Court of Session rules that it is not competent for a Sheriff to make an award of expenses at a Fatal Accident Inquiry.

9 August 2007

Following a fatal accident inquiry in 2004, the sheriff made an award of expenses against the Crown and in favour of various parties represented at the inquiry, on the basis that the decision to hold the inquiry, and the Crown's handling of it, had been vexatious. The Lord Advocate lodged a petition for judicial review, seeking reduction of the sheriff's decision.

The parties in whose favour the award had been made were represented at the First Hearing, and submitted that on a proper interpretation of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, and of the requirements now placed upon tribunals by the Human Rights Act 1998, the sheriff had been entitled to make the award, and might in some circumstances be obliged to award expenses. However, the court agreed with the submissions for the Lord Advocate, holding that the award was not competent. As proceedings sui generis, in fatal accident inquiries the sheriff does not possess the inherent powers that he holds in other proceedings. The sheriff's powers are laid down by the 1976 Act, which does not confer a power to award expenses. In such proceedings, which are not adversarial, and are held in the public interest, it is neither necessary nor in the public interest for awards of expenses to be made.

Gerry Moynihan Q.C. and James Mure, Advocate, both of Axiom Advocates, appeared for the Lord Advocate.

http://www.scotcourts.gov.uk/opinions/2007CSOH135.html