respondents. I decline to take that course. Counsel for those Respondents explained that there had been a "word-processing mix-up". It is clearly open to the Court in terms of Rule of Court 58 to hear opposition to the Petition at the First Hearing with or without Answers. The rest of the Petitioner's comments on those Answers are a mixture of debating points, complaints about lack of notice, arguments on relevancy and specification and arguments on the merits which are subsumed in and superseded by the Petitioner's overall submissions on the merits.

[7] In relation to the Fourth Respondent's Answers, the Petitioner submitted that those Answers were no more than non-admissions coupled with a reference to the Auditor's letter to the Deputy Principal Clerk of Session dated
14 October 2010. The only substantive averment was to the effect that there was no proper basis for challenging the taxation. That averment was irrelevant for lack of specification. Consequently, the Petitioner submitted, "the petition should be granted as craved and the third party's [Fourth Respondent's] pleas-in-law dismissed". I decline to take that course. The Fourth Respondent clearly opposes the Petition and even if she had not lodged Answers, would be entitled to be heard.

Background and litigation history
[8] I have taken the background from the Opinion of the Extra Division in the substantive action A205/04 delivered by Lady Paton on 11 June 2009, for which I am grateful. The Petitioner is aged 75. She is the divorced wife of the late James Clark, a wealthy farmer. There were four children of the marriage. The Petitioner and Mr Clark were divorced in 1977. As part of the divorce settlement Mrs Pentland-Clark obtained the right to life-long, index-linked, net-of-tax, maintenance payments. The payments started at the rate of 2,400 net a year. By 2010 index-linking had brought the payments up to 14,640 net a year.

[9] Mr Clark re-married in 1982 and died in 1985. There were no children of the second marriage. Mr Clark's second wife Anne Kennedy or Clark survived him. She has subsequently re-married and is now Anne Maclehose. The beneficiaries under Mr Clark's will were his second wife and his four children, by his first marriage. The Petitioner was a creditor on Mr Clark's estate for her maintenance payments. The inventory of the estate submitted to the Capital Taxes Office included the Petitioner's claim for future payments as a debt at the date-of-death capitalised value. The maintenance payments stopped on Mr Clark's death in 1985 but began again in 1987 when the two years of arrears were also paid up. Maintenance payments stopped once more in 1999. The Petitioner successfully applied to the Court for removal of the executors then serving and for appointment of a Judicial Factor. By interlocutor of
27 May 1999 the Judicial Factor was instructed to report on possible action to restore the executry estate to solvency. The Judicial Factor reported in 2000. The Judicial Factor was critical of the administration of the estate by the executors, including the second Mrs Clark, now the Fourth Respondent to this Petition, who served until her resignation in 1986. (See also Clark v Clark's Executors 1989 SLT 665; Sarris v Clark 1995 SLT 44; Pentland-Clark v Macfie and Innes, 21 May 2004, Lord Hardie.) At the date of the Judicial Factor's report the estate still had assets but was insolvent to the extent of 80,345.20 if account were taken of future and contingent liabilities. The liabilities included arrears due to the Petitioner and the capitalised future value of her claim as at 2000.

[10] The Judicial Factor proposed that the estate should be restored to solvency by recovering the necessary sum from two former solicitor executors. He raised an action concluding for payment of 175,000 jointly and severally and then sisted it. That action is Court of Session Action A1767/03. In 2004 the Judicial Factor paid the Petitioner arrears of maintenance payments amounting, with interest, to over 70,000. On 11 March 2004 the Judicial Factor's law agent informed the Petitioner that the Judicial Factor did not intend to proceed with the action against the executors due to lack of funds.

[11] On
19 March 2004 the Petitioner raised her own action, as a party litigant, directed against all former executors or their representatives, as First, Second, Third and Fourth Defenders, against the Judicial Factor, as Fifth Defender, and against the Judicial Factor's law agent as Sixth Defender. Maintenance payments to the Petitioner resumed but ceased again in November 2005 when the Judicial Factor's law agent advised the Petitioner that there were no funds left in the executry estate to pay her. No maintenance payments have been made since November 2005.

[12] The Petitioner's action against the executors and others signetted on
19 March 2004 is Court of Session Action A205/04. The Defenders challenged the relevancy of the Petitioner's pleadings which consisted of seven substantive and two ancillary Conclusions, founded on 39 Articles and sub-Articles of Condescendence, supported by twenty pleas-in-law. A diet of debate was assigned for 14 February 2006 and seven ensuing Court days. The diet was discharged because no judge was available for the hearing. In the interval between the discharged diet and the re-fixed diet the Petitioner attempted to amend by adding four new Conclusions, several new paragraphs of Condescendence and six new pleas-in-law. The motion to amend was refused. The Closed Record placed before the Lord Ordinary for the debate, which took place on 15 June 2006 and six ensuing days, extended to 76 pages. The Lord Ordinary, Lady Clark of Calton, observed that "No summary could capture the detail of the pleadings." By interlocutor of 29 September 2006 the Lord Ordinary dismissed the action.

[13] As a matter of impression the main problem with Petitioner's action was that she, as a creditor, was trying to exercise the remedies available to the Judicial Factor. The Judicial Factor in turn was hobbled by lack of funds. Following the death of the Judicial Factor, the Petitioner successfully applied to the Court to have herself appointed as the Judicial Factor on the executry estate. In May 2007 the Petitioner, in her capacity as Judicial Factor sought to be joined as a party in the substantive action A205/04. Her application was opposed and was refused.

[14] Meanwhile the Petitioner as an individual was in the course of reclaiming the Lord Ordinary's interlocutor of
29 September 2006 whereby the substantive action A205/04 had been dismissed. In the reclaiming motion the Petitioner confined her case to four substantive conclusions viz against the first to fourth defenders for declarator of breach of duty by the executors; for payment by all defenders jointly and severally of the sum of 146,000 as reparation for the Petitioner's time and outlays in pursuing claims against the executry estate, with compound interest; for payment by all defenders jointly and severally of the sum of 240,000 as reparation for the Petitioner's time and outlays in pursuing claims against the executry estate, with compound interest; for payment to the executry estate by the first to fourth defenders jointly and severally of 4,294,347.92 in recompense for the loss suffered by the executry estate caused by the executors' breaches of duty. The Reclaiming Motion was first heard by a bench chaired by Lord Macfadyen. Regrettably Lord Macfadyen's untimely death while the case was at avizandum resulted in a re-hearing. The Reclaiming Motion was re-heard and in due course refused on 11 June 2009.

[15] At the hearing on expenses on
16 February 2010 the Petitioner put forward a number of arguments as to why she should not be liable for the expenses of the successful parties. She invited the Court to make a finding of no expenses due to or by, or alternatively to restrict certain awards of expenses, failing which to postpone any decision relating to expenses until the resolution of the action at the instance of the Judicial Factor, A1767/03. The Court observed that "The predominant and irrefutable fact is that the Pursuer's action against all six defenders, and the related reclaiming motion, have been wholly unsuccessful." The Court went on to find the Petitioner liable to the First, Second, Third, Fourth, Fifth and Sixth Defenders in the expenses of the action, so far as not already dealt with.

[16] The Court made a remit to the Auditor of the Court of Session to tax the accounts of expenses and to report. The Diet of Taxation of the Account of Expenses for the Fourth Defender, now the Fourth Respondent, took place on
10 June 2010. The Report of the Taxation dated 30 July 2010 was issued to parties on 2 August 2010. The Petitioner lodged her Note of Objections to the Auditor's Report on 13 August 2010. The Objections are outlined in paragraph 2 above. The Diet of Taxation of the Account of Expenses for the First, Second and Third Defenders, now the First, Second and Third Respondents took place on 18 August 2010. The Auditor has informed parties and the Court that he will not issue his Report of that Taxation pending the outcome of this Petition. The Petition seeks inter alia suspension of the Auditor's Report on the Taxation of the Fourth Respondent's Account and interdict of the Auditor from Reporting on the Taxation of the First, Second and Third Respondents' Account of Expenses.

The Petitioner, the Auditor and Messrs Shepherd & Wedderburn WS
[17] The Petitioner's case against the Auditor is one of lack of impartiality in an objective sense based on a number of connections between the Petitioner, the Auditor and Messrs Shepherd & Wedderburn WS.

[18] The Auditor was a partner in, and head of the Litigation Department of, Messrs Shepherd & Wedderburn WS [now Shepherd & Wedderburn LLP], solicitors, from November 2001 until September 2008. The Auditor resigned from the firm and took up office as Auditor of the Court of Session on
29 September 2008.

[19] The Petitioner avers that she was a client of Shepherd & Wedderburn in respect of her claim on the executry estate from June 1989 to November 1998. In other words, she ceased being a client before the Auditor became a partner. However, on the basis of her representations and documents produced I find that there were three matters arising from her claim on the estate that continued to connect her with the firm.

[20] First, the Petitioner made a complaint to the Law Society of Scotland about the failure of Shepherd & Wedderburn to act on instructions given by her in 1997 to interdict the executors from making a distribution to the Fourth Respondent which the Petitioner feared would render the estate unable to meet the maintenance payments due to Petitioner. The distribution was made and, as I read the situation, the effect was to render the executry estate unable to meet its liability to the Petitioner. The Petitioner's complaint was lodged in 1998 and was still pending when the Auditor became a partner. The Petitioner has produced what bears to be a copy of her instructions to Shepherd & Wedderburn dated
29 October 1997. The instructions state inter alia "I hold you [Partner in the Private Client Department] and Shepherd & W. WS accountable for failing to take action now if the EXECS have to resort to recovery of assets from the family, if a shortfall sh'd become apparent." The instructions also expressed concern that there would be no funds left to embark on recovery should there be a shortfall. The Petitioner stated that the complaint was not resolved until 2004.

[21] Secondly, the Petitioner raised an action in the Court of Session against three partners in Shepherd & Wedderburn alleging professional negligence for their failure to act on the instructions given by her in 1997 to interdict the executors. The three partners were a partner in the Private Client Department, the Senior Partner and a partner in the Litigation Department. The action A1623/04 was raised in 2003. At that time the Auditor was head of the Litigation Department. On
19 October 2004 the Court sisted action A1623/04 pending the outcome of the Petitioner's action A205/04 against the former executors and others, the action which has given rise to the disputed taxation. Prima facie this demonstrates a close connection between the subject matter of the two actions. Action A1623/04 remains in dependence.

[22] Thirdly, Messrs Drever & Heddle, solicitors,
Kirkwall, represented the Petitioner from March 2000 to August 2001 in connection with her successful application in the Court of Session to remove the executors and appoint a Judicial Factor on the executry estate. Drever & Heddle raised an action against the Petitioner in the Sheriff Court, Kirkwall, for payment of their fees and outlays. In defence the Petitioner averred inter alia:

"Ans 2 ... the defender demands that the pursuer's account be taxed in conjunction with the defender's previous two agents; said previous two agents being subsumed by the pursuer. Esto: the defender is liable in part then the defender has a right of offset against Hasties SSC; and Shepherd and Wedderburn WS, both of Edinburgh. Admitted that the pursuer had his account taxed by the Auditor of the Sheriff Court. Denied that this taxation is relevant as the Auditor of the Sheriff court has no jurisdiction to tax matters which relate to the Court of Session's proceedings, and furthermore the Auditor of the Sheriff Court failed to note, let alone tax the accounts of Hasties SSC; and Shepherd and Wedderburn WS..."

By interlocutor dated 14 January 2003 the Sheriff at Kirkwall granted decree against the Petitioner in the sum of 4,176.61 with interest and expenses. The Petitioner appealed to the Court of Session. The Petitioner's Grounds of Appeal narrated that she had instructed Ms H, a solicitor with Messrs Hasties SSC, solicitors, Edinburgh, to act in the matter of having a Judicial Factor appointed to the executry estate. The Grounds of Appeal continued:

"... The [Petitioner] had asked [Ms H] to take her file (the work contract) with her when she moved from Hasties SSC to Drever & Heddle, in the spring of 2000, in order that Ms H (who had a priori knowledge of all the facts of the long and complicated issues needing resolution) having set in motion the means by which the [Petitioner] could be rescued from the dire situation in which she had been abandoned and left to surmount alone, by the failings (as the [Petitioner] still views it) of her legal advisers for the preceding 6+ years, at Shepherd and Wedderburn WS..."

On 2 March 2004 an Extra Division, of consent, allowed the Petitioner's appeal, etc. The agents acting for Drever & Heddle in the appeal were Shepherd & Wedderburn. The Petitioner was a Party Litigant. The Petitioner has lodged what bears to be correspondence to her from Shepherd & Wedderburn about the appeal. The correspondence is dated during the period 12 February to 5 June 2003. The correspondence ran under the reference "D0618.119/AYS/PZD/KMC." I take "KMC" to be Kenneth Macmillan Cumming WS, now Auditor of the Court of Session. The Petitioner told me that Shepherd & Wedderburn subsequently withdrew from acting for Drever & Heddle because of a potential conflict of interest arising from the references to Shepherd & Wedderburn in the Petitioner's pleadings. In light of the former client connection this sounds probable.

[23] All of the foregoing, the Petitioner submitted, begged the question: just how often were Shepherd & Wedderburn involved in proceedings, in the Inner House, successfully contested by a Party Litigant (the Petitioner) in which they had to withdraw from acting because the Party Litigant, who was their former client, referred to the firm in the pleadings as being the root cause of her problems? This submission was meant to address the issue of whether or not the Auditor was likely to have been aware of the history between the Petitioner and Shepherd & Wedderburn when he came to tax the accounts in action A205/04.

[24] In submissions the Petitioner at one point seemed to say that her complaint against Shepherd & Wedderburn became public knowledge in 2002 when she raised the matter with the Justice 1 Committee of the Scottish Parliament; and that the matter was again raised in a public forum, namely the Justice 2 Committee of the Scottish Parliament, in 2006. She referred to copy letter from the Convener, Justice 1 Committee, to the Petitioner dated 29 April 2002; and copy excerpt from 12th Report, 2002, of the Justice 1 Committee, where, at pages 3 and 56 the Petitioner was referred to by name. Neither document refers in terms to Shepherd & Wedderburn. I am prepared to accept, from the Petitioner's explanation when questioned by me, that Shepherd & Wedderburn were named in the documents submitted to the Parliament and that the name was redacted following normal practice.

[25] The papers in the substantive action A205/04 have been passed to me for consideration of the Petitioner's Note of Objections to the Taxation of the Fourth Respondent's Account of Expenses in that action. Among the papers remitted is the Auditor's Minute of
17 November 2010 in response to the Petitioner's Note of Objections to the taxed Account of Expenses for the Fourth Defender now the Fourth Respondent. In his Minute the Auditor clearly implies - by his reference to the dicta cited at paragraph 3 (f) - that in taxing the account he was "applying his knowledge and experience to the case disclosed on record and in the account and supporting vouchers", as indeed one would expect [my emphasis.] There were references to Shepherd & Wedderburn by name in "the case disclosed on record" at pages 36, 45 (twice) and 65 [page numbers at the top] of the Reclaiming Print. The reference at page 65 is as follows: "In 1998, following a change of legal representation (her previous solicitors, Shepherd & Wedderburn having refused her instruction to interdict the further payment of 100,000 to the Fourth Defender in October 1997 - see Case No. A1623/03 - see Production No 6/27 adopted and held as repeated herein brevitatis causa)..." The Auditor presumably saw the Petitioner when she appeared personally at the respective Diets of Taxation quoad the Fourth Respondent's Account on 10 June 2010 and quoad the Account of the First, Second and Third Repondents on 18 August 2010.

[26] The remit to the Auditor was not exhausted with his initial Taxation of the Account. The intimation of the Auditor's Report on 2 August prompted the Petitioner to lodge her Note of Objections on 13 August. On
10 September 2010 the Auditor received service of the Petitioner's Petition for Judicial Review of the Auditor's Report on the Account of Expenses for the Fourth Respondent etc. As things turned out, at the time when it fell to the Auditor to compose his Minute reporting the reasons for the Taxation decisions objected to by the Petitioner he had in front of him, as it were, in the form of the Judicial Review Petition now under consideration, the material bearing on the question whether he should decline jurisdiction.

[27] By that stage the Auditor may have felt that his hands were tied. By interlocutor of
17 August 2010 the Auditor had been ordained by the Court "to state by Minute within 14 days the reasons for his decision in relation to the items to which objection is taken in said note." A further complication arose at this point. The Auditor became aware of the interlocutor on or shortly after 19 August although the interlocutor itself was not intimated to him by the Petitioner until 27 August.

[28] The Petitioner voices concern about the Auditor's handling of matters at the end of August, beginning of September 2010. In response to an inquiry from the agents for the Fourth Respondent the Auditor advised on 25 August that because the Petitioner had not intimated her Note of Objections or the Court's interlocutor of 17 August, he did not consider himself bound to comply with the interlocutor. The Petitioner's son did deliver hard copies of the Note of Objections and the interlocutor of 17 August to the Auditor's Office on 27 August. By letter dated
2 September 2010 to the Fourth Respondent's agents, the Auditor stated that he still did not feel that he was bound to comply with the interlocutor of 17 August. His reasons seem to have been, first, that the Petitioner had not intimated her Note of Objections to him in advance of 17 August as he understood was required by Rule of Court 42.4 (2) (a); and, secondly, that the Petitioner had not intimated a copy of the interlocutor of 17 August "forthwith" after it was pronounced as required by Rule of Court 42.4 (2) (c). The Petitioner's complaint is that the Auditor was communicating one-sidedly with her opponent's agents about his refusal to obtemper a Court order that she had obtained. (The Auditor did comply with an interlocutor in similar terms pronounced on 10 November and lodged his Minute in the taxation proceedings on 17 November.)

[29] By letter dated
14 October 2010 the Auditor wrote to the Deputy Principal Clerk of Session with his comments on the present Petition. The Auditor narrated that during his time as a partner at Shepherd & Wedderburn claims and complaints were handled by a nominated partner, subsequently by a designated committee, both reporting to the partnership board. The Auditor was never the nominated partner nor was he ever a member of either the designated committee or the partnership board. When the Auditor resigned from Shepherd & Wedderburn LLP in September 2008 to take up his present office he retained no continuing interest in any claim or complaint against the firm.

[30] The letter continued that when the Auditor took up his present office on 29 September 2008 he instituted the following approach to taxations in which Shepherd & Wedderburn were involved as solicitors for either the paying or the receiving party: in cases in which he had had personal involvement parties were advised that the account would be remitted to a Sheriff Court Auditor; and in cases in which he had had no personal involvement parties were given the option of either consenting to the Auditor taxing the account or of having the account remitted to a Sheriff Court Auditor. From about January 2010 the Auditor adopted the following approach to taxations in which Shepherd & Wedderburn were involved: in cases in which he had had personal involvement parties were given the option of either consenting to the Auditor taxing the account or of having the account remitted to a Sheriff Court Auditor; and in cases in which he had had no personal involvement the Auditor conducted the taxation as normal without raising the issue with parties.

[31] In his letter the Auditor made the point that he was the sole Court of Session Auditor and that, in his view, it was "generally undesirable that accounts in Court of Session proceedings should have to be remitted to a Sheriff Court Auditor unless absolutely necessary." The letter also commented on the question of whether the Auditor had any recollection of Mrs Pentland-Clark's complaint and claim against Shepherd & Wedderburn. I explain below why I think it inappropriate to give weight to the Auditor's comments on this matter.

Reasons for the Decision
[32] The challenge which arises in this case results from the tradition of appointing a solicitor from private practice to be the Auditor of Court. There is a body of opinion that the practice is a sound one; and that it is of benefit to the Court, to litigants and to the profession to have in post as Auditor experienced and respected litigators of the calibre of this Auditor and his predecessors. (For a description of the office and its role, with suggestions for change, see Rt Hon Lord Gill, Report of the Scottish Civil Courts Review (Edinburgh, 2009), Vol 2, Ch 14, "Taxation", 68-95.) In the narrative the Auditor has given of the regime he put in place to deal with perceptions of conflict of interest arising from his career as a solicitor the Auditor demonstrates that he has acted in good conscience and with good sense. Equally it is an inescapable fact that unusual cases, like the present one, will produce unforeseen challenges.

[33] Some important points were expressly accepted or left unchallenged by Mr Duthie, Counsel for the Respondents, namely that taxations by the Auditor of the Court of Session have to be Article 6 ECHR compliant - this was expressly stated on three occasions; that Judicial Review is the appropriate remedy for the complaint of non-compliance made by the Petitioner in this case [Coyle Petitioner

[2006] CSOH 169; cf. Urquhart v Ayrshire and Arran Health Board 2000 SLT 829; Gupta v Ross 2005 SLT 548
]; and that the Petitioner is not personally barred by acquiescence from now taking exception to the Auditor's adjudication in her case. Counsel did not argue, as he might have done, that the Auditor is more akin to a court-appointed expert under the supervision of the Court, than to a judge, so that Article 6 ECHR does not apply as if the Auditor were a "tribunal" and as if taxations were in themselves proceedings for the determination of civil rights and liabilities [Eggertsdottir v Iceland No 31930/04 (2009) 48 EHRR 32]; nor did he argue that the guarantees of impartiality offered by the Auditor such as they may be were appropriate to the subject matter. Rather he argued that the guarantees offered by the Auditor were comparable with those offered by judges.

[34] Counsel submitted that there were objective guarantees of impartiality such that the fair-minded observer would conclude that there was no real possibility of bias. As an Officer of the Court the Auditor was obliged to disclose conflicts; and the Auditor has adopted a policy to this effect. The Auditor was bound to give reasons for his decisions; and the Auditor's decisions were subject to scrutiny by the Court by way of the Note of Objections procedure. Counsel agreed that the judicial oath was a matter that had been given weight by the Scottish judges in Helow v Secretary of State for the Home Department 2009 SC (HL) 1; and that the Auditor had not taken and was not bound by the Judicial Oath. Counsel accepted that the Note of Objections procedure was not the strongest guarantee given that the Auditor was a person of skill allowed a wide margin of discretion, that the procedure was summary and that the Court had limited power to interfere with the Auditor's discretion.

[35] In this connection I note that the Auditor's self-imposed code of conduct is a voluntary one, appears not to have been published, relies as regards personal involvement on his recollection and is operated on the Auditor's own initiative. As, or to the extent that, he is a self-employed, fee-paid Officer the Auditor has - I stress as a matter of appearances only without any reflection whatsoever on the Auditor's actual conduct - an incentive not to decline jurisdiction; and there is also, as the Auditor perceives it and as his letter explains, a positive institutional imperative for him to exercise jurisdiction. I note that taxation hearings take place in private; that the Auditor gives reasons only where the Note of Objections procedure is invoked; and that the Auditor's decisions are not published except to the extent that this happens in the rare cases where the Note of Objections procedure is followed through to a decision by the Court. Counsel might also have mentioned that an Auditor's decisions are amenable to the scrutiny of the Court by way of Judicial Review, as in this case.

[36] Counsel continued by submitting that, if the Auditor had known of the facts now founded on by the Petitioner, the Auditor would have declined to proceed personally. He would have remitted the Taxation to another auditor. I can see that voluntary declinature is not necessarily the same as a legal disqualification: but the concession as to what the Auditor would have done acting, I take it, in good conscience and with good sense is persuasive. In this connection I notice that on 6 January 2009
Lord Hardie of Blackford, who had previously decided the case of the Petitioner against the Judicial Factor and his law agent (Pentland-Clark v Macfie and Innes, 21 May 2004), responded to a challenge from the Petitioner by recusing himself from the Summar Roll Hearing in the substantive action A205/04.

[37] This case raises the question of "objective" as opposed to "subjective" partiality or impartiality. There was consensus as to the test to be applied namely whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was not impartial. In this connection the Petitioner referred to Sellar v Highland Railway Co 1919 SC (HL) 19 at 20 per Lord Buckmaster; Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 at 279; Bradford v McLeod 1986 SLT 244 at 247 per Lord Justice-Clerk; Reg v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000]
1 AC 119 at 142 per Lord Hope of Craighead; Porter v Magill
2 AC 357 at 493-495 per Lord Hope of Craighead; Lawal v Northern Spirit Ltd [2003] ICR 856 at 861-862 per Lord Steyn. Counsel for the Respondents referred to Helow v Secretary of State for the Home Department 2009 SC (HL) 1 at 1-3 per Lord Hope of Craighead, at 14 per Lord Rodger of Earlsferry, at 39-40 per Lord Mance. Counsel for the Respondents emphasised that the fair-minded observer reserves judgement until he or she has seen and fully understood both sides of the argument; the fair-minded observer is not unduly sensitive or suspicious; and the fair-minded observer does not make assumptions where there is no objective basis for doing so [Helow supra]. (The test is derived from the analysis by Lord Phillips of Worth Matravers MR giving the judgement of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at 711A-B.) The Petitioner emphasised the core need for "the confidence which must be inspired by the courts in a democratic society"; and that the key is a need for awareness of public perceptions of the possibility of unconscious bias on the part of decision-makers [Lawal supra].

[38] The issue raised by the Petitioner is whether there is legitimate concern, from an objective point of view, that the mind of the decision-maker might have been materially influenced, whether consciously or unconsciously, by pre-conceptions about the Petitioner's case or pre-conceived feelings about the Petitioner herself. In this context appearances have a certain importance.
Lord Hardie of Blackford's declinature, referred to above, illustrates the care taken by the Court to avoid this sort of problem if a question arises in successive cases involving the same party with overlapping subject-matter. The importance of appearances is recognised in the fact that the Auditor himself put in place special arrangements for taxations involving Shepherd & Wedderburn. These arrangements extended to cases in which the Auditor had no personal involvement, acknowledging that there would or could be a perception that he had a loyalty to his former partners.

[39] The present challenge is of the "dual role" sort that arises with part-time judges, or with judges appointed from the legal profession, exercising representative and judicial functions respectively in different proceedings involving the same party [Wettstein v Switzerland, No 33958/96, ECHR 2000-XII; Puolitaival and Anr v Finland No 54857/00, 23 November 2004; Steck-Risch and Others v Liechtenstein, No 63151/00, 19 May 2005]. The issue is about the perception of a "prior attitude" having been formed. The Petitioner maintained that her case was stronger than Wettstein given the "material link" between the various litigations in her case: the Auditor himself as senior litigation partner had represented her opponents; and the Auditor's former partners had not just represented the Petitioner's opponents, they were the Petitioner's opponents in an action that was continuing [Wettstein supra at 46-48]. The Petitioner went further and maintained that there is an ongoing conflict of interest for the Auditor in that the greater the award of expenses against the Petitioner in the action A205/04 the smaller the chance that she will be able to proceed with her action A1623/04 against the partners or former partners of Shepherd & Wedderburn.

[40] Counsel for the Respondents founded on Puolitaival [supra] at 33, 41 and 45. He emphasised the remoteness in time and the difference in subject-matter between the Petitioner's previous involvement with Shepherd & Wedderburn and the taxation. The Auditor had had no personal involvement with the Petitioner's claim against his partners; he was unaware of that claim and of the Petitioner's complaint against his former partners; and he had no personal interest in the outcome of that claim or the taxation.

[41] One type of dual role case involves proceedings that overlap in time. I take the principle to be that overlap in time is not of the essence and that if there is a significant - this qualification is important - overlap of subject-matter, legitimate doubts about impartiality, from an objective point of view, may arise in relation to a decision-maker who, on another occasion and in another capacity, has been an opponent of the litigant or has represented an opposing interest. Proximity and remoteness in time and subject-matter are factors that bear on the potency or otherwise of any doubts that may arise.

[42] Counsel for the Respondent submitted that it was forgivable that the Auditor had not noticed the references to Shepherd & Wedderburn in the Reclaiming Print - the print was 172 pages long. (To be precise the pleadings without the interlocutors extend to 76 pages, the rest of the material being the interlocutors, "Second Minute of Amendment (2006)", Notes of Argument and Written Submissions, Chronology of Significant Events, which also includes references to Shepherd & Wedderburn, Opinion of Lady Clark of Calton.) Taking a restrictive view of the one's responsibilities it was technically correct, Counsel submitted, for the Auditor, having received correspondence from the
Fourth Respondent's agents, to direct his replies only to them. As Counsel said, this is to take a restrictive view; and while the analysis might fit the Auditor's letter of 27 August 2010, it does not so obviously apply to his letter of 1 September.

[43] The Auditor's letter of 14 October 2010 to the Deputy Principal Clerk of Session states that, if the Auditor had ever been aware of the Petitioner having been a client of Shepherd & Wedderburn and of her complaint against the firm, he had forgotten these facts long before the diets of taxation. Counsel for the Respondents urged me to accept this statement as conclusive: these were matters which the impartial observer would be bound to take into account; the greatest weight should be given to any statement of an Officer of the Court; and if the Auditor had no recollection there could be no question of lack of impartiality. The Petitioner for her part questioned the evidential status of the Auditor's letter and also questioned the Auditor's claimed lack of recollection.

[44] The argument of Counsel for the Respondent was that if the Auditor had once encountered the Petitioner, he was unlikely to have forgotten; and if he had not forgotten, he would have declined to conduct the taxations. The fact that he did conduct the taxations confirmed his statement that he had no recollection of the Petitioner. In this connection, Counsel for the Respondents described the Petitioner as a "kenspeckle" figure around the courts.

[45] The Petitioner has a considerable litigation career in her own right. I think another reason why the name Pentland-Clark is relatively widely known in litigation circles is by virtue of its association with the names Frost and McNamara, the vexatious litigants: it is recorded in the Opinion of the Court delivered by Lady Paton in the action A205/04 that for a period from 2002 to 2004 the Petitioner's rights in and claims against the executry estate were vested by assignation in Martin Frost and Andrew McNamara [ 11-12]. The connection is referred to in other judgements: Todds Murray WS v Arakin Ltd, 31 October 2003, Lady Smith, at 41, 42, 58, 59; Pentland-Clark v MacFie and Anr, 21 May 2004,
Lord Hardie; Her Majesty's Advocate v Frost [2006] CSIH 56 at 14; Lord Advocate v McNamara [2009] CSIH 45 at 46, 49.

[46] I decline, in fairness to the Auditor as much as anything else, to adjudicate on the question of actual recollection. The Auditor is not represented; and it would not be appropriate for him to give evidence. I have the impression that, in England & Wales, the adjustment of the test - see
Porter v Magill
2 AC 357 at 493-495 per Lord Hope of Craighead - leaves less scope for statements like the Auditor's to have a bearing; and the objective test as applied by the Strasbourg Court relies on "ascertainable facts" [Wettstein supra at 44; Puolitaival supra at 42, 50]. The content of the statement submitted to the domestic court by judge PL in Puolitaival - which included a reference to lack of recollection - does not seem to have formed part of the Strasbourg Court's majority assessment [ 18, 30, 41-54; dissenting opinion of Judge Casadevall joined by Judge Straznicka]. I do not envisage a fair-minded observer in the particular circumstances of this case giving weight to the Auditor's statement: the statement is not unchallenged; the statement does not deal with all matters now in issue; even if the Auditor had started with no recollection, there were things in the course of the taxation that might have brought the connections between the Petitioner and Shepherd & Wedderburn back to mind, assuming the Auditor had known of them in the first place, something he very fairly does not rule out; whatever the Auditor says, it cannot - and this is not a failing on his part - address the issue of subconscious attitudes and of public perceptions [Hellow supra at 39 per Lord Mance under reference to Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; In re Medicaments and Related Classes of Goods (No 2)
[2001] 1 WLR 700 at 67-93; Laval supra
at 861-862 per Lord Steyn].

[47] For the avoidance of doubt I reject any suggestion of personal bias on the part of the Auditor. That is not what these proceedings are about. As regards the matter in issue, namely "objective impartiality", I conclude that the facts would raise, in the mind of a fair-minded observer legitimate doubts as to the lack of impartiality of the "tribunal" and that there were not sufficient guarantees of impartiality to exclude those doubts. The Petitioner's concern when she discovered the Auditor's connection with Shepherd & Wedderburn, on about 19 August 2010, was a rational one that appeared to be given further support, to her way of thinking, when she became aware of the correspondence between the Auditor and the Fourth Respondent's solicitors.

[48] There is a material link between the action that is the subject of the taxations on the one hand and, on the other, the Petitioner's complaint against the Auditor's former firm, the appeal in which the Auditor, on the face of the correspondence, acted for the Petitioner's opponents and the Petitioner's ongoing action against the Auditor's former partners. At the date of the remit to the Auditor six years had passed since the resolution of the first two matters: but only sixteen months had passed since the Auditor's departure from Shepherd & Wedderburn; the action against his former partners remained and remains in dependence; and the Petitioner continued and continues to air her complaint and to make reference to Shepherd & Wedderburn in the action that is the subject of the taxations. The link retains sufficient potency for Counsel to state that, had the Auditor known about it, the Auditor would have declined to conduct the taxations. Clearly the Auditor knows about matters now. Would it be appropriate, standing Counsel's submission, for the Auditor to continue his consideration of the account for the First, Second and Third Respondents and, possibly, to give further consideration to the Fourth Respondent's account in the event that the Objections procedure were to result in a remit? I do not think so.

[49] I reach the above conclusion with reluctance for two reasons. First, had it not been for the consensus that I was presented with, I would have had difficulty in accepting that the Auditor is a "tribunal" for Article 6 ECHR purposes in his own right and that taxations of expenses are in and of themselves proceedings which have to be Article 6 ECHR compliant. Secondly more time will pass and more expense will be incurred before this unhappy litigation can be finalised.
I did suggest to parties at the outset that the sensible course (in the interests of expedition and saving money) might be to remit to another auditor of consent, but the suggestion was not acceptable.

Objections to the Account of Expenses

[50] In the Note of Objections proceedings, Counsel estimated that, accepting every argument made by the Petitioner (the Noter in those proceedings), the Petitioner's liability would still amount to 72,728 including VAT. Though the Note of Objections proceedings will be superseded by my decision in the present Judicial Review proceedings it may be useful to record the objections made by the Petitioner for future reference, even if only in connection with expenses. As explained at the outset of the Opinion the Petitioner objects to the amount of the outlays charged against her in respect of services provided, for hearings or discharged hearings on four occasions, by the in-house Solicitor Advocate acting for the Fourth Respondent. The Petitioner articulated her objections as errors of law on the part of the Auditor under reference to the test set out in Wood v Miller 1960 SC 86 at 98 but I need not record the details here. The Petitioner confirmed to me at the hearing on the Note of Objections that her complaints can be brought under three heads.

[51] First, the Petitioner has an objection to the allowance, 7,500, for the Solicitor Advocate's fee for the Procedure Roll hearing set down for eight days from
14 February 2006. Parties waited at Court until the afternoon of 14 February when they learned that the hearing would not proceed because no judge was available. The hearing was re-fixed for 6 June. It is inferred from the Auditor's Minute that the Auditor has allowed "such fee... as he would allow counsel for an equivalent item of work" in terms of Rule of Court 42.16. The Petitioner submits that the rule applies to work done and does not apply to work not done, particularly because an in-house solicitor with rights of audience can immediately return to fee-earning as a solicitor in his or her office. The following paragraphs are also relevant.

[52] Secondly, the Petitioner has objections to the daily rate inclusive of preparation, 3,343.75, apparently allowed against her for the Solicitor Advocate's fee for the re-fixed Procedure Roll debate of
6 June 2006. The Petitioner submits that at the material time the absolute maximum in terms of Rule of Court 42.10 (1) was 3,000. The figure is the (previous) Auditor's benchmark quoted in A v British Broadcasting Corporation and Another [2009] CSOH 18 at 7: "A daily rate of 3,000.00 is awarded only in the most complex and valuable cases." Though the previous Auditor taxed the account, the hearing in A for which the inclusive fee of 3,000 was allowed actually post-dated the diet in the Petitioner's action, so that the difference cannot be attributed to inflation.

[53] The Petitioner further submits that the Auditor was in error in allowing eight days' fees for the Procedure Roll debate that started on
6 June 2006: although the diet was set down for eight days it lasted for seven days only. She submits that the daily rate that the auditor has in truth allowed for work done, calculated on a seven-day basis, would be the grossly excessive figure of 3,821.43. I think this part of the submission is a misunderstanding. My interpretation of the Auditor's Minute paragraphs 5 and 6 is that, for the purpose of cross-checking the fees for 14 February, and 6-15 June 2006 (rendered 15 June) the Auditor has rolled up the fees for the two diets, 7,500 and 19,250 and divided the total, 26,750, by eight, representing one day in February and seven days in June, to give the notional inclusive daily rate of 3,343.75. I make no comment on whether this is a sensible approach. The inclusive daily rate for the seven-day diet in isolation, 19,250 divided by seven, is 2,750. That this is likely to be the correct understanding is supported by the fact that the same daily rate, 2,750, was charged by the Solicitor Advocate in question for an appearance on 19 October 2007 in the related action A1767/03 (which the previous Auditor abated by 500 to 2,250). This still leaves open the questions (1) whether it was proper for the Auditor to impute a notional daily rate of 3,343.75 for the postponed diet commencing 6 June 2006 when the Solicitor Advocate himself appears to have charged at the lesser daily rate of 2,750 and (2) whether the "disappointment" fee for 14 February 2006 was a proper charge on the party and party account. There is also the general question about the level of fees referred to in the next two paragraphs.

[54] Thirdly, the Petitioner submits that all the challenged fees are on any reasonable view much too high. She argues that guidance is provided by the benchmark inclusive daily rate of 3,000 "awarded only in the most complex and valuable cases" and by the fact that the previous Auditor abated the inclusive daily rate of the Solicitor Advocate in question from 2,750 to 2,250 for a hearing in the related action A1767/03. The charges for the Procedure Roll diets are referred to above. The notional daily rate inclusive of preparation for the first four-day Summar Roll hearing was 4,125 abated by the Auditor to 3,750, and for the second four-day Summar Roll hearing it was 3,750 per day inclusive abated by the Auditor to 3,375. The Petitioner submitted that the Auditor's allowance was wholly unreasonable. The daily rates in every case should be abated or further abated by 1,500. There were no particular complexities or difficulties for the Solicitor Advocate as an experienced court lawyer in responding to the case presented by the Petitioner, a party litigant. Anyway, it was not as if the Solicitor Advocate required to be fully engaged intellectually throughout the proceedings: three counsel were involved for the various defenders; and Counsel for the First, Second and Third Defenders spoke first on all occasions and "did all the heavy lifting". During the seven day debate in June 2006 the Fourth Defender's Solicitor Advocate spoke for only four hours in total; and he adopted the submissions for the First, Second and Third Defenders. Lady Clark of Calton devoted only four paragraphs of her Opinion to the Fourth Defenders' contribution to the debate. At the re-hearing of the Reclaiming Motion on the Summar Roll all the Solicitor Advocate had to do was to re-present the arguments previously presented.

[55] Preparation was lumped in with the appearance fee. It was not as if this was a proof demanding a lengthy period of familiarisation with the evidence that might justify a daily rate towards the higher end of the range. The fee for the "detailed Note of Argument" was separately charged at 750 abated by the Auditor to 500. How much more preparation was required? The same arguments were deployed in the Reclaiming Motion. The Minute of Proceedings for
3 December 2008 recorded that parties advised the Court that the Notes of Argument and Submissions lodged for the previous Summar Roll were still appropriate.


[56] I shall repel the pleas-in-law for the First, Second and Third Respondents and for the Fourth Respondent respectively. The Petitioner's pleas-in-law annexed to the Petition are in unusual terms. The first three pleas are directed to suspending the current taxations and ordaining that the accounts be re-submitted for taxation "before an independent and impartial adjudicator". The first plea is premised on the Auditor's failure "to disclose a material interest in a related cause". That plea has not been made out. The third plea is premised on the proposition that the Auditor's interest in a related cause automatically disqualified him. That plea has not been made out either. The second plea approximates to the proposition that I have found established and I think that I can give effect to my decision by sustaining the second plea-in-law and by repelling all other pleas. If I suspend the taxations the questions of interdicting the Auditor and interdicting the Respondents, focussed in the fourth and fifth pleas, should not arise.

[57] Accordingly I shall sustain the Petitioner's second plea-in-law, suspend the taxations complained of and ordain the Auditor to remit the accounts for taxation to another Auditor to tax and report quam primum. I shall reserve all questions of expenses pending the final outcome of the taxation process.

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