[1] Mr O'Neill, Q.C., on behalf of the petitioner in each case and before the first hearing, moves the court to grant the following order:

The Respondents are the Lord Advocate and the Scottish Ministers. They marked opposition to the motion on the grounds that the proposed order sought to limit the discretion of the court in respect of the expenses of the proceedings; that it was an inappropriate and unjustified innovation on the law and practice in respect of expenses in Scotland; and, in any event, that it was premature in respect of each petition.

[2] Each petition arises out of the death of a close relative of the petitioner, in the cases of McArthur and Black, the petitioner's husband, and in the case of Kennedy, the petitioner's mother. In each case it is said that the death was caused or materially contributed to by infection with Hepatitis C in the course of receiving blood transfusions in National Health Service hospitals in the mid to late 1980s. The petitioners each seek declarator that they are entitled to an independent, effective and reasonably prompt public inquiry into the said deaths at which the next-of-kin can be legally represented, provided with the relevant material and able to cross-examine the principal witnesses and that a failure on the part of the respondents to provide such an inquiry is incompatible with Article 2 of the European Convention on Human Rights and accordingly ultra vires of section 57(2) of the Scotland Act 1998; and an order ordaining the first respondent to make and intimate to the petitioner a written decision, within 14 days (or such other period as the Court may determine), as to whether he intends to require the holding of a Fatal Accident Inquiry into the said deaths.

[3] Mr O'Neill explained to me that in the 1980s measures were introduced in England to attempt to decontaminate blood products, but that there was a delay of about eighteen months before the introduction of similar measures in Scotland. In the case of Black, the deceased was infected during that intermediate period, and issues of very great importance arose from that fact. Why was there such a delay in introducing the measures in Scotland? Was the delay responsible for the death of the deceased? Was the death preventable? In the case of Kennedy, the deceased was given a blood transfusion after the preventative measures were apparently introduced into Scotland, but her death raises questions as to whether those measures were in fact actually used at the time and whether they were used effectively. The issues are of very great importance since, so I was told, hundreds of people have been affected by contaminated blood. I was told that in the case of McArthur a report is awaited. It cannot presently be said whether or not a similarly important issue is raised.

[4] Mr O'Neill emphasised that the petitioners each founded upon their Convention rights under Article 2. For the purposes of the Convention, each of the petitioners was a victim. None of the petitioners was seeking compensation. They were bringing the matters forward in order to find out what had happened and so that lessons could be learned.

[5] It was in these circumstances that Mr O'Neill invited me to make the order sought in the motion in each petition. He submitted, in brief, that an order such as that for which he applied was appropriate in cases, such as the present, where an issue of great public importance was raised, where the petitioners did not seek any benefit for themselves, and where the risk of having an order for expenses made against them in the event that they failed would deter them from proceeding with the petitions. He accepted that such an order had never before been granted by the courts in Scotland. However, such orders had been made in England. He referred me to the recent decision of the Court of Appeal in R (Corner House Research) v Secretary of State for Trade & Industry [2005] 1 W.L.R. 2600 which reviewed previous English authorities on the point as well as authorities in Canada, Australia and the Republic of Ireland. He submitted that such an order was competent. Although the general approach to expenses was that expenses follow success, that was not an inflexible rule and the court's power at common law was very wide - as wide, so he submitted, as that conferred upon the High Court in England by statute. In this context he referred me to section 51 of the Supreme Courts Act 1981 (soon to be renamed the Senior Courts Act 1981). That provision simply reflected the common law power in Scotland. In terms of the exercise of that wide discretion, he submitted that I should follow the guidance in Corner House, in particular the principles set out at paragraph 74 of the judgment.

[6] For the respondents, Mr Davidson, Q.C., opposed the motion as incompetent. He submitted that there was no basis for such an order in Scots law. It was a complete innovation, whereas in England the case law had developed over some years. When judicial review was first discussed in Scotland, a Report was submitted to the Lord President by the Working Party on Procedure for Judicial Review of Administrative Action ("the Dunpark Report"). That Report had proposed, in a draft Rule 19, that the rule of practice that expenses follow success should be modified, to the extent (a) that an unsuccessful applicant should not be found liable in the expenses of the respondent solely on the ground that he had failed to obtain any remedy from the court, and (b) that an unsuccessful applicant who had made out a prima facie case might be found entitled to expenses against the respondent if such an award seemed to the judge to be just and reasonable in the circumstances. The commentary to that proposed rule stated that it was designed to give the judge a wider discretion on the question of expenses, so that the normal rule that expenses follow success should not be rigidly applied. When the rules governing judicial review were brought in - and they are currently to be found in Rule of Court 58 - they contained no such rule, nor any hint that the approach outlined by the Working Party was to be adopted. Where the Rules Council had decided not to act upon a recommendation, the court should be slow to innovate to achieve the same result. He also referred me to Rule of Court 42.5(1) which empowers the court to modify expenses but only where the court has first found a party entitled to expenses.

[7] Mr Davidson said that if I was against him on that argument, he would wish to discuss the "modalities" identified by the Court of Appeal in Corner House. Under this heading, he made a number of submissions to which I will return in due course. His primary submission, however, was that I should not decide the matter but should instead report it to the Inner House in terms of Rule of Court 34. He submitted that that would enable the Inner House to review the matter as a matter of principle and, if it considered that the court had power to make such an order, to lay down guidelines as to the manner which it should be exercised and the way in which applications should be brought before the court.

[8] I do not think it appropriate in this case to report the matter to the Inner House. By reporting the matter, I necessarily involve the parties in further expense; whereas, if I decide the point, it is at least theoretically possible that one party will not wish to take it further. Further, I have some doubt about whether the Inner House would wish, in dealing with the first application of this kind, to lay down blanket guidelines applicable to all such cases, since the circumstances of each case are likely to differ. In this type of question, it may be that the practice can most sensibly develop on a case by case basis.

[9] I have no doubt that it is competent to make an order in the terms sought. Expenses are within the discretion of the court and the width of this discretion has been emphasised on many occasions: see for example George Howitt v W Alexander & Sons Ltd 1948 S.C. 154 and Ramm v Lothian & Borders Fire Board 1994 S.C. 226. In Howitt, Lord President Cooper gravely doubted

and added that he did not think that it would be desirable that they should be. I do not consider that the limits on the power to modify expenses in terms of Rule 42.5(1) removes the general discretion of the court to make an order which, on one view, may be regarded as akin to modification.

[10] The real question is whether, as a matter of discretion, it is appropriate to make such an order; indeed, whether it would ever be appropriate to make such an order at this early stage of the proceedings. The ordinary rule is that expenses follow success: Ramm v Lothian & Borders Fire Board (supra). While there are many grounds for departing from that general rule, they are normally grounds rooted in the conduct of the parties in relation to the litigation and, more generally, the dispute. The objection to a protective order for expenses granted at the beginning of the litigation is that it fetters the discretion of the court which hears and resolves the dispute. In other words, it deprives the court hearing the dispute of the opportunity of taking into account, in its award of expenses, the conduct of the parties in and in connection with the litigation. Such considerations are a considerable impediment to the making of a protective order of the type sought. However, I see no intrinsic problem with making such an order in a case where the court is able, in advance, to form a sufficient view of the importance of the case being brought and of its merits; and to be satisfied that the future conduct of the case would not cause it, at the end of the litigation, to form a different view.

[11] It is convenient at this stage to look more closely at the approach identified by the Court of Appeal in Corner House. English decisions on the practice of the courts in dealing with expenses are not normally accorded great weight in Scotland: Howitt (supra). And rightly so, since they usually reflect a practice borne of the particular procedural traditions that have developed in the different jurisdictions. However, the importance of Corner House is not the precise costs order made in that case, which is set against a background of the English statutory provisions and Rules of Court, but the recommendation of the principle that in a certain category of case it may be in the public interest that there be a departure from the ordinary approach to costs. It is, to my mind, a principle which applies as much in Scotland as it does in England and in the other jurisdictions to which the Court of Appeal made reference in that case.

[12] In Corner House it was emphasised that a protective costs order should not be available in private law actions. However, there were features of public law litigation which distinguished it from private law civil and family litigation (paragraph 69). After referring to the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Salem [1999] 1 A.C. 450, the court identified the important difference as being that in public law litigation "there is a public interest in the elucidation of public law by the higher courts in addition to the interests of the individual parties". The court agreed with the statement of Dyson J in R v Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 W.L.R. 347 that the jurisdiction to make such an order should only be exercised in the most exceptional circumstances. The court went on to endorse the first, third and fourth of the principles which Dyson J had laid down in that case, but differed from him as to what had to be shown on the merits, its conclusion being that it was sufficient on the merits that the claim had a "real prospect of success" or was "properly arguable". In light of its consideration of the authorities, the court gave the following guidance in paragraph 74 of the judgment:

[13] Mr O'Neill made submissions by reference to each of these heads. As to (i) he submitted that there was no doubt that the issue was one of general public importance. All three cases arose out of contamination by the Hepatitis C virus whilst the deceased were in the care of the National Health Service in Scotland. A large number of people had been infected. Given that the infection had happened whilst the individuals concerned were in the care of the State health authority, the State's duties under Article 2 of the Convention were raised. It was in the public interest that the cause of the contamination, and what had gone wrong, be investigated. Under reference to (ii), he submitted that there was no doubt that the public interest required that these issues be resolved. He pointed again to the numbers of people affected. In addition, he pointed to the apparent time lag between the introduction of measures in England to attempt to decontaminate blood products and the introduction of such measures in Scotland. There were very great issues of importance raised by this. As to (iii), Mr O'Neill emphasised that the petitioners in the present cases were relatives and therefore victims. Non-governmental organisations or public interest groups did not qualify for victim status in terms of the Convention. These actions could not be raised by anyone other than victims; and there were questions in Scots law as to the status required to raise an action by way of judicial review. The petitioners were not seeking money or compensation and had indicated that they had no present intention to raise an action for damages. These petitions were not about pecuniary gain. They were seeking to air a matter which should be aired in public, namely the whole manner in which blood transfusion was administered in Scotland since the mid-1980s. The importance of the issue was such that the Haemophilia Society had agreed to set aside a substantial amount of money to assist in these cases and had agreed to make the sum of £53,000 available to meet any contra-award of expenses. This point overlapped with the submissions in relation to point (iv). At the hearing of the motion, Mr O'Neill handed in affidavits from the three petitioners as to their means. He told me that law accountants engaged on behalf of the petitioners had estimated that if the three petitions were heard together and were unsuccessful, the likely liability for the expenses of the respondents to the end of the first hearing would be in the range of £47,350 to £78,950. This was on the basis of a 2 day first hearing. At the bottom end of that range, the fund made available by the Haemophilia Society would mean that none of the petitioners would require to meet any part of the Respondents' expenses, but if the respondents' expenses exceeded £53,000, then there was a potential liability on each of the petitioners. Even if that potential liability was shared equally between the three petitioners, they would be unable, or unwilling, to meet it. I was told that a further sum of about £10,000 had been made available to cover the petitioners' own expenses of proceeding with the actions. This sum was likely to be used in instructing experts. I was told that counsel for the petitioners were acting on a speculative basis. Turning to point (v), Mr O'Neill repeated the points previously made and emphasised that the petitioners would not continue if there was any risk of exposure to an award of expenses beyond the £53,000 to which I have already referred.

[14] Given that his main submission was that I should report the matter to the Inner House, Mr Davidson understandably dealt fairly briefly with the matter and did so in the form of raising questions rather than providing answers. Further, and even more understandably in view of the late tendering of the affidavits of means, he was unable to make any detailed submissions as to whether the petitioners' financial circumstances met the test identified in Corner House. With that introduction, his main points were as follows. Under reference to head (i), he told me that he did not make any argument in respect of whether the issues were of general public importance, though he referred me to the fact that in paragraph 70 of its judgment the Court of Appeal had talked about the public interest as being in the elucidation of public law. There might be a need for closer examination of what was encompassed by that test. As regards point (iii), and the question of whether the applicants had a private interest in the outcome of the case, he pointed to the fact that the petitioners in each case were relatives of the deceased and raised the question as to whether this amounted to a private interest. Under reference to points (iv) and (v), Mr Davidson observed, and on this he was unchallenged, that the motions before the court were originally enrolled early in July and had been continued on two occasions before the current hearing. Yet the affidavits deponing to the petitioners' financial resources were only intimated and lodged during the course of Mr O'Neill's submissions. He submitted that there ought to be some proper procedure so that a respondent meeting such an application was not put in a position of having to decide "on the hoof" how to respond to the evidence put forward. Referring to the general purpose of a protective costs order as identified in paragraph 6 of the judgment in Corner House, he raised the question of what was meant by "a claimant of limited means". After a brief adjournment to consider the affidavits which had been handed in, he indicated that he did not take issue with their contents; but they did not go sufficiently far to enable the court to form a coherent view. The differences between the petitioners, as disclosed by the affidavits, were not small. It was not inevitable that each petitioner would be described as being of "limited means". In the case of Black, the petitioner owned a house and had some savings. She had a widow's pension and a second pension. One would normally expect some supporting documentation to be put in concerning the value of the house. The petitioner said that she had been advised that she would not qualify for legal aid because she exceeded the income and capital limits, but there was no indication of whether an application had been made or whose advice it was. There was, he understood, the possibility of some flexibility in the Legal Aid Board. There might be other means of funding the actions. He speculated as to whether there might be some legal expenses insurance. His main submissions, however, were of a more general nature. If the court were to make an order, to what stage in the proceedings should it apply? Should the order be made right at the beginning and cover the whole expenses of the action through to the end; or should some protection be given in stages as the case progressed? He questioned the extent of the representation that might be allowed to the petitioner in such a case. He asked how the £53,000 put up by the Haemophilia Society was to be secured so as to be available to the respondents in the event that an expenses award were to be made in their favour. He submitted that some guidance needed to be given as how any such application was to be dealt with.

[15] I have come to the conclusion that although there is a power to make a protective order for expenses, that power should not be exercised in the present case, at least on the information presently available to the court. I proceed, for present purposes, as did the argument before me, on the basis that the guidance given by the Court of Appeal in paragraph 74 of the judgment in Corner House sets out the relevant considerations. It may be that that guidance will require development or adaptation in the light of the circumstances and there may be factors peculiar to litigation in Scotland which are not adequately taking into account. I am inclined to consider that conditions (i) and (ii) are satisfied in the cases of Black and Kennedy but not, on the information presently before me, in the case of McArthur, since the question whether that case raises issues of importance awaits a report: it would not be right for the court to make a protective order for expenses in that case simply because the test is satisfied in other cases which may be heard at the same time. Although the "public interest" is described in Corner House at paragraph 70 as being "a public interest in the elucidation of public law by the higher courts", I do not see why in principle the relevant public interest should not be a public interest in the factual investigation of any inquiry set up as a result of the success of the petitions. There may require to be fuller argument about this. As to condition (iii), I am satisfied that although the petitioners are relatives of the deceased, they have no financial interest in pursuing the actions. As I understood Mr O'Neill's submissions, the individual relatives were put forward as petitioners because it is they, rather than any pressure group, who have the appropriate status for judicial review proceedings in Scotland. I therefore consider that the "no private interest" test is satisfied. However, I am not satisfied that conditions (iv) and (v) are satisfied. In each case, the affidavits provided by the petitioners show that they are ineligible for legal aid because they "exceed the income and capital limits". In the development of the English case law, the applicants have all, so far as I am aware, been what may be described as pressure groups with, so they claimed, inadequate means to fund the public interest litigation. The same may apply in the case of individuals, but there is this difference, namely that Parliament has established a system of legal aid, in terms of which individuals who are deemed to be of insufficient means to be expected to fund litigation (and meet the expenses of the other party should they be unsuccessful) may be granted legal aid. The system is means tested and some assessment is made of the merits of the case before legal aid will be granted. It has not been suggested that legal aid is not available in principle for this type of application. Accordingly, the court is being asked to step in and assist the petitioners in a case where their personal means are above the limit set for the grant of legal aid. It is not easy to see why individuals in those circumstances should be regarded as being of "limited means". Put another way, why should the respondent to such litigation be required, as a result of such an order, to forego its right to claim expenses (if successful in the litigation) in circumstances where the legal aid provisions do not cut in. Further, standing the ability and apparent willingness of the Haemophilia Society to make available a fund of £53,000 to meet any contra-award of expenses, the likely total exposure of the petitioners in expenses, on the evidence put before me, is between nil and £26,000. While this is a significant sum for any individual to have to pay, the court could deal with the matter by making, at this stage, an order that each petitioner be liable only for her proportion of the respondents' expenses in excess of £53,000. This would reduce the maximum exposure of each petitioner to something under £10,000. Having regard to the affidavits of means, I am not satisfied that Mrs Black or Mrs Kennedy should not be expected to undergo this risk if they wished to pursue the petitions. The affidavits of means put before me are thin. I am told that Mrs Black has a house worth a significant amount but I am told nothing of whether either Mrs Kennedy or Mrs McArthur has any property. I am not told of Mrs Black's equity in the house. She says she intends staying in it. I take this to mean that she does not want to sell it but it does not mean that there is not the possibility of raising money on the security of the house in the event of a contra award of expenses. In addition, Mrs Black has not insignificant savings. Mrs Black and Mrs McArthur both have two pensions. Mrs Kennedy has a salary and her husband also has a salary. Put together, these salaries are of an amount which would not entitle me, in my opinion, to hold that conditions (iv) and (v) are satisfied in her case. Nor can I make such a finding in the case of Mrs. Black. I accept, on the basis of the statement made on their behalf by Mr O'Neill, that if the order is not made they will not continue with the proceedings. On the material put before me I cannot be satisfied that they would be acting reasonably in so doing. I have to have in mind, also, that if these proceedings are pursued by these individual petitioners not for their own interest but, essentially, as nominal petitioners for those seeking a public inquiry into what went wrong, the investigation ought perhaps to focus not only on the means of the individual petitioners, but on the possibilities available to them (or to those putting them forward) of raising additional funds. I have not been told whether it would be possible for the amount made available by the Haemophilia Society to be increased, either from them or from some other body or individual.

[16] Accordingly, I am not satisfied that this is an appropriate case to exercise the discretion to make a protective order for expenses. I therefore refuse the motions.

[17] I should say something about procedure. I think there is great force in Mr Davidson's concern at the way in which the application has been brought before the court. It is entirely unsatisfactory that affidavits of means should be produced at the bar when the motions have been enrolled for over four months. I was told by Mr O'Neill that it was only six days before the hearing that the Haemophilia Society had made clear that they were making the sum of £53,000 available. The affidavits are dated 11 November, four days before the hearing. I see no reason why they should not have been made available to the respondents at latest on the day they were sworn. They could easily have been made available in draft well before that, since the matters set out to in the affidavits did not depend in any way upon the attitude finally adopted by the Haemophilia Society.

[18] In paragraph 75 and 76 of its judgment in Corner House, the Court of Appeal identified certain matters requiring consideration in cases where an order is made. I do not need to comment on these matters since I have declined to exercise the jurisdiction to make the order. Were I to have been persuaded that some protective order for expenses was appropriate, I would not have granted it in terms of the petition but would instead have capped or modified the respondents' recoverable expenses for the three cases up to the end of a first hearing in the sum of £53,000; and would further have required that that sum either be consigned into court or otherwise secured to the reasonable satisfaction of the respondents. It would have been open to the petitioners to make a further application at that time if the case went further.

[19] The Court of Appeal in Corner House also laid down the appropriate procedure for applying for such an order in England. The details of that procedure cannot translate directly to the different procedures in Scotland. It seems to me that it is essential that, before any motion for an order of this sort is made, full details of the petitioners' case are given to the respondents. In my opinion such details should either be included in the petition or in a note under Rule of Court 15.2; and that the petition or note should also include intimation of the order to be applied for. I would expect there to be lodged in process with the petition or note details of the financial position of the petitioners which, so the petitioners contend, justifies the making of such an order, and I would expect the petition or not to set out all relevant matters relating to public interest and the other discretionary factors referred to in Corner House. Any motion for a protective order for expenses should be moved only after the respondents have had an opportunity to answer the petition or note, and, if they oppose the making of such an order, their answers should set out their position in respect of the same matters.