Public Law

The Inner House has recently issued an interesting decision on expenses in the case of Salvesen v Riddell. Public law aficionados will recall that this was the successful challenge to the Agricultural Holdings (Scotland) Act 2003 on the ground that it was incompatible with landlords’ property rights under Article 1, Protocol 1 of the European Convention on Human Rights, and therefore outwith the legislative competence of the Scottish Parliament. Our colleagues in Land & Rural Business previously explained the effect of the offending provision and we blogged on the significance of the case from a public law perspective, as the first case in which the Supreme Court had struck down an Act of the Scottish Parliament under the Scotland Act 1998.

Picture of a farm house

The expenses decision adds another novel dimension to the case. Mr Salvesen (the landlord in the original action) asked for expenses against the Lord Advocate, who had intervened in the proceedings. Expenses were sought on an indemnity basis: in essence allowing the the successful party to recover almost all of his legal expenses (which is of course a break from the norm in expenses awards)

The Lord Advocate argued that indemnity expenses are generally awarded as a mark of disapproval and that, as no criticism could be made of the Lord Advocate in relation to his intervention in the case, they were not appropriate.

The court disagreed. It found that this was a litigation Mr Salvesen had been forced to conduct against legislation that was found to be unlawful. That legislation resulted from a late amendment to the Bill, proposed by the Deputy Minister, contrary to previous assurances by the Scottish Executive and by the relevant minister that existing limited partnership tenancies would not be affected by the Bill.

The Lord President noted that Mr Salvesen had been put to expense by reason of an invalid statutory provision that could have resulted in significant financial loss for him, had he not challenged it. Indemnity expenses were justified because of the behaviour of the Deputy Minister who introduced the amendment to the Bill. The Deputy Minister had spoken of the amendment as representing Executive policy, a statement which the Lord President described as “inaccurate and undisciplined”. The judgment goes on to criticise the Deputy Minister further, suggesting that some of his remarks in the Parliamentary debate when the amendment was introduced displayed a marked bias against landlords.

In short, the Minister’s inappropriate political judgment placed “an entirely different complexion on the Lord Advocate’s intervention”, which justified an award of indemnity expenses. While this case is heavily fact-specific, it does open up the potential for raising, in relation to expenses, the conduct of politicians in influencing a decision ultimately struck down as unlawful.

Gemma McKinlay

Associate at Brodies LLP
Gemma is a senior solicitor in Brodies market-leading Public Law & Regulatory team in. She advises on a range of public law and commercial issues.  Her specific areas of practice expertise include powers and duties of local and central government, statutory interpretation, equality and human rights, data protection and freedom of information laws.
Gemma McKinlay