Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Scottish Ministers & Ors [2004] ScotCS 243 (08 November 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/243.html
Cite as: [2004] ScotCS 243

[New search] [Help]

Smith v. Scottish Ministers & Ors [2004] ScotCS 243 (08 November 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Kingarth

Lord Drummond Young

XA119/03

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL TO THE COURT OF SESSION

under

Schedule 2, paragraph 2, to the Roads (Scotland) Act 1984

WILLIAM SMITH

Appellant;

against

a decision of the Scottish Ministers dated 10 July 2003, communicated to the Appellant on 8 August 2003

and

(FIRST) THE SCOTTISH MINISTERS; (SECOND) THE CITY OF GLASGOW COUNCIL; (THIRD) SCOTTISH ENTERPRISE; (FOURTH) PEEL HOLDINGS PLC; and (FIFTH) CLYDEPORT OPERATORS LIMITED

Respondents:

_______

Act: O'Carroll; Tods Murray (Appellant)

Alt: Summers; Richard Henderson (First Respondents: S.A.L. Wolffe; Edward Bain (Second Respondents): McEntegart, solicitor advocate; Bennett & Robertson (Third Respondents): Connal, solicitor advocate, Q.C.; McGrigor Donald (Fifth Respondents): (No appearance for Fourth respondents)

26 October 2004

[1] This is an appeal at the instance of the appellant against a decision of the Scottish Ministers, dated 10 July 2003, which was communicated to the appellant on 8 August 2003. It is brought under paragraph 2 of Schedule 2 to the Roads (Scotland) Act 1984 against the Glasgow City Council Finneston Bridge Public Road Scheme 2000, which was confirmed by Scottish Statutory Instrument 2003 No.355. In his appeal, the appellant claimed to be a "person aggrieved" by the Scheme, within the meaning of paragraph 2 of Schedule 2 to the 1984 Act. Answers were lodged by the respondents to the appeal. Having regard to the contents of those answers it became evident that there was a preliminary issue as to whether the appellant was indeed a "person aggrieved" in that sense. That being the case, by interlocutor of 6 January 2004, the court appointed the cause to the Summar Roll for a hearing restricted, at that stage, to the issue of "the appellant's right to title to sue". A diet for that hearing was fixed for 21 April 2004.

[2] On that date, counsel for the appellant appeared. The first, second and third respondents were also represented. The fourth and fifth respondents were content that the matter should be dealt with by the first and second respondents and were accordingly not represented. When the appeal came before us on that date, counsel for the appellant sought leave to adjust the terms of the appeal. That motion was opposed by those respondents who were represented. After considerable discussion, the court allowed the appellant's adjustments to be received. Thereafter submissions were heard from counsel for the first respondents in support of his contention that the appellant was not a "person aggrieved" in terms of the statutory framework and accordingly had no title or interest to insist in the appeal. His submissions were completed on 21 April 2004, but the hearing had thereafter to be adjourned to a date to be fixed to enable the other submissions to be heard.

[3] On 12 October 2004 a motion was enrolled on behalf of the second respondents for an order ordaining the appellant to find caution of £10,000 within seven days as a condition precedent to proceeding with the appeal on the basis of a number of factors which were listed in the motion. That motion came before the court on 14 October 2004. During the course of the hearing of the motion on that date, it became evident that the appellant's appeal against a refusal of legal aid for his appeal to this court was to be dealt with by the Scottish Legal Aid Board on Monday 18 October 2004. Since the court considered that the issue of whether the appellant would have the benefit of legal aid for his appeal was a material matter in connection with the resolution of the motion to find caution, that motion was adjourned to Tuesday 19 October 2004. On the latter date, the motion again came before the court when the appellant appeared personally. The first and second respondents were represented by counsel. It was also indicated then to the court that the appellant's appeal against refusal of legal aid for his appeal had itself been refused. It was indicated to the court on that occasion that the agents hitherto acting for the appellant had withdrawn from acting, as had counsel instructed by them. With the consent of counsel for the respondents, the appellant personally then moved the court to discharge the diet for the continued Summar Roll hearing on 26 October 2004. In support of that motion he stated that he was unable to conduct his own appeal, being dyslexic, disabled and deaf, and required time in order to obtain fresh legal representation. He frankly conceded that he did not have the financial means to instruct such representation and understood that he did not have the benefit of legal aid. Nevertheless, he insisted that he needed time to obtain such representation. This motion was opposed by counsel for the first and second respondents. The motion to order the appellant to find caution for expenses was allowed to be dropped at the bar. In the light of the submissions made to it on that occasion, the court refused the appellant's motion to discharge the diet of continued Summar Roll hearing fixed for 26 October 2004. The appellant was then informed that the appeal would require to proceed on 26 October 2004 and that, if the appellant could not conduct his own appeal, he would require to obtain representation by some means to enable that to be done on that date.

[4] On 26 October 2004 there appeared at the diet of continued Summar Roll hearing counsel instructed for the appellant. The respondents in the appeal were also represented. Counsel for the appellant indicated that he had been instructed the previous evening; that he had no papers in the case; that he was therefore not in a position to respond to the submissions of the respondents; and that he renewed the motion made on 19 October 2004 by the appellant personally to have the diet for the hearing discharged, so that a new date could be fixed to enable the appellant to make preparations for the appeal and to instruct counsel fully to appear on his behalf. Counsel for the appellant indicated that he believed that the pleadings were not in a satisfactory state and recognised that there might be a need for them to be adjusted again. In response to questions by the court it was indicated that fresh agents had been instructed on behalf of the appellant late on Friday, 22 October 2004. The engagement of fresh representation had been made possible by the ingathering of financial contributions from interested parties on behalf of the appellant, which had enabled appearance to be made for the limited purposes of seeking to obtain an adjournment. Again, in answer to questions by the court, it was said that no assurance could be given that, in the event of a discharge of the diet of the hearing being granted, it would be possible for the appellant to ingather sufficient funds to pay for full representation at the continued diet. There followed submissions from all of the respondents to the effect that the court should not discharge the diet of continued Summer Roll hearing. Concerns were expressed that the appellant now appeared to be a cat's paw being manipulated by others. That suggestion was refuted by counsel for the appellant, who stated that the appeal was at the instance of the appellant and that he and those instructing him had the appellant as their client. However, funds had been ingathered from others to pay for this representation. It was also indicated to us that the appellant himself was not present and was, for that reason if no other, not in a position to act on his own behalf.

[5] Having heard the submissions and representations, we decided to refuse the appellant's motion for the discharge of the continued diet of Summar Roll hearing. The factors which influenced us in that decision were that it had been indicated to us on behalf of the appellant that no assurance should be given that the appellant would be in a financial position to proceed with his appeal at any future diet. Only after the final refusal of legal aid, as described above, had any steps been taken to ingather funds for the purpose of paying for representation for the appellant. Furthermore we considered that the appellant had had an ample opportunity to arrange for his appeal to be argued and that the matter, which was of public importance, had now to be dealt with.

[6] After an adjournment, the consequences of our decision to refuse the motion for discharge of the diet were discussed. Counsel for the appellant indicated that he was not now in a position in which he could act for the appellant and sought leave formally to withdraw from the court. That leave was granted. Thereafter, it was represented to us by counsel for the respondents that the appellant was now not represented and not present to insist in his appeal. We were then moved to dismiss the appeal for want of insistence. Following the making of these motions there followed a discussion as to the proper course which should be taken in the circumstances. Consideration was given to the case of Munro and Miller (Pakistan) Ltd v Wyvern Structures Ltd 1997 S.C. 1, although it was recognised that that case dealt with a situation which had arisen in the Outer House where a party was in default under Rule of Court 20.1.

[7] It appeared to us that neither Rule of Court 20.1 nor Rule of Court 30.2 strictly applied on their terms to the situation with which we were faced. In particular, there could be no question in a statutory appeal such as this of a decree by default being pronounced. However, the appellant had already been given the opportunity, which the provisions of Rule 30.2 were, no doubt, designed to secure, of stating to the court that he intended to insist on this appeal, on 19 October 2004. He was then clearly informed that the appeal would require to proceed on 26 October 2004, notwithstanding the withdrawal of his agents and counsel. On that date, he neither appeared personally, nor was he represented by agents and counsel prepared to argue the appeal. In the circumstances described, we reached the conclusion that we had a discretion to dismiss the appellant's appeal for want of insistence. In the light of the whole circumstances, including the lack of any assurance that the appellant could obtain funds to instruct full legal representation at any future possible hearing of the appeal and that legal aid was not available to him, we took the view that we should dismiss the appeal for want of insistence, which we did.