Scottish Court of Session Decisions

"The Lord Ordinary, having heard counsel for the pursuers and Mr Frost and Mr McNamara personally on the By Order Roll, allows to parties a Hearing on the day of 2002 at 10 am to determine the validity or otherwise of the allegations set out in No.132,133,140, and 147 of process and responded to in No.137 and 138 of process insofar as those allegations relate to (a) whether the documents that now constitute No.1,6,7,12,13,14,19,21,30 and 130 of process are the principal documents that were lodged with the Court, when those process Numbers were first allocated to items of process, (b) if not, when and in what circumstances, any of the documents that now constitute No.1,6,7,12,13,14,19,21,30,and 130 of process or any parts of those documents, first became part of the process and (c) whether, and, if so, when and in what respects, any of the documents that now constitute No.1,6,7,12,13,14,19,21,30, and 130 of process have been altered or amended since they were first lodged in process; grants warrant for citing witnesses and havers and ordains Mr Frost and Mr McNamara to lead at said hearing; directs parties (a) to lodge in process at least 7 days before the date of hearing all documents upon which they intend to rely during the hearing; and (b) to exchange and lodge in process lists of the witnesses they intend to lead at the hearing at least 7 days before the date of the hearing."

"Martin Frost and Andrew McNamara for the defenders do charge the pursuers and/or their legal agents and representatives that: 'The pursuers and/or their legal agents or representatives have abused and tampered with the court process; have deliberately failed to obtemper court interlocutors; all done in an effort to secure either a tactical or strategic advantage over the defenders'."

"I have no reservation in stating that if the revelations on page 237 of evidence had been given in answers 1 and 2 of process 137 the Proof would not have taken place, as Frost/ McNamara would have reported the matter to Lord McKay concerning Lord McKay's Note of Proceedings on fraud.

Frost/McNamara has expended substantial effort and costs in this case as servants to the Crown at the expense and delays in their main action against Tods Murray.

The court will be aware that Tods Murray's legal team conceded nothing prior to Proof and it was only at Proof the revelations on page 237 were made and the claim by Mr Anderson and Mrs Stewart that process 1 was the same as process 7.

In Anderson's letter 18 of process 164, he was adamant that process was always process 6 and during the Proof he admitted that the Original process 6 was in fact supporting documentation for process 7.

In this part of my submission I have identified breaches of Rules of Court by Tods Murray's legal team, I have used, where appropriate, documentation to support our cause under rule 262/1 'best evidence' as various witnesses have knowingly given false evidence. We have been hamstrung by not being able to question witnesses on quantum, which has caused the Proof to prolongate unnecessarily as it is meaningless to say why process 1,6,and 7 were removed without identifying the reasons as referred to in 132,133 and 140 of process, referred to in Lord McKay's interlocutor. I have other concerns that Frost/McNamara were prejudiced none more so than being interrupted by Mr Hodge on various occasions who claimed, 'we were bringing up new matters' when we were not, this disrupted various lines of questioning witnesses. I also believe Mr Hodge took advantage of Frost/McNamara, who are party litigants, under Rule 9.8.1 of the Faculty of Advocates and caused us offence by referring to Frost McNamara as 'twiddledum and twiddledee' which was uncalled for. I am aware that Lady Smith is a strong believer that Solicitors and Advocates are officers of the court and that in their privileged position they should abide by the Rules of Court, sadly this is not the case in this case and I now refer to part two of my submission, which clearly identifies the prevarication of Tods Murray and their legal team."

No. 1 of process: It was, he submitted, a photocopy of the principal summons which had been signetted on 27 May 1996. It was not clear when the copy became an item of process but it was certified by Mrs MacFarlane on 8 August 2001 and had clearly been an item of process since then, probably earlier. There was no clear evidence as to how the principal had come to be mislaid. It could have been mislaid in the General Department, although that would have been unusual, or by Simpson & Marwick or by one of the solicitors acting for Arakin. It seemed that what is now No. 1 of process is a photocopy of the principal summons as it existed when the Record was made up in February 1998. Mr Frost's evidence that he saw the principal in May 2000 did not correspond with Mrs Stewart's evidence that she had borrowed out not the original but a photocopy on 27 March 2000. The progress of amendment of and adjustment to the summons was clear from the evidence.

No. 6 of process: He submitted that the document now in process appeared to be a copy of what was originally lodged or, at least, the first page of it was, since it was a photocopy. The last five pages were added by the auditor and pages 235A-235D were added either just before or during the diet of taxation. There were manuscript notations on it added by the auditor. It was important to recognise that the document was clearly the one that was used by the auditor since his abatements were marked on it and it bore his stamp. Insofar as any confusion may have existed regarding the numbering of what are now items 6 and 7 of process, at the time they were lodged, it was clear from the evidence that although Mr Anderson had instructed that an inventory should be lodged with the two sets of accounts, it had been noted at the time of lodging that an inventory was not in fact required. He submitted that it should be noted from the evidence that Arakin's agents had had copies of Nos.6 and 7 of process from at least 23 October 1996 albeit that there was some confusion later on as to whether or not the Glasgow District Council account had been lodged, as shown in the court interlocutors. Both parties agents had lost sight of the fact that it had been lodged in October 1996. Arakin had in fact been sent the Glasgow District Council account in Spring 1996. There was no basis in the evidence for suggesting that it had been tampered with by the pursuers or their agents or that it had been removed from process by them. Indeed, such an allegation was inconsistent with Mr Anderson's evidence that the court would remit such an account directly to the auditor and with Miss Doherty's evidence that the auditor had the document in December 1996.

No.7 of process: Mr Hodge submitted that it was clear from the evidence that this was a short business account in respect of the McLachlan & Brown litigation and that it was the successor to an account that was first sent to Arakin's agents in September 1995. It was the document referred to in the original summons but it had not in fact been lodged until 23 October 1996. A copy had, though, been sent to Arakin's agents on 27 July 1996.

No. 12 of process: This was the time and line account in respect of the McLachlan & Brown work. It had been produced in response to an interlocutor of 8 October 1996 requiring such an account and was lodged on 20 February 1997. Mr Hodge commented that the defenders had raised no issue regarding this document that fell within the matters covered by the interlocutor of 6 March 2002, in the course of the proof. Mr Frost had suggested that the document had been unstitched and restitched but that may well have happened, given that the auditor had added a schedule. The suggestion that No.7 of process had been withheld to hide inconsistencies as between it and No.12 was absurd and unsupported by the evidence. Arakin's agents, Alexander Stone & Co, had had a copy of the account that became No.7 of process since September 1995.

No.13 and 14 of process: No issue had, he submitted, been raised in the course of the proof regarding these accounts. There was a suggestion by the defenders in No.133 of process that they were in fact the Glasgow District Council account but that suggestion had not been pursued at proof. It was clear that these had been lodged on 13 March 1997.

No.19 of process: No allegations had, ultimately, been pursued regarding these documents, which were the originals.

No.21 of process: Whilst, Mr Hodge submitted, the content of this document was not as original, all the professionals involved who had given evidence were in agreement as to what happened. Given that counsel would usually work with copies, I should, he submitted, infer that the original was destroyed.

No.27d of process: It was clear, he submitted, that this document, headed "Supplementary Note of Objections" was prepared when counsel for Arakin took the view that the original note of objections that had been lodged was not adequate. However, it was superseded when subsequent counsel took the view that it was not competent to lodge such a document and that further procedure should be by way of a Minute of Amendment instead. It was clear from Mrs Stewart's evidence that it was Mr McNamara who had scored out paragraph 7 and it was accepted by him that the document bore his handwriting. The document was of no significance and there was, he submitted, no reason for the pursuers or their agents tampering with it.

No.30 of process: Mr Hodge submitted that, on the evidence, this was a copy of a fax which contained the same wording as the specification of documents that had been intimated to the pursuer's agents in respect of which there had been an opposed motion hearing on 9 October 1996. It was not clear when the present No. 30 of process had first arrived in the process.

No. 130 of process: It was clear, submitted Mr Hodge, that this was a copy of the original No.21 of process, bearing the manuscript amendments to it that were agreed between counsel. It was produced by Mr Moynihan QC on 20 December 2001 and lodged in process on that date.

Number 1 of process: It is patently obvious that this is not the original summons but is a certified, though incomplete, copy of it. No- one suggested that it was not. That it is a copy of the original seems clear from the fact that it shows stitching and the imprint of the signet. It is not possible to say, on the evidence, when the original was lost nor at whose hand. The possibility of its loss being the responsibility of the General Department is of the same order as it being the responsibility of either of the parties' agents. I am satisfied on the evidence that the relevant sequence of events was that the original typed summons had some manuscript additions made to it as shown on the pages that contain the conclusions and the condescendence and pleas in law. These were clearly occasioned by there being two amendments to the summons, one contained in Minute of Amendment No.5 of process (dated 4 September 1996) to increase the sum sued for in the first conclusion and one contained in Minute of Amendment No.8 of process (dated 19 December 1996) to introduce a second conclusion. It appears that a sheet of adjustments was attached to the original summons, given that there are staple marks showing on the photocopy and markings with arrows: "B1" and "3" on the text which could be expected to refer to a separate sheet containing adjustments to be read into the pleadings. That sheet has not, however, been photocopied. Accordingly, in respect of the questions that are posed in parts (a), (b) and (c) of the interlocutor of 6 March 2002, I find:

(a) this document is not the principal document that was lodged with the court. The number '1' was allocated to the principal summons when it was first lodged in court at the time the action was signetted on 27 May 1996.

(b) the document that now bears the number 1 became part of the process on 8 August 2001, on which date it was certified as being an incomplete copy of the original by Mrs P McFarlane, Depute Clerk of Session.

(c) the original summons was amended and adjusted in terms of the manuscript alterations to which I have already referred but the document that now bears the number 1 has not been altered or amended since 8 August 2001.

Number 6 of process: Discussion of and reference to this document took up a great deal of time at proof although it is obvious that it was the account that was before the auditor at taxation. I infer from the fact that it was clearly the document that he taxed, that no objection was raised on behalf of Arakin to

the effect that it was not the document that had been lodged in process. That being so, it was very hard to understand the nature of the defenders' concern about it. Ultimately, it resolved itself into the allegation that I have already recorded, namely that it was, for a period, removed from process by the pursuers or their agents, for some nefarious purpose. That is an allegation which I have no difficulty in rejecting. There was not a shred of evidence that suggested that that had occurred nor indeed any logical reason why it would have been to their advantage to do so. It was, after all, in the pursuers' interests that the account be taxed with a view to their securing payment of any sum that was due to them. There are one or two particular features of the document which should probably be noted: the front page is clearly a photocopy, there are manuscript notations in ink throughout that would appear to have been made by the auditor or one of his staff, there is an auditor's slip attached to p.234, there are some entries on p.234 that appear to have been added after taxation, the entries on p.235 appear to postdate taxation, pages 235A-D constitute an addendum, and, at the end, there is a Schedule and Summary that show the final position after taxation. The backing is clearly the original, given the imprint of the court stamp that appears on it and the manuscript numberings and addition of the word "intimated" in pen. When the original account was lodged, on 23 October 1996, as was explained in the evidence, it was first given a different number, probably either 7 or 8, but that numbering was the result of allocating the number "6" to an inventory that was presented with the account. It was then realised that the inventory was not needed and so the account was renumbered, with the number "6". On the evidence, the allocation of numbering would have been carried out by a member of the counter staff in the General Department. Also, given that it is recorded in the Minute of Proceedings that Mr Frost undertook, on 22 June 2001, to provide a copy of No.6 of process to the court and given that he said in evidence that he obtained the document that is presently in process bearing the number "6" from the law accountant, Robert Grieve, it does seem clear that that document was certainly in Mr Frost's hands prior to it being presented to the court at some point after the undertaking was given. Robert Grieve did not give evidence so it is not possible to say what his position would have been as regards the suggestion that Mr Frost obtained number 6 of process from him. Given that it was clear from the evidence that Mr Frost had not in fact received hundreds of documents from various solicitors as a result of their volunteering them, despite his representation that he had done so, I consider that I cannot, in the absence of Mr Grieve's evidence, accept that Mr Frost obtained the document from him. However, given that the auditor's markings are, in places, in the original blue ink, it does seem that what Mr Frost provided to the court in response to his undertaking of 22 June 2001 was not, apart from the front page, a copy, but the original account in the form that it was in by the end of the taxation process. The auditor had the Glasgow District Council account by the time of the meeting attended by Miss Doherty in December 1996, it can be inferred, in the absence of evidence to the contrary, that the usual practice of passing an account that is to be taxed directly from the process to the auditor was followed in this case and there is no reason to believe, given the absence of evidence to the contrary, that the auditor would have done anything other than retain the account to enable him to proceed to the diet of taxation. Mr Frost had made reference in the course of his evidence to carrying out basic document investigation in respect of number 6 of process including "blowing up" the markings on the front page in an effort to identify what had been written below the No.6. It does thus appear as not beyond the bounds of possibility that the substitution of a copy of the front page for the original could have been effected by Mr Frost when carrying out that exercise. That is not, however, a possibility that was explored at the proof and I do not, accordingly, make any finding to that effect. It is sufficient to note that, for the purposes of this litigation, it does not matter that the front page of number 6 of process is a photocopy. It is not disputed that it bears the words and figures that were before the auditor at taxation. As regards the specific questions raised in the interlocutor of 6 March 2002, I find:

(a) the document that now consists of number of 6 of process is the original document that was lodged in process on 23 October 1996 and given the number 6 at that time, apart from the front page ( which is a photocopy), the addendum already referred to and the auditor's additions and notations, as also already referred to.

(b) the addendum was added immediately before or at the diet of taxation which took place in the summer of 1997 and the Schedule, Summary, manuscript notations and auditor's slip were added in the course of the taxation exercise. It is not possible to say when the photocopy front page was substituted for the original nor is it possible to say who substituted it.

(c) the document has been altered and amended in the manner and to the effect to which I have already referred. No alterations or amendments have taken place since the end of the taxation process. The front sheet could, though, have been substituted at any time prior to the document being tendered to the court following Mr Frost's undertaking of 22 June 2001. The manuscript addition of the (wrong)VAT number and the (wrong) interlocutor must have taken place prior to the document being lodged albeit that it probably occurred in the General Department at the time the document was tendered for lodging.

Number 7 of process: It was clear from the evidence that this document, which is the McLachlan & Brown account that was the document referred to in the summons, was lodged on 23 October 1996, along with the Glasgow District Council account, number 6 of process. In common with the Glasgow District Council account, this document suffered from some confusion as regards numbering because of the original tendering of an inventory with the two accounts but there is no doubt that by the time the lodgements were, that day, complete, this account had the process number "7". The document was missing from the process for a while but, as I have already noted, it was found in the offices of Simpson & Marwick by Mrs Stewart and had been returned to the court by the time of the hearing on 15 August 2001. Much was said by the defenders questioning the propriety of the pursuers' effecting diligence on the dependence of the action at a time when this document was not lodged and much was said to the effect that it was deliberately hidden away so that inconsistencies between it and number 12 of process could not be identified but these are not issues that arise from the interlocutor of 6 March 2002 and, significantly, it was accepted by the defenders that Arakin's agents had had the substance of what was in it intimated to them in 1995 and had had a copy of it intimated to them on 27 July 1996. Although it is not a matter that I require to determine, I would comment that there was no direct evidence that it had been hidden away at any time by anyone nor was there any indirect evidence giving rise to any such inference. The suggestion that it had been amounted to no more than sheer speculation and suspicion fuelled only by Mr McNamara's dislike of lawyers in general and of the pursuers in particular. As regards the questions posed in the interlocutor of 6 March 2002, I find:

(a) this is the principal document that was lodged with the court on 23^rd October 1996 .

(c) the document has not been altered or amended. There is a 'post-it' note attached to it bearing the manuscript: "Superseded".

Number 12 of process: this document is clearly the detailed time and line account of expenses in respect of sums due to Tods Murray in connection with the McLachlan & Brown account, which superseded the account lodged as number 7 of process and which was taxed by the auditor. It is obviously the document that was used by the auditor at taxation since it bears his stamp on each page, various notations in blue ink and a schedule which must have postdated the taxation exercise. The backing is obviously the original, with the court's stamp and some manuscript markings on it. There was, ultimately, really no dispute between the parties about this document. Rather, the complaint advanced repeatedly by Mr McNamara was to the effect that some of the entries were different from number 7 of process. That is, perhaps, not surprising given that, unlike number 7 of process, it bears to be a time and line account but the point, for present purposes, that has to be recognised is that it was not within the remit of this proof to enquire into the validity of any of the entries in any of the documents. As regards the specific questions posed, I find as follows:

(a) the document that bears the number 12 is the principal that was lodged with the court on 20 February 1997 and it had the number "12" allocated to it on that date.

(c) since it was lodged, number 12 of process has had the auditor's stamps, notations and schedule added to it.

Numbers 13 and 14 of process: it was not disputed by Mr Frost or Mr McNamara that these documents were accounts in respect of the Harvie Construction dispute and that they were the originals as lodged in process on 13 March 1997. Both of them bear blue ink manuscript auditor's dockets at the end narrating that they have been taxed, of consent, at the sums of £6,000 and £1,000, excluding the expenses of taxation. It was difficult to see how it was that these documents had been listed by the defenders as documents in respect of which they had allegations to make. In respect of the specific questions in the interlocutor of 6 March 2002, I find as follows:

(a) the documents that bear the numbers 13 and 14 of process are the originals that were lodged on 13 March 1997.

Number 19 of process: This is a bundle of four auditor's reports in respect of the accounts numbers 6,12,13 and 14 of process. No allegations were made regarding them, no complaints were made in respect of them and there seemed to be no doubt that they were lodged on 27 March 1998. Again, it was difficult to see why these had been listed by the defenders as documents in respect of which they had allegations to make. Accordingly, in respect of the questions posed in the interlocutor of 6 March 2002, I find:

(b) the documents in number 19 of process are the originals that were lodged with the court on 27 March 1998.

Number 21 of process: This is a specification of documents contained within a backing that bears a date stamp of 15 April 1998 in terms of which Arakin soughteeks recovery of certain financial records. On the evidence, it is clear that the two sheets stitched into the backing are not what the backing contained when it was lodged on 15 April 1998. It is, though equally clear that a simple sequence of events occurred, namely that once counsel had agreed some amendments to the original specification and an interlocutor had been pronounced by the court on 30 April 1998 authorising recovery in those amended terms, the original sheets were removed from the backing and the text was retyped so as to incorporate the amendments approved by the court. Thereafter, the reference to the Inland Revenue was scored out in manuscript, it having been agreed between counsel, as spoken to by Mr Davidson in evidence, that the Inland Revenue documents were not to be covered by the specification, Mr Davidson having indicated to his opponent, Sheriff Scott, that he would argue at the motion that such documents could not competently be sought. It was not possible, on the evidence, to say who had scored it out. Mr Harrison and Mr Pollock were clear and credible in their evidence that they had instructions from Mr McNamara to agree to the deletion of the reference to the Inland Revenue. Mr McNamara sought to assert that he had given no such authority. That question was not one that I had to determine but if I had had to do so, I would not have accepted Mr McNamara's assertions. In respect of the specific questions posed in the interlocutor of 6 March 2002, I find as follows:

(a) the backing of number 21 of process is the backing that was attached to the document lodged in process on 15 April but the two sheets within are not the sheets that were lodged at that time. The sheets which were lodged at that time have since been removed and probably destroyed on the basis that they had been superseded.

(b) the two sheets within the backing became parts of process some time shortly after the motion roll hearing of 30 April 1998 but it is not possible to say precisely when.

(c) the backing has not been altered since it was first lodged in process. The second of the two sheets has a line drawn through the words "Inland Revenue" which is likely to have been appended prior to them being inserted into the backing or at about that time.

Number 130 of process: This document is a copy of the specification of documents in the terms in which it was originally drafted, bearing manuscript annotations that were marked onto it by Donald Davidson. It was produced to the court at a hearing on 20 December 2001, by Mr Moynihan QC. There was no dispute regarding this document and I find, in respect of the specific questions posed in the interlocutor of 6 March 2002, as follows:

(a) this is the document that was lodged on 20 December 2001.

(b) this question is not applicable .

(c) this question is not applicable.

Number 27d of process: This document was added to the list contained in the interlocutor of 6 March 2002 at the behest of Mr McNamara, at a motion roll hearing on 8 May 2002, because he was concerned that it bore to have been altered. He did not, at that stage, indicate that the alterations were effected by him. Indeed, it had appeared that he was suggesting that someone had altered the document without his knowledge. It seems clear on the evidence that this document was drafted with the intention that it be used to seek to amend the note of objections that had been lodged on behalf of Arakin. It was, however, then decided to proceed by way of Minute of Amendment and number 34 of process was lodged, rendering number 27d of process redundant. Following a motion roll hearing on 19 March 1999, the Lord Ordinary allowed the amendment but under deletion of paragraph 7, a paragraph that had reflected what was stated in paragraph 7 of number 27d of process. It is not possible to say when number 27d of process was lodged as it does not have a date stamp on it. It has some manuscript comments written onto it in black ink by, it emerged, Mr McNamara. He accepted in the course of his evidence that the comments had been written onto the document by him. It also has two blue lines drawn through paragraph 7 so as to cross it out. On the evidence of Mrs Stewart, who was a careful and credible witness and who checked this matter against a note which she had made at the time, I accept that the blue crossing out was also effected by Mr McNamara and that he did so at the time of the meeting with Mrs McFarlane on 17 July 2001. Accordingly, the picture that emerged was that, far from there being anything suspicious regarding the alterations to this document, those alterations, which had been advanced by Mr McNamara as cause for concern, had in fact been effected by him. In respect of the specific questions posed in the interlocutor of 6 March 2002, I find:

(a) number 27d of process is the original document that was lodged with the court but it is not possible to say when it was allocated that process number.

(b) this question is not applicable.

(c) the document bears the manuscript comments which were added by Mr McNamara either before or after the document was lodged. It also has a blue cross struck through paragraph 7 which was drawn onto it by Mr McNamara on 17 July 2001, probably because he recognised that that paragraph was in terms which had been deleted from the Minute of Amendment presented to the court on 19 March 1999.

Number 30 of process: This is another specification of documents at Arakin's instance, seeking recovery of financial records. It is not the principal but a copy of a fax. The defenders did not, however, dispute that it was an accurate copy of the specification that was intimated prior to the first motion roll hearing in respect of a motion for its approval, which hearing took place on 9 October 1998. At some point, it is not clear when, the principal specification went astray. As can be seen from the interlocutors, the recovery period for the first call was initially restricted to the period from August 1993 but subsequently was widened to extend the recovery period back to 1988. It does not appear to have been altered in any way. I would confirm that, despite the allegations contained in number 132 of process, there was no evidence that number 30 of process had been tampered with whether to make number 21 of process look authentic or for any other reason. As regards the specific questions posed by the interlocutor of 6 March 2002, I find:

(a) the document that now constitutes number 30 of process is not the principal that was lodged with the court prior to the motion roll hearing of 9 October 1998 and it cannot be said when it was that that number was allocated to the document that now bears it. It is, however, clear that it is a copy of the original.

(b) the date when the document that bears the number 30 of process first came into process cannot be ascertained.

(c) the document has not been altered since being lodged in process.