Expenses awarded against the Crown in Fatal Accident Inquiry

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:

• 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.
• 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.
• 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].