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The petitioner had raised judicial review proceedings relating to plans to build a golf course and associated leisure development in an area along the coast to the north of Aberdeen. The petitioner sought judicial review of six grants of planning permission. The petitioner later abandoned her petition.
In these proceedings, the petitioner was actively seeking to obtain legal aid and thereafter intended to apply for modification of her liability for expenses in these proceedings as an assisted person in terms of Rule of Court 42.6. The petitioner contended that it would be appropriate to reserve the question of expenses pending determination of a judicial review of a decision of the Scottish Legal Aid Board (which had refused to grant legal aid).
Opposing the petitioner's motion, the first respondents argued that it was not appropriate for the question of expenses to be deferred for an indeterminate period of time having regard to the speculative nature of the judicial review proceedings against SLAB. It was submitted that the cost of the present litigation should fall on the person who has caused it, unless circumstances justifed otherwise, and moreover, the expenses should be dealt with now. The second respondents also opposed the petitioner's motion, arguing that the question of expenses should be resolved at the same time as the disposal of the petition, and that there was likely to be a delay of many months before the petitioner's entitlement to legal aid could finally be resolved.
The court noted that expenses were essentially a matter for the court's discretion, requiring to be dealt with on an equitable view of the whole circumstances of the case. Having heard submissions, the Lord Ordinary concluded that the peittioner was liable for expenses incurred to date, and that there was no good reason for withholding that finding. However, the court noted that it was not necessarily bound to decree against the petitioner for immediate payment, so instead made a finding for expenses, but expressly reserved the question of modification of those sums, allowing the petitioner the opportunity to make further submissions to the court on this point. The court was not prepared for these questions to be postponed on an indefinite basis, and certainly not until the judicial review against SLAB had been concluded, noting that it would be unreasonable to delay a final decision on expenses for an indeterminate period. A By-Order hearing has been set for 11 January 2011.