Description
The pursuers were the Scottish Ministers' Civil Recovery Unit. The defender was a suspected heroin dealer who had cash seized from his house during a police search under s.23 of the Misuse of Drugs Act 1974. The pursuers sought to have the money forfeitured under the Proceeds of Crime Act. However, before the case proceeded to proof the pursuers moved to have the action dismissed due to lack of evidence with no expenses due to or by either party. The defender agreed to the dismissal but opposed the motion in relation to expenses.
Parties' Submissions
The pursuers argued that the sheriff should follow the approach of the English Court of Appeal in Regina v. City of Westminster Magistrates' Court (Perinpanathan case). In that case all relevant factors including financial hardship were considered and no costs were awarded. The pursuers submitted that in this case the defender could not show financial hardship as he was receiving legal aid.
The defender submitted that he would suffer financial hardship if required to pay his own expenses. He denied that he was involved in illegal drug use. He received regular sums of money by importing the legal leaf khat from London to Glasgow but this money was used to run a Somali community centre in Glasgow's south side. Any money he had saved was earmarked to pay for legal fees concerning his asylum application in the UK. As well as the financial hardship issue, the sheriff should take into account the fact that the action was brought without sufficient evidence and was abandoned by the pursuers.
Decision
The sheriff found in favour of the pursuers and held that no expenses were due to or by either party. The actions of the Scottish Minsters in pursuing this action were a reasonable exercise of their functions. It was therefore appropriate that there should be no presumption that they should pay the defender's costs.
