In the wake of the Press Call in Elgin on 11 November 2013 which announced Vivien Hendry as the Moray resident who seeks to challenge the validity of Moray Council’s decision to close 7 out of 15 public libraries in the area, questions have been asked about the legal costs which might be involved (see the comments below the Northern Scot article here).
Peter Brash of Grigor & Young is Ms Hendry’s solicitor.
Getting counsel’s opinion on the prospects of success
The first contact was when a group of people from “Save Our Libraries (Moray)” got in touch with Grigor & Young, seeking legal advice about the proposed closures.
It was apparent that any challenge would have to be by way of Judicial Review – which is not an area of law that comes up often for most solicitors in private practice.
Judicial Review proceedings can only be raised in the Court of Session, the highest civil court in Scotland. The Court of Session sits only in Edinburgh.
The way forward was to arrange for a specialist Advocate (Barrister) to review the facts of the case in considerable detail and provide a written opinion on the prospects of a successful Judicial Review.
Counsel’s fee for the work done in preparing the lengthy written opinion had to be paid by the group but, in this part of the process, Grigor & Young acted on a pro bono (i.e. without charge) basis.
Preparing the case for possible court action
Counsel’s view was that there are reasonable prospects of an application for Judicial Review succeeding.
The next step was to consider how best to raise court action in the circumstances.
The general rule with court actions is that the “loser” pays the court expenses (costs). In a case of this nature, no individual or small group of people could reasonably take on the risk they might lose a court action, especially in the Court of Session, even if the prospects of winning were regarded as greater than 50%. The expenses they could be required to pay might run to tens of thousands of pounds.
Judicial Review cases do not lend themselves to being run on a “no win – no fee” basis in the way that personal injury claims do.
We decided that there was only one realistic way to take the case forward in the light of counsel’s favourable opinion. This was to have someone who had a legitimate interest in challenging the Council’s decision – and who met the financial criteria for legal aid – apply to the Scottish Legal Aid Board (SLAB) for funding to raise the action.
One of the main benefits of civil legal aid is that, if they lose the case, an “assisted person” has the right to apply to the court for modification (reduction) of the expenses which would otherwise be awarded against them. The court has a discretion as to the level of modification it applies (if any) but, from experience, there is a good chance that expenses will be modified to zero if the legally-aided party has full civil legal aid.
Vivien Hendry has been a leading member of the libraries campaign. She lives in Hopeman, a village which will lose its library if the cuts go ahead. She also qualifies financially for legal aid.
As from 07 November 2013, Grigor & Young have been covered by legal advice and assistance, a form of legal aid, and can be paid at legal aid rates for work done in relation to applying for civil legal aid.
Any work done in relation to the Press Call would not be regarded as properly chargeable by SLAB and cannot be claimed.
The present situation
We have given the Council a deadline within which either to reverse its decision or at least give an undertaking (promise) that it will not take steps to close any of the affected libraries until the Judicial Review has run its course. At the moment, we are in negotiation with the Council over the timing of that deadline.
If the Council is not willing to reverse its decision or give an undertaking, any court application will have to include a request for “interim suspension and interdict” – i.e. an order preventing closure of any libraries in the meantime.
We have submitted a civil legal aid application for Vivien Hendry. SLAB will decide on whether to make legal aid available based on her financial eligibility and on the merits of the case as assessed by counsel. Under standard legal aid procedures, the Council will have an opportunity to lodge written objections to the legal aid application.
In due course, if civil legal aid is granted, we will need to appoint Edinburgh solicitors to deal with the procedural aspects of the case as it goes through the court. At the end of the case, Counsel, the Edinburgh solicitors and Grigor & Young will be paid by SLAB at legal aid rates.
If civil legal aid is refused, the case will be unable to proceed any further.
If interim orders are required, there will have to be court hearing to consider them before 30 November, when the affected libraries will otherwise close.
If any court action goes as far as a full hearing on Judicial Review, though it is difficult to predict timescale accurately, it is unlikely that that hearing will be before five or six months from now.
A much bigger issue than the libraries is at stake
It’s worth remembering that what Vivien Hendry aims to get the Court of Session to review is the validity of the process by which Moray Council reached its decision. The law requires all sectors of government to make decisions in a reasonable way, taking into account all relevant issues and ignoring those which are not relevant.
At a time when Moray’s councillors have to make a series of crucial and difficult budgetary decisions, it is vital that the decision-making process should be rigorous and transparent.
It is arguable that the potential concern here is much wider than just the libraries issue. If Moray Council has failed to act reasonably in reaching this decision, the risk is that, if it goes unchecked, the Council is more likely to act unreasonably in making other decisions in the future.