A TILLICOULTRY lawyer has won a second Court of Session case against Clackmannanshire Council in the space of two years.

Craig Dunbar, of Watersrule Solicitors, was forced to defend an action in Edinburgh last week after the local authority appealed a previous decision made in Alloa Sheriff Court.

The matter centred around Mr Dunbar’s role as a curator ad litem – a person appointed to safeguard the interests of a child involved in legal proceedings such as adoption.

However, the solicitor and the council disagreed on the amount he should be paid for providing the public service and the issue had to be resolved by a panel of judges. He said: “This is a decision which will impact on all curators and on all 32 local authorities in Scotland.

“I couldn’t understand what Clackmannanshire Council were playing at. I’m very sad that it reached this stage.

“The law was always clear; I don’t know why they thought to take it up at the Court of Session because it was never going anywhere.”

In July last year, Mr Dunbar was appointed curator for a child who was then a month shy of her second birthday.

At another hearing, a few weeks later, he applied for expenses, as provided for by rule 2(a) of the Sheriff Court Adoption Rules 2009.

The council opposed the application saying Mr Dunbar was entitled to no more than the £350 fee they had set down by way of regulation 10 of the Curators Ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001.
The sheriff disagreed and ruled in favour of Mr Dunbar. As a result, the matter was appealed at sheriff court level with a judgment handed out in November 10 last year.

In his written note, Sheriff David Mackie said: “I am satisfied that the motion of the curator ad litem [Mr Dunbar] has been competently made and should be granted. While the local authority has been conferred with a discretion to set fees and allowances...the overall authority in relation to an application under the Adoption Rules rests with the sheriff in terms of [rule 2].”

The council later appealed the decision at the Court of Session – the highest civil court in Scotland – arguing Mr Dunbar had accepted their payment framework when he joined the panel of curators for Clackmannanshire.

Their submissions further claimed that “it had not been the legislature’s intention to provide two separate sources of payment for this work”.

However, agents for Mr Dunbar posited that “the court has an inherent power to regulate expenses in civil proceedings”.

They added: “The true purpose of the 2001 Regulations was to provide assurance to persons carrying out these important duties that they would be paid, even if no party to the litigation could be found liable in expenses or was able to make such an award.”

The panel – made up of Lady Dorrian, the Lord Justice Clerk; Lady Clark of Calton; Lord Malcolm – agreed with Sheriff Mackie’s earlier ruling.

A spokesperson from Clackmannanshire Council said: “We note the Court’s very recent decision and will be studying the implications carefully to see what action may be required.”

In June 2014, Mr Dunbart won a case against Clackmannanshire Council for refusing to increase his fee on a complicated court case involving the well-being of a young child. 

He had accused the local authority of discrimination after it approved the request for more money made by another safeguarder, appointed by the children’s panel to represent another child in the case, but refused his own.

He took the council to the Court of Session and the judge found in his favour – and also ordered the council to pay his legal expenses for bringing the action to court.