I can’t divulge the amount being claimed by the Lord Advocate in #PeoplesAS30 (yet), or the projected amount to be claimed by the Advocate General, but can say it’s eyewatering and clearly malicious. Obvious attempt to make an example and put we mere plebs in our place for asking a reasonable question that politicians have failed to answer for 22 years.
That being said, the lord president himself (Scotlands highest judge) opined (without being prompted and unsolicited) in his ruling (para 70) that he found the lower amount founded upon by Lady Carmichael of £180K, to be manifestly unjust.
He directly called into question, the report by Gill many moons ago, which has caused so many issues for the ordinary person in public law litigation. Here’s what the Lord President actually said in his ruling of April:
 Before leaving the matter of expenses, it is worth commenting that the figures, which were given to Lord Ordinary about the potential level of expense, provide considerable cause for concern in relation to access to justice. The sum of £65,000 per party, which the Lord Ordinary fixed upon, is worrying, if this is thought to be reasonable in a case which involves no substantial dispute of fact and is resolved at a legal debate. Although the case proceeded, correctly, as an action rather than a petition for judicial review, the expenses regime ought not to be too different. The judicial review hybrid petition process was designed to be a “speedy and cheap” method of review in the wake of the remarks which were made in Brown v Hamilton District Council 1983 SC (HL) 1 (Lord Fraser at 49; see Prior v Scottish Ministers 2020 SLT 762, LP (Carloway), delivering the opinion of the court, at para ). If the cost of pursuing an action, which does not even require proof, is to amount to sums of the nature contemplated by the Lord Ordinary, the court, and perhaps also the Auditor, will require to consider what steps require to be taken to remedy the position. It may need to revisit the principles of the Gill Review in this regard.
So! we’ve decided to ask the Lord President himself (nicely), to have a look, and we’ll see what he says, shall we?
What I can say is that what’s about to follow, is not going to bode well for the Scottish Government. I mean when they put their bill through (if they ever get around to it) and the UK Gov challenges it in court (which they will) people are going to realise: “ehhh…..wait a minute! Did the Scottish Government not have the chance to have this question answered in the #PeoplesAS30?” And the answer to that is….yes…yes they did. But instead of doing so, they opted to be the ones responsible for kiboshing it all so they could waste taxpayers money doing it all over again.
We’ll just have to see what happens from here, but the fact remains that if there is one legacy this case leaves, it is to show that the legal system in Scotland is manifestly unjust for the ordinary plebian. What is heartening though, is the bunch at Balfour and Manson. I have never met a more dedicated and respectable bunch in my life. Talk about loving one’s career path, and talk about supporting their clients! They are an amazing bunch! And as for Aidan and David (Advocate and Junior), they come under the same heading. It has been one of the biggest privileges of my life to be represented by these people. They are a testament to the practice of law.
So, we’ll just have to see what comes next, we all knew this could happen, but to the malicious extent it has, has been an eye-opener. Woe betide the person who seeks an answer to a legitimate question – expect your own tax money to be used to mince you into the ground. It’s been a lesson in exposing how skewed the courts system has become for the ordinary person – hopefully, the legacy of this case will be the Lord President having the opportunity to set a precedent that makes all future litigation for holding government to account, more accessible for the common person. We shall see.