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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Abernethy
Lord Nimmo Smith
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[2006] CSIH 39
A1007/00
OPINION OF THE COURT
delivered by LORD OSBORNE
in
RECLAIMING MOTION
in the cause
ALAN PEARSON
Pursuer and Reclaimer;
against
J. RAY McDERMOTT DIVING
INTERNATIONAL INC.
Defenders and Respondents:
_______
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Act: S Di Rollo, Q.C., Ross; Balfour & Manson, Edinburgh
Alt: G Hanretty, Q.C., Miss
Dowdalls; HBM Sayers, Glasgow
20 June 2006
[1] In
this action, commenced by a summons signetted on 3 May 2000, the pursuer and
reclaimer sought damages from the defenders and respondents for personal
injuries said to have been sustained in an accident, which occurred on or about
6 May 1997, when the pursuer was engaged in the course of his employment with
the defenders as a diver or life support technician in the course of a diving
operation aboard Derrick Barge 27 in the Panna Field in the Arabian Sea, west
of Bombay. In due course, a proof took
place over several days, following which, by interlocutor dated 18 February 2004, the Temporary
Lord Ordinary sustained the defenders' second and third pleas in law and
assoilzied the defenders from the conclusions of the summons. Against that interlocutor the pursuer has
reclaimed.
[2] The
pursuer has lodged grounds of appeal.
For present purposes it is necessary to mention only ground 3, which is
headed "Apparent bias". That ground of
appeal is in the following terms:
"A motion
was made in the course of the proof that Temporary Lord Ordinary should
disqualify himself on the grounds of apparent bias. Although the Temporary Lord Ordinary records
that a motion was made [paragraph 41] he does not record the detail of the
submission on behalf of the pursuer nor does he record the reasons for
rejecting the motion. The reasons for
that motion were
1. Inappropriate eye contact with Senior
Counsel for the defender
throughout
the proof.
2. The Temporary Lord Ordinary permitted
the pursuer to be cross-
examined
for an inordinate length of time having regard to the issues in this case. He was put through an unacceptable ordeal
which merely created confusion rather than assisting with testing credibility
and reliability. On several occasions
objection was taken to the manner and content of questions in cross-examination
but at no point was it curtailed by the court.
3. Inappropriate questioning of witnesses
including expert witnesses
(Mr. Grosch,
Mr. Foxworthy and Mr. Davies). His
Lordship went far beyond seeking to clarify matters but carried out
investigations of his own. These
appeared to be with a view to undermining the case being made by the
pursuer. Several of the witnesses (Mr.
Davies, Mr. Grosch and the pursuer's wife) commented after completing their
evidence that the Temporary Lord Ordinary was clearly against the pursuer.
4. Obvious rejection in the course of
evidence in chief of the pursuer's
expert in
relation to the diving operation. Such
evidence was very important to the pursuer's case. In the course of evidence the pursuer's
expert made very serious and highly relevant criticisms of the defenders'
diving operation and yet the Court's reaction was to question the relevance of
that evidence. The way in which the
pursuer became involved in the operation, the lack of information given to him
before and during the operation, the importance of giving him specific and
detailed instructions, the number of persons working at the material time, were
all issues that had been foreshadowed in the pleadings and about which the
pursuer was examined in detail. They
were also matters in respect of which the material produced by the defenders
supported the account given by the pursuer (which material the pursuer could
not have known existed before he made the allegations he had consistently
made). Mr. Grosch's evidence on all of
these points is critical yet the Temporary Lord Ordinary was immediately
dismissive of that evidence. The obvious
hostility to such evidence was particularly inappropriate having regard to the
stage the case had reached. The
Temporary Lord Ordinary had not heard all of the factual evidence at that
stage.
5. A conversation with the macer at the
end of examination in chief of the
pursuer to
the effect that 'We will see how he gets on in cross-examination'.
It is submitted that the Temporary
Lord Ordinary's conduct as set above (sic)
was such as to cause a reasonable person sitting in Court and knowing the
relevant facts to think that he might well be biased in favour of the
defenders. In the circumstances this Court
should make its own findings in relation to the evidence on the basis of the
transcript."
[3] It was indeed
the case that, during the course of the proof and as narrated at page 986 and
following of the transcript of proceedings, a motion was made on behalf of the
pursuer to the Temporary Lord Ordinary which purported to be brought under Rule
of Court 36.13. Since a motion under
that Rule of Court requires to be brought in the Inner House, the motion was in
fact incompetent. However, it was
treated as a motion to the Temporary Lord Ordinary that he should recuse
himself from further involvement in the proof and was entertained as such. This motion was refused without reasons being
given for that decision. It appears that
no interlocutor was pronounced by the Temporary Lord Ordinary reflecting his
decision. Following the proof, the Temporary
Lord Ordinary issued an Opinion, dated 18 February 2004 in which he referred to the motion
mentioned above. He narrates simply that
it was "refused as inappropriate". In
paragraph [41] of his Opinion, the Temporary Lord Ordinary narrated his view as
to the effect of Mr. Grosch's evidence.
In relation to a certain line of questioning the Temporary Lord Ordinary
narrates as follows:
"When that matter was pursued, the Court
attempted to ascertain from Mr. Grosch how that mattered in the context of
the accident under consideration. The
question provoked an outburst from counsel, apparently on the view that it was
an inappropriate question for the Court to ask the witness. The Court had also asked questions of Mr.
Foxworthy (see below), and Mr. Davies, the employment consultant. Counsel presented an argument the following
day asking that I should remit the matter to the Inner House under Rule 36.3 (sic) on the footing that there was an
appearance of bias on the part of the Court.
In fairness to Mr. Grosch, he had been instructed on a remit to give an
opinion on the diving operation. This he
had proceeded to do, as noted, on an erroneous basis of fact and on a
misapprehension of the law but there was not and never could be any input from
him on the precise circumstances of the particular accident."
No other mention is made by the temporary Lord Ordinary of
the motion referred to above, or his reasons for its refusal.
[4] In the light
of the foregoing background, when the pursuer's reclaiming motion came before
us, we expressed certain concerns relating to procedural problems which, in our
view, had been created by ground of appeal 3, and had to be resolved. While some of the points raised in ground 3
might be capable of determination on the basis of an examination of the printed
evidence, others certainly could not. We
considered that in the latter category were points 1 and 5 and maybe point 4,
in ground 3.
[5] We were of
the view that the allegations made in those parts of ground 3 amounted to
allegations of breach of the judicial oath - actual bias - not simply apparent
bias. In any event, we considered that,
if they were to be insisted in, they could not be dealt with on the basis of
assertion and counter-assertion made by counsel. There might require to be some form of
independent investigation into the matters alleged. We indicated to parties that although these
matters had been touched upon in the debate before the Temporary Lord Ordinary
on the pursuer's motion to him, this court would be most reluctant to reach any
final conclusion on any of the allegations in ground 3, without affording to
the Temporary Lord Ordinary the opportunity of responding to them
specifically. We considered that any
other course would be quite unfair to him, in a context in which his integrity
had been put in issue.
[6] We also had
formed the view that the foregoing matters were inextricably associated with
what might be called the merits of the appeal, since, in the final paragraph of
ground 3 the court was invited to "make its own findings in relation to the
evidence on the basis of the transcript".
To do that, in our opinion, would amount to a major departure from the
normal approach taken by this court in appeals involving issues of fact,
exemplified in a series of well-known cases.
It was our view that, until the validity, or otherwise, of the points
raised in ground 3 of the grounds of appeal was determined, it could not be
decided how this court should approach the factual findings of the temporary
Lord Ordinary and the evidence in the case.
In the situation outlined, we invited parties to make submissions to us
on the procedure which ought to be adopted in the reclaiming motion, having
regard to the unusual nature of ground of appeal 3.
[7] There
followed a full discussion of the issues which we had raised with parties. The position adopted on behalf of the pursuer
was that the court could proceed to hear the reclaiming motion without further
ado, that it should discard the factual findings of the Temporary Lord Ordinary
and make its own findings on the basis of the transcript of evidence at the
proof. Emphasis was placed on the fact
that the Temporary Lord Ordinary had not given reasons for his refusal of the
pursuer's motion that he should recuse himself.
It was contended that, in effect, the Temporary Lord Ordinary had already
been given an opportunity to explain the criticisms which had been made of his
conduct of the proof, of which he had declined to avail himself by issuing no
reasons for his decision to refuse the motion.
The position adopted on behalf of the pursuer was that the Temporary
Lord Ordinary had not furnished the pursuer with a fair hearing but that this
court could correct that situation.
Despite the terms of ground 3.2, alleging confusion caused by his
questioning of the pursuer, it would be possible for this court to take that
course. Senior counsel for the pursuer
accepted that, if this court were not prepared to deal with the reclaiming
motion, to the extent that it was based on ground 3, without the comments of
the Temporary Lord Ordinary, the reclaiming motion could not proceed. He continued to maintain that what was
involved in this case was an allegation of apparent bias, not actual bias.
[8] Senior
counsel for the defenders did not address us in detail in relation to the
allegations made in ground of appeal 3.
He submitted that, in the light of the pursuer's failure to proceed with
a motion to the Inner House under Rule of Court 36.13 and having regard also to
the fact that counsel for the pursuer did not further address the Temporary
Lord Ordinary on the matters concerned later in the proof, the pursuer should
be held to have waived his right to insist in ground of appeal 3. Furthermore, he submitted that there was a
strong presumption that a judge who had taken the judicial oath acted in
accordance with it. The onus was on the
pursuer to rebut that presumption.
Nothing in ground 3 had that effect.
[9] Having
carefully considered the submissions made to us, we remain of the opinion that
the allegations made in ground 3 are, in part, allegations of actual bias. However, we are of the view that ground of
appeal 3 has to be treated as a single ground, since, in respect of all of the
matters contained in it, it is contended that this court should follow the
unusual course of making its own findings in fact in relation to the evidence,
on the basis of the transcript, in effect discarding the Temporary Lord
Ordinary's factual findings. We have
reached the conclusion that, in the light of the serious allegations which are
made in ground 3, we cannot properly make a decision in relation to this ground
of appeal without obtaining from the Temporary Lord Ordinary a detailed report
on all of the points which are made in that ground of appeal. To facilitate his compilation of such report,
it would be appropriate for the Temporary Lord Ordinary to have access to the
transcript of the proceedings. In our
view, only he can respond to those parts of ground 3 that cannot fully be
explored by reference to the record of proceedings. Having reached that conclusion, we considered
that it was inevitable that the diet for the reclaiming motion should be
discharged.
[10] Since we
cannot anticipate what the Temporary Lord Ordinary's report may contain, we are
unable to reach any firm conclusion as to what further procedure may be
necessary in this case. However, we do
not exclude the possibility that some factual enquiry may be necessary into
some or all of the matters raised in ground 3.
[11] When the Temporary
Lord Ordinary's report becomes available, the case should appear in the By
Order roll, so that a discussion of appropriate further procedure may be
undertaken. All matters of expenses
arising out of the subject-matter of this Opinion are reserved.
