A639/06

Robert Bell v Inkersall Investments Ltd, Prosper Properties Ltd and Michael Woodcock

Act: Nicoll, instructed by Drummond Miller, Edinburgh

Alt: Paterson, Tods Murray, Edinburgh

DUMFRIES: 7 December 2007

The Sheriff, Having resumed consideration of the cause, Grants the defenders' Motion No 7/1 of Process; Finds the pursuer liable as an assisted person to the defenders in the expenses of the Motion for the recall of the interim interdict granted on 12 January 2007 on the basis of agent and client, client paying; Refuses to modify the pursuer's liability for expenses; Allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and report; Refuses the motion by the defenders that Drummond Miller, solicitors for the pursuer, should be personally liable for the expenses of the hearing on 16 August 2007; Finds no expenses due to or by either party in respect of the hearing on 18 September 2007; Quoad ultra Finds the pursuer liable as an assisted person to the defenders for the expenses of the Motion No. 7/1 of Process; Allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and report; Orders intimation of this interlocutor to the Scottish Legal Aid Board

Note:

Introduction

[1] On 7 November 2006, before service and on the ex parte representations of Mr. Nicoll, counsel for the pursuer, I granted interim interdict against the defenders which prevented them carrying out certain activities on land owned by them at The Rigg Estate near Kirkconnel, Sanquhar. On 12 January 2007, following avizandum after a lengthy hearing over several days (23 and 28 November and 20 and 21 December 2006), I granted the defenders' motion that the interim interdict should be recalled. In para [2] of the Note to my interlocutor I recorded that parties were agreed that the expenses of the motion should follow success but reserved all questions of expenses solely because the status of the pursuer as an assisted person was not clear.

[2] The defenders have now moved (Motion No. 7/1 of Process) that decree for expenses for the recall procedure should be granted against the pursuer and that this should be on the basis of agent and client, client paying. The motion first called on 6 August 2007 when the pursuer was represented by Mr. Nicoll who accepted that the issue of liability for expenses had been correctly recorded in the interlocutor of 12 January and that the issue for determination was the scale of expenses. The defenders' motion was opposed insofar as it sought expenses on an agent and client basis. At the bar, Mr. Nicoll moved that the pursuer should be found liable as an assisted person and that his liability for expenses should be modified to nil or whatever sum the court reasonably determined in terms of section 18(2) of the Legal Aid (Scotland) Act 1986. It was conceded by Mr. Patterson, the solicitor for the defenders, that any award of expenses against the pursuer would be against him as an assisted person.

[3] It was not possible to deal with the motion on 6 August and a further hearing was assigned for 16 August. In my interlocutor assigning that hearing I ordained the pursuer, in terms of regulation 4(1) of the Act of Sederunt (Civil Legal Aid Rules) 1987, to lodge details of his means including his income and his assets and liabilities. That interlocutor was intimated by the Sheriff Clerk to the solicitors for both parties. No such information had been lodged by or on behalf of the pursuer when the motion called on 16 August but I heard a succinct argument by Mr. Patterson in support of the defenders' motion. I summarise that argument below. Mr. Nicoll then replied. He appeared unaware of the terms of my interlocutor of 6 August. His instructing solicitors seemed to share his ignorance. In the course of what appeared to be the makings of a very full and lengthy argument Mr. Nicoll dwelt in considerable detail on an analysis of the pursuer's means found in the Opinion of the Lord Justice Clerk in Bell v Inkersall Investments Limited and Others [2007] CSIH 60 ("Bell v Inkersall"). That Opinion was delivered on 13 July 2007 in respect of a motion for modification of the same pursuer's expenses in a very similar action between the same parties in the Court of Session. It soon became apparent that Mr. Nicoll did not have up to date information about the pursuer's means and that some of the distinctions which he sought to draw about what the Lord Justice Clerk had concluded proceeded on information which had not been presented to the Second Division. Despite having been present as junior counsel for the pursuer at the hearing Mr. Nicoll seemed unclear as to why that was. I concluded that he was not fully or properly prepared or instructed to argue his motion for modification.

[4] In these circumstances I continued the motion until 18 September 2007. I again ordered the lodging of information about the pursuer's means. In addition I ordered the Scottish Legal Aid Board to lodge details of the pursuer's legal aid application and their financial assessment of his means. Such information, both from the pursuer and the Board, had been lodged when the motion called on 18 September. Most unfortunately, and because of a programming error by court staff, I was not available to hear the continued argument that day. I am extremely sorry that parties were inconvenienced in that way. Needless to say (and parties were in agreement about that) no liability will lie for or against either party for the expense occasioned by the calling of the case that day. The motion was continued again until 8 November.

[5] I will not repeat here the background of the raising of the present action; or of the numerous other actions between the same parties. I deal with these in my interlocutor of 12 January. Suffice to say that the present action was raised on virtually the same basis as Bell v Inkersall and the four actions in this court where the present defenders seek the removal of the present pursuer from land owned by them ("the principal actions"). Although there were distinctions in language in each of the six actions the position of the pursuer was essentially the same in each of them. In particular there was no averment that the grazing and other lets on which the present defenders sought to rely in attempting to remove the pursuer were shams; or that they should be reduced. While a crave seeking declarator that the pursuer was entitled to possession as tenant of an agricultural holding in terms of the Agricultural Holdings (Scotland) Act 1991 ("the 1991 Act") had been added by way of counterclaim to the principal actions, there remained no open or explicit challenge by way of averment or plea in law of the written lets founded on by the present defenders.

Defenders' Submission

[6] In the argument which he had advanced on 16 August Mr Patterson had moved me to award the expenses of the recall hearing on the basis of agent and client, client paying. Under reference to McKie v The Scottish Ministers 2006 SLT 688 (per Lord Hodge at [para 3]) he submitted that four broad propositions applied when the court was considering the question of which scale of expenses should be awarded:-

(1) The court has discretion as to the scale of expenses which should be awarded;

(2) In the normal case expenses are awarded on a party and party scale;

(3) Where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense, the court can impose, as a sanction against such conduct, an award of expenses on the solicitor and client scale;

(4) In considering the reasonableness of a party's conduct of an action, the court can take into account all relevant circumstances, including:- (i) the party's behaviour before the action commenced; (ii) the adequacy of a party's preparation for the action; (iii) the strengths or otherwise of a party's position on the substantive merits of the action; (iv) the use of the court action for an improper purpose, and (v) the way in which a party has used court procedure, for example to progress or delay resolution of the dispute.

(Lord Hodge also mentions a fifth proposition which has no relevance in the present proceedings.)

[7] By way of preliminary, Mr Patterson indicated his intention, with regret, to criticise the conduct of the hearing by Mr Nicoll. In the first place the hearing had, quite unnecessarily he submitted, taken three days. On several occasions Mr Nicoll had not been present and ready to start when the court was ready to sit in the morning. (He accepted, however, that on one such occasion Mr Nicoll had been suffering from a stomach infection.) Secondly, one strand of the defender's argument had related to the relevancy of the pursuer's pleadings, particularly with reference to their incorporation of pleadings in the principal actions which, the defenders submitted, were irrelevant; and, following the decision in Bell v Inkersall Investments Ltd 2006 S.C. 507, known to be so. Initially Mr Nicoll had said that there was no need and no intention to amend the pleadings in the principal actions. By the end of the hearing such an amendment had been prepared and the pleadings in the principal actions were subsequently amended. Such conduct was wholly unacceptable and was, he submitted, as close as one could come to misleading the court.

[8] As to the scale of expenses founded on, each of the four circumstances identified by Lord Hodge in McKie in relation to the pursuer's conduct of the action applied, to varying degrees, in the present case. That conduct had been incompetent and unreasonable and had caused the defenders unnecessary expense. In relation to the pursuer's behaviour before the action was raised he submitted that the action had been premature. The defenders were unlikely to re-let the subjects prior to a decision being reached in the four principal actions of ejection and removing. The defenders had written to the pursuer on the subject of re-letting but had received no reply. Mr Patterson indicated, however, that he placed little weight on this circumstance.

[9] Of more significance was the inadequacy of the pursuer's preparation for the action. The pleading of the case was wholly inadequate. It had been brought on the same basis as Bell v Inkersall Investments Ltd 2006 S.C. 507. The pleadings in that action had been held to be irrelevant (the Opinion of the Lord Justice Clerk at paras [22] to [25]). The decision of the Court had been issued on 19 January 2005. That irrelevance had several strands one of which was the inadequate specification of the crave (identified by Lady Paton at first instance - [2005] CSOH 50 at para [66]); and founded on by her in recalling the interim interdict in that case). That matter remained unaddressed in the present action and had been an important reason for my decision to recall the interim interdict. The pleadings in the principal actions, which were irrelevant for the reasons identified by the Lord Justice Clerk, remained un-amended when the present action had been raised. The present action was wholly ill thought out and totally ill prepared.

[10] Little emphasis was placed by Mr Patterson on the strengths of the pursuer's position in relation to the substantive merits of the present action although he pointed out that all the averments about interference had been answered in detail by the defenders. Likewise he did not suggest that the purpose of the action was wholly improper or had caused the defenders enormous difficulties.

[11] Mr Patterson submitted that the central issue was the incompetence with which the action had been pursued. It had taken two days for counsel for the pursuer to reply to his own submissions which had lasted two and a half hours. I had commented on that in para [14] of the Note to the interlocutor of 12 January 2007 recalling the interim interdict. The submission had been incompetently presented. Many of the authorities referred to had been irrelevant. If two days did not go so far as to establish incompetence then such length was certainly unnecessary; and the time taken was unreasonable. The sanction against such conduct was an award of expenses on the agent and client basis.

[12] Mr Patterson explained that the likely expenses on a party and party basis would be £4,259 but on an agent and client basis about £11,270. He accepted that the latter figure included travel time and would be subject to assessment on taxation. The grant of legal aid was not an indemnity against any expenses for which the assisted person may be found liable. He remained personally liable for these expenses (Bell v Inkersall per the Lord Justice Clerk para [28]).

[13] With regard to the pursuer's motion for modification in terms of section 18 it was clear from the decision in Bell v Inkersall that the pursuer had substantial resources. There was no information to suggest that the pursuer's resources had changed. He had the means to meet expenses on either scale. In addition the pursuer's conduct was such that he had abused his position as an assisted person. If the pursuer had been a client paying his own fees directly rather that having these met or contributed to by legal aid the case would not have taken three days. It was, he submitted, incomprehensible that a privately funded client would have allowed or tolerated that sort of time or procedure. Counsel for the pursuer had been unnecessarily repetitive in his submissions and this had caused additional days for the hearing of the motion. The pursuer's pleadings were exaggerated. The protracted nature of the hearing had caused the defenders additional expense. The pursuer, through his counsel, had taken advantage of his legally aided status. In these circumstances there should be no modification of any award of expenses. It was reasonable that he should be found liable without modification. (Of course Mr Patterson made this aspect of his submission before the lodging of the further financial information and additional productions available at the hearing on 8 November.)

Pursuer's Submission

[14] Mr Nicoll's first proposition was a surprising one. It seemed to fly in the face of his earlier acceptance that expenses should go to the defenders. He submitted that, although expenses should follow success, these should be restricted. Because it had not been possible to deal with the motion for recall in its entirety on 23 November 2006 there should be no expenses due to or by either party for that day. In addition the submissions by Mr Patterson at the hearing for recall had three aspects; probable cause, specification and balance of convenience. The first contained a suggestion that the action was an abuse of process. That called for what Mr Nicoll referred to as "a substantial and lengthy response". It had not been necessary for me to decide the issue raised by the submission on probable cause (para [19] of my Note to the interlocutor of 12 January). Accordingly it had not been necessary for Mr Patterson to found on that point; particularly if the defenders' concern was over expense. It was submitted that any award of expenses should be restricted by 50%.

[15] The next proposition, on its face, appeared even more surprising. It founded on my description (para [19] of my Note to the interlocutor of 12 January) of the present action as "truly ancillary" to the principal actions. The fact that the principal Sheriff Court actions were separate and had "been allowed to get on with themselves" was a circumstance in terms of section 18(2). It would be necessary to consider the present action in light of the circumstances of the main dispute between the parties and the evidence led in the conjoined proof in the principal actions. Any decision on expenses in the present action should be deferred until I had issued my decision in the principal actions.

[16] Mr Nicoll then turned to the issue of the pursuer's resources and his motion for modification in terms of section 18. He embarked on an argument that if the Second Division in Bell v Inkersall had been aware of the information which he was about to present about the pursuer's resources it would not have refused to modify the pursuer's expenses. It was as he sought to develop this argument that I formed the view that he was not fully nor properly prepared or instructed to argue his motion for modification and continued consideration of the various motions.

[17] When submissions re-commenced on 8 November a statement of assets and liabilities of the pursuer as at 11 September 2007 had been lodged (No. 11 of Process). This summarised his assets and liabilities as follows:

Assets

Tenants Improvements 50,147

Implements and farm Machinery 41,020

Stock - Livestock 140,000

Stock - Crops 9,000

Grants/Subsidies due 19,000

259,167

Liabilities

Bank Overdraft 27,124

Loan - Mrs Morrison 140,000

Creditors 142,960

Hire Purchase Agreements 38,470

348,554

A list of the creditors was also provided. The pursuer's net worth was said to be £89,387 in deficit. There was information about his monthly income and expenditure which was as follows

Income £180-190

Expenditure

Legal and General (Life Insurance) £60.22

Administrative Charges in relation to above £7.99

BUPA (Health Insurance) £105.45

Vodafone £100-200

Other Income (Annual)

Livestock sales £30,000

Contract Work £5,000

Single Farm Payment £47,000

In addition a Fourth Inventory of Productions was lodged which included annual business accounts for the years 2005/2006 and 2006/2007, various invoices and some bank statements. However these accounts showed figures at variance with the other information. Examples of that are as follows. The current figure for tenants improvements is £36,231 and not £50,147. (The latter figure was that in the balance sheet at 31 March 2005.) The 2007 balance sheet shows stock at £22,729. On further examination that figure hardly seems credible. The schedule to the accounts shows, for example, 20 rams valued at £10 and 400 ewes valued at £2.22. It is completely different from the figure of £140,000. The figure for plant and machinery in the 2007 balance sheet is £41,114 but that does not include tractors (£10,312). The notes to the financial information indicate that the pursuer depreciates his equipment at 10% each year. The accounts suggest 15% and 25%.

[18] On question of the scale of expenses Mr Nicoll submitted that what was sought was an exceptional award. He did not seek to challenge the factors identified by Lord Hodge in McKie v The Scottish Ministers but pointed out that in that case the motion had been refused. The test was whether the conduct of the litigation had been wholly unreasonable (British Railways Board v Ross & Cromarty County Council 1974 S.C. 27 per the Lord President at page 36). Such conduct had to amount to a procedural abuse - the sort of delaying conduct possible, perhaps all the way to a proof before answer, as was seen in British Railways Board v Ross & Cromarty County Council, before the introduction of the procedure for summary decree. The present case was different. It involved an interlocutory order sought at the outset; a decision which could have gone either way. Because a litigant had persuaded a judge to grant an order ex parte which later was found, on mature reflection, to have no basis in law did not justify a departure from the normal rule that expenses should be party/party (Fourie v Le Roux and others [2007] 1 WLR 320 per Lord Hope of Craighead at 324B-C).

[19] The present case had to be contrasted with Bell v Inkersall where the conduct of the pursuer and his advisers was described as "wrongful"; and the presentation to the Lord Ordinary described as "uncandid". It could not be said that I had been misled in granting the interim interdict. What was suggested was ineptitude; not a procedural abuse taking advantage of the court. In Bell v Inkersall the pursuer was said to have obtained advantages from, and the defenders suffered losses through, the obtaining of the interdict (per the Lord Justice Clerk at paras [36] and [37]). Mr Nicoll drew another contrast with Bell v Inkersall. Before raising the action the pursuer had written to the defenders' agents expressing his concerns about the intended letting and had received no reply. No explanation or undertaking had been offered.

[20] The pursuer's averments were not exaggerated. They had yet to be tested and proved. If the action was found to have no basis in law that was simply a professional misjudgement - a normal situation; a different view taken by different legal advisers. The proceedings were not protracted. There was a hurdle to be overcome by the pursuer in the face of the grazing lets. It was part of the "structural feature" of cases where oral arrangements were fought over that "these things need to be gone into". The defenders' resources were such that where they had a small opponent the choice was to run away or be run over.

[21] On the question of modification the issue, in terms of section 18(2) was what was a reasonable sum for the assisted party to pay. The correct approach was to be found in Bell v Inkersall at para [30]:

"The court's discretion to allow modification is not unfettered (Cullen v Cullen, 2000 SC 396). Section 18 of the 1986 Act envisages that the court may not make an award that exceeds what in the circumstances would be a reasonable sum for the assisted person to pay; that in making that decision the court has to have regard to the means of the parties and the amount of the expenses; and that, having assessed what might be reasonable, the court may still modify the assisted person's liability to less than that sum and even to nil. In making its decision the court has to consider how the parties conducted the litigation, and, in particular whether the assisted person has used his position to obtain an unfair advantage. It should not modify to nil or to a nominal figure as a matter of course; but it should not modify to a figure so high as to be beyond the assisted person's resources, even if his conduct has been improper (Armstrong v Armstrong, 1970 SC 161; Orttewell v Gilchrist, 1998 SLT (Sh Ct) 63; Masson v Masson (Assessment of Liability) (No 1), 2001 Fam LR 138 (Sh Ct))."

For the reasons he already advanced there was no issue of conduct here. In any event the argument was the same for either scale of expenses. Even if there were wrongful conduct it would not be reasonable not to modify. The pursuer was overdrawn; and above his credit limit. His 2006/2007 profit was only £5,557. His balance sheet showed a deficit of £166,289. His assets and liabilities showed a negative position. Tenants improvements and farm machinery had to be disregarded (Bell v Inkersall per the Lord Justice Clerk at paras [32 and [33]). The pursuer had further legal expenses of £20,000 to pay for Bell v Inkersall. On both his income and capital position payment was impossible and his liability should be modified to nil.

[22] Even if the pursuer's entitlement to Single Farm Payment was capitalised (at 21/2 to 3 times that gave a figure of £117,500/£141,000) there was still a deficit in his assets. The Single Farm Payment could not be looked at as both income and capital. It was accepted, however, that the payment could continue even if farming ceased; but other subsidies would not.

Defenders' Response

[23] Mr Patterson responded. He submitted that the accounts were un-audited and depended on information from the pursuer. To that extent they could not be relied upon. In any event the accounts were not the pursuer's "means". The significant issue was the Single Farm Payment. It should be looked at alternatively as income or capital. It had a tradable value (21/2 to 3 times the annual payment). There was a discrepancy between the livestock value in the balance sheet (£41,038) and in the statement of assets and liabilities ((£140,000). Likewise the Morrison debt was differently stated (£107,000 and £140,000); and there was considerable doubt about whether repayment was likely to be requested.

[24] On the issue of conduct he submitted that the raising of the action in the face of the decision in Bell v Inkersall Investments Ltd 2006 S.C. 507 was not simply a professional misjudgement. Lady Paton had made it abundantly clear what was required in the crave - a plan. The Inner House decision should have been drawn to my attention when the order before service was sought. The Note to my interlocutor of 12 January made clear that the recall hearing had been unnecessarily protracted because of the way in which the pursuer's case had been presented.

Defenders' motion for expenses against the pursuer's solicitors personally

[25] On 16 August Mr Patterson had intimated a possible intention to seek the expenses of that day from the solicitors for the pursuer personally. He duly made such a motion. He seemed to accept that there was little he could say about whether the solicitors for the pursuer had received the copy of my interlocutor ordering the production of financial information about the pursuer. His firm certainly had received a copy. But it was the duty of solicitors to check the terms of the court's interlocutors (Macphail: Sheriff Court Practice (3^rd Edn.) para 5.91). That had not been done. If it had then the day might not have been wasted.

[26] Mr Nicoll advised me that he had no instructions on this motion. His attending solicitor, Mr More addressed me. He told me that the interlocutor had not been received by his firm. A student had attended on counsel on 16 August and had reported that the subject of lodging the information had not been mentioned in court. He accepted, however, that it should have been obvious that an up to date schedule of financial information would be required. He accepted that the statement in Macphail correctly stated the position but suggested that it was a rule which was probably breached as often as it was observed. He submitted that the circumstances did not require that personal liability should be ordered.

Discussion and Decision

[27] I deal first of all with Mr Patterson's last motion. It is regrettable that most of a day was lost because the financial information essential to determine these motions was not lodged. I have to accept, however, what Mr More said about the non-receipt of the interlocutor. My inquiries indicate that this was sent out by the Sheriff Clerk. I have to conclude that it simply went missing. The statement in Macphail represents the law and best practice in this matter; but one cannot be blind to what happens daily. That is particularly the case where there was no reason for the solicitors for the pursuer to anticipate that the order for production was being made. It is correct that there was no mention of it in open court. I added it to the interlocutor to ensure that the information was available; and I instructed the Sheriff Clerk to intimate it precisely because no reference had been made to such an order in the presence of the parties and their solicitors. That said, it should have been obvious to those advising the pursuer (and this applies equally to counsel and solicitor) that the pursuer's interests were unlikely to be properly represented in a motion for modification unless the information ordered was available. And they should have been aware and mindful of the power of the court to make such an order (regulation 4(1) of the Act of Sederunt (Civil Legal Aid Rules) 1987). How counsel came to think that he was properly or adequately instructed to present a motion for modification in the absence of such up to date information is really beyond my comprehension. This is not a case where counsel was instructed at the last minute or had recently come into the case. In relation to the pursuer Mr Nicoll has been his most constant legal adviser and, so far as I can see from my involvement in many of the numerous cases between the same parties, "running" these cases. And, of course, he was the junior counsel in the almost identical Court of Session proceedings where modification was also sought.

[28] The point is a narrow one but I give the benefit of any doubt to the solicitors for the pursuer and refuse to make the order sought. I accept what they say about non-receipt of the interlocutor. In the circumstances described they cannot be too harshly censured for omitting to check the interlocutor. And responsibility for the lack of preparedness on 16 August lies, in my opinion, at least as much with counsel. Of course it is unsatisfactory that the pursuer (or in this case the Legal Aid Fund) is exposed to a greater liability for his own costs and, potentially, to a greater award of expenses. I suspect that in a privately funded case the client would be unlikely to be charged by either counsel or solicitor for the wasted time.

[29] I turn now to Mr Nicoll's submissions that any liability for expenses should be modified or deferred. Neither has any merit. Sometimes cases cannot be completed on a particular day and continuations are necessary. If that is unavoidable then it can have no effect on liability for expenses. The submission that a relevant aspect of a party's argument should not have been presented because, in retrospect, the court has not found it necessary to express a view on that aspect is nonsense. The present action was a separate one. It raised an issue which was distinct from those in the principal actions although it may have been ancillary to them. The grant of the defenders' motion for recall was determined by factors which were unrelated to the outcome of these actions. The notion that the determination of expenses in an interlocutory application dealt with ex parte should depend on the outcome of a proof in a separate action is, in my opinion, completely misconceived.

[30] The question of modification of the expenses of an assisted person is dealt with in section 18(2) of the Legal Aid (Scotland) Act 1986 which is in the following terms:

"18(2) The liability of a legally assisted person under an award of expenses in any proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.

(3) None of the following, namely a legally assisted person's house, wearing apparel, household furniture and the tools and implements of his trade or profession shall-

(a) be taken into account in assessing his means for the purposes of

subsection (2) above ...

except in so far as regulations made under this section may prescribe.

Following the treatment of an almost identical motion in Bell v Inkersall (per the Lord Justice Clerk at paras [28] to [40]) the question for decision is whether the court should grant modification and, if not, on what basis the pursuer should be found liable. The defenders' estimate of the likely liability on either scale was not disputed. Mr Nicoll expressed a concern that the estimate given in the Court of Session action (£7,500) had turned out to be highly inaccurate - the taxed figure was £21,000. But Mr Patterson assured me that the figure of £11,270 would not be exceeded as that was the account which had been sent to the defenders for payment.

[31] The first step is to consider the pursuer's means. There are two aspects to that; income and capital. Clearly someone can have little capital but a substantial income; and vice versa. One must be balanced against the other in assessing what award is a reasonable one for the assisted person to pay. Usually, individual items of income or capital will fall clearly into one category or the other; but some may not. Such, in my opinion, is the position with the Single Farm Payment to which the pursuer is entitled. And it is not insubstantial; £47,000 in income terms and up to £141,000 in capital terms. While Mr Nicoll disputed that it could be treated as both income and capital he offered no argument that it did not have a capital value such as Mr Patterson suggested. In these circumstances the correct approach is to consider both possibilities as alternatives and see which yields the better means position for the pursuer.

[32] There is another speciality about the Single Farm Payment. It is paid irrespective of whether the entitled recipient actually farms. He requires to rent some qualifying land for a specified period of the year; but it was not disputed that he would be left with a substantial part of the Payment as net income. Counsel for the pursuer was well aware of this possibility. I referred to the issue of the Single Farm Payment in the Note to my interlocutor of 16 August ordering the lodging of up to date financial information. Reference was made to the possibility at the hearing on that day. Evidence had been led about it in the proof in the principal actions where Mr Nicoll is representing the present pursuer. Despite all that, I was provided with no accurate information about the expenditure required to generate income in this way.

[33] Looking first at the pursuer's capital it is necessary to disregard the figures for tenants improvements (£50,147) and implements and farm machinery (£41,020) (Bell v Inkersall per the Lord Justice Clerk at paras [32] and [33]). But it seems that the correct figure for tenants improvements is, in any event, now £36,231. The grants/subsidies figure (£19,000) is clearly income and not capital. It relates to an LFASS payment - a form of grant which cannot be capitalised in the same way as a Single Farm Payment. The correct figure there is £141,000, the capitalised value of the Single Farm Payment - an increase of £122,000. Making these adjustments the pursuer's assets are correctly stated at £290,000. As to liabilities I question whether hire purchase liabilities which relate to the excluded implements and farm machinery are correctly included but I have no information about what a proper figure might be. In Bell v Inkersall the loan from Ms Morrison was disregarded (para. [34]). At that stage it was not vouched. It now is; although there must be some doubt, first of all, about what the correct figure is. In the 2007 balance sheet it is shown as £107,000. But there is additional information which was not available to the Second Division. I had the advantage of hearing evidence from Ms Morrison in the principal actions; as did Mr Nicoll. She was asked about the loan. She gave the clear impression that she was not seeking repayment and would not do so. (The evidence was given on day 52 of the Proof. I have placed a copy of the relevant pages of the extended Notes of Evidence with the process in this action.) In these circumstances I leave the loan out of account in assessing the pursuer's true means. That reduces the pursuer's liabilities to £208,555. But these are figures which are based on information which is full of doubts; much of it contradictory and open to question. My conclusion is that the pursuer, while he may not have a substantial surplus of assets is certainly not in the penurious position in which he was painted.

[34] As to income, again the information presented is contradictory. I assume that the figure for livestock sales (£30,000) is included in the trading income in the 2007 profit and loss account which shows a profit of £5,557. But there is no mention in the profit and loss account of the contract work (£5,000), which I assume to be additional. The expenditure in the 2007 profit and loss account includes depreciation - £6,394 of which relates to the discounted tenants improvements. Taking these factors into account the pursuer's income is more correctly stated at £16,951. But the issue of the Single Farm Payment has to be considered. It would seem that a large percentage of that would accrue to the pursuer if he wound up his farming business. He seems able to make money from contracting work and I do not see why that could not continue. Even assuming only 75% of the Single Farm Payment, and the contract work at the present level, he would have an income of £40,000 or thereby. I appreciate that this involves a degree of assumption but that is really all that can reasonably be done in the absence of more accurate information.

[35] So I conclude that, looking at the best case scenario for the pursuer's means, both capital and income, there is no reason why he should not pay the defenders' expenses. But I am also entitled to look at his conduct. In relation to his occupation of the farms without payment of rent and the advantages he has accrued from that, the matter is fully set out by the Lord Justice Clerk in Bell v Inkersall. It is a factor which I take into account, together with my assessment of the pursuer's means, in concluding that I should not modify at all the pursuer's liability for expenses.

[36] I see no reason why the pursuer should not pay expenses on the agent and client basis. The action was raised on a basis which, to the direct knowledge of counsel advising him, was irrelevant for the variety of reasons given by the Lord Justice Clerk in Bell v Inkersall Investments Ltd 2006 S.C. 507. My decision on that aspect was based principally on the lack of specification identified at first instance by Lady Paton. There is no excuse for that not having been addressed. She spelt out precisely what was required. I did not require to decide the general issue of relevancy in the context of probable cause (and, at that time, for the reasons which I gave, felt it better not to express my opinion on that aspect of the defenders' argument). But if I had done so I would have found the pleadings in the present action to be irrelevant following the reasons given by the Lord Justice Clerk in Bell v Inkersall Investments Ltd 2006 S.C. 507. The subsequent introduction of the declaratory crave that the pursuer was the tenant of an agricultural holding in terms of the 1991 Act did not address the existence of the prior grazing lets. It did no more than articulate, in the context of the ordinary cause proceedings, the defence to the same effect indicated in the Note of Defence to the original summary cause summonses. I now feel able to express this view briefly because the un-amended pleadings in the principal actions, which were incorporated into the present action, are no more. The evidence in the principal actions concluded on 17 August 2007. The hearing on evidence and submissions in the principal actions commenced on 20 November; it has not yet concluded. My decision in the principal actions will rest on an amended version of the pleadings which includes averments of sham and a plea in law seeking reduction of the grazing and other lets ope exceptionis. The irrelevancies I refer to should not have formed the basis of any action raised on the pursuer's behalf. If pled through error or inadvertence that should have been corrected as soon as possible, and before the recall hearing, by the tendering of a minute of amendment. The argument by Mr Nicoll should not have been persisted in over two days. The correct course, obvious after Mr Patterson had presented his argument, would have been to seek leave to amend. That is what happened at the end of the day; seeking to address precisely the points which formed the basis of the Lord Justice Clerk's criticisms.

[37] In my opinion that conduct was wholly unreasonable. The circumstances may not be the same as in British Railways Board v Ross & Cromarty County Council but the fact that no proof was involved does not distinguish that case. An argument wholly without merit was persisted in and that has caused the defenders considerable expense. This was not the sort of case where the "mature reflection" referred to by Lord Hope in Fourie v Le Roux was required. It was a similar case, between the same parties, against the same factual background, employing pleading language which was virtually indistinguishable and conducted by the same counsel, as one where the Inner House had characterised the basis of that other action as defective, lacking in specification and irrelevant. Even if the client's urgings and concern had led, through speed, to early inattention, there was an abundance of time between the grant of the interim interdict on 7 November and the calling of the recall motion on 23 November for the irrelevance and lack of specification to be corrected; and "mature reflection" applied in the time presumably taken to prepare for the hearing of the motion for recall. In these circumstances I find the pursuer liable for the expenses of the motion for recall on the basis of agent and client, client paying.

[38] I reach this decision with some unease. Its result is that the pursuer becomes liable for expenses which should never have been incurred. Certainly he instructed the proceedings; and in Bell v Inkersall at para [36] the Lord Justice Clerk indicated that there may well be circumstances in which an assisted person has to suffer the consequences of the wrongful conduct of his advisers. But unlike Bell v Inkersall, where the pursuer seems to have been directly involved in obtaining the interdict and its consequences, in the present case he was not responsible for the basis of action chosen and persisted in, and the pleading employed, to obtain and seek to continue the remedy sought on his behalf. That responsibility lies squarely with his counsel.

[39] I was not asked to make any finding against counsel personally. I would be reluctant to do so in the absence of such a request and it would be wrong to reach any concluded view on this potentially difficult issue without a full argument and recitation of authority. My limited researches indicate that such authority is sparse. The only reported decision which appears to be directly in point seems to be Reid v Edinburgh Acoustics Ltd (No.2) 1995 S.L.T. (Notes) 87, a decision in the Outer House. That related to a motion to find solicitors personally liable for the expenses of an action in the Court of Session. The solicitors argued that they had acted on the advice of counsel. It was decided that, since it was not competent to make an award against counsel personally, it would be unfair to find personally liable a solicitor who had acted on counsel's advice. The issue of whether it was competent to make such a finding against counsel was not the subject of discussion or debate. It was a matter of concession. No authority was referred to in support of the correctness or otherwise of the concession. Although it is not made clear in the Opinion in the case, it seems that the concession may have proceeded as an extension of or inference from the rule laid down in Batchelor v Pattison and Mackersey (1876) 3R 914. That was a case where an action was brought against solicitors and an advocate on the grounds of their negligent conduct of a client's case. It was decided that counsel was immune from suit for negligence in respect of the conduct of a case in court. At page 918, in the course of setting out the responsibilities and rights of counsel in the conduct of a case in court, Lord President Inglis said:-

"His legal right is to conduct the case without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if his client's interests are there by prejudiced."

[40] There is no doubt that a solicitor can be found liable in expenses if his conduct of a case in court justifies such an award (cf. Macphail Sheriff Court Practice (3^rd End) para 19.23; Stewart v Stewart 1984 S.L.T. (Sh. Ct.) 58). In my respectful opinion, if it was ever the law that counsel could not be found personally liable for expenses where his conduct of the case would justify such a finding, it must be open to doubt that such is the law today. The issue in Batchelor v Pattison and Mackersey was the liability of counsel in negligence; not the inherent right of the court to control its procedures and sanction those who abuse them. There are several cases which suggest that the position regarding negligence is no longer as set out by Lord President Inglis. In England barristers no longer enjoy immunity from suit in civil cases (Arthur J.S. Hall v Simmons [2002] A.C. 615). Although that immunity was upheld in Scotland in relation to criminal proceedings (Wright v Paton Farrel 2006 S.C. 404), it was suggested by the Lord President (para [13]) that the unanimous view of the House of Lords in Arthur J.S. Hall v Simmons in respect of civil proceedings was likely to be highly influential on a Scottish court. Further erosion of any principle that counsel are immune from the consequences of their actions in the conduct of court proceedings is seen in other cases; as is the principle that the consequences of these actions can be the basis of remedies for third parties. Counsel can be punished for contempt of court and so are subject to the discipline of the court (John Mayer 2004 S.C.C.R. 734). Incompetent advocacy in a criminal case may be a ground of appeal that a miscarriage of justice has occurred (Anderson v H M Advocate 1966 S.L.T. 155.

[41] Whatever the position in law, it remains clear to me that it is both unsatisfactory and unjust that a party should have to bear a penalty in expenses imposed on him because of the wholly unreasonable conduct of his case by the advocate to whom he has entrusted it. That, effectively, is what has happened here. The present action was raised and persisted in when it should have been clear that it flew in the face of a binding decision of a higher court between the same parties and based on virtually the same factual background. That was eventually accepted and an attempt has been made by way of amendment to remedy the irrelevance of the principal actions and their lack of specification. But, in the meantime, much court time was occupied in arguments which were without merit and which were presented in a manner which was repetitive and unnecessarily extended. These had all the hallmarks of an attempt, pursued in this instance on the basis of public funding, to justify the mistaken basis of the action and to seek to avoid what was the inevitable necessity of amendment. In my opinion, no privately paying client (nor I would like to think his or her instructing solicitor) would have tolerated the conduct of the proceedings in that way or the length and expense which that conduct entailed.

Expenses

[42] Parties were agreed that the expenses of these motions should follow success. These go to the defenders but against the pursuer as an assisted person. Mr Patterson indicated that he did not intend to seek expenses on other than the normal party/party basis.