ALEXANDER TAYLOR MURRAY v. WILLIAM HAYDEN McCORT + JANETTE LECKIE McCORT [2013] ScotSC 57 (12 September 2013)

ALEXANDER TAYLOR MURRAY v. WILLIAM HAYDEN McCORT + JANETTE LECKIE McCORT [2013] ScotSC 57 (12 September 2013)

The Sheriff erred by proceeding on incorrect material facts regarding the timing of the Appellant's legal aid and the Respondents' legal aid status, which substantially affected his decision to refuse modification of expenses. The appeal is allowed and the matter remitted for reassessment on the correct factual basis, with no specific direction given to the Sheriff, who must exercise discretion anew under section 18(2) of the 1986 Act.

Citation
[2013] ScotSC 57
Parties
Pursuer and Appellant: Alexander Taylor Murray; First Defender and Respondent: William Hayden McCort; First Defender and Respondent: Janette Leckie McCort
Jurisdiction
Scotland
Judgment Date
12 September 2013
Procedural Posture
Note of Appeal / Appeal Against Refusal of Motion for Modification of Expenses
Outcome
Appeal allowed; cause remitted for reassessment of expenses modification; no expenses due to or by either party in respect of the appeal.
Legal Topics
Modification of Expenses, Legal Aid Eligibility, Discretion in Expenses Awards
Civil Procedure Legal Aid Modification of Expenses Legal Aid Eligibility Discretion in Expenses Awards

Case Brief

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Parties

Alexander Taylor Murray

Pursuer and Appellant

William Hayden McCort

First Defender and Respondent

Janette Leckie McCort

First Defender and Respondent

Procedural Posture

Note of Appeal / Appeal Against Refusal of Motion for Modification of Expenses

Legal Issues

  1. 1 Whether the Sheriff erred in refusing modification of expenses based on incorrect material facts
  2. 2 Whether the Sheriff's discretion was misdirected in law regarding the assessment of means and conduct under section 18(2) of the Legal Aid (Scotland) Act 1986

Ratio Decidendi

The Sheriff erred by proceeding on incorrect material facts regarding the timing of the Appellant's legal aid and the Respondents' legal aid status, which substantially affected his decision to refuse modification of expenses. The appeal is allowed and the matter remitted for reassessment on the correct factual basis, with no specific direction given to the Sheriff, who must exercise discretion anew under section 18(2) of the 1986 Act.

Court Disposition

Appeal allowed; cause remitted for reassessment of expenses modification; no expenses due to or by either party in respect of the appeal.

Orders

  • Allows the appeal
  • Remits the cause and the Appellant's motion for modification of the expenses awarded against him to the Sheriff for reassessment on the correct factual basis