Scottish Human Rights Law Group

Structural bias and the Auditor of the Court of Session

It was claimed that there was a breach of Article 6 impartiality from the fact that the fees for the Auditor of the Court of Session, who has the task of fixing the precise amount of fees which the winning party in a civil action in the Court of Session who has been awarded expenses may recover from the losing side, are determined in part by how much he decides to award the recovering party on taxation.  

The paying party argued that hat the table of fees should be construed as entitling the auditor to charge fee fund dues only on the account as submitted by the recovering party rather than on any higher final amount taxed by the auditor (which might including any additional fee awarded by the auditor to the recovering party reflect complexity in the cases and the like). The Lord Ordinary rejected the paying party’s submissions holding that properly construed the rules governing taxation did not give the auditor a direct financial interest in the decision made as to the level of the additional fee since the auditor did not select the level of the additional fee in a vacuum but instead was presented with submissions as to the appropriate level, and in the case at hand head made an assessment significantly below the range for which the entitled party contended.

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