New Portobello High School - PPAG Judicial Review

[Porty]

ON QC FEE CAPPING-RE SCOOPS POST

It is certainly possible. Earlier, years ago, there was a discussion about capping. I can't recall who the contributors were but there was talk of a QC code of conduct. Something to do with QC's having to charge at least a minimum fee in order to keep proceedings equitable. I may be talking pants.

Why don't you ask some of the legal bods at work?

The cost of their own QC and legal team may be capped but there's no such limit on the Council's costs> And I understand there's some fairly high level lobbying going on to ensure the council will pursue. As is the norm in civil cases.

[Scoop]

....but you are culpable for yours. Which you have just demonstrated better that I ever could have done.

How so?

I'd be wasting my time. And yours.

[Porty]

Is been fun- night, night.
And a special goodnight to you seashell, you truly are the Mike Yarwood of internet bulletin boards. Hope the kids are all tucked up in bed and ready for the 5 mile hike to school in the morning. may Bob be with you.

[Scoop]

ON QC FEE CAPPING-RE SCOOPS POST

It is certainly possible. Earlier, years ago, there was a discussion about capping. I can't recall who the contributors were but there was talk of a QC code of conduct. Something to do with QC's having to charge at least a minimum fee in order to keep proceedings equitable. I may be talking pants.

Why don't you ask some of the legal bods at work?

The cost of their own QC and legal team may be capped but there's no such limit on the Council's costs> And I understand there's some fairly high level lobbying going on to ensure the council will pursue. As is the norm in civil cases.

I don't have any legal bods at work, odd that you should think that I do Porty. You know me better than that. Ish.

And you can't know where the council's liabilities will end up. Come on, you know how it works better than this. This is bread and butter stuff for the council' s (gawd, I almost typed "counsel" there) solicitors, there is likely to be an agreement in place, probably verbal, maybe agreed over a pint or two, about costs / future work, etc, etc. Or am I just an old cynic? Actually, yes, I am. Might as well say it, save someone else the trouble.

[seanie]

....but you are culpable for yours. Which you have just demonstrated better that I ever could have done.

How so?

I'd be wasting my time. And yours.

How so?

[Porty]

Legal bods was a feeble joke.
I wouldn't be surprised if theres behind the scenes discussions going on, about costs and other matters. Given the council have already coughed up to get the answer Id expect them to hardball. Maybe im just a slightly younger cynic than you.

[Scoop]

Legal bods was a feeble joke.
I wouldn't be surprised if theres behind the scenes discussions going on, about costs and other matters. Given the council have already coughed up to get the answer Id expect them to hardball. Maybe im just a slightly younger cynic than you.

Younger? Oh wait. You're right. you did use the "maybe" word. Maybe I'll let that one go. Anyway, must dash, heading for Chambers.

[Epykat]

I know "counsel" is the correct terminology.

I thought we were supposed to be talking about the council.......are they two different things? Sometimes it is like being in a court so it's easy to see why we might be getting confused and think we're on trial.

[Porty]

Not trial- scrutiny .

[Puerto bella]

We're so lucky to have such Advocacy expertise in our community

[rmolehusband]

It will create a very worrying precedent if City of Edinburgh get away with this.

Indeed, we can't have councils thinking they can run lengthy, open and inclusive consultations and planning processes then simply accept the democratic outcome of the process. Where would that lead us?

You can argue all you want about the legality of what the council is trying to do, ultimately that bit is in the hands of the courts, but the fact is that the majority of the community support the building of the school on the park. This is democracy, this is not the council trying to force through some unpopular plan on an unwilling community.

You don't want the school on the park, fair enough, many people agree with you for many differing reasons, but even more disagree. Don't fool yourself into thinking this is some sort of moral crusade against a tyrannical council for the good of common person. If we held a referendum tomorrow there is no doubt it would come out in support of building the school on the park.

[seashell]

Of course I have knowledge of the term "counsel", silly to suggest otherwise, and yes, I do still have intimate knowledge of how they "tender" (really? tender?) their fees.

If you know what counsel means, Scoop - why did you say in a previous post:
".... which I did, and then went on to give my reasons why I would not instruct "counsel" as you put it. "Counsel" must be an inside word." ?

That doesn't begin to make sense, if you know what the word means. You appear to be changing your position entirely. First you don't know what counsel means, but you know how they charge, then you do and say you always did. It's slightly confusing.
And 'counsel is the correct legal terminology.
And yes, they really do tender their fees.
How about we move on to something more riveting like a speculation about how expenses might be taxed? I'm sure you've got a lot to say about that.

Why does that not make sense? You, perhaps, need to re-read the post. I know "counsel" is the correct terminology. But backside is a word that is used when really one wants to say "arse".
Yes, they do "tender" their fees, although there are other words which can be used.
Oh my, you really have been fishing. I'm flattered, obviously, but really, you shouldn't have bothered going to all that trouble.

Why doesn't it make sense?
Quite simple - in one post implying that 'counsel' is a word I am making up, in another you state intimate acquaintance.
Fishing - nothing could be further from the truth. You are the person dropping all sorts of hints about your 'intimate' knowledge of legal procedures which nobody has taken you up on!

[seashell]

I know "counsel" is the correct terminology.

I thought we were supposed to be talking about the council.......are they two different things? Sometimes it is like being in a court so it's easy to see why we might be getting confused and think we're on trial.

I did post yesterday that 'counsel' is used to denote an advocate.
Although the words sound the same this is a online forum, not a verbal discussion so as they are spelt differently, any confusion should be minimal.

[Porty]

Maybe their "counsel" capped his fees. That's a possibility. It happens. Maybe. Possibilty. . Th.

5.10 Speculative actions. It is permissable for counsel to accept instructions "on the footing that the
[client is] unable to meet the expenses of the litigation and that there [will] be no renumeration for
[his] services except in the event of success... It has long been recognised by our courts that this is a
perfectly legitimate basis on which to carry on litigation and a reasonable indulgence to people who,
while they are not qualified for admission to [Legal Aid], are nevertheless unable to finance a costly
litigation", per Lord President Normand in X Insurance Co. v. A. & B. 1936 S.C. 225, 238-9. The
rules governing the conduct of speculative actions are set out in paragraph 9.6 below. So far as fees
are concerned, counsel is only entitled to the fees recovered on taxation from the party found liable in
expenses. (The instructing solicitor may include fees to counsel, although not paid, in his account of
expenses - see Sim v. Scottish National Heritable Property Co. Ltd. (1889) 16 R. 583 and earlier
cases there cited.) Counsel may not agree to act on the basis that additional fees will be paid by the
client out of the principal sum recovered in the action - see paragraph 4.3.6 above..

Mr Martin could be acting on a no win no cost basis, although I'm not sure if "Speculative actions" include civil cases?

and

9.6 SPECULATIVE ACTIONS (See paragraph 5.10 above)
In speculative actions, counsel has a particular responsibility to the court both with regard to his own
assessment of the merits of the case and with regard to the advice which he gives to the instructing
solicitor. The nature of the responsibility undertaken by counsel and solicitor was stated thus by
Lord President Normand (X Insurance Co. v. A. & B. 1936 S.C. 225, 239) -
"It has long been recognised by our Courts that this is a perfectly legitimate basis on which
to carry on litigation and a reasonable indulgence to people who while they are not qualified
for admission to [Legal Aid] are nevertheless unable to finance a costly litigation. But it
has equally been recognised that there is involved in such business a grave risk of abuse
unless it is carried on with strict regard to honour by all who are professionally concerned in
it. Before acting in business of this kind it is the imperative duty of the solicitors and of
the counsel to consider whether the party for whom they are to act has a reasonable prospect
of success. The reasons for this are obvious, and need no discussion. If a solicitor, when
asked to conduct the case on a speculative footing, is, after consideration, unable to advise
that there is a reasonable prospect of success, he should refuse to conduct the case. But, if
he has reasonable doubts about the prospect of success, he is justified in consulting counsel.
20
If counsel advises that the action may properly be raised, the solicitor is entitled to follow
his advice, and in the future conduct of the action he is bound to act in accordance with
counsel's instructions. If he does this after having fairly disclosed to counsel all the
information at his disposal, he will not be exposed to a charge of professional misconduct.
In order that the prospects of success may be fairly estimated by the solicitor and by counsel
in their turn, it is in most cases, where questions of fact are involved, a necessary precaution
that fair and honest precognitions of the chief witnesses who will be relied on should be
taken at the outset."
(See also the opinion of Lord Fleming, 250-251.)..

[Scoop]

I know "counsel" is the correct terminology.

I thought we were supposed to be talking about the council.......are they two different things? Sometimes it is like being in a court so it's easy to see why we might be getting confused and think we're on trial.

I did post yesterday that 'counsel' is used to denote an advocate.
Although the words sound the same this is a online forum, not a verbal discussion so as they are spelt differently, any confusion should be minimal.

You're being funny, right? You're not American by any chance, are you?

[Scoop]

That doesn't begin to make sense, if you know what the word means. You appear to be changing your position entirely. First you don't know what counsel means, but you know how they charge, then you do and say you always did. It's slightly confusing.
And 'counsel is the correct legal terminology.
And yes, they really do tender their fees.
How about we move on to something more riveting like a speculation about how expenses might be taxed? I'm sure you've got a lot to say about that.

Why doesn't it make sense?
Quite simple - in one post implying that 'counsel' is a word I am making up, in another you state intimate acquaintance.
Fishing - nothing could be further from the truth. You are the person dropping all sorts of hints about your 'intimate' knowledge of legal procedures which nobody has taken you up on!

Clearly you are tying yourself in knots here. I know what counsel means. Always have done, right from the start. What I find amusing is when normal Joe Bloggs uses bigger swankier words than is necessary to make them appear to be cleverer than they think they are. This is what you were doing by your use of "counsel" and "parlance" and "tendering", even though we ALL know they are the big and proper words to use. I was poking fun at you. i thought it made you sound quite silly. And you have fished. What I do for a living is none of your business, but it seems to have been of great interest to you. I could start hinting about how I might take some needlework with me to court next time, see if it creates an enigmatic aura of granniness around me. I'm flattered that you went to the trouble.

[Scoop]

Maybe their "counsel" capped his fees. That's a possibility. It happens. Maybe. Possibilty. . Th.

5.10 Speculative actions. It is permissable for counsel to accept instructions "on the footing that the
[client is] unable to meet the expenses of the litigation and that there [will] be no renumeration for
[his] services except in the event of success... It has long been recognised by our courts that this is a
perfectly legitimate basis on which to carry on litigation and a reasonable indulgence to people who,
while they are not qualified for admission to [Legal Aid], are nevertheless unable to finance a costly
litigation", per Lord President Normand in X Insurance Co. v. A. & B. 1936 S.C. 225, 238-9. The
rules governing the conduct of speculative actions are set out in paragraph 9.6 below. So far as fees
are concerned, counsel is only entitled to the fees recovered on taxation from the party found liable in
expenses. (The instructing solicitor may include fees to counsel, although not paid, in his account of
expenses - see Sim v. Scottish National Heritable Property Co. Ltd. (1889) 16 R. 583 and earlier
cases there cited.) Counsel may not agree to act on the basis that additional fees will be paid by the
client out of the principal sum recovered in the action - see paragraph 4.3.6 above..

Mr Martin could be acting on a no win no cost basis, although I'm not sure if "Speculative actions" include civil cases?

and

9.6 SPECULATIVE ACTIONS (See paragraph 5.10 above)
In speculative actions, counsel has a particular responsibility to the court both with regard to his own
assessment of the merits of the case and with regard to the advice which he gives to the instructing
solicitor. The nature of the responsibility undertaken by counsel and solicitor was stated thus by
Lord President Normand (X Insurance Co. v. A. & B. 1936 S.C. 225, 239) -
"It has long been recognised by our Courts that this is a perfectly legitimate basis on which
to carry on litigation and a reasonable indulgence to people who while they are not qualified
for admission to [Legal Aid] are nevertheless unable to finance a costly litigation. But it
has equally been recognised that there is involved in such business a grave risk of abuse
unless it is carried on with strict regard to honour by all who are professionally concerned in
it. Before acting in business of this kind it is the imperative duty of the solicitors and of
the counsel to consider whether the party for whom they are to act has a reasonable prospect
of success. The reasons for this are obvious, and need no discussion. If a solicitor, when
asked to conduct the case on a speculative footing, is, after consideration, unable to advise
that there is a reasonable prospect of success, he should refuse to conduct the case. But, if
he has reasonable doubts about the prospect of success, he is justified in consulting counsel.
20
If counsel advises that the action may properly be raised, the solicitor is entitled to follow
his advice, and in the future conduct of the action he is bound to act in accordance with
counsel's instructions. If he does this after having fairly disclosed to counsel all the
information at his disposal, he will not be exposed to a charge of professional misconduct.
In order that the prospects of success may be fairly estimated by the solicitor and by counsel
in their turn, it is in most cases, where questions of fact are involved, a necessary precaution
that fair and honest precognitions of the chief witnesses who will be relied on should be
taken at the outset."
(See also the opinion of Lord Fleming, 250-251.)..

They can. My guess is that more and more "counsels" will have to go down this route as business gets tighter. It's not an easy time for them just now. Welcome to the real world!

[seashell]

You're not American by any chance, are you?

Why are you so interested, Scoop?

[seashell]

Clearly you are tying yourself in knots here. I know what counsel means. Always have done, right from the start. What I find amusing is when normal Joe Bloggs uses bigger swankier words than is necessary to make them appear to be cleverer than they think they are. This is what you were doing by your use of "counsel" and "parlance" and "tendering", even though we ALL know they are the big and proper words to use. I was poking fun at you. i thought it made you sound quite silly. And you have fished. What I do for a living is none of your business, but it seems to have been of great interest to you. I could start hinting about how I might take some needlework with me to court next time, see if it creates an enigmatic aura of granniness around me. I'm flattered that you went to the trouble.

Excuse me for using legal terms when discussing a legal case!
Please be assured that I have not the slightest interest in what you may or may not do for a living.
I will admit to getting an immense amount of pleasure from reading your posts, which are great entertainment.

[Scoop]

You're not American by any chance, are you?

Why are you so interested, Scoop?

It was an observation. Americans don't get sarcasm. Perhaps a little bit too subtle for you. Americans don't do subtlety very well either.

[Scoop]

[How about we move on to something more riveting like a speculation about how expenses might be taxed? I'm sure you've got a lot to say about that..

Please be assured that I have not the slightest interest in what you may or may not do for a living.

Hmm, slightly inconsistent here Seashell. Make up your mind, are you interested, or not? Either way, it's none of your business.

[seanie]

Back to the topic? Maybe?

[Puerto bella]

Just a point of clarification: 'counsel' is both singular and plural

[161617]

What do you call multiple 'counsel'?

[Epykat]

What do you call multiple 'counsel'?

I don't know.....what do you call multiple counsel? Is it like multiple sheep or multiple duck?

[Puerto bella]

Same. You could call their Stable to confirm.

[seanie]

Different circumstances but...

Richard Anderson: 'Mora, taciturnity and acquiescence' mean the objection process will probably favour developers

The details are still being worked out but the main challenge is likely to be by way of judicial review. For such applications, a time limit (of three months) was introduced in England but not in Scotland. In what has been justified as a drive for "good administration", however, the Scottish courts appear to have taken steps to plug that gap.

They have done so by delving into the private law of Scotland and fishing out a common law concept with the slightly unwieldy title of "mora, taciturnity and acquiescence" – essentially meaning that there has been an undue delay – which they have dusted off and also applied in the field of administrative law.

Accepting that the need for prompt action may be greater in one context than another, Lord Eassie appears to have been influenced in this case by the fact that planning consents take immediate effect and might also have implications for other third parties.

And so he decided that there was a need for objectors to act with greater alacrity in planning matters. Lord Eassie was critical of the lapse of six weeks between the initial decision and the letter being sent to the councillor (and also that the letter did not contain any implication of legal challenge) and also viewed the period between that letter being sent on 25 January and the reply received on 3 April as one of delay or inactivity.

And he was critical of the fact that no immediate steps were taken by the objectors upon receipt of that reply.

He concluded that the delay was unreasonable in the circumstances and held that it allowed Moray Council (and any other interested third parties) to infer that those objecting to the grant of outline planning permission had by then acquiesced in the validity of the decision and as a result to have materially altered their positions. The petition was dismissed.

[Porty]

And so he decided that there was a need for objectors to act with greater alacrity in planning matters. Lord Eassie was critical of the lapse of six weeks between the initial decision and the letter being sent to the councillor (and also that the letter did not contain any implication of legal challenge) and also viewed the period between that letter being sent on 25 January and the reply received on 3 April as one of delay or inactivity.

And he was critical of the fact that no immediate steps were taken by the objectors upon receipt of that reply.

He concluded that the delay was unreasonable in the circumstances and held that it allowed Moray Council (and any other interested third parties) to infer that those objecting to the grant of outline planning permission had by then acquiesced in the validity of the decision and as a result to have materially altered their positions. The petition was dismissed.

For those familiar with the process of gathering a consensus from the public, the above chronology might appear to be almost swift and to the traditional Scots lawyer, a case of almost indecent haste.

However, the above decision suggests – and, for aught yet seen, might turn out to be of even more significance under the new planning system – that if you have got something you want to say in planning matters then you ought to say it quickly or be prepared to forever hold your peace!

As you say; its different circumstances. Was this case referred to by Councils Counsel at our JR? Did she devote much time to delay?

I love the bit in bold, beautifully put.

[seanie]

I think it was raised along with a couple of more recent ones. My understanding is the Scottish Courts have traditionally been reluctant to strike out cases on the basis of delay, but Scotland's ended up out of step with other jurisdictions where time-limits are fairly well defined. In the last couple of years there have been a few cases where the courts have used the Common law principle if Mora in judicial reviews and dismissed proceedings.

[Betty Windsor]

Anyone would think reading these posts that you were not interested in justice being seen to be done. I can only assume this is because you know PPAG have a strong case and you're worried. I would have thought it was in everyone's interests to ensure that councils follow the correct procedures when appropriating land. We do still live in a democracy right?
I find the arguements for building on the park very confusing and try as I might I just can't get my head round the fact that people who claim to be pro environmentalists would rather a poor neighbourhood sacrifise their only "green lung" so that their children don't have to put up with the inconvenience of a decant. There is no way of knowing for sure what the majority believe without consulting them individually, but I know the majority of people I speak (with no children set to go to PHS) with would prefer the school to be built on the existing site and for the park to be saved.
Incidently, walked past Brighton Park today-not a soul!

[Makaveli]

I would reply to the above were it not so tragically sad (and been explained to you numerous times before).

[seanie]

I don't think it's in the public interest for people to be allowed to delay for years before bringing a legal action. There's been an extensive process of evaluation, consultation and design, including a lengthy pre-planning consultation and a planning process during which more local people supported the proposals than objected, culminating in a democratic decision reached by elected Cllrs.

A tiny minority are now trying to frustrate that, with a legal challenge they could've brought three years ago.

[seanie]

And as I've said to you before...

Portobello High School is the school in the most urgent need of replacement in Edinburgh, and that has been and is a very real problem. Building on part of the park, whilst not ideal, can deliver better facilities, more cost effectively, at less cost and with less disruption to pupils than any of the limited alternatives available. The golf course stays, the mature trees remain, there will still be public green space, made more accessible by an improved path network, and publicly accessible all-weather pitches will be a big improvement on the poor quality, and little used, grass pitches that are currently there, and there will also be in excess of £150,000 of improvements to Magdalene Glen. Couple that with the benefits of a new school, finally established on a site big enough to meet its curriculum needs, and it shouldn't really be too surprising why so many local people are in favour.

[Scoop]

Here's a question, and it probably has been answered before, but indulge me please. These all weather, publically accessible pitches, how will they be managed?

[seanie]

Some sort of turnstile/catflap to allow free public access outside of formal lets.