Religious leaders who challenged legitimacy of church closures in Scotland entitled to expenses increase
A judge in the Outer House of the Court of Session has granted an increased award of expenses to a group of 27 religious leaders who successfully challenged the Scottish Ministers’ decision to close places of worship in Scotland from late December 2020 to March 2021 to help prevent the spread of Covid-19.
The petitioners, led by Reverend Dr William Philip, sought certification of two skilled witnesses and a 100 per cent increase in the charges to be allowed on taxation of expenses. The respondents opposed the certification of one of these witnesses and claimed that the increase should be lower.
The petition was heard by Lord Braid. The petitioners were represented by Scott QC and the respondents and first interested party by Mure QC.
The two witnesses the petitioners sought certification of were Dr Martin Parsons, an academic specialising in religious matters and freedom of worship, and Dr Ian Blenkharn, a microbiologist. The respondents did not take issue with the certification of Dr Parsons but opposed certification of Dr Blenkharn.
It was submitted for the petitioners that the instruction of an expert microbiologist to express an opinion on mitigation measures that the petitioners proposed could be an alternative to the full closure of places of worship was a reasonable and proportionate step for them to take. This was an anxious matter for them, and it was reasonable of them to take steps to vouch that their position was viable.
The respondents’ response was that it was neither reasonable nor proportionate to instruct Dr Blenkharn. The case was not about whether mitigation measures were helpful but whether the restrictions imposed by the regulations challenged in the judicial review were justified. In any event, they argued, Dr Blenkharn’s report had not been relied upon by the court.
In terms of the motion for an additional charge, the petitioners argued that, of the factors that the Auditor is to have regard to in terms of Rule 5.2 of the taxation of judicial expenses, all but one of the factors was engaged. The case raised a novel question, demanded a significantly increased amount of work from counsel and solicitors instructed by them, and were of high importance to the client.
The respondents argued that many of the authorities referred to by the petitioners were discounted by the court, and that the novelty of the questions raised was diluted by the instruction of experienced senior counsel. While they conceded that some increase may be necessary due to the importance of the proceedings to the petitioners, it would be a modest one compared to the 100 per cent increase sought.
Novel and difficult questions
In his opinion, Lord Braid said of the reasonableness of employing Dr Blenkharn: “Whether it was reasonable and proportionate to employ Dr Blenkharn must be justified objectively having regard to the circumstances at the time of instruction.”
He continued: “Given that at the time of employment of Dr Blenkharn, an issue in the judicial review was likely to be whether the regulations under challenge imposed proportionate restrictions, and given the importance of the case to the petitioners, I consider that it was both reasonable and proportionate to obtain an expert view from a microbiologist on whether mitigation measures would adequately mitigate the risk posed by the new strain.”
Turning to the petitioners’ crave for an increase, he began: “I consider that the petition did raise novel and difficult questions, not least in relation to the tension between the state’s right to legislate on civil matters and the church’s right to non-interference in spiritual matters. I also consider that it is reasonable to regard counsel and solicitor as working as part of a team and that it is no answer to a claim for recognition of [novelty] merely to say that experienced senior counsel was instructed.”
On the time required of the solicitor, he said: “I consider it relevant that the solicitor was acting for 27 petitioners, each presumably with their own demands. The respondents’ answers to that point is to query the need for 27 petitioners but I do not think it is for the respondents to take that point. The fact is that there were 27 petitioners which must have impacted on the time and labour required of the solicitor, and increased the responsibility undertaken by him.”
Taking the combined weight of all the factors, Lord Braid said: “I accept that to a greater or lesser extent, all of the factors relied upon by the petitioners, with the exception of head (g), justify an additional charge and are relevant in determining the level of any increase.”
Addressing whether he should determine the level of increase himself or refer it to the Auditor, he continued: “It seems to me that I am in a better position than the Auditor to form a view on the responsibility undertaken by the solicitor in the conduct of the proceedings, when I presided over the proceedings from start to finish and am equally able as the Auditor to form a view on each of the heads in the rule, and the impact each had on the responsibility undertaken by the solicitor.”
Lord Braid concluded: “I consider that the importance of the proceedings attracts most weight and that the other factors in combination attract probably the same amount of weight again. I do not consider that an increase of the highest magnitude is appropriate. The appropriate figure is somewhere between that contended for by the pursuers, and the somewhat tentative counter suggestion on behalf of the defenders of 25-30 per cent.”
For these reasons, Lord Braid certified Dr Blenkharn as a skilled person, and determined that the appropriate percentage increase on taxation was one of 50 per cent.