RECLAIMING MOTION THE LORD ADVOCATE AGAINST GARY MACKIE AND DIANE McCOLM
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 88
P1128/13
Lord Justice Clerk
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the reclaiming motion
THE LORD ADVOCATE
Petitioner and Respondent;
against
GARY MACKIE
First Respondent;
And
DIANE McCOLM
Second Respondent and Reclaimer
Act: Divers; the Crown Office
Alt (First Respondent): No appearance
Alt (Second Respondent and Reclaimer): C C Wilson; Anderson Strathern LLP
3 November 2015
Facts
[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary dated 11 December 2014 refusing the second respondent’s motion for expenses against the petitioner. The second respondent is the partner of the first respondent, with whom she lives in a house in Ayr.
[2] The first respondent appeared on petition at Glasgow Sheriff Court on 23 February 2009 charged with being concerned in the supplying of drugs under section 4(3)(b) of the Misuse of Drugs Act 1971. He was convicted at the High Court on 2 September 2009 and sentenced to four years imprisonment. Meantime, on 18 March 2009, restraint orders in terms of section 120 of the Proceeds of Crime Act 2002 (“the 2002 Act”) had been imposed upon the respondents, interdicting them from dealing with any realisable property, including the house in Ayr.
[3] On 20 August 2010, the High Court made a confiscation order in respect of the first respondent in terms of section 92 of the 2002 Act, consequent upon a Joint Minute entered into between the first respondent and the petitioner. The proceeds of crime were agreed at almost £225,000, with the first respondent’s realisable assets being £20,000. His sole realisable asset was agreed as being the equity in the house. A confiscation order of £20,000 was duly made, albeit that it was erroneously stated as having been imposed under the repealed 1995 Act. The order required payment within six months of 20 August 2010.
[4] The last date for payment was 19 February 2011. At the date of this petition, there was an outstanding balance of £16,750. Accordingly, the petition sought the appointment of an enforcement administrator under section 128 of the 2002 Act. Answers were lodged by each respondent. A hearing was appointed for 16 May 2014. That hearing was discharged. The matter called again on 11 December 2014, by which time the first respondent had paid the balance. On the motion of the petitioner, the petition was dismissed and the first respondent was found liable in the expenses of the petitioner. The second respondent sought her expenses against the petitioner. That motion was refused.
Submissions
[5] There are three grounds of appeal. First, it was submitted that the Lord Ordinary had erred in exercising his discretion under RCS 29.3(2). The usual consequence of abandonment of an action was payment of the expenses; such payment was required by RCS 29.1(2) as a condition precedent to decree of dismissal. There was no distinguishing factor in the present proceedings by reason of them having been brought by petition.
[6] Secondly, the Lord Ordinary had failed to give proper weight to the second respondent’s objections to the competency and relevancy of the petition. The court’s jurisdiction was limited to “realisable property”, but the house in Ayr, being registered in her name alone, was not and never had been “realisable property”. The petition did not state that it had been a tainted gift in terms of section 144 of the 2002 Act. The confiscation order had been incompetent as it bore to be under the repealed Act.
[7] Thirdly, the Lord Ordinary had failed to give proper weight to the fact that the second respondent might lose her house by virtue of the legal aid clawback provision (Legal Aid (Scotland) Act 1986, s 17; Civil Legal Aid (Scotland) Regulations 2002 (SI no. 494), reg 40(3)(iv)).
[8] On behalf of the petitioner, it was submitted, first, that there had been no error by the Lord Ordinary in the exercise of his discretion. The petition had been properly presented. The requirements of section 128 of the 2002 Act for the appointment of an enforcement administrator had been satisfied. The petition had been dismissed when the first respondent had satisfied the confiscation order, leaving the petition without practical purpose.
[9] Secondly, the first respondent had declared the equity in the house as part of his realisable assets. It had been open to the second respondent to make representations both in the confiscation proceedings and in the earlier restraint proceedings, but she had declined to do so. In the circumstances, it had been proper to impose the confiscation order. The reference to the 1995 Act had been a typographical error, which did not vitiate the order. In any event, the order had been satisfied.
[10] Thirdly, the petition had been presented because the first respondent had failed to satisfy the confiscation order within the period allowed. If the second respondent had an entitlement to expenses, that right lay against the first respondent. The second respondent had been invited by the Lord Ordinary to make such a motion, but she chose not to do so.
Decision
[11] Reclaiming motions solely on a question of expenses are severely discouraged (MacLaren, Expenses, p 4; Millar v Chivas Brothers Limited 2015 SC 85). Such appeals “should not be entertained except where there has been an obvious miscarriage of justice… “(Miller v Chivas Brothers, (supra) Lady Dorrian at para [23]; Caldwell v Dykes (1906) 8 F 839). Since expenses are incidental to a cause, the terms of an award lie in the discretion of the judge before whom the cause has been heard (MacLaren, ibid), subject to the discretion being exercised along conventional lines as settled by precedent or principle.
[12] RCS 29.3(2) provides that the court may grant a motion for abandonment of a petition “subject to such conditions as to expenses or otherwise, if any, as it thinks fit”. The penalty (if any) as to expenses to be imposed upon a petitioner who abandons his petition is wholly within the discretion of the judge. In that context, there was no requirement to award the second respondent her expenses, even if the case had involved “abandonment” of the petition. It did not. The petition simply ceased to have practical merit because the money had been paid. It was dismissed on that basis.
[13] This petition was necessitated by the first respondent’s failure to pay the sum agreed. He made payment during its dependence. The first respondent being the person who had caused the litigation, any expenses of the second respondent, who had been reasonably called by the petitioner as owner of the allegedly tainted property, should fall on him. However, no such application was made by the second respondent.
[14] In Statement of Fact 5, it was averred that the first respondent’s interest in the house required to be realised. The only case which could have been advanced against the second respondent was that the house had been a tainted gift, even if that could have been spelled out with greater clarity in the petition. It was reasonable for the petitioner to proceed on the basis that that property had been acquired by the second respondent with the assistance of funds provided by the first respondent. The second respondent’s title had been registered on 29 November 2005. Since the criminal proceedings had been instituted against the first respondent at least as early as 23 February 2009, the house could have fallen to be regarded as a tainted gift.
[15] The second respondent lived with the first respondent. Prior to the petition, the court had granted restraint orders against both respondents, identifying the house as realisable property. There had been no challenge to those orders by the second respondent.
[16] It is clear that the confiscation proceedings proceeded, properly, in terms of the Proceeds of Crime Act 2002. There is no suggestion that the erroneous heading gave rise to any confusion or dubiety as to what was required. Albeit unfortunate, the error in the date of the statute cannot be accepted as carrying the effect contended for. In any event, the order was satisfied on or before 11 December 2014 (more than 4 years after the order had been made). That being so, there is no live issue carrying any practical consequences.
[17] The application of the legal aid clawback provisions is not a relevant factor. The manner in which the second respondent chose to enter the proceedings and her funding arrangements are immaterial.
[18] In the whole circumstances, there is no manifest injustice in the interlocutor of the Lord Ordinary such as would justify interference by this court. Indeed, the order of no expenses due to or by either the petitioner or the second respondent was entirely appropriate. The reclaiming motion must accordingly be refused.