OUTER HOUSE, COURT OF SESSION |
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OPINION OF LADY SMITH in the cause TODS MURRAY, W.S. Pursuers; against ARAKIN LIMITED Defenders:
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Pursuers: Hodge, QC; Simpson & Marwick, W.S
Defenders: Frost, Party; McNamara, Party
31 October 2003
Introduction
[1] This is an action for payment in which the pursuers are a firm of solicitors who sue for recovery of professional fees and outlays. The action was raised in 1996 against Arakin Limited ("Arakin"), a company for which the pursuers formerly acted. Arakin was founded by the defender Mr Andrew McNamara in about 1966 and he appears to have retained a controlling interest in the company thereafter. A counterclaim was lodged and the current pleadings are as set out in the Closed Record. On 29 May 2001, Martin Frost and Andrew McNamara ("the defenders") who had, by then, taken an assignation of Arakin's interests in the litigation, were sisted as parties to the action and counterclaim, in room and place of Arakin. There is an outstanding Minute of Amendment for the defenders which has been answered by the pursuers. Both the Minute of Amendment and the Answers, as adjusted, were appointed to the Procedure Roll by interlocutor of 22 April 2003. That debate has not yet been heard.
History of action insofar as relevant
[2] The pursuers effected diligence on the dependence of the action in June, July and August 1996, as can be seen from the eleven executions of arrestment copies of which are attached to No.1 of process. An inhibition was also registered.[3] Arakin originally had agents acting for them in connection with this litigation. It was Mr McNamara who gave instructions on behalf of Arakin. Levy & McRae, Glasgow, were instructed and they, in turn, instructed Balfour & Manson to act as Edinburgh agents in this litigation. Balfour and Manson acted initially but withdrew from acting on 23 June 1997. Levy & McRae withdrew from acting at the same time. Peacock Johnston, Glasgow, took over agency. Gillam Mackie took over as Edinburgh agents and they acted until 3 February 1998 when agency was transferred to Fyfe Ireland. Fyfe Ireland withdrew from acting on 22 July 1999. Peacock Johnston carried on acting until 25 February 2000, when they also withdrew from acting. Neither Arakin nor the defenders have had agents acting for them in the litigation since then.
[4] Several sets of accounts in respect of the pursuers' fees and outlays have been taxed by the Auditor of Court and the defenders have lodged notes of objections. The Auditor of Court has minuted in respect of those notes. A hearing on the notes of objections has been allowed and argument has been heard and determined regarding the scope of that hearing and the procedure to be followed. The nature of that argument and the determination following thereon is set out in an opinion by Lord Mackay of Drumadoon dated 5 April 2002.
[5] The case came before me for proof as a result of an interlocutor dated 6 March 2002, the terms of which are as follows:
"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."
As a result of a subsequent unopposed motion moved by Mr McNamara on 8 May 2002, No.27d of process was added to the list in the interlocutor.
The documents referred to in the interlocutor of 6 March 2002
[6] The documents that now form the items of process detailed in paragraphs (a), (b) and (c) of the interlocutor of 6 March 2002 bear to be: 1 - summons; 6 - business account incurred by Arakin Building Services Limited to the pursuers, in connection with arbitration proceedings between Arakin Building Services Limited and the City of Glasgow District Council; 7 -account incurred by Arakin to the pursuers in connection with sheriff court proceedings involving Arakin and McLachlan & Brown, which bears a yellow "post -it" note with the word "Superseded" written on it; 12 - account of expenses incurred by Arakin to the pursuers in connection with sheriff court proceedings involving Arakin and McLachlan & Brown; 13 - business account incurred by Arakin to the pursuers in connection with sheriff court proceedings involving Arakin and Harvie Construction Limited; 14 - business account incurred by Arakin to the pursuers in connection with sheriff court proceedings involving Arakin and Harvie Construction Limited; 19 - four reports by the Auditor of Court in respect of Nos.6,12,13,and 14 of process; 21 - specification of documents for the defenders; 30 - specification of documents for the defenders; 130 - specification of documents for the defenders; 27d - supplementary note of objections for the defenders to the Auditor's report on No. 12 of process.[7] The case cannot proceed to the hearing on the notes of objections until the issues contained in the interlocutor of 6 March 2002 have been determined.
Background to the fixing of proof in accordance with the interlocutor of 6 March 2002
[8] The fixing of a proof to determine issues such as those set out in the interlocutor of 6 March 2002 is highly unusual. An understanding of the reasons for this procedure being decided upon cannot be gained without an examination of the background and events leading up to the pronouncement of the interlocutor of 6 March 2002.[9] By July 2001, it transpired that there was some disorganisation in the process. The original summons was missing and the defenders had raised questions regarding the authenticity of some other items of process. By August 2001, the Lord Ordinary took the view that the case could not move forward until the integrity of the process had been determined either by way of agreement between the parties or by proof. A hearing was fixed for 8 August 2001 for the sole purpose of determining whether the court and parties could be satisfied as to the contents of the process. The Minute of Proceedings in this process contains many detailed notes of what has passed at various hearings and an examination of the Minute of Proceedings for 8 August 2002 indicates details of what occurred at that hearing. As regards No. 1 of process, the original summons, it was clearly still missing. It was, however, agreed and established at that hearing that a photocopied summons which was produced by the pursuers' agents was a true copy of the original summons, albeit incomplete. The Lord Ordinary directed the clerk, accordingly, to docquet the copy summons in terms of Rule of Court 4.14(1) so as to authenticate it, which she did. Senior counsel for the pursuers undertook to make investigations regarding the whereabouts of No.7 of process which was missing as at the date of that hearing and there was discussion regarding No.6 of process, the authenticity of which was disputed by the defenders. The hearing was continued to 15 August 2001.
[10] At the hearing on 15 August 2001, No.7 of process had been found by the pursuers' agents and returned. No.6 of process appears to have been missing as at 22 June 2001 since, on that date, Mr Frost undertook to provide a copy of it. A document bearing the process No.6 was clearly before the court on 15 August 2001 since it is referred to in the Minute of proceedings for that date. After hearing submissions, the Lord Ordinary stated that he was satisfied that Nos.6 and 7 of process were the documents originally lodged with those process numbers on 23 October 1996. It was, though, understood that No.6 of process bears both paper and handwritten additions. Similarly, it was understood that there was a handwritten addition to No.7 of process. It was noted that both Nos.6 and 7 of process bore a handwritten VAT number on their front pages and it was not clear when it was that those numbers had been added. The defenders asserted that the pursuers and/or their agents had committed fraud or attempted fraud on, amongst others, the court, the Auditor, and Arakin, by adding the VAT numbers at a date later than 23 October 1996. There is also reference in the minute of proceedings to the defenders making other allegations of fraud.
[11] On 19 September 2001, a document (No.98 of process) was lodged for the defenders entitled "TAMPERING WITH THE PROCESS FILE" in which they, founding on differences between 7 and 12 of process, set out an allegation that the pursuers' agents removed No.7 and substituted No.12 without the authority of the court. The document contained an allegation that No.6 contained, to the knowledge of the pursuers, overstatement of the sums due constituting blackmail and extortion. It also contained various challenges to the sums charged in various accounts between the pursuers and Arakin.
[12] On 1 October 2001, a document [No.99 of process] was lodged for the defenders entitled "FRAUD BY TODS MURRAY AND SIMPSON AND MARWICK" in which various allegations were made including "THE UTTERING AS GENUINE, PROCESS 6 PROCESS 12 AND PROCESS 36 AS GENUINE ACCOUNTS TO BE TAXED BY THE AUDITOR OF COURT IS A FRAUDULENT ACT".
[13] On 1 October 2001, a document was lodged for the defenders entitled "TAMPERING WITH THE PROCESS FILE" which appears to be in identical terms to No.98 of process.
[14] At a By Order hearing on 20 December 2001, Mr Frost stated that it was his belief that No.21 of process may have been altered to the advantage of the pursuers. As a result, the Lord Ordinary pronounced an interlocutor ordaining the defenders to lodge in process by Friday 11 January 2002 a document in their joint names, signed by both of them, or two individually signed documents in their respective names, specifying the nature of the allegations that they sought to make as to the lack of authenticity of No.21 of process or any other item of process. He also stated that he anticipated that if they insisted on allegations of the nature advanced by Mr Frost that day then it would be necessary to have a hearing of evidence followed by submissions on that evidence before the court could reach a decision on the allegations raised.
[15] Following upon the interlocutor of 20 December 2001, No.132 of process was lodged by Mr McNamara on 10 January 2002. It contains a heading: "This report covers removal, tampering and doctoring of the process File" and alleges that VAT invoices had been removed from process, a conclusion which appeared to be drawn because, it was said, diligence on the dependence had been effected, there were no VAT invoices in the process and Robert Dobie and Michael Simpson, both partners in the pursuers' firm, had both said that they had produced VAT invoices for the sums sued for at Commission hearings for the recovery of documents. As became clear in the course of the proof before me, no such representation had in fact been made by either of them. What also became clear was that the defenders persistently laboured under the misapprehension that invoices would have had to be produced, lodged and supplied to the Messengers at Arms instructed, for diligence to be effected. This they did despite being told, repeatedly, that the only document with which the Messengers at Arms would have to have been supplied would have been the signetted summons bearing the warrant for arrestment and inhibition on the dependence of the action. The document alleges further that No.7 of process had been removed to "hide the glaring inconsistencies and additions in process 12". It alleges that No.21 of process was tampered with to the prejudice of the defenders to prevent them calling as havers various persons named in the pursuers' time recording records. It alleges that No.30 of process was tampered with to make No.21 of process look authentic. Further, it states in respect of No.6 of process that there is "no Interlocutor for process 6" and that there is no reason for it being in process "as the only condescendence was the McLachlan & Brown account". It also alleges that No.6 and 12 of process, both of which bear manuscript VAT numbers, had those numbers added to them after they were lodged in court.
[16] A manuscript faxed document (No.133 of process ) was lodged by Mr Frost on 11 January 2002 bearing to be a document on behalf of both him and Mr McNamara which opens with the following:
"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'."
[18] In two sets of Answers (Nos.137 and 138 of process) to Nos.132 and 133 of process, it is explained, on behalf of the pursuers, that at the Commission hearings referred to, Mr Dobie and Mr Simpson had said that they had produced invoices and what they had produced then would not be in process if they had not been lodged by or on behalf of the defenders, that No.7 of process was a note of work carried out by the pursuers in connection with the McLachlan & Brown litigation which could have been sent to taxation but was not, that No.12 of process was a detailed time and line account that was insisted upon by Arakin in respect of the work carried out by the pursuers in connection with that litigation which was lodged in process and was taxed, that the pursuers believed the annotation "Superseded" was added to No.7 of process by a clerk of court or officer of the Court of Session General Department, that the specification No.21 of process had been amended at the Bar as a result of agreement between the parties' counsel, that No.30 of process sought to cover different documents than those sought in No.21 of process, that Nos. 6 and 7 of process were both lodged on 23 October 1996, that an interlocutor in respect of them being lodged would not have been required, that the VAT numbers were added to Nos.6 and 7 of process by a court runner who used, erroneously, the VAT number of the pursuers' agents, that it was admitted that the original No.1 of process was missing, that No.13 and 14 were accounts in respect of work carried out in connection with the Harvie Construction Limited litigation, that No. 6 of process had been in process since October 1996 and that No.21 in its present form is a typed up version of the original specification lodged as No.21 of process but incorporating amendments agreed by counsel.
[19] In a document lodged on 13 February 2002 (No.140 of process), Mr McNamara responded to the pursuers' two sets of answers. It contains his continuing insistence that not all the invoices in support of the sums sued for have been produced, that No.6 of process is not the document that was lodged in respect of the work done in connection with the Glasgow District Council Arbitration, and that No.7 of process was removed to hide the "glaring inconsistencies" between it and No.12 of process. It also alleges that the pursuers and their agents knowingly and wilfully deceived the court by removing No.6 of process and submitting No.7 of process.
[20] In a document lodged on 25 February 2002 (No.144 of process), entitled "Addendum to A. McNamara's Report for The 6th March", it is alleged, amongst other things, that the pursuers have knowingly and wilfully submitted, as genuine, false accounts, No.6,7, and 12 of process, that the pursuers' agents knowingly and wilfully misled the court by submitting false invoices or similar documents to the court to achieve diligence, and that the pursuers pretended to the court that No.12 of process complied with the interlocutor of 8 October 1996.
[21] In a document lodged on 27 February 2002 (No.147 of process), entitled "Defender's ADDENDUM TO No.132 and 133 of process in respect of perceived ABUSE OF PROCEDURAL RIGHTS By the Pursuers", which bears to have both Mr Frost and Mr McNamara as its authors, it is stated: "The defenders contend that the existing Court process in this cause taken as a whole clearly proves that the Pursuers have acted dishonestly and maliciously in making false claims." It alleges that examination of the lodging dates of No. 1 - 8 of process shows that the summons was premature, wrongly warranted and a "puff of collateral abuse to achieve an objective outwit the proceedings, namely to divert a Scottish Law Society investigation". It further alleges that the loss of documents shows that the original diligence was a nullity but one exercised in pursuit of malicious and dishonest motives. Also, it alleges that the court interlocutors "often" do not tally to parts of process and are regularly not obtempered by the pursuers. As regards the reference to a Law Society investigation, there was mention in the proof before me of Arakin or Mr McNamara having lodged a complaint with the Law Society against the pursuers.
[22] Once documents No.132, 133, 137,138 140 and 147 of process had been lodged, a By Order hearing was fixed and took place over two days, on 5 and 6 March 2002. The defenders were clearly persisting in the allegations contained in their documents. The Lord Ordinary, accordingly, as he had, on 20 December 2001, indicated that he would, in that event, do, fixed a hearing at which parties would be entitled to lead evidence but only for the purposes very specifically set out in his interlocutor of 6 March 2002. The defenders were ordained to lead at the proof.
The defenders' approach at proof:
[23] Before responding to the specific questions that are raised in the interlocutor of 6 March 2002, it is appropriate that I make one or two general comments regarding the defenders' approach.[24] The defenders led the following fourteen witnesses in evidence: Mr Robert Dobie, solicitor; Sheriff C. Scott; Mr Michael J R Simpson, solicitor; Mr Colin Campbell, Dean of the Faculty of Advocates; Mr Dominic Harrison, solicitor; Ms Una Doherty, advocate; Mr Andrew S. Pollock, solicitor; Mrs Catriona Stewart, solicitor; Mr Michael Peter Anderson, solicitor; Mr Alastair James Spencer Kennedy, solicitor; Donald Davidson, advocate; Stephanie Hunter; Carol Ramsay; and Maureen Paterson. They also both gave evidence themselves. The evidence lasted for fifteen days.
[25] It was apparent from the outset that the defenders had not approached any of these witnesses in connection with the issues identified in the interlocutor of 6 March 2002 prior to making the allegations contained in their documents 132,133, 140, 144 and 147 of process, or prior to insisting on those allegations at the By Order hearing on that date. Indeed, in the course of being cross examined on behalf of the pursuers, Mr Frost stated that it was not necessary for him to approach Arakin's former agents regarding his queries about No.21 of process "because the document speaks for itself". It was also apparent that the defenders regarded the proof as a vehicle for seeking to air grievances that went far beyond the issues contained in that interlocutor. Those grievances ranged from Mr McNamara's expressly stated hatred of lawyers and criticisms of the manner in which Arakin's various solicitors had acted, to various matters regarding challenges to the pursuers' accounts, some of them challenges to fact which have already been aired before the Auditor and others of them concerning matters which may fall within the ambit of the notes of objections procedure but not within the ambit of the interlocutor of 6 March 2002. Mr McNamara sought, at times, to pursue a line to the effect that the summons, upon which diligence on the dependence was effected, was used against Arakin for "blackmail and extortion of Arakin's funds". Mr Frost sought to pursue a similar line. For instance, in the course of his examination in chief of Mr Simpson, he said that what he was concerned with was that an abuse of process was used as a deliberate mechanism to force Arakin to settle an account and also unlawfully to delay matters in terms of a large settlement which was to be reached with the Sun Alliance. Some of the grievances aired were based on misapprehensions such as that to which I have already referred regarding the question of whether or not an invoice requires to be lodged for diligence on the dependence to be effected. They also, particularly Mr McNamara, persisted in representing that the pursuers' answers to their allegations (No.137 and 138 of process) contained statements that they did not contain, such as insisting that they stated that No.7 of process "was used to get diligence", which the pursuers did not state in those answers at all. Nor was any such statement made by any witness at the proof or by senior counsel for the pursuers. Further, Mr McNamara persisted, from the time he began re-examining the first witness to the time he was making submissions, in representing a witness (Mr Dobie) as having said that No.7 and No.12 of process were in respect of exactly the same work content, which was not the case. Their questions were frequently irrelevant and I frequently sustained objections to them on that basis. However, it was often the case that they persisted in attempting to pursue irrelevant lines of enquiry, which was time consuming and distracted from the issues with which the proof was concerned.
[26] One of the most telling moments was, perhaps, when Mr Frost, in the course of being examined in chief by Mr McNamara [on day 14], said that the evidence to date had vastly assisted he and Mr McNamara in their case against Levy & McRae based on their negligence and that that was one of the aspects of a line of enquiry which he wanted to pursue. He added that the evidence to date was an aspect of their case against Alexander Stone, solicitors, that it would also assist in the counterclaim in this action and that the evidence had been passed to the insurers of the pursuers and their agents as there were almost certainly going to be proceedings against the latter in respect of their lying by omission. In short, it was a very full and frank admission by Mr Frost that he and Mr McNamara had been trying to use the proof to advance their interests in other existing and proposed litigations and in aspects of the present litigation that are not covered by the interlocutor of 6 March 2002.
[27] It was also part of the defenders' approach that they refused to accept that the interlocutor of 6 March 2002, whilst referring to the various documents containing their various allegations, restricted enquiry in respect of those allegations to the extent to which they related to the questions set out in parts (a), (b) and (c) of the interlocutor. They were told repeatedly that it did so but responded by seeking to insist that such an interpretation was wrong and their intention that the proof should be used for the determination of matters outwith the interlocutor of 6 March 2002 was reflected not only in their approach to taking the evidence of witnesses but also in the content of the written submissions which they both provided after the close of evidence.
The witnesses
[28] In the unusual circumstances of this case, it seems appropriate to provide a brief summary of the evidence that was led, insofar as it was relevant to the issues before me.[29] Mr Dobie is a partner in the pursuers' firm and acted for Arakin only in connection with their litigation with McLachlan & Brown. He was also involved, along with other partners, in instructing Simpson & Marwick to act as his firm's agents in connection with the present action. He explained that No.7 of process was a business account prepared in about August 1995 in respect of work carried out in connection with the McLachlan & Brown litigation and forwarded to agents then acting for Arakin, Alexander Stone & Company, in September 1995. That account did not, he said, cover all the work carried out by the pursuers in connection with the Mclachlan & Brown dispute. There was, he said, other work that had been invoiced but not paid for. The reason why that account had been prepared at that time was that Alexander Stone & Company had been pressing the pursuers, on behalf of Arakin, for details of their fees. The sum shown in No.7 of process as due by Arakin was the sum included in the first conclusion of the summons in this action and the account which became No.7 of process was the account referred to in article 2 of Condescendence. The account did not obtain its court backing and become No.7 of process until 23 October 1996 but its content had been in existence for more than a year prior to that. It was suggested to him by the defenders that he had indicated otherwise at a Commission hearing but he pointed out that his position was as I have just stated it and that, since the Commission had not yet been completed, he had not yet had the opportunity to provide clarification. Under reference to the interlocutor of the court dated 8 October 1996, which was pronounced in response to a motion by the defenders, Mr Dobie explained that a detailed time and line account was prepared in relation to the McLachlan and Brown work, superseding No.7 of process. That time and line account became No.12 of process and whilst it covered the same work as did No.7 of process, it was prepared on a different basis.
[30] In relation to the practice adopted in respect of specifications of documents, he said that where, after negotiation on the terms of a specification, there were extensive alterations, his firm would probably have the specification retyped prior to service on havers and although his own practice was to leave the original specification with its manuscript markings in the process, he knew of other solicitors who would substitute into process a freshly typed version, incorporating the amendments. He had had served on him a copy of No.21 of process in its present form which incorporates manuscript amendments that are marked on No.130 of process. As regards No.30 of process, he recalled it being in circulation in the late summer of 1998. Call 1 related to the McLachlan & Brown litigation and he had instructed opposition in respect that it sought to recover documentation from as far back as May 1988. He thought he recognised Mr McNamara's handwriting on the manuscript additions to No.27d of process and he, Mr Dobie, was not responsible for the cross that was marked on paragraph 7 thereof. He also stated, under reference to the fact that 27d was headed "Supplementary Note of Objections", that it would not, in his view, have been competent to alter or supplement a note of objections by way of a supplementary note of objections. A minute of amendment would have been required. It did seem that the text of 27d had been incorporated into a minute of amendment to the defenders' note of objections and that the defenders' note of objections had been amended in respect of most of the terms thereof on 19 March 1999, judging by the interlocutor sheet. As regards No.12 of process, he had a recollection of asking for it to be borrowed out and brought to him. It was either the pursuers' court runner or Simpson & Marwick who obtained it for him.
[31] Sheriff C Scott acted as counsel instructed on behalf of Arakin at a period which included April 1998. In his evidence, he repeated the explanation of his involvement which he had set out clearly and at length in a letter dated to Mr McNamara, dated 22 March 2002 (No.163/7 of process). He prepared a specification of documents (No.163/11 of process) and as the motion that was enrolled for its approval was opposed, he was instructed to appear for Arakin at the motion roll hearing, on 30 April 1998. In accordance with the usual practice, he discussed the terms of the specification of documents with his opposite number, Donald Davidson, advocate, in Parliament House, prior to the hearing. Donald Davidson indicated what amendments to the specification were being sought on behalf of the pursuers. Sheriff Scott's instructing solicitor that day was Dominic Harrison of Fyfe Ireland. Mr McNamara was not at court. Sheriff Scott advised Mr Harrison of the nature of the opposition and Mr Harrison went into the W.S. Library and made a telephone call which Sheriff Scott understood was to either Mr McNamara or Mr Pollock of Peacock Johnston. Sheriff Scott was subsequently advised that the pursuer's proposed amendments to the specification were acceptable to Mr McNamara and the motion for approval of it, subject to those amendments was granted. Sheriff Scott was aware that some solicitors were in the habit of removing a specification that had been amended prior to the grant of a motion for its approval, having a clean copy typed up incorporating the amendments and inserting that copy back into the process. As regards 27d, whilst he recalled a note of objections prepared by Mr Grieve, law accountant, and that he may have had some dealings with it, he had no specific recollection of any involvement with 27d.
[32] Mr M J R Simpson, solicitor, is a partner in the pursuers' firm and he acted for Arakin in connection with the arbitration between them and Glasgow District Council. He was also involved in the Harvie Construction work. He did not instruct the summons in the present action although he was aware that such instructions had been given. The increase in the sum sued for in the first conclusion was to reflect the inclusion, after the raising of the action, of the sums due in respect of the Harvie Construction work. He said that the decision to include in this action the claims in respect of fees for the Glasgow District Council arbitration work was taken in the late summer or early autumn of 1996 although the summons was not amended to include a conclusion in respect of it ( conclusion 2) until 19 December 1996. He believed the time and line account for that work to have been lodged as No.6 of process on 23 October 1996, that being the date of the Court of Session stamp on the backing and the number '6' having been written onto the backing. He understood it to have been in process as from that date. He was asked if he knew why, if that was the case, Lord Kingarth had ordained the pursuers to lodge a detailed time and line account for the Glasgow District Council arbitration work on 7 February 1997 (as, from the interlocutors, it appears he did) and said that he could only surmise that it was not realised that No.6 of process was the Glasgow District Council time and line account. The account had been provided to Arakin's then solicitor, Ian Gow, earlier in 1996, in about April or May. The account, No.6 of process, was taxed in July 1997 and an addendum consisting of the pages 235A to 235D was added by the auditor's office at the time of taxation, an addendum account having been lodged with the auditor shortly before the taxation took place. Page 235 had also been inserted by the auditor's office. The accounts in respect of the work in connection with the Harvie Construction dispute were lodged on 18 March 1997. He had received a specification of documents in No.162/10 of process which was in the same terms as No.30 of process except that there was a manuscript alteration changing the date for the start of the recovery period in call 1 to August 1993, from May 1988. At one point in Mr Simpson's evidence, Mr McNamara stated to him that he had never been involved in a court case prior to the pursuers acting for him. Mr Simpson said that Mr McNamara had told him that he had been involved certainly in one other litigation.
[33] Colin Campbell QC is Dean of the Faculty of Advocates. Mr McNamara said that he had cited him as Director and Chairman of Faculty Services Limited. The Dean of Faculty explained that he had held that office from the time he was elected Vice-Dean of Faculty in February 1997 but that he had ceased to hold that office when he had been elected Dean of Faculty in about October 2001. Mr McNamara sought to question him about fee notes issued by Faculty Services in 1994. He was also questioned by Mr Frost. He was not cross examined. He had no relevant evidence to give and it was difficult to see why he had been called as a witness.
[34] Dominic Harrison is a solicitor. As I have already indicated, at one point, when he was with Messrs Fyfe Ireland, he acted for Arakin. He was asked by Mr McNamara about the circumstances in which the specification No.21 of process came to be amended. It was clear that Mr McNamara's principal interest was in suggesting to Mr Harrison that his instructions had not been followed in that regard, a matter which was not relevant to the enquiry before me. He confirmed that the amendments had been made to the specification following discussions between counsel and a telephone conversation between him and Andrew Pollock. Mr Harrison explained that it was his practice to have a specification that was amended at the time of the motion for its approval retyped and the fresh version substituted for the original in the process. He gave evidence regarding No.27d of process. He explained that it had not been lodged by the firm that he was with at that time, Fyfe Ireland. It was a supplementary note of objections which had been drafted, he thought, by Robert Grieve, law accountant, with some input by way of revisal, from junior counsel. Subsequently, the view had been taken, on advice from Colin Sutherland QC, as he then was, that they should proceed not by seeking to lodge a supplementary note of objections but by lodging a Minute of Amendment, which is what they did. He was also able to confirm that No.30 of process was a specification of documents which had been amended and approved by the court in its amended form. Otherwise, Mr Frost's and Mr McNamara's questioning of Mr Harrison had no relevance to the issues before me. In particular, Mr McNamara's persistent attempts to suggest to him that he had acted without authority and his efforts to have Mr Harrison give evidence that there were inconsistencies between No.7 and No.12 of process were irrelevant.
[35] Una Docherty is now an advocate but was formerly a partner in the firm of Balfour & Manson, solicitors who, as I have indicated, acted as Edinburgh agents for Arakin at one stage, on the instructions of Messrs Levy & MacRae. She had checked Balfour & Manson's file prior to giving evidence and provided copies of documents which appeared to be relevant to this enquiry. She explained that by 24 October 1996, the pursuers had intimated an Inventory containing two accounts, one of which was a time and line account dealing with an arbitration with Glasgow District Council, which she had not seen before then, and one was a business account in relation to the McLachlan & Brown case. She remembered Minutes of Amendment being introduced to increase the sum sued for in the first conclusion and also, later, in respect of the sum sued for in the second conclusion. She was referred to her own file note of 21 March 1997 (No.134/1 of process) and said that she would have dictated it. Although the way that the note is typed, it purported to show that No.6 of process was the document that in fact bears the process number 7, she thought that her note had been inaccurately typed. The number 6 should have appeared against the Glasgow District Council arbitration account. There had, at one point, been some confusion over the question of whether or not that account had been lodged. Whilst she was on five weeks annual leave, the case had been handled by Mr Spencer Kennedy, who had been under the impression that they were still waiting for it to be lodged, not realising that it had in fact been lodged as early as October 1996. Whilst the pursuers did require to seek authority for the late lodging of accounts, that was in respect of the Harvie Construction accounts, not the one for the Glasgow District Council arbitration. She had checked the documents herself on 21 March 1997 and was satisfied that the Glasgow District Council arbitration account had already been lodged. She was also quite clear that when she attended a meeting with the auditor in December 1996, he had the Glasgow District Council account before him at the meeting. The auditor had called for the meeting because the detailed account of over 200 pages in respect of the Glasgow District Council arbitration had already been lodged. She said that a copy of the account that was subsequently lodged as No.7 of process was sent to her by the pursuer's agents on 27 July 1996. In the course of her evidence, Mr Frost disclosed that he and Mr McNamara's contention was that the Glasgow District Council account had been lodged but deliberately taken out of the process to allow the pursuers to increase pressure on Arakin.
[36] Andrew Pollock, solicitor, is a partner with the firm of Peacock Johnston and formerly acted for Arakin. He was questioned by Mr McNamara regarding the amendments to the specification of documents No.21 of process that was approved by the court on 30 April 1998. He said that he had a note of having had a telephone conversation with Mr McNamara explaining to him that they would not be able to secure recovery of the pursuers' Inland Revenue records, some time on 30 April 1998. He had also spoken to both Dominic Harrison and Sheriff Scott the same day. As regards No.30 of process, it was also amended, the court restricting the time period over which recovery was allowed. He also said that, contrary to what had been represented to me by Mr Frost at an earlier stage, he had not produced hundreds of documents to Mr McNamara or Mr Frost in or about the week commencing 6 May 2002. He was asked whether he had ever received a copy of No.7 of process and said that he might have done so.
[37] Catriona Stewart is an assistant solicitor in the employment of the firm of Simpson & Marwick. She works for Mr Peter Anderson who is a partner in the firm and she first became involved in the present litigation in 1998. She explained that, working in conjunction with Mrs Pamela McFarlane, depute clerk, she tried to reconstruct the process when it was realised that some items were missing. Mrs McFarlane provided a note, No.184 of process, to assist in the task. She could not say when it was that the principal summons went astray. She searched in Simpson & Marwick's office but it was not there. She gave Mrs McFarlane a copy of the summons in June 2001. A photocopy of the summons had been borrowed out by her on 27 March 2000. She prepared No.156 of process, a document giving, broadly, a chronological narration of what had been done with documents in the process including what she was able to glean regarding the original summons. She said that from what she had seen and heard, the Glasgow District Council arbitration account had been lodged in October 1996. She believed that No.12 of process was the original document lodged in process. She had not been aware, until Mr Frost told her so in one of his questions, that his position was that he had obtained a copy of the Glasgow arbitration account from Arakin's accountants and made it available to the court. He indicated that he had surrendered his copy of No.6 when the court could not locate No. 6 of process in the middle of 2001 but did not know where the apparently original backing had come from. Mrs Stewart could not assist him on that matter. As regards No.21 of process, she confirmed that it is common practice to retype a specification of documents when it has been amended at the time of the motion for its approval. Her practice, like that of Mr Harrison, was to substitute the freshly typed version for the original. She confirmed that, by 1996, the Rules of Court had changed to the effect that where accounts were to be remitted to the auditor, it was no longer necessary to borrow them out and transfer them to him. The remit, by that time, was effected by an internal transfer by the clerks, without any borrowing being required. As regards 27d, Mrs Stewart said that she had a recollection of a meeting in Mrs McFarlane's office when she, Mrs McFarlane and Mr McNamara were all sitting around a table, with the process, to identify what was there. She remembered Mr McNamara pulling No.27d out of process and scoring something through on it. She checked a note that she made at the time and saw that it was paragraph 7 that he had scored out at the meeting. As regards No.7 of process, Mrs Stewart found, in August 2000 that it was still in Simpson & Marwick's office, having been borrowed out on 24 April 1998. It was returned to the process. She refuted the allegation that Simpson & Marwick had removed No.7 of process to hide "glaring inconsistencies" between it and No.12 of process. She confirmed that the wording of No.30 of process was the same as that of a specification of documents that had been served and intimated to Simpson & Marwick in advance of a motion roll hearing for its approval.
[38] Mr Peter Anderson is a solicitor and a partner in the firm of Simpson & Marwick, agents for the pursuers in this action. He said that the Glasgow District Council arbitration account was lodged in 1996, having been received in his office in about July or August 1996, and the detailed time and line account for the McLaughlin & Brown and Harvie Construction work were lodged in 1997. He recalled Balfour & Manson querying why he was sending them No.6 of process in October 1996 as it did not relate to the summons as then drafted and they were expecting an account that did. A copy of No.7 of process was also sent to them at the same time, namely on or around 23 October 1996. He was not present at the motion roll hearings at which the erroneous understanding that the Glasgow District Council account had not been lodged was expressed. He confirmed that the VAT number that appears on No.6 of process was that of his firm and he thought that one of his court runners had written it onto the document, having been told that the account needed to have a VAT number for lodging and not thinking that the VAT number required would be any number other than that one, the more usual experience being that the court runner would indeed be lodging a Simpson & Marwick account of fees and outlays. As regards both Nos.6 and 7 of process, he had in fact instructed the court runner to lodge them and lodge an inventory with them. She had lodged the accounts but reported back that an inventory was not needed for them. He also said that he thought his reaction when she reported back to him would have been that he would have expected the court to remit the account directly to the auditor. He explained to Mr McNamara, as had already been explained to him in the course of earlier evidence, that it was not necessary, at the time the summons was signetted in this action, for invoices to be lodged at the same time, even if diligence on the dependence was to be effected. He said that the firm had four court runners who attended regularly at the General Department of the Court of Session to deal with the firm's business there. As regards No.1 of process, the manuscript alteration in the sum sued for from £32,000 to £41,000 had, he thought, been effected by one of the firm's Parliament House staff. It was unusual for a principal summons to be lost. He did not remove No.6 of process from the process. He explained why there was a delay in preparing the detailed McLaughlin & Brown account.
[39] Mr A. J. Spencer Kennedy is a partner in the firm of Balfour & Manson. He covered for Miss Doherty when she was on five weeks annual leave in February/March 1997. He gave evidence in December 2002, having first been approached by the defenders a couple of months prior thereto. He had responded by letter. He had previously explained to Mr McNamara that a solicitor does not require to have invoices to raise an action for fees due. He had not realised that No.6 of process had been lodged and copied to Balfour & Manson in October 1996 at the time he was dealing with the case but he did not, in evidence, dispute that that had happened. Accordingly, various letters and file entries were dictated by him on the basis of an assumption that it had not been lodged. He had not discovered that it had been lodged at the time he was involved because, although he checked the process, he had only looked to see if it had been lodged after 7 February 1997.
[40] Donald Davidson, advocate, had acted, at an earlier stage, as counsel for the pursuers in the present action. He had drafted the summons and the amendments to it and he had appeared at the motion hearing in respect of the approval of the specification No.21 of process. He had discussed its terms with Sheriff Scott and indicated, having researched the matter, that he was seeking to have the reference to tax records deleted from it. The changes were agreed and a fresh copy of No.21 of process was typed up for the purpose of service on the havers. He thought that he had seen No.7 of process at the time he drafted the summons. He had not realised, at the time of the motion roll hearings at which reference was made to the Glasgow District Council account not having been lodged, that it had in fact been lodged in October 1996. His explanation for that was simply that mistakes do happen.
[41] Mr Andrew McNamara gave evidence. He said that he was an electrician. He confirmed that he and Mr Frost had taken assignations of various claims in order to pursue litigation. He said that there were five of them, namely the present case, the Arakin pension scheme, Mrs Pentland-Clark, the Usher family, and Arakin's action against Levy & McCrae. He then added that there was also an action at the instance of both of them against the First Minister and Sheriff Peebles. There was also an indication of him being involved in a claim by Jim Murray from Lincolnshire, possibly against "Friends Reunited" and he described himself as a "most reluctant" semi-professional litigator. The Usher and Pentland-Clark claims had, he said, been purchased by them. Mr Frost interrupted and said that there were a number of actions in which both he and Mr McNamara were involved and that they had bought the rights. He said that they covered the expenses and everything else and that if, in the end of the day, they were successful, they may choose to give back a percentage to the assignor. He said that the reason for the present proof was that he and Mr Frost had checked the process in July 2001 and had found that there were items missing from it and that it was in a "big mess". He persisted in his allegation that No.7 of process had been deliberately removed from process by or on behalf of the pursuers. He denied having struck through paragraph 7 of No.27d of process. He confirmed that he had been involved in a previous litigation in which Arakin were defenders, before Sheriff Maguire who did not find in favour of the defenders and commented that Mr McNamara had prepared a deliberately exaggerated claim. Mr McNamara had given evidence in the case but the pursuer's evidence was preferred. Mr McNamara said in evidence that he had a very poor view of lawyers and made various random allegations to the effect that previous witnesses had lied to the court and that Mr Hodge had lied to the court. At one point in his evidence he accepted that No.30 of process was the same as the document he had instructed. He persisted in the general allegation that there had been tampering and doctoring of the process and said that there had been collusion and conspiracy amongst the legal profession. He denied that Mr Pollock had advised him that the reference to the Inland Revenue was being deleted from number 21 of process. Whilst persisting in his allegation that number 7 of process had deliberately been removed from the process, he accepted that he and his legal advisers had had a copy of it from at least October 1996.
[42] Mr Martin Frost gave evidence. Mr McNamara questioned him and he gave a statement on his own behalf. Much of his evidence was irrelevant to the issues that I had to determine despite the fact that he and Mr McNamara had met the week before to discuss it. He explained that he had first become involved in the case early in 2000 and said that his view of its merits was different now from what it had been then. The more the evidence had come to light, the more he had become concerned that there had been serious bad faith on the part of the solicitors involved. He sought to present himself as an expert in what he referred to as basic document investigation and as a handwriting expert, to support various assertions that he had to make about the documents. Nothing that he said was such as to persuade me that I could accept that he was in a position to give such expert evidence . He said that he had seen the original summons in about May 2000, in the court General Department and in court, at a hearing that month. He said that his memory was that there were a lot more handwritten notes on the original front page of the summons (this was the first time that this allegation was made). He said that what now purported to be No.6 of process was given to him by Robert Grieve, law accountant, in two parts, the first being the section up to page 235 and the second being the addendum, added at taxation. He referred to it as being a second or third incarnation of No.6 of process. He spoke at some length of his "beliefs" regarding No.6 of process, namely that the original had gone, that the reincarnation of it was present in two parts, that what now appears as No.6 of process was lodged as No.8, that it was removed from process, that the McLachlan & Brown account was the first incarnation of No.6 and that the original No.6 was lying around. These beliefs appeared to have been inspired by the fact that, as can be seen from the Inventory of process, there has been striking out and renumbering on the front page, in respect of numbers 6,7 and 8. However, in cross-examination he ultimately seemed to accept that it may have been that what happened was that the court runner sought to lodge an inventory with the two sets of accounts in respect of the Glasgow District Council and McLachlan & Brown work and it was only after it had been entered up on the inventory of process, as No.6, that it was realised that no inventory was in fact required for the accounts, so they became 6 and 7 respectively. He also said that Robert Grieve had told him that when he attended at the auditor's office in December 1996, the Glasgow District Council account was there at that stage although, from what he had heard from Levy & McCrae, it had not been formally lodged. Ultimately, his position was that he accepted that a similar bundle or a replica or an identical bundle to No.6 of process, excluding the addendum, had been lodged on 23 October 1996, but not the bundle presently lodged in process. He was not convinced that the front sheet was the original that was lodged on that date. As regards No.7 of process, he said that he believed it was the original and had retained the designation No.7 throughout. As regards No.12 of process, he commented that the backing originally appeared to have been stitched not clipped, as it now is but he accepted that the backing appeared to match what was originally lodged. As regards No.13 and 14 of process, he said that they appeared to be the originals although he speculated about the possibility of their having been lodged as No.12. He said that No.12 of process was a schedule put together by the auditor. He said that he believed the documents contained in No.19 of process to be the originals. As regards No.21 of process, he said that whilst the backing sheet appeared to be the original, the specification within it does not appear to be the original. When asked, in cross-examination, about his allegation that No.21 of process was an abuse of process, used to gain a tactical advantage, he said initially that "synergistically", it was, but he then confirmed that he stood by the allegation. As regards No.30 of process, he said that it was self evident that it was a photocopy of a fax and he did not know whether it was the original that was lodged with the court. As regards No.130 of process, he said that it was the original draft of what was within the backing of sheet of No.21 of process and that he understood that the alterations to it had been made by Donald Davidson, advocate. As regards No.27d, he simply commented that it contained Mr McNamara's handwriting and an item, paragraph 7, had been crossed out in blue biro. In his volunteered evidence, Mr Frost described himself as a publisher. He said that he had been brought up in a family printing concern and had then worked in Littlewoods in their "scrutiny" departments. He said that he had graduated from Heriot Watt University with a degree in business studies and that he had also graduated in marketing. He said that he went to the Simon Fraser University in Vancouver some years later and studied "largely" history pertaining to the Pacific as he was the international director of a trust. It emerged in cross-examination that he was a guest of what he referred to as "the British Colombian government" at an international symposium on Captain Cook, that he attended a course lasting 5 or 6 weeks and he was not suggesting (as might, from his evidence in chief, have been thought) that he went to the Simon Fraser University to obtain a qualification. He said that he got a degree in accountancy and finance which, later in his evidence, was clarified as being the same degree as the business studies degree to which he had already referred. He said that he had been involved with a public company, that he had taken a course in connection with the setting up of lotteries and that he had an understanding of typefaces and how duplication and forgeries could be carried out. He said that he became the senior partner of Longcrofts, an accountancy practice based in Bishopgate in London that is now part of Coopers & Lybrand. In answer to questions about his involvement with Longcrofts in cross-examination, he said that it was basically a partnership at will that he was involved in, along with James Longcroft, that they had a series of offshore companies, and that he was not a partner of Longcrofts but an associate. He said that he had been a director of 1400 companies and he sought to give the impression that he had gained expertise from working with the Department of Trade and Industry on their investigations. He did, though, also indicate that in the early 1990's, there were a series of DTI investigations on him and from 1994 to 1998, he was prohibited from working. He had had a mental breakdown in 1998. Since 2000, he had been self employed as a publisher and had acquired one or two other business interests. He said that he had been involved as a party and had given evidence in the case of Twomax v Dickinson, in this court and for the ten year period after that he had given expert evidence in Birmingham High Court and in the Royal Courts of Justice regarding the veracity or otherwise of documents. In cross-examination he explained that he had become involved in the Twomax case by buying the assets of the company. He also said that he was involved in preparing testimony for the "Blue Arrow Inquiry". In cross-examination, however, it emerged that the only occasions on which he asserted that he had appeared as an expert had been at a tribunal, the nature of which he could not specify, in Birmingham, where he sat round a table with others, and at an unspecified county court. In 1994/5, he had studied at New College in Edinburgh, "reading for a doctorate in theology". In particular, he had studied hermeneutics but he did not complete his doctorate. In cross-examination, he accepted that he had represented to those representing the pursuer in this case, at an earlier stage, that he had hundreds of documents to lodge that had just been made available to him by solicitors including Balfour & Manson, Levy & McCrae and Alexander Stone. When it was put to him that it had been denied in court that any such documents had been volunteered, he avoided answering the question. He was also questioned in cross-examination regarding the fact that in the course of this proof, he had indicated that it was necessary to take Mr Kennedy's evidence prior to the end of one week, as he was going on holiday the next week, given that Mr Kennedy had said in evidence that he was not going on holiday nor had he advised anyone that he was. Mr Frost said that that was what Mr McNamara had told him. He was asked in cross-examination whether he had entered into a voluntary arrangement in January 1997 and confirmed that he had done so, acknowledging that one of the creditors claiming from him was the Inland Revenue. As regards his involvement in litigation, although he had, at an earlier stage in the proof, represented that he was involved in about thirty litigations, ten in the Court of Session, ten in various sheriff courts and ten in England, he said in cross-examination that he was probably involved in more than thirty. He had, he indicated, started 'passing on' litigations to various firms of solicitors who were prepared to act on a speculative basis, at the beginning of 2003. He accepted that he had been described in the press as a semi-professional litigator and accepted that, for twenty years, he had been buying up the rights of others in litigations and pursuing them. Although the journalist, Marcello Mega, had indicated in a newspaper article, that he would make himself available to anyone with a grievance, that was not, he said, what he had told him. He said that every week, "Three or four people will approach us" with a tale of woe". He said: "We've endeavoured to help a great number of persons" and to do so had taken on four or five cases on a charitable and goodwill basis. When asked what he meant by "We", he said "The Royal We". One of the "Great number of persons" was a case in which Mrs Pentland-Clark was the aggrieved person. He indicated that he had known the journalist, Marcello Mega, who he referred to as "Cello" for some years and regularly exchanged Christmas cards with him. He had had lunch with him during his evidence although he denied having discussed the present case. When asked whether it was standard practice for him and Mr McNamara to take an assignation of a claim for a small sum and agree to reassign on demand, subject to deduction of expenses and a percentage of any award, he said they did not "normally" go that far. He acknowledged that he had written in a letter to Mrs Pentland-Clark that Mr McNamara was the "wealthy partner" with net assets in excess of £15m. He confirmed that Mr McNamara was his partner, a business partner, saying that they had 'bought' some litigations in partnership and others not. His approach to the current litigation was based on a view that Arakin had been robbed due to "bogus" arrestments and "bogus" conclusions that were asserted out of "sheer spite".
[43] Stephanie Hunter, Carol Ramsay and Maureen Paterson. These three witnesses were all Parliament House clerks, otherwise known as "court runners" in the employment of Messrs Simpson & Marwick. Their evidence confirmed that the entries in an inventory of process are written by staff in the General Department who allocate the numbers, that any handwriting on the backings of productions (such as the word "intimated" that appears on No.6 of process) would usually be written by the court runners, and that the VAT numbers had been written onto Nos.6 and 7 of process by Maureen Paterson who erroneously thought that she had to use Simpson & Marwick's VAT number for the account to be passed to the auditor for taxation. She also wrote the interlocutor that appears on the front page of No.6 of process and had not realised that that interlocutor did not relate to the account that she was lodging. It was also confirmed that it would be unusual to lodge an inventory with a set of accounts as all that was normally needed was for the account to be lodged and it would then be passed to the auditor. It was confirmed that Nos.6 and 7 of process were lodged on 23 October 1996 and that Mr Anderson had been advised that no inventory was required for them.
Submissions by Mr McNamara
[44] Mr McNamara's approach was to the effect that he and Mr Frost had been ordained to appear because the process was "not right" and the court had determined that the issue of, as he put it: "doctoring and tampering" would be remitted to proof if the process was not sorted out. I was, in the course of the hearing of submissions, provided with a written submission from him extending to 49 pages and, subsequently, an addendum extending to 3 pages. His oral and written submissions repeated the various allegations to which I have already referred. Most of the written submission is irrelevant to the issues that I have to determine. At the end of it, there is a part headed: "summary" in the following terms:
"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."
Submissions by Mr Frost
[46] Mr Frost made oral submissons and tendered a written submission. He dealt with the witnesses early in his oral submissions. He said that whilst he found the evidence of Mr Dobie and Mr Simpson "interesting", he did not think that it was material. The other witnesses had, though, provided meaningful evidence. He said that he was impressed by Mr Davidson's integrity, that what Sheriff Scott and Mr Harrison said regarding No.21 of process was a fair reflection of what they believe to have happened, that he was impressed by Mr Kennedy though to a lesser extent by Miss Doherty, although her evidence did not make a great deal of difference to his submission. The evidence of the court runners was, he said, useful, although he was , he said, not as impressed by the first of them who gave evidence as he had been by the second and third. As regards the items of process referred to in the interlocutor of 6 March 2002, he submitted as follows:1 - it was not the original but was as certified by Mrs McFarlane; 6 - 6 was not the number originally put onto it but was the number that was put onto it in place of the No.8 either on the day of lodging in October 1996 or much later, in May 1997, although, he added that in terms of the overall thrust of abuse of process, "both roads will lead me to Rome", nor was the document in process the original that was lodged. He had supplied it to the court, having got it from Robert Grieve, law accountant and he submitted that the inference should be drawn that No.6 of process had been borrowed out on Mr Anderson's instructions or that it was removed; 7 - it was the original document as lodged; 12 - it was the original document as lodged apart from the schedule which was a later addition; 13 - it was the original document as lodged; 14 - it was the original document as lodged; 19 - it was the original set of documents, as lodged; 21 - the backing sheet was original and the inside pages were substituted at a later date than the date of lodging; 30 - he accepted the integrity of the document but did not accept that it was the original; 130 - he accepted that it was as lodged in court by Mr Moynihan QC; 27d - he said that as far as he was aware, he did not know but he believed it to be the same as was lodged and it appeared to be as the original although otherwise, he took the fifth amendment notwithstanding the fact that he had supported Mr McNamara in his application to have 27d included in the present enquiry. He asserted that there had been fraud in respect that Arakin, who were involved in "diplomatic negotiations" elsewhere, were forced to accept a settlement which otherwise they would not have done and then forced to "put up" £250,000, all of which seemed to be a reference, again, to Arakin having settled a different claim when the pursuers raised proceedings against them and executed arrestments. He referred to the pursuers having done so as a charade and as a sophisticated fraud. In his written submission, he set out some of Arakin's challenges to the sums sought in the pursuer's account No.12 of process. He also set out a submission headed: "Lady Smith" in which it is argued that I should have allowed a jury trial, that I had shown prejudice against the defenders and that I should, due to Mr Frost's past association with my husband's firm, have "recused" myself from the proof. The last of these was a reference back to Mr Frost having indicated that Shepherd & Wedderburn solicitors, a firm of which my husband is a partner, had acted for the Department of Trade & Industry in respect of their investigations of him and his disqualification in the period referred to in his evidence, something of which I was unaware until it was disclosed by Mr Frost during his evidence. He had not, at that time, invited me to decline jurisdiction although he had done so early on in the proof on the basis that the firm of Shepherd & Wedderburn were solicitors to the Faculty of Advocates and had, he understood, been consulted in respect of the issue of whether or not members of Faculty who they wished to call as witnesses should appear, even although the proper procedure for citing them had not been used.
Submissions for the pursuers
[47] Mr Hodge submitted that it was clear that proof had been allowed for the limited purpose of considering the validity of the defenders' allegations only insofar as they related to the three specific issues set out in it. Notwithstanding that, much time had been wasted as a result of the defenders' repeated efforts to extend the proof beyond its ordained scope. The defenders' wider allegations were not accepted by the pursuers but he intended, and indeed, did, confine his submissions to those matters relevantly raised due to the terms of the interlocutor of 6 March 2002. He made submissions in respect of each of the items of process in respect of which questions had been raised, in turn:
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.
Decision
[49] I will set out my findings in respect of each of the items of process referred to in the court's interlocutor of 6 March and then make some general comments regarding the conduct of this proof by the defenders.
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 23rd October 1996 .
(b) this question is not applicable .
(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.
(b) this question is not applicable.
(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.
(c) this question is not applicable.
(d) this question is not applicable.
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.
General observations
[50] As will be clear from the comments that I have already, none of the allegations made by the defenders to the effect that the process had been tampered with or doctored were, on the evidence, well founded. Even less could it be suggested that the documents referred to had been tampered with or doctored by the pursuers or their agents in a deliberate effort to gain an illegitimate advantage over Arakin, which was a recurrent theme in the defenders' written allegations, in their questioning of witnesses and in their written and oral submissions. It is surprising that the allegations were persisted in by the defenders. It became clear from the evidence that they were based on unfounded assumption and suspicion. No efforts had been made by the defenders to make enquiries as to whether the allegations that were contained in numbers 132, 133, 140 and 147 of process were well founded before insisting on them to the extent that the interlocutor of 6 March 2002 was pronounced, fixing the proof. Mr Frost preferred to approach matters on the basis that he did not need to make enquiries of the witnesses in advance either because the documents spoke for themselves or because the proof was an opportunity for him to air his beliefs regarding the documents and Mr McNamara's attitude seemed to be encapsulated by his response when he was asked whether he had made enquiries of Dominic Harrison regarding the documents numbers 21 and 130 of process. He said that he did not do so because Mr Harrison would not have given them a straight answer yet Mr Harrison impressed me as being honest, straightforward and entirely professional in his approach to the matters before me. Nor did it appear from the evidence that any information that the defenders had obtained from such witnesses of whom enquiries had been made, was to the effect that any of their allegations of impropriety were well founded.[51] It was also clear, in my view, that Mr Frost and Mr McNamara were apt to make representations that were not always correct and which they knew or ought to have realised were wrong. For instance, Mr McNamara's representation that he had never been involved in a court case prior to the time that the pursuers acted for him was clearly incorrect and I cannot accept, as he asserted, that he had forgotten his involvement, particularly when the result of it had been that Sheriff Maguire did not find in his favour after he had given evidence. Mr Frost's representation that Mr Kennedy was about to go on holiday had its source, apparently, in a casual remark by Mr McNamara that they had better get him cited lest he go away on holiday, yet it was elevated into a definite representation by Mr Frost to the court that that was what Mr Kennedy was about to do. Mr McNamara did nothing to suggest that the representation was wrong, although he could, at the time, have corrected the erroneous impression that was created by Mr Frost. It was not as if it was Mr McNamara's habit during the proof to refrain from intervening to make statements when he wished to do so.
[52] The proof took an inordinate length of time due to the fact that both defenders persistently resorted to irrelevant lines of enquiry and were disorganised in their presentation, not even, it seems, having marked up their own copy productions with process numbers, despite it being made clear to them that they needed to do so.
[53] In all the circumstances, I have reached the view that Mr Hodge was correct to characterise the defenders' approach as reckless and I agree that they had no reasonable grounds for their asserted belief in the truth of the allegations that they made.
[54] There are some unusual features of this process. There is the fact that some of the original documents have gone astray, the fact that No.7 of process was not returned to process with the need to do so being, for a while, lost sight of, and the fact that it is not clear where No.6 of process was during the period between taxation and it being delivered to the court by Mr Frost in 2001, nor is it clear how it came to have a photocopy front page substituted for the original. There is also the matter of the original content of No.21 of process being removed and replaced with a revised version. Whilst I have no reason to doubt the good faith of whoever it was from Fyfe Ireland that substituted a clean typed version of the content of No.21 of process for the original, as this case demonstrates, it is better practice to refrain from doing so, lest confusion and doubt arise as to whether the document in process is in the same form as it was when it was lodged. I do not doubt that some solicitors, in an effort to clarify what recovery has been authorised by the court, follow the practice described in evidence of substituting a clean typed version for the original wherever there have been amendment or revisal. However, the interlocutor pronounced after the hearing of a motion for approval of a specification can and should , together with the Minute of Proceedings , give a clear indication of what calls have and have not been approved and whether they have been amended. I cannot see that there would then be anything objectionable in agents serving on the havers a clean typed version of the specification and lodging a copy of it in court if they wish to do so. That copy would then be given a separate process number and the specification originally lodged would remain in court, untouched, as a record of what was lodged when the motion for its approval was enrolled. Alternatively , agents could rely on the record of amendments to the specification that will appear in the interlocutor and / or the Minute of Proceedings . Following eitherthat procedure would obviate difficulties of the sort that arose in this case.
[55] On a separate matter, I have serious concerns regarding Mr Frost's position in this litigation. I should state, at the outset, that the views that I am about to express were not the subject of any submission before me but, having reflected on the case since the end of the proof, I feel bound to record them.
[56] Mr Frost appeared, as he repeatedly stated, as a party litigant, having, together with Mr McNamara, taken an assignation of Arakin's interests. He was apt to pray in aid that he was a party litigant whenever he was in the position of having to seek the court's indulgence for failure on his part to follow proper procedures, despite acknowledging that he had actually appeared in court on very many occasions. I have, however, reached the view that his use of the assignation procedure is employed by him as a device to enable him to represent the interests of others. I formed the clear impression that what, in reality, he was seeking to do in this litigation was to represent Mr McNamara's interests. Such an approach would fit with the picture that emerged from his own evidence of persons regularly contacting him to see if he would take up their grievances and of him endeavouring to help them. In short, he runs a business in which he seeks to act for persons who have a grievance but no lawyer. Hence, no doubt, his reacting, when it was put to him in cross-examination that he had told the journalist Marcello Mega that he offered consultancy work for business and legal matters, by saying that those were "not his exact words". The clear inference appeared to be that the substance of the description was correct.
[57] Examples of instances indicative of the true position being that Mr Frost was acting on behalf of Mr McNamara occurred throughout the proof. I noted at the outset that number 133 of process, one of the documents containing allegations of impropriety, is a document that bears to emanate from Mr Frost, not a document signed by both defenders, but is presented as being a statement of allegations made by both of them. Mr Frost also, at times, referred to "our wish" and "our position", such as in the passage that appears in the transcript at page 359 (day 3).
[58] There were numerous occasions in the course of the proof on which it appeared that Mr Frost was telling Mr McNamara what to do or say and there were numerous occasions on which he intervened on behalf of Mr McNamara either to try to put whatever submission he was making more effectively or, simply, to protect him. These instances included the occasion at the end of the fourth day, following an incident that had taken place in the courtroom, after the proof had been adjourned for the day, as a result of which allegations were aired in court to the effect that abusive comments had been made to Mr Dobie by a member of Mr McNamara's family. Mr Frost sought to intervene, on behalf of Mr McNamara, to explain what had occurred. On the sixth day, when Mr McNamara was making a submission to the effect that Mr Pollock should be allowed to refer to notes which were not productions, Mr Frost intervened and took over the making of the submissions. On the eleventh day, when Mr McNamara had made a motion to recall Mr Anderson, I asked Mr Frost whether he associated himself with the motion and his response was to ask for time to consult with Mr McNamara. Immediately prior to Mr Frost beginning to lead Mr McNamara in evidence, he stated that he was going to lead Mr McNamara for his (i.e. Mr Frost's) interests and for "his as well", the latter clearly referring to Mr McNamara's interests. Then, when I asked questions of Mr McNamara in clarification of his evidence ( at, for example, pages 1103 and 1125 of the transcript), Mr Frost intervened, saying: "if I could assist ..." and offered an explanation. At one point in the course of Mr Hodge's cross-examination of Mr McNamara, Mr Frost was trying to prompt him as to the answers he should give. When, in cross-examination, Mr McNamara was asked questions regarding he and Mr Frost purchasing other people's claims, Mr Frost tried to answer the questions for him. Mr Hodge sought to criticise Mr McNamara, in cross-examination, for not having to hand the process numbers of documents to which he wished to refer witnesses and Mr Frost intervened, submitting that he should not be criticised in that way because he, Mr McNamara, was only a party litigant. On a number of occasions Mr Frost sought to intervene in the course of Mr Hodge's cross-examination of Mr McNamara with what he called "points of information". At one point in Mr McNamara's evidence, Mr Frost (at pages 1342-3 of the transcript) asked me to remind Mr McNamara that he was on oath and should express things as he remembered them. Shortly after that, when Mr Hodge used the word: "trenchant" in a question that he put to Mr McNamara, Mr Frost intervened to say that he did not think that Mr McNamara knew what the word "trenchant" meant. Then, later in the cross-examination of Mr McNamara there was reference to an objection to the auditor being taken at taxation on the grounds of the manner of his appointment. Mr McNamara had no recollection of the objection. It appears that it was an objection taken by Mr Frost at the taxation although the impression was that it was an objection taken for the benefit of both of them and Mr Frost interrupted the cross-examination to indicate that they were questions that he, not Mr McNamara, was dealing with. At another point in Mr McNamara's cross-examination he somewhat offensively referred to the pursuers' invoices as "bum invoices" which provoked the reaction on Mr Frost's part that he sought to dilute the offensiveness of Mr McNamara's remark. At one point, in the course of Mr McNamara's evidence, Mrs Pentland-Clark, to whom I have already referred, was present in the public benches of the courtroom. She caused a disturbance and had to be removed from the court. Thereafter, Mr Frost tendered an apology for the disturbance, on behalf of Mrs Pentland-Clark. When Mr McNamara was making his closing submissions, he asked if he could take his jacket off. Mr Frost immediately got to his feet to ask that I should allow Mr McNamara to do so since he suffers from a heart condition.
[59] None of these actions and reactions on the part of Mr Frost were such as could be expected from a defender who was simply representing himself in a litigation to protect his own interests. They were, however, of the character of someone who regarded themselves as representing another's interests, on the one hand, Mr McNamara's and on the other hand, Mrs Pentland-Clark's .
[60] I recognise that, as a matter of form, the assignation in favour of Mr Frost of Arakin's interests, put him in the position of being a party to the action and thus entitled him, in accordance with the provisions of Chapter 51 of the Scots Acts (duodecimo edition) 1537, to plead his own cause in the Court of Session. However, it does seem to me that consideration ought to be given to the question of whether he can properly be regarded as a party litigant and afforded the benefit of a right of audience before this court in circumstances where it seems clear that he has chosen to take that assignation as a means of, in reality, acting for Mr McNamara.
[61] At present, section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 not having been the subject of any commencement order, the only persons other than parties who have a right of audience before the Court of Session are members of the Faculty of Advocates and solicitors who have been granted extended rights of audience, commonly known as "solicitor-advocates". They are both subject to the rules of their profession and disciplinary codes and the court can expect them to be familiar with the methods and scope of advocacy appropriate to the presentation of cases before it (see: Equity & Law Life Assurance Society v Tritonia 1943 SC (HL) 88 at 90), so as to promulgate the effective and efficient use of the court as a public resource.
[62] The right of audience afforded to a party litigant involves persons being entitled to appear before the court without the control of any such professional rules and disciplinary codes in circumstances where they are not normally familiar with the advocacy methods appropriate to their case. As such it places additional burdens not only on the court but on any counsel or solicitor -advocate representing other parties who, in accordance with normal professional standards, can be expected to assist the party litigant insofar as he is able to do so without prejudicing the interests of the party that he represents. As this case has demonstrated, an excessive amount of court time may be taken up where a party seeks to represent himself. These are burdens that the court, counsel and solicitor -advocates can reasonably be expected to bear in circumstances where a party appears to pursue or defend what have always been his own interests. Litigants cannot always secure legal representation whether for financial or other reasons and it is fundamental to any civilised society that they should, nonetheless, have access to justice. That basic right was clearly in the minds of those who were responsible for the establishment of this court and it is a right which has been afforded to litigants throughout its life since then. It has, however, in my opinion, to be questioned whether it was ever contemplated that the right should be extended to those who choose to acquire from another person, an interest in a litigation in which they do not need to become involved at all. Further, the questioning must, in my opinion, be even stronger in a case where the acquisition of the right is employed as a cloak or veil so as conceal the reality of the arrangements that lie behind it, particularly where that reality is, as I consider it in this case to be, that the 'party' is, in truth, acting as procurator for another.