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BILL OF SUSPENSION BY (1) HOLMAN FENWICK WILLIAN LLP AND (2) DUFF & PHELPS LTD AGAINST PROCURATOR FISCAL, GLASGOW


Submitted: 21 April 2016

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 39

HCA/2015/3517/XJ

Lord Justice General

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY,
 the LORD JUSTICE GENERAL

in

BILL OF SUSPENSION

by

(1) HOLMAN FENWICK WILLAN LLP and (2) DUFF & PHELPS LTD

Complainers;

against

PROCURATOR FISCAL, GLASGOW

Respondent:

Act: Bain QC; Paterson Bell

Alt:  J Keegan QC (sol adv) AD; the Crown Agent

 

21 April 2016

[1]        On 5 February 2016 the court passed the complainers’ Bill of Suspension and suspended a warrant granted by the sheriff at Glasgow on 4 December 2015 authorising the police to enter the premises of the first complainers, a firm of London solicitors, and to take possession of documents relating to Rangers Football Club.  It did so on the basis that: (a) the respondent’s application to the sheriff had been oppressive, as it had been made in the context of active discussions between the parties without intimation to the complainers; and (b) the terms of the warrant sought were too wide and were thus also oppressive.

[2]        The complainers have applied for the expenses of the Bill as taxed on an agent and client, client paying, scale (Courts of Law Fees (Scotland) Act 1895 s 3).  These expenses would encompass not only the two day hearing on the Bill on 12 and 13 January 2016 but also the procedure on and after 18 December 2015, when the court appointed two independent counsel to review, and report upon, the extensive quantity of material recovered under the warrant.  Although the complainers were not able to provide an estimate of these expenses, they did produce an account of expenses in respect of work done by agents and billed in the sum of £25,000 (exclusive of counsel’s fees) to the first complainers.  This encompassed some work attributable to the Bill. The account contains an outlay of in excess of £150,000 referable to “English agents’ costs”.  Attached to the account are counsel’s fee notes totalling just under £20,000 but bearing the name of a third party as the client.

[3]        The broad contention for the complainers was that the Crown’s actions had proceeded upon a misapprehension of the law relating to legal privilege (confidentiality).  The Crown had wrongly thought that, where a crime had been alleged, the police were entitled to carry out a review of materials secured under a warrant notwithstanding the assertion of privilege.  They had rejected the reasonable offer of the complainers to have independent counsel review the materials; the very task later authorised by the court.  The Crown had been highly culpable in their actions.  The case therefore fell into the exceptional category where a general unmodified award should be made (cf S v McGowan 2009 SLT 922, Lord Hardie at para [6], following Lawrie & Symington v Houston 2009 JC 296, Lord Carloway at para [12]).

[4]        The advocate depute gave an undertaking that the Crown would pay for the reasonable fees of the independent counsel, which apparently amount to £42,000.  It was accepted that the motion for expenses was competent, but contended that such awards should be made sparingly.  The Crown had acted in good faith, if improperly.  There were reasonable grounds for seeking the materials specified in the warrant.  This had been borne out by the independent counsel’s examination.  Any award ought to be modified in accordance with practice.

[5]        As was said in Lawrie & Symington v Houston (supra, at para [14]), in dealing with an application for expenses, the court is concerned with the reasonable costs of legal representation and any associated outlays in the particular process.  It is not awarding compensation for loss.  In the present case, the expenses are for the work done by the agents and counsel in preparing, lodging and presenting the Bill and any related work in the process.

[6]        It is customary, in a review such as this, to modify any award to a fixed sum rather than add the additional expense of a taxation.  This is in recognition of the principle that the prosecuting authorities should not be unduly restricted in their duty to investigate and prosecute crime by the threat of contrary awards of expenses, should they err in their task.  They act not in their own, but in the public, interest.  Given that context, awards of expenses in criminal review processes are not to be seen in the same light as those in civil appeals. It will only be in an exceptional case that a general award would be made.  This is not such a case.

[7]        Although the actions of the Crown were classified by the court as oppressive in a legal sense, they were not motivated by bad faith.  The procedure adopted was inept, but there was at least some basis for seeking recovery of a limited part of the material covered by the warrant. In these circumstances, although an award of expenses is justified, for reasons similar to those given by Lord Hardie in S v McGowan 2009 SLT 922 (at para [10]), there is no basis for departing from the usual practice of modifying the award to a fixed sum.  Having regard to the procedure which has occurred upon the Bill, the court will make an award of expenses modified to £10,000.