Expenses Now Available In Fatal Accident Inquiries

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...