Assessment of Additional Fees in Malicious Prosecution: Insights from Ahmad v Lord Advocate

Introduction

The case of Imran Ahmad v The Lord Advocate ([2024] CSOH 110) adjudicated by the Scottish Court of Session presents a significant development in the realm of malicious prosecution and the awarding of additional fees under the Act of Sederunt. Ahmad, the pursuer, sought substantial damages of £60 million against the Lord Advocate for malicious prosecution. Despite the Lord Advocate's early admission of liability, the court unearthed elements of dishonesty in Ahmad's presentation of his claim, leading to a nuanced decision that not only limited the damages awarded but also addressed the complexities surrounding the awarding of additional fees and expenses.

This commentary delves into the intricate facets of the judgment, unpacking the legal principles established, the judicial reasoning employed, and the broader implications for future litigation involving malicious prosecution and the assessment of legal fees.

Summary of the Judgment

In Ahmad v Lord Advocate, the pursuer sought £60 million in damages for malicious prosecution. While the Lord Advocate conceded liability early on, the court identified dishonesty in Ahmad's claim presentation. Upon a restricted quantum proof, the court awarded Ahmad £368,061 plus interest—a mere fraction of the original claim—while imposing a 50% restriction on expenses due to Ahmad's misconduct. This decision eschewed further punitive measures, such as contempt proceedings.

Subsequently, Ahmad sought to recover the full expenses of the by-order hearing and an additional fee under rule 42.14 of the Act of Sederunt. The Lord Advocate opposed these motions, arguing that Ahmad's conduct warranted such restrictions. The court meticulously evaluated each head (a to g) under rule 42.14(3) to determine the appropriateness of granting an additional fee. Ultimately, only head (e)—pertaining to the importance of the cause to the client—was deemed sufficient to warrant an additional fee, recommending a 10% uplift. Consequently, Ahmad was awarded the expenses of the opposed motion hearing without the 50% restriction, while the additional fee was subject to a 10% uplift recommendation.

Analysis

Precedents Cited

The judgment references several key precedents that influenced the court's decision:

Whitehouse v Lord Advocate (2020 SC 133): Addressed the Lord Advocate's immunity from suit, a pivotal factor in assessing the current case.
Trunature Ltd v Scotnet (1974) Ltd (2008 SLT 653): Provided guidance on the conditions under which additional fees can be applied for by the successful party.
Gray v Babcock Power Ltd [1990] SLT 693: Influenced the court's stance on the auditor's discretion and the assessment of additional charges.
Grier v Lord Advocate (2023 SC 116): Assisted in evaluating the complexity and conventional approaches to solatium awards.
Financial Conduct Authority v Avacade Ltd (in Liquidation) [2021] EWCA 1206; [2021] Bus LR 1810: Guided the application of the Financial Services and Markets Act 2000 (FSMA) and the RAO.
Centenary 6 Ltd v TLT LLP (2024) CSIH 29; 2024 SLT 1106: Influenced the recommendation on the percentage uplift for additional fees.
Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC): Provided context on the flexibility inherent in the mediation process.

These precedents collectively shaped the court's approach to evaluating the legitimacy of additional fees, the assessment of fees' complexity, and the boundaries of solicitors' responsibilities in frivolous or dishonestly presented claims.

Legal Reasoning

The court employed a meticulous approach in dissecting the pursuer's claim and the subsequent motions for additional fees. Key aspects of the legal reasoning include:

Admission of Liability and Conditional Damages: Despite the initial admission of liability by the Lord Advocate, the court scrutinized the pursuer's conduct, finding dishonesty that warranted limiting the damages and imposing restrictions on expenses.
Assessment of Additional Fees: Under rule 42.14(3) of the Act of Sederunt, the court evaluated seven specific heads to determine the appropriateness of an additional fee. Each head was assessed independently ("from the bottom up"), ensuring that no undue weight was given to heads unrelated to the core merits of the case.
Rejection of Unjust Claims: The court found that many of the pursuer's claimed losses were either unsubstantiated or based on false premises, undermining the credibility of those specific heads for additional fees.
Balancing Interests: While recognizing the pursuer's partial successes, the court balanced these against the detrimental impact of his dishonesty, ultimately awarding fees only where justified.
Recommendation for Uplift: The court recommended a 10% uplift on head (e), aligning with precedents and ensuring that the additional fee was commensurate with the legitimacy of the claim's importance to the client.

This structured and principled approach underscores the court's commitment to fairness, ensuring that additional fees are awarded based on genuine merit and not merely procedural successes.

Impact

The judgment in Ahmad v Lord Advocate carries several implications for future litigation:

Enhanced Scrutiny of Claims: Plaintiffs presenting high-value claims in malicious prosecution must now be prepared for rigorous judicial scrutiny, especially concerning the honesty and substantiation of their claims.
Clarification on Additional Fees: The decision provides clear guidance on when additional fees can be warranted under rule 42.14, emphasizing a head-by-head assessment and reinforcing the discretion of the court and auditor.
Discouragement of Inflated Claims: By highlighting the consequences of presenting inflated or dishonest claims, the judgment serves as a deterrent against such practices, promoting integrity in litigation.
Guidance for Solicitors: Legal practitioners can draw from this case to better understand the boundaries of their responsibilities and the factors that courts consider when assessing additional fees.
Precedential Value: Although the court noted that this decision has not been cited in other cases yet, its detailed reasoning provides a valuable reference for similar future cases, potentially shaping the judicial approach to malicious prosecution and fee assessments.

Overall, the judgment reinforces the judiciary's role in ensuring that legal proceedings remain just and that financial awards correspond appropriately to the merits and conduct of the parties involved.

Complex Concepts Simplified

Several legal concepts within this judgment may be intricate for those unfamiliar with Scottish law. Here's a breakdown:

Malicious Prosecution: A wrongful act where one party initiates legal proceedings against another without reasonable grounds, often to harass or harm.
Rule 42.14 of Schedule 2 of the Act of Sederunt: Governs the awarding of additional fees to solicitors in the Court of Session, outlining specific criteria (heads) under which such fees may be granted.
Heads (a) to (g): Specific categories under Rule 42.14(3) that courts consider when determining the appropriateness of awarding additional fees, such as the complexity of the case, the skill required, the importance to the client, and more.
Solatium: Compensation awarded for non-monetary damages, such as emotional distress or reputational harm.
Contempt of Court: An offense of being disobedient or disrespectful towards the court or its officers, which can lead to penalties.
Auditor's Discretion: The authority granted to an auditor to make independent assessments regarding the awarding of fees and expenses, based on the court's recommendations and the evidence presented.

Understanding these terms is essential for comprehending the nuances of the judgment and its implications for legal practice.

Conclusion

The judgment in Ahmad v Lord Advocate serves as a pivotal reference in the context of malicious prosecution and the intricate mechanisms governing the awarding of additional fees in Scottish courts. By meticulously dissecting each head under Rule 42.14 and balancing the pursuer's partial successes against his dishonesty, the court underscored the importance of integrity and substantiation in legal claims.

The decision not only curtails the awarding of inflated or unjustified fees but also provides a clear framework for assessing future cases involving malicious prosecution. Legal practitioners can draw valuable lessons from this case, particularly regarding the presentation of claims and the ethical considerations inherent in litigation.

Ultimately, Ahmad v Lord Advocate reinforces the judiciary's commitment to fairness, transparency, and the responsible administration of justice, ensuring that financial remedies align with the true merits and conduct of the parties involved.