Omar Sharif – the most elegant of actors, whether in the desert sands in Lawrence of Arabia, crossing the steppes to the sound of the balalaika in Doctor Zhivago or sitting at the bridge table, laying down another grand slam. Not a person one would normally associate with the Scottish court system.
Imagine the surprise therefore of the Scottish legal profession (or at least those who look at it) on checking the Scotcourts website list of 50 most recent published judgements in the Sheriff Court yesterday – found at http://www.scotcourts.gov.uk/opinionsApp/last50results.asp?searchtype=sheriff.
There stands the case of The Scottish Ministers v Omar Sharif – a case decided by Sheriff Swanson at Glasgow Sheriff Court!
What could the suave and debonair gentleman have done to upset Mr Salmond and his colleagues? Did he adversely compare the River Clyde to the River Nile? Did he indicate that he saw the seaside resorts of his native Egypt as more alluring than the sands at Ayr? Had he made any comments linking the former President Mubarak with any Scottish politicians? (Not that any comparison of that nature would, in any way, be justified.) The mind boggled!
Perhaps this was, following upon the trip of Brad Pitt to Glasgow, a way of getting more famous actors to visit Scotland?
Would we next see City of Edinburgh Council v Tom Hanks or Glasgow City Council v Scarlett Johansson? Scottish Water v Jack Nicolson? CalMac Ferries v Tom Cruise? The possibilities seemed endless.
Sadly however the sense of wonder and excitement quickly vanished. Glasgow Sheriff Court had not been graced by the presence of the great actor, but instead by his namesake in connection with an action to recover “Proceeds of Crime”. This Mr Sharif was an asylum seeker from Somalia.
It is a sad confession that the legal point decided by Sheriff Swanson is actually more interesting to me than if it had been “Doctor Zhivago” himself at the court!
Put shortly, although Mr Sharif succeeded in his defence of the action raised by the Scottish Ministers, whose agents, the Civil Recovery Unit, decided not to proceed to a final hearing a week before it was due, the Sheriff departed from the normal rule by which he would have been paid his costs by the unsuccessful pursuer.
Sheriff Swanson reviewed matters in light of Regina (Perinpanathan ) v City of Westminster Magistrates’ Court and another EWCA Civ 40 which raised a similar point in England. She determined that cases of this kind were unlike normal cases and the rule that “expenses follow success” did not apply without an analysis of what the case was about, why the Civil Recovery Unit had pursued the matter, why they had stopped doing so and the whole circumstances of the case.
Here they had had intelligence suggesting that Mr Sharif was a “bad egg” (a rather odd phrase to be used in this context, conjuring up images of Bertie Wooster carrying out undercover surveillance and then filing his report whilst strumming on his banjole). Mr Sharif claimed that the funds he had had seized were legitimate. The Civil Recovery Unit finally accepted that, on legal grounds, the apparent technical offence committed by Mr Sharif did not give grounds for forfeiture and they received corrected information regarding the matter which supported Mr Sharif’s position.
The argument on expenses related to two grounds. Firstly it was argued that the Civil Recovery Unit, by takin till the week prior to the case to decide their position, had acted unreasonably or unfairly. Sheriff Swanson rejected this, stating that “In all the circumstances of this case I am satisfied that Scottish Ministers acted honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of their public duty.”
The second issue regarding expenses related to the Scottish Legal Aid Board and its “clawback” provisions. If a person in receipt of Civil Legal Aid in Scotland “recovers or preserves” property in the case for which Legal Aid has been granted, then if they do not recover enough in court expenses from the other party, subject to some statutory exceptions, their solicitor’s fees are to be paid from the property so “recovered or preserved”.
Here the sum of around £5,000 in cash had been seized. In successfully defending the case, the costs incurred on behalf of Mr Sharif were about half that figure. Without an award of expenses in his favour therefore, the net effect would be that he would get back only half of the funds which the court had officially determined were his legitimately.
Sheriff Swanson looked at the statement by Mr Sharif that he had saved the sum involved from benefits he and his family received as an asylum seeker in the UK. The plan was to have some funds available for his family upon his return to Somalia. It was argued for him that he would be caused financial hardship if the clawback took place.
Sheriff Swanson rejected this, saying “If no award of expenses is made in the Defender’s favour I was advised that SLAB will seek to recover costs from the sum seized. That is a situation in which a public body will be seeking to recover from funds originally made available by another public body. In considering the question of financial hardship to the Defender against that background, I find that the reduction of the sum by the return of money to the public purse does not constitute financial hardship to the Defender in all the circumstances.”
So, all in all, a fair result? Mr Sharif gets back half of his money.Mr Sharif, effectively, pays his own solicitor. There is a saving for the public purse in Scotland and, there is now a detailed analysis of the issues which will undoubtedly continue to arise regarding these cases. The court was told that the Civil Recovery Unit handles over 700 of these cases per year, with 65% or so being from the Strathclyde Police area.
The case now goes back on the electronic bookshelf, and the paparazzi photographers can stand down, until the next famous person makes their appearance at Carlton Place!