In a significant judgement issued by the Inner House of the Court of Session in Edinburgh last week, the Lord President, Lord Reed and Lord Marnoch ruled that expenses are recoverable in Fatal Accident Inquiries (FAIs) held in Scotland (under limited circumstances). This is a significant development of the law, clarifying an area which had previously been thought to be closed to expenses.

The judgement, published last week, follows a long dispute between two GlobalSantaFe companies, represented by Aiden O'Neill QC and Jan Burgess, Head of Health and Safety for CMS Cameron McKenna LLP and an individual driller, represented by Beltrami & Co, against the Lord Advocate, represented by Roy Martin QC. Starting in Aberdeen Sheriff Court in 2004, the FAI related to a fatality on an oil rig and ultimately found that neither the employer or the colleagues of the deceased were responsible or could be criticised in relation to the fatality. However, the procurator fiscal's conduct during the inquiry was such that the Sheriff allowed a motion for expenses for the latter part of the inquiry, on the basis that the court had inherent power to make such an award where a party had behaved in a vexatious manner. This decision was appealed by the Lord Advocate to the Court of Session, who upheld that appeal. The most recent decision reverses that decision and upholds Sheriff Cowan's original decision.

In a clear and well-reasoned opinion, the Inner House discuss in detail the law relating to expenses in FAIs and other forms of administrative processes. Significantly, they found that FAIs have sufficient similarities to civil proceedings to allow the general principals of civil procedure to apply to their conduct, specifically the inherent right of a judge to award expenses. This decision was made notwithstanding the fact that FAIs are a statutory procedure and that there is no express authority on this point, by referencing common law processes as well as civil statutory processes. In administrative processes (such as FAIs) the general rule that expenses follow success does not apply. The bench noted, however, that "in certain circumstances - where conduct of a party can be described as vexatious (or an abuse of process) - it will be open to the sheriff in such a process to make an award".

The important limitation to this significant development is that expenses may only be awarded where the conduct of a party has been vexatious - the Crown will have no immunity in such a case. This suggests that the occasions where awards of expenses could be awarded may be limited, and we will watch the application of this decision in the courts with interest.

At the time of writing, there is no indication as to whether the Lord Advocate intends to appeal this decision to the House of Lords.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 01/06/2009.