THE general rule in Scots law is that “expenses follow success”. This makes intuitive sense.

Imagine you’ve been the subject of a spurious personal injury suit, and the court finds in your favour. That slip and fall on the winter ice, or prang in the car, wasn’t your fault. No wrong done, no injury inflicted and no compensation owed.

Or imagine your landlord drags you through the courts alleging you hadn’t paid your rent, despite clear evidence to the contrary. Say the sheriff believes your side of the story, and kicks the land baron’s suit out of court.

You’d cut a pretty glum figure if you had to dip into your wallet to pay your own legal fees. You’d feel that your opponent had inflicted these costs upon you. And I dare say you’d feel that they should foot the bill for the legal snafu their failed case created. And lord knows, litigants can incur considerable costs in winning their cases in our highest courts, even without appeal after appeal.

Think of the court fees, the solicitors’ bills and the advocate’s share, not to mention all of the effort – and ticking billable hours – of research and preparation put into presenting a solid case, thumbing through the dusty old legal texts, and mastering the record to put witnesses to cross-examination.

A worker is worth their hire. Lawyers in our civil and criminal courts do diligent work, carefully and conscientiously. But the costs of litigation would bring a tear to a glass eye. The risks are considerable, personal, potentially ruinous and difficult to quantify. Too often, people are priced out of access to justice.

For the Orkney Four, these issues have taken an acutely personal turn. His election having been upheld by Lady Paton and Lord Matthews, Alistair Carmichael hopes to press his advantage and secure every penny he can from the election petitioners. And that big crowdfunding pot just doesn’t look big enough.

There is no “two out of three ain’t bad” rule in our courts. The petitioners’ surprise successes on two points out of three don’t rub out the bottom line: they lost. But while the general rule of law is agin them, there may be qualified grounds for optimism in the petitioners’ camp.

For although expenses generally follow success, this is not automatic. The court retains a discretion to reduce the liabilities of the losing party, even to nil. And in exercising their discretion in awarding expenses, judges will look at all the circumstances of the case.

Exceptions to the rule that the loser ponies up may be made if, for example, the winning party’s conduct before the court has been improper, iffy or unreasonable. And here, the petitioners might detect just a chink of light amid the encircling gloom. Let me remind you what the Election Court made of Carmichael’s performance in evidence before it.

“We had no concerns about the credibility and reliability of the witnesses, with one exception,” Lady Paton wrote. The former Secretary of State was a teller of “blatant” lies. “Unimpressive”, his behaviour demonstrating “a lack of candour”. In his actions, “at best disingenuous, at worst evasive and self-serving”.

In his murder cases, Rumpole of the Bailey always prayed for a dislikeable corpse. In deciding whether or not to award him his expenses, the court faces a compromised, tarnished winner in Carmichael.

But for the petitioners, counting their pennies, it will be an anxious wait.

Orkney Four: Alistair Carmichael is going for our souls in Frenchgate court costs battle

The National View: The Orkney Four deserve our continuing support