Scottish Court of Session Decisions

[1] This Opinion concerns our reasons for refusing various motions made by the first reclaimer, Mr. Frost on his own behalf, and on behalf of his wife, the second reclaimer, to the effect that there were grounds why each and every member of the court should, or at least might choose to, decline jurisdiction to hear the reclaiming motion and determine the issues of law which it raises.

[2] Mr. Frost explained that in the case of one member of the court the objection was that, as a judge sitting in the Outer House, that member had in 1995 refused a motion made by Mr. Frost in another action in which the present defenders and reclaimers were the pursuers and the present pursuers and respondents were the defenders. The motion concerned was to allow receipt of a minute of amendment, the terms of which were materially the same as those subsequently introduced into the present action by way of a counterclaim by the present reclaimers. Further, Mr. Frost said that the judge had written a note to the effect that he "refused" to be the judge to hear a procedure roll debate in the other action. A copy of this note had been put in the process of another action in which the Frosts were being sued by a firm of solicitors. Mr. Frost's submission was that in these circumstances there was a reasonable suspicion as to the impartiality of the judge and he should decline jurisdiction. At this point it is convenient to record that all Mr. Frost's motions with regard to declinature of jurisdiction were based on the proposition that there was a legitimate apprehension that the judge concerned would be unable to approach the issues in the case impartially. It is, however, clear that what is required to justify declinature on such a ground is legitimate apprehension of impartiality judged objectively (see Hoekstra v. H.M. Advocate (No. 2) 2000 S.C.C.R. 367, L.J.G. delivering the Opinion of the Court, at page 382C).

[3] Upon the first point raised, it is plain that the judge's decision was of a procedural character. The minute of amendment (which sought to introduce additional grounds of action on the eve of a procedure roll hearing) would, if received at that time, have involved the inevitable discharge of that hearing. It was not suggested that the judge had formed or expressed any view on the merits of these additional grounds. In such circumstances there is not raised any reasonable suspicion of impartiality so as to make declinature of jurisdiction appropriate. Upon the second point, that relating to the alleged note, the judge has no recollection of writing any such note or, indeed, of declining to be the judge to hear any procedure roll debate. A search of the process failed to reveal any such note. Although Mr. Frost maintained that a copy of it had been lodged in another action in which he was a party, no copy was made available to this court for consideration of its content and context. In these circumstances, no weight can be given to this point.

[4] In this situation, there are no grounds advanced, or indeed which could be advanced, by Mr. Frost on which the judge should appropriately decline jurisdiction.

[5] Mr. Frost then invited another member of the court to consider declining jurisdiction. The basis in this case was that the judge shared the surname of someone who, in 1982, was a purported witness to a Will of a man whose surname was supplied. It had been suggested that the judge may have been the witness concerned. The point was that the Will might be becoming litigious, the suggestion being that the Will had been purportedly executed (or witnessed) ten days after the deceased died. Accordingly, there was a situation where the witness might be sued by Mr. Frost who had an interest in the matter. The judge has no knowledge whatsoever of the matter alleged. In particular, he has no knowledge of ever witnessing a Will by a man of the surname referred to. No ground for declinature arises. In the end Mr. Frost appeared to depart from this challenge.

[6] Mr. Frost then submitted that the remaining judge should decline jurisdiction on the grounds of his alleged attitude and behaviour on an occasion on 20 December 1996 when this case came before him in the Outer House on the By Order Roll. Mr. Frost's principal point was that the judge had in terms accused Mr. Frost of being a "liar". It is appropriate at this point to refer to the actual terms of the interlocutor of the court for that day. The interlocutor reads:

[7] While the judge has, himself, no recollection whatsoever of the occasion in question, Mr. Nicol, counsel for the respondents, stated that Mr. Frost appeared as a party litigant on this occasion with a faxed copy of an order from Bradford County Court claiming that as a result of the order the Court of Session had no jurisdiction to continue with the action. This was because the order of the English court purportedly gave effect to what is known as an Individual Voluntary Agreement proposed to be made under the English law of insolvency. Following submissions by Mr. Nicol the judge had been unwilling to proceed on the basis of a faxed copy of an order, the effect of which in Scotland being in any event unclear. Hence the terms of the interlocutor concerned. It appears that the reference in the interlocutor to a "statement" dated 3 December 1996 related to the same proceedings in England. In the result, as the interlocutor confirms, the judge continued the case on the By Order Roll for one week to allow further and authenticated documents to be produced by the reclaimers and the effect of such documents to be then considered. The judge accepts that in light of Mr. Nicol's attitude he would not have accepted Mr. Frost's submission that the Court of Session had no authority to proceed further in the present action without such authentication and check as to the effect of any such English order.

[8] Mr. Frost claimed to have been upset by the judge's refusal to accept his submission that the Court of Session could not continue with the present action standing his production of the faxed order. He stated that, on the following day, he dictated to his wife a letter addressed to the Lord President protesting at the behaviour of the judge at the By Order Roll. When Mr. Frost initially raised this matter, on the first scheduled day of the three days allowed for the hearing of the reclaiming motion, he had no copy of this letter and the court adjourned to allow him to obtain a copy and to attempt to recover the principal. By this time, it was mid afternoon on the first scheduled day of the hearing. On the following day, Mr. Frost produced what was said to be a copy and his wife, the second reclaimer, stated to the court that she had typed the letter on the day following the hearing on 20 December 1996 and further that, although she could not remember the words used by the judge, she would not have typed what her husband dictated to her unless it materially coincided with what she recollected had happened. That said, a reference in the letter to a comment by the judge regarding a lack of her husband's "sense of road direction" turned out, according to Mrs. Frost, to be a reference to the judge enquiring of her husband whether he knew the whereabouts of the office of the solicitors acting for the pursuers, to which he had undertaken to deliver the additional documents. The letter is quite lengthy and involves complaints as to alleged failure by the judge to exercise the "decorum, integrity and balance of competent judgment which could reasonably be expected of one who dons the Queen's robes". It stated that the judge had said that the Lord President had been in error at a "Procedure Roll" hearing in June 1996 in the present case in failing to reject the action on account of the now reclaimers' inexpert pleadings. It complained as to the judge's treatment of the faxed order of Bradford County Court. It complained that the judge had said that the faxed copy was "possibly forged" and would only agree grudgingly to it being reviewed for its relevance "if any" by the Vacation Judge on 27 December 1996. It claimed that the judge, referring to Mr. Frost, had

He stated that he was not allowed to address the court. He complained that he was ordered to lodge the necessary documents at the premises of the solicitors of the pursuers on Boxing Day. He then went on to make general complaints about commercial justice in Scotland. He finished by saying that the judge might perhaps be found a job in the Falklands.

[9] We accept that Mr. Frost may have been very upset by his failure to obtain what he wanted at the By Order Roll hearing concerned. We accept also, for the purposes of dealing with this objection, that Mrs. Frost believes that she would only have typed a letter dictated by her husband which, as she saw it, reflected substantially what had occurred. In the situation above described, particularly as it related to matters occurring so long ago, we thought it appropriate to check with others as to their recollection of what had happened. Counsel for the respondents was present on the occasion concerned and stated that if the things alleged to have been said had been said not only would he have remembered them but they would have been relayed back to his clients, who would have been interested in noting any adverse observations made about Mr. Frost. So far as any suggestion of the judge saying that a document had been "forged" was concerned counsel could only say that the first sighting by him of the order of Bradford County Court referred to was on the morning of that hearing. The respondents had not accepted either its authenticity or effect. So far as counsel was concerned, what the judge had done was to indicate a concern to be satisfied as to the authenticity and effect of the faxed and unfamiliar document founded upon by Mr. Frost by having a proper version of it and information as to its effect. The judge had not said that it was a forgery. The judge may have said something along the lines, "This is only a piece of paper". He also mentioned that, while Mr. Frost's letter had referred to a lady advocate being present, there had, in fact, been no lady advocate involved in the case. The solicitor for the respondents also recollected there being a discussion as to the faxed document but the judge had not used the sort of words which had been attributed to him. The judge had simply been being sceptical about attributing any effect to the faxed document without verification and clarification. It was checked by telephone with the clerk of the court on the date concerned as to his recollection of events and he reported that he, in common with the judge, had no recollection of Mr. Frost appearing before the judge. If, however, the behaviour alleged had occurred he would have remembered it. The judge himself is entirely confident that he would not have behaved in anything resembling the rude and improper manner described in the letter although he readily accepts that he would have pointed out to Mr. Frost as best and as clearly as he could the need for authority of the Order to be demonstrated, its effect clarified and the impossibility of accepting assertions made at the bar of the court as being in any way conclusive.

[10] In deciding whether to decline jurisdiction, a judge has a duty to apply the objective test of legitimate apprehension of impartiality already referred to. In particular it would never do if a judge was to feel himself or herself disqualified simply by reason of unfounded allegations made against him or her. By definition, if all that is shown is a clearly unjustified apprehension of impartiality then the judge has a duty not to decline jurisdiction. In this regard, a judge and the court as a whole have a duty to all litigants to expedite the progress of litigations consistently with the application of the rules of natural justice.

[11] In relation to this objection we are satisfied, accordingly, that no valid ground has been demonstrated for the judge to decline jurisdiction. In the course of the hearing it became evident that Mr. Frost is prone to use the word "liar", and cognate and similar expressions, with reference to any person who advances a proposition, factual or legal, with which he disagrees. Being as generous as we can to Mr. Frost, we can only conclude that, the judge having questioned the authenticity and effect of the document relied on, Mr. Frost regarded such a reaction as tantamount to a statement by the judge that Mr. Frost was a liar and that the faxed document was a forgery. Such a deduction would, of course, be quite unjustified. It may also be that the judge was perceived as acting robustly but that, without more, could not, in any way, justify disqualification. We reject as unfounded in fact those parts of the letter, explained as being composed by Mr. Frost and typed by his wife when disappointed at the outcome of the By Order Roll hearing, which are relevant to the matter of disqualification.

[12] Having made the motions already mentioned, Mr. Frost then sought to embark on a new motion of which no notice had been given. Mr. Frost sought to raise this matter at the end of proceedings on the first afternoon of the scheduled hearing. The motion involved the proposition that, despite Mr. Frost's professed anxiety to have the appeal decided as quickly as possible, there was an objection to any member of the present bench of the Court of Session hearing his appeal because they were all members of the Faculty of Advocates. Mr. Frost indicated that his submissions on this matter, if he was allowed to pursue it, would take a number of hours. The objection appeared to be concerned with the proposition that it was incompatible with the holding of judicial office that a judge retain membership, of whatever kind, of a professional legal body. There was also a suggestion that in some unspecified way Mr. Frost might in the future become involved in proceedings against the Faculty. As Mr. Frost pointed out, the court has a duty to assist party litigants in some circumstances where such assistance would not be afforded to counsel. We informed Mr. Frost that we would not entertain his proposed submission on what was clearly an unstateable argument which would merely delay consideration of the merits of the reclaiming motion, which he himself had expressed a wish to be heard expeditiously.

[13] Finally we also wish to add certain comments which are intended to be constructive. During the hearing attempts from the bench designed to confine Mr. Frost to submissions relevant to resolution of the reclaiming motion clearly disenchanted not only Mr. Frost but also others present in court who appeared to be his supporters and who may not have appreciated the irrelevance of most of what was being said by Mr. Frost. The problem for the bench was that Mr. Frost avowed that the reclaimers wished to expedite the proceedings but his presentation tended to have the reverse effect. It is clear from what Mr. Frost said and from correspondence which he produced that this sort of situation has happened before. Such extreme experiences are happily relatively rare. The crucial point is that their occurrence does not mean that judges cannot adjudicate impartially on the real issues raised in the case and it is important to stress this.