In a rare decision, following a Fatal
Accident Inquiry into the death of an offshore worker, CMS Cameron
McKenna successfully argued that the Crown should pay the costs of
three parties to a Fatal Accident Inquiry. Fatal
Accident Inquiries are essentially inquisitorial by nature and not
adversarial and for that reason costs are very rarely awarded
against any party. The exception to that rule
was clearly demonstrated in this case where the Sheriff decided the
conduct of the procurator fiscal, acting as agent to the Crown had
been "vexatious" and warranted an award of costs against the Crown
and in favour of two participating companies and one
individual:
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In a note to her determination in the
Fatal Accident Inquiry into the death of William Geddes Smith (an
offshore worker), issued on 15 November 2004, Sheriff Cowan awarded
expenses against the Crown and in favour of three of the parties to
the inquiry – two
companies (both represented by CMS Cameron
McKenna) and an individual.
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The matter of awards of expenses in Fatal
Accident Inquiries in Scotland has been raised on only a few
occasions in the past as the procedure
is non-adversarial and so this is not routine
practice. It has been argued that it may not be
in the public interest to award costs or even that the court has no
power to do so. On only one occasion in
the past has such an award been made – in that case against a
party known as OTR Tyres Ltd in 1997. The
Sheriff's decision in that case was overturned following a judicial
review, but only due to the fact that the respondents both withdrew
from the proceedings, so the award of expenses was reduced by
default.
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In her decision of 14 December 2004,
Sheriff Cowan awarded expenses against the Crown, upholding the
submissions of the companies and the individual, on the
grounds that the submission was valid (albeit
unusual), and appropriate given that the Crown's position could be
characterised as "vexatious". In a very detailed
decision the Sheriff stated that the inquiry, which had
followed a lengthy trial under the Health and
Safety at Work Act 1974 against one of the companies party to the
inquiry and which resulted in an acquittal, had "served no public
interest whatsoever". She expanded upon her
reasoning by stating "in my view these expenses were occasioned
entirely by the actings of the Crown and could have been avoided
had the Crown prepared and presented the evidence appropriately and
in accordance with the traditionally fair and even handed approach
to be expected of the Crown." She stated that
"an award of expenses against the Crown in a Fatal Accident Inquiry
will be very rare". However, on this occasion she concluded that in
the public interest an award should be made in
favour of the two companies and the individual.
For more information on this decision
or any other Health and Safety matter please contact Jan Burgess or
Alexander Green on 01224 622002 or by email on [email protected] or [email protected].