Scottish Court of Session Decisions

[1] By this petition, the petitioner sought to have the respondent declared a vexatious litigant in terms of section 1 of the Vexatious Actions (Scotland) Act 1898. On 23 March 2001 we decided to grant the order sought by the petitioner.

[2] The events out of which this petition arises are not, perhaps, in themselves unduly complicated but they have given rise to a lengthy and confusing set of legal proceedings. In the course of those proceedings, the relevant circumstances have been examined and explained in a number of opinions of the court. It is not necessary to repeat all the detail set out in those opinions. For the purposes of the present petition it is, in our view, sufficient to set out the main features of the history and the principal issues which have been involved.

[3] The respondent was formerly a trustee on the estate of Mrs. Janet McLanachan. The sole beneficiary of the estate was Robert Fulton, who was incapax and an inmate of Ailsa Hospital. In about 1992, questions arose as to the trust estate and, in due course, an action of count reckoning and payment was raised in the name of Robert Fulton. The procedure which was followed in that action included the appointment of a curator ad litem to Robert Fulton, Mr. W.A. McMillan, a curator bonis and an interim judicial factor, Mr. Thomas Steel Bryson. The proceedings in the action eventually came to an end as a result of the death of the incapax Robert Fulton. By an interlocutor of 19 March 1996, the sheriff sought to dispose of the action and, inter alia, found the curator ad litem entitled to expenses out of the trust fund and refused a motion by the respondent for an order against the Scottish Legal Aid Board for payment of expenses to him. The respondent reclaimed against that interlocutor and the reclaiming motion was refused. (Fulton v. Bell and Edmund 22 November 1996). The opinion of the court delivered by Lord McCluskey fully narrates the circumstances which had given rise to the proceedings so far. The curator was found entitled to his expenses in the proceedings.

[4] The interim judicial factor eventually applied for exoneration and discharge. The respondent opposed that application, on the ground, inter alia, that the judicial factor had allowed the curator ad litem credit for expenses incurred by him. On 11 March 1998, the Lord Ordinary granted exoneration and discharge. The respondent reclaimed and the reclaiming motion was refused (Bell v. Bryson 11 March 1998). The opinion of the court delivered by the Lord Justice Clerk deals fully with the questions discussed in that reclaiming motion. The expenses of the proceedings were awarded against the respondent who, in due course, objected to the auditor's taxation of the account. That matter was dealt with in an opinion of Lord MacLean dated 12 January 1999. There was a reclaiming motion against Lord MacLean's interlocutor but that was refused on 6 May 1999. It is to be observed that in these proceedings the respondent raised substantial questions in regard to the judicial factor's management including, in particular, the issue as to the curator ad litem's expenses and these issues were considered and decided by the court.

[5] Subsequently, the curator ad litem prepared an account of the expenses awarded to him. The account was taxed. The respondent did not pay the taxed amount and proceedings were taken for his sequestration, which was granted on 28 January 1998. Mr. Douglas Jackson was appointed permanent trustee in the sequestration. The respondent petitioned for recall of the sequestration but that was refused by the Lord Ordinary (Bell v. McMillan and Jackson 29 October 1998). Again the Lord Ordinary, Lord Osborne, fully narrates the circumstances considered and determined in his opinion of that date. One of the issues raised by the respondent in these proceedings concerned the status of a joint bank account in the name of himself and his wife. The respondent argued that that account was, in some sense, a trust fund or subject to a trust and therefore did not fall under sequestration. That argument was considered and rejected. Again, therefore, in these proceedings substantive issues raised by the respondent were considered and decided. It may be observed, that the same issue in regard to the bank account was raised in a note presented by the respondent in the sequestration process seeking the exclusion of the funds from the sequestration. There was a proof in the Sheriff Court and the note was refused, following the proof, on 8 April 1999. The respondent marked an appeal against that interlocutor but the appeal was late and the court refused leave to the respondent to proceed with a late appeal.

[6] Subsequently, there have been the following further court proceedings:

(1) James Bell v. Scottish Legal Aid Board (Kilmarnock Sheriff Court A1509/97).

(2) James Bell v. William McMillan (Ayr Sheriff Court A467/1999). This was an

(3) James Bell v. Douglas Jackson (Glasgow Sheriff Court A3329/99/F). This

(4) James Bell v. Douglas B. Jackson (Glasgow Sheriff Court A35544/00). This

(5) Two further actions which have been raised can conveniently be dealt with

(6) James Bell v. James A.K. Warnock. This is an action raised by the respondent

(7) James Bell v. The Register of Sasines. This is an action raised by the

(8) James Bell v. The Accountant in Bankruptcy. In November 2000 the

(9) James Bell v. George Waddell. In January 2001, the respondent raised an

[7] While the pleadings in the actions set out in the four subparagraphs immediately above are diffuse and not easy to understand, it does appear that the issues which the respondent seeks to raise are essentially the same as those which have previously been raised and decided, that is to say, the conduct of the action of count reckoning and payment, the award of expenses to the curator ad litem, the proceedings in the sequestration, the status of the joint bank account and the action of the permanent trustee in recording a notice of title.

[8] Counsel for the petitioner submitted that looking at the whole history of these actions it appeared that the respondent was acting as a vexatious litigant, that the issues which he sought to raise had been repeatedly decided against him and that his actions could be regarded as a kind of war of attrition, in the course of which he sought, with some ingenuity, to find new targets including Mr. Warnock, Mr. Waddell and the Accountant in Bankruptcy. Counsel referred to Lord Advocate v. Cooney 1984 S.L.T. 434 and submitted that the test set out by Lord Wheatley in that case had been met.

[9] The respondent appeared in person and made a number of submissions. Generally, he submitted that it was wrong that access to the court should be denied and that his access to the court had been wrongly and improperly impeded in the past by the device of making orders for caution. The course of the proceedings had led him to distrust the entire judicial system and in particular the Sheriff Court at Kilmarnock and at least a number of judges in the Outer House. Dismissal of his actions on relevancy without enquiry into the merits amounted to discrimination against a party litigant. The right of access to the court was not to be cut down except by clear words. There were reasonable grounds for the actions in all these cases. There was a cause, a reasonable cause, for all the proceedings, which stemmed from the McLanachan estate and the action of count reckoning and payment. That action had been wholly disproved because accounts were produced and it was shown that all the revenue had been properly accounted for. Nevertheless the action had not been dismissed. This was the cause of everything that had happened since. It would be wrong to place the respondent at the mercy of a Lord Ordinary to grant him leave to proceed with justified claims.

[10] More particularly, the respondent made four submissions. Firstly he submitted that the interlocutor allowing service in the present petition granted on 2 August 2000 had restricted the induciae to seven days, instead of the normal 21. That was inherently wrong and a flaw which permeated the whole procedure, since the only judge who could alter a flawed interlocutor was the judge who pronounced it and that had not been done. Secondly, he submitted that the Lord Advocate was a biased petitioner; he had ignored letters of complaint from the respondent while apparently acting on complaints made to him by the parties against whom the respondent sought to proceed. Thirdly, he submitted that at the date of the petitions the Lord Advocate had been acting as prosecutor in the trial taking place at Lockerbie and a substantial part of his salary had been contributed by someone other than the Scottish Executive. The Lord Advocate should have delegated his authority to someone such as the Solicitor General but had not done so. Fourthly he submitted that the provisions of the 1894 Act were incompatible with Article 6 of the Convention attached to the Human Rights Act. The court should therefore make a declaration of incompatibility, since the right of access to a court of justice was impeded. The same could be said of the requirement of caution.

[11] In our view, the respondent's submissions, both general and particular, are without merit. As regards the general submissions, we only find it necessary to comment on the submission that there has been discrimination against a party litigant. It is an essential feature of Scottish court procedure that a party must set out a relevant case in his pleadings before being allowed enquiry. It may, no doubt, sometimes be difficult for a party litigant to comply with that requirement, but while some latitude in regard to matters of relevancy can be, and regularly is, extended to party litigants, it is nonetheless necessary that they should comply with the ordinary procedures of the court in essential matters. It may be added that the respondent has never sought legal assistance. Having seen the opinions delivered previously in the various cases mentioned above, we can only say that we would endorse the findings, in the opinions to which reference has been made, that the respondent's pleadings have been devoid of any statement of a comprehensible ground of action. The same can, in our opinion, be said of the pleadings in the actions in which opinions have not been delivered. Indeed, it can be seen that, in the actions raised more recently, the pleadings have become increasingly wild, as has the respondent's choice of defenders against whom to raise actions.

[12] As regards the more particular submissions, we were informed that a limitation of the induciae had been sought in the hope that some step might be taken to prevent the raising of further actions before the petition was served. In fact, no interim order had been sought. It is within the power of the court to restrict the induciae, as was done in this case. The respondent has had, as matters have turned out, ample opportunity to reply to the averments in the petition and there is no ground for suggesting any prejudice. This point is therefore without merit. The respondent's comments on the position of the Lord Advocate wholly misconceive the status of the Lord Advocate and the powers under which his office is exercised. The Lord Advocate is not required to attend personally to every matter which falls within the scope of his duties. As regards compatibility with the European Convention, counsel for the petitioner referred to H. v. U.K. 1985 45 Decisions and Reports 281, a decision of the Commission, which considers previous court decisions and holds that a limitation imposed to restrict the activities of a vexatious litigant is compatible with the requirements of Article 6. An order under the 1894 Act does not prevent the respondent from raising actions altogether: it only requires that he should obtain leave from a Lord Ordinary before doing so. In the light of the decision of the Commission and the authorities referred to in it we are satisfied that there is no substance in the respondent's complaint on this head. The same can be said of his complaint in regard to the making of orders for caution. That issue was also considered by the court in the opinion dated 22 December 2000, to which reference has been made, when it was held that the requirement of caution was not inconsistent with Article 6. With that opinion we agree.

[13] In all the circumstances, we were satisfied that the order under the 1898 Act should be made.