Scottish Court of Session Decisions

This case has had an unfortunate history, at least since 8 October 1996 when counsel then acting for the respondent withdrew and the diet of proof set down for that day was discharged. The respondent was then in receipt of legal aid, but that was subsequently withdrawn. Thereafter the respondent elected to conduct his own defence. A diet of proof fixed for 18 March 1997 was discharged on that date in respect of a medical certificate dated 17 March 1997 which had just been received by the Court. It certified that the respondent was unfit to attend Court because of low back pain which restricted his mobility severely. It was anticipated that his condition would shortly improve.

A fresh diet of proof was fixed for 23 September 1997. On 12 September 1997 the respondent moved to discharge that diet in respect of a medical certificate which stated that he was suffering from severe stress and anxiety symptoms. It was the doctor's opinion that the respondent would not be fit to appear in Court to conduct his own affairs. Lord Philip refused that motion in hoc statu. The proof however did not proceed on 23 September 1997 because there were no Judges available on that day to conduct it. A further diet was fixed for 9 December 1997. This took place before me. On the second day, however, it was adjourned to enable the respondent to lodge further documents to which in his cross-examination of the petitioner's principal witness, he wished to refer. 29 May 1998 was assigned as a new diet for the continued proof.

Thereafter the respondent did not lodge the documents he had referred to at the previous proof in December 1997. On 29 May 1998 the respondent appeared before me and gave an explanation for his having failed to lodge the productions and for his not having received letters from solicitors acting for the petitioner which had been sent to him regularly in the months preceding the continued proof. He also represented that he was feeling unwell, as indeed he appeared to be, and that he could not proceed that day to appear on his own behalf. I discharged the continued diet in respect of his ill health, as the interlocutor affirms. Further productions were lodged by the respondent on that day.

On 29 October 1998 which was set down the next continued diet, there were received by fax another medical certificate relating to the respondent and a letter from the respondent addressed to the Keeper's Office in Parliament House. The fax letter bears the date 29 October 1998. The medical certificate bears the date 28 October 1998. The fax letter from the respondent states that he was and is prepared to continue with his case. He explains that he has been unwell and that he is undergoing various tests in hospital (Stirling Royal Infirmary). He has been suffering from renal colic this week, together with severe migraine and nausea. He advised that a further medical report will shortly be forwarded to the Court. I was asked by the respondent in his letter to continue the proof yet again.

Mr Sellar, who appeared for the petitioner and has done so in this case since at least 1996, moved me, somewhat faintly I have to say, to continue with the proof in the absence of the respondent. In face of the most recent medical certificate (which is not very legible but bears out the respondent's own account of his indisposition), I was not prepared to do so. Having taken a little time to consider his position Mr Sellar then sought the appointment of a curator ad litem for the respondent. He referred me to the case of Drummond's Trustees v Peel's Trustees 1929 S.C. 484. In that case the whole Court held that it was competent to appoint a curator ad litem to a pupil, called as a defender in an action, for whom appearance had not been entered. That authority was used to support the wider proposition by Maxwell in his Court of Session Practice at page 226 that:

Mr Sellar submitted that the respondent fell into the category of an incapax because of his recurring periods of ill health, and so I should make the appointment on his motion. That was the only way in which progress could be made in this case. The petitioner, after all, had the public interest and indeed public protection to consider. While I have considerable sympathy for Mr Sellar's submission I do not think that I can give effect to his motion. I do not consider that the respondent can properly be considered an incapax. Indeed, I asked for assistance from Mr Sellar concerning the criteria for finding someone to be incapax and he was unable to direct me to any illuminating or even illustrative authority on that subject.

I do, however, think that the stage has been reached when the respondent must decide whether he is physically fit to continue to represent himself. On the last occasion when he appeared before me, I strongly urged him to re-apply through a solicitor for legal aid. The respondent did not then suggest that he would not be eligible for it. I was led to understand on 29 October 1998 that the respondent is at present in receipt of state benefits. I was also informed that he has, as yet, made no application for legal aid. If he decides that he is not fit to conduct his own defence, he must instruct solicitors to represent him. If he decides that he is fit to do so, then he must appear at the next continued diet of proof. I wish it to be clearly understood that if on the eve or even the morning of the next continued diet he is ill, the proof will continue in his absence. I am sure the respondent understands the nature of the choice that is now before him, and the desirability of his dispelling any impression which there may be that he is temporising or even abusing the Court process. In these circumstances I will discharge the continued diet set down for 29 October 1998 and order that a further diet be appointed as soon as may be. Mr Sellar moved me for the expenses of the discharge of the diet. These expenses I have reserved meantime.