Scottish Court of Session Decisions

[1] The pursuers' motion on 17 August was in three parts. The third had been superseded. The second was to postpone payment of the expenses of the cause by sisting the cause until the conclusion of a reclaiming motion in an action at the instance of the defender against the pursuers due to be heard in December. Mr Frost submitted that logically I should deal with that part of the motion first, since the question whether or not the pursuers were bound to pay the taxed amount of expenses in the present case depended on the outcome of the December hearing. Mr Frost did not attempt to explain how the taxation of the account of expenses could be affected by the determination of the reclaiming motion in the other action. There was therefore no basis on which it would have been appropriate for me to sist this cause at this stage. I accordingly refused that part of the motion.

[2] The first part of the motion was for leave to reclaim my interlocutor of 21 June 2000. In presenting that part of the motion Mr Frost made it clear that the pursuers seek to challenge not only that interlocutor but those of 21 May 1999, 25 January 2000 and 15 March 2000. In the interlocutor of 25 January 2000 I refused the pursuers leave to reclaim my decision not to decline further jurisdiction in the case. Their submission then was that I could no longer be seen to be impartial.

[3] Mr Frost advanced a number of grounds in support of the motion for leave to reclaim and I shall deal with these in turn.

[4] It was the pursuers' contention at the hearing on the initial Notes of Objection that the auditor had failed to give credit for payments already made to the defenders which he ought to have taken into account. Before me today, as at the original hearing and before the auditor, Mr Frost produced no shred of evidence to show that work done, for which payment is now claimed had already been paid for.

[5] He then sought to introduce a completely new point about the effect of a failure by a party claiming payment for services provided to render a VAT invoice within three years of the provision of the services. He submitted that, if an account was not rendered within three years, it should be regarded as having prescribed. His contention was that the defenders' agents had not rendered their account within the appropriate period. He further submitted that it was pars judicis to raise the issue, particularly where one party was legally represented. That had not been done. What was startling about Mr Frost's submission was his failure to identify a point in time by which, on the basis of this argument, the account had to be rendered to avoid the consequence described. He also spoke in general terms about mora without trying to relate any part of his submission to the factual background of this case.

[6] It is Mr Frost's strongly held opinion that Mr Nicoll, counsel for the defenders, lied to the First Division at a Summar Roll hearing on 21 February 1997, and that in the course of the taxation hearings the auditor had struck out a number of items following on that date on the basis that they were not justified. Before me today and in 1999, and before the auditor, Mr Frost failed to provide any material indicating that the auditor struck out items and then later changed his determination in relation thereto. Only if he did conduct the taxation in some manner that was unfair to the pursuers could this point possibly have any relevance to the present proceedings, which are confined to the issues that arise out of the taxation of the defenders' account of expenses. I could identify no such unfairness.

[7] Allied to the submission that Mr Nicoll had misled the First Division, Mr Frost relied on a claim that Mr Nicoll also misled me. In my opinion of 21 June 2000 I have recorded Mr Nicoll's submission that the hearing of a reclaiming motion on 11 October 1996 had been concertinaed into a morning rather than the three days set down at Mr Frost's request. Mr Frost produced a letter from the office of the Keeper of the Rolls indicating that the hearing had in fact been set down for one day only. Mr Nicoll acknowledged that that was the case, apologised for inadvertently misleading the court and explained that he had become confused in his submission because of the number of different diets he had been, and continued to be, involved in in this and the other action referred to above. He pointed out that the fee charged reflected the true facts and that the error was accordingly immaterial. Mr Frost, however, related these specific examples of what he claimed was the court being deliberately misled to a general submission that there "is a widely held public perception that lawyers lie in court and so personally benefit from their lies without fear of redress". In support of that contention he relied on submissions made in 1992 to the European Court of Human Rights by A.F. Rodger, Q.C., (now Lord President) as counsel for the UK Government, supported by R.J. Reed, Advocate, (now Lord Reed) as his then junior counsel, "that the professional competence and integrity of lawyers could not always be relied upon and that they not infrequently broke their disciplinary rules," - see Campbell v United Kingdom, Eur. Court H.R., judgment of 25 March 1992, Series A no. 233; 15 E.H.R.R.137; at para.51. However, Mr Frost acknowledged that the submission made related to the conduct of solicitors and that the argument was not accepted by the court. I asked Mr Frost if he was in possession of any material to demonstrate that there was a widely held public perception that counsel lie in court. He was unable to produce any such material. I have already indicated above my opinion in relation to the hearing before the First Division on 21 February. Mr Frost did not suggest that the auditor had been in any way misled about the length of the hearing on 11 October 1996. There being no basis for concluding that there was in any submission made by Mr Nicoll any inaccuracy which materially affected the auditor's determination, and since Mr Frost was unable to produce any material to support the assertion of a widely held public perception that advocates lie in court, I did not consider that there was any basis for his contention that it was in the public interest that this issue should be considered by the Inner House.

[8] Mr Frost further submitted that there was a point of principle to be addressed in relation to my refusal to decline jurisdiction after erroneously recording the dates relied upon in his initial submissions to me. He contended that the errors which I made would arouse in the mind of an interested observer the apprehension of bias, particularly because I had accurately recorded counsel's submissions. Bearing in mind the particular errors made, I remain, as I was in June, unable to understand the reasoning behind this argument. On this occasion, however, Mr Frost went further and suggested that, while he accepted that the errors were made in good faith, the practical result was that I had not understood his argument in relation to the fee of junior counsel for the proof set down for 4 March 1997. Since junior counsel had not attended on 28 February, when there was a hearing before the Division and an attempt was made to have the motion in relation to the Minute of Abandonment heard, there could not be any reason for the instruction of junior counsel for the subsequent consultation and the proof. I should accordingly have sustained the pursuers' objection to those charges for junior counsel. In spite of mistakenly recording dates, I was in no doubt that the events to which the pursuers' submissions were directed were the hearing in the Inner House of the pursuers' application for leave to appeal and an attempt to have his motion for leave to abandon considered in the Outer House on the Friday, a consultation on the following Monday and the proof set down for the following Tuesday. There is no reason to think that the auditor did not consider all that Mr Frost submitted to him on the events of this period. Since there is nothing at all unusual about junior counsel being instructed for a proof and the consultation preceding it but not for other hearings, there still does appear to me to be any issue arising out of my erroneous recordings of dates that is appropriate for consideration by the Division.

[9] Mr Frost also submitted that in considering the submissions made by him and by Mr Nicoll I had applied different tests. He claimed that I had applied the criminal standard of proof beyond reasonable doubt in weighing up his submissions, but had applied the less rigorous standard of the balance of probabilities in considering those of Mr Nicoll. I have tried very hard to understand this argument, but have failed completely. I asked Mr Frost repeatedly to point out where this appeared on the face of my opinions. He was unable to point me to any expression which gave the impression that different standards had been applied to the submissions made by him and by Mr Nicoll.

[10] Mr Frost's last submission was that I had refused to allow the "proceedings" to be recorded and had thus failed to give effect to his right to a fair hearing. This submission was nothing short of impertinent. On the morning of the first hearing on 21 May 1999 Mr Frost recorded the proceedings. These consisted largely of his submissions to me. At lunch time it was drawn to my attention that he had done so. He had done so covertly. I raised the matter with him immediately after lunch. I advised him that if he wished to record proceedings he should obtain the authority of the court to do so, and that to do so covertly could amount to contempt of court. He stated that he would not record the proceedings further. I instructed that he should hand over the tape. He readily acknowledged that he should not have recorded proceedings without leave. He was left in no doubt that, should he wish to do so, he should seek leave. Thereafter he did not at any stage seek my permission to record the proceedings.

[11] In my opinion, there was raised in none of Mr Frost's submissions any issue on which it was appropriate for a reclaiming motion to be heard. I accordingly also refused the motion so far as it sought leave to reclaim.