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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Carloway
Lord Kirkwood
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[2006] CSIH 56
P1539/04
OPINION OF THE COURT
delivered by LORD OSBORNE
in
PETITION
of
HER MAJESTY'S ADVOCATE
Petitioner;
against
MARTIN FROST
Respondent:
for
AN ORDER UNDER SECTION 1
OF THE VEXATIOUS ACTIONS (SCOTLAND) ACT 1898
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Act: Mr J Wolffe, Advocate; The Solicitor to the Scottish Executive
Alt: Party Litigant
29 November 2006
The background
circumstances
[1] In this
petition, the petitioner seeks an order under section 1 of the Vexatious
Actions (Scotland) Act 1898, referred to hereafter as "the 1898 Act", to the
effect that:
" ... no legal proceedings shall be
instituted by the respondent in the Court of Session, Sheriff Court or any
other inferior court unless the respondent first obtains leave of a judge
sitting in the Outer House of the Court of Session, having satisfied such a
judge that such legal proceedings are not vexatious and that there is a prima facie ground for such proceedings
in terms of section 1 of the Vexatious Actions (Scotland) Act 1898".
The respondent has lodged answers to the petition. The hearing on the petition and answers
commenced on 25 October 2005, running until 27 October 2005, when it
had to be discontinued on account of a lack of time and the respondent's
indisposition. The hearing was resumed,
at an adjourned diet on 31 October 2006.
At the commencement of the adjourned diet, counsel for the petitioner
moved the court to allow amendment of the petition and answers in terms of a
minute of amendment for the petitioner, Nos 14 and 16 of process, and
answers for the respondent, No 15 of process. This motion, not being opposed, was granted.
[2] In the petition,
the petitioner avers details of the respondent's involvement in a number of
legal actions, the procedure which occurred in those actions and, where
possible, their outcome. We refer to the
petition, as amended, for its terms. In
Statement III of the petition, the petitioner summarises the basis of the
petition in this way:
"... the respondent has habitually
and persistently instituted vexatious legal proceedings without any reasonable
ground for doing so. In so far as the
merits of the actions and counterclaims instituted by the respondent and
condescended on above have been adjudicated upon by a court they have been
unsuccessful. In Frost v Unity Trust Bank plc,
Frost & McNamara v Alexander Stone & Co and McNamara & Frost v The First Minister and Peebles the
respondent abandoned or withdrew from the proceedings before the merits were
considered. In Frost v Bulman he allowed
decree of absolvitor to pass against
him by default. He has taken appeals
without success. He has regularly but
without success advanced unmeritorious motions that judges should decline to
hear particular matters. The respondent
has taken assignations of claims so that he can appear before the court as a
party litigant. He has acted as a
procurator or advocate for other persons.
He has sought to use legal process for reasons unconnected with the
issues in the case. His conduct of
proceedings has involved the court and other parties in unnecessary procedure,
time and expense. Judges have repeatedly
commented adversely on his written pleadings and oral submissions. The respondent has been sequestrated and
parties who succeed in obtaining an award of expenses against him have little
prospect of recovering those expenses. ...".
In his answer 3, the respondent avers that, in his
opinion, "the petition paints an unrepresentative, contradictory and often
factually incorrect or distorted picture".
That contention is elaborated in the succeeding averments, to which we
refer for their terms.
Submissions on behalf
of the petitioner
[3] At the outset
of the hearing, counsel for the petitioner drew our attention to the fact that,
at an earlier stage in the proceedings, the respondent had offered an
undertaking. The minute of proceedings
in the petition showed that, on 14 December 2004, the respondent undertook
not to raise any further proceedings in Scotland unless such litigation had
been put before a judge of the Court of Session and that judge was satisfied
that that litigation had prima facie grounds and was not vexatious. Counsel for the petitioner stated that the
petitioner did not accept that undertaking.
In that connection he drew our attention to Attorney General v Akena
Adoko [2004] E.W.H.C. 1409 (Admin).
In that case, Collins J. expressed the view that an undertaking in
lieu of a finding under section 42 of the Supreme Court Act 1981, the
counterpart of section 1 of the 1898 Act, was likely to be inappropriate
in many, if not most, cases.
[4] Counsel for
the petitioner moved the court to grant the prayer of the petition. He drew our attention to certain developments
in some of the litigations referred to in the petition, which had occurred
since it was prepared. In relation to
the contention of the respondent that the petition did not give an objective
and accurate picture, it had to be made clear that, while the respondent might
be involved in litigations beyond those mentioned in the petition, the
petitioner was not a party to those actions nor had they been drawn to his
attention. The present petition had been
brought upon the basis of material that was available to the petitioner. This court could make an order under
section 1 of the 1898 Act if it held that the requirements of that
enactment had been satisfied in relation to some cases, regardless of what
might be the position in others.
However, the matter was one for the discretion of the court, in the
final analysis.
[5] The decision
in Attorney General v Jones [1990] 1 W.L.R. 859
showed that a defendant who made a counterclaim, whether by way of defence or
otherwise, instituted proceedings in respect of the counterclaim, just as a
plaintiff instituted proceedings in respect of a claim, as appeared from the
observations of Lord Donaldson of Lymington, M.R. at page 861. What was said in Bhamjee v Forsdick [2004]
1 W.L.R. 88 highlighted the damaging impact of persons who instituted
groundless litigation on the court system.
What was true in England was equally true in Scotland.
[6] The
petitioner accepted that section 1 of the 1898 Act differed from the
equivalent English legislation. A
consequence of that was that incidental motions in existing proceedings would
not be relevant to an application under section 1 of the 1898 Act. However, the bringing of counterclaims, or
the enrolling of reclaiming motions, could be taken into account, since they
involved the institution of legal proceedings.
[7] There was a
further feature of the public interest to which the court ought to have
regard. That was the need to protect
members of the public from what could be described as unqualified
representation. In this connection,
counsel referred to the averments in the petition concerning the case of Tods Murray W.S. v Arakin Ltd, which was action No (5) founded on by the
petitioner. Counsel referred to a series
of productions containing Opinions delivered by several judges in this case,
6/16-18. What emerged from this
material, it was submitted, was that the respondent had developed a practice of
taking assignations from litigants, sisting himself as a party to the
litigations on the basis of the assignations and then proceeding to litigate as
a party litigant in the cases of others.
This had been done, not once, but many times. It could be said, to use the words of
section 1 of the 1898 Act, that it had been done "habitually and
persistently".
[8] Counsel next
referred to production 6/23 of process, a judgment of Laddie J., dated 2 October
2003, in Cintec International Ltd v John Humphries Parkes & Martin Frost
[2003] E.W.H.C. 2328 which contained numerous criticisms of the respondent's
conduct as an advocate in that case, particularly at paragraphs 81, 82 and
83. Although those proceedings had been
brought in the High Court in England, it was submitted that they
described relevant conduct for the purposes of section 1 of the 1898 Act.
[9] Counsel went
on to put before us a number of cases in which the proper approach to
applications such as this one had been explained. The first of these was Lord Advocate v Henderson 1983 S.L.T. 518. The basis of that petition was the bringing of
six actions, one of which had been successful and five of which had failed. That was considered sufficient for an order
to be made under section 1 of the 1898 Act. The court, in that case, had not entered into
a close examination of the merits of the actions, but had had regard to their
outcome. Another relevant case was Lord Advocate v Cooney 1984 S.L.T. 434.
In that case the court had taken a global or impressionistic approach
towards the litigations which were the subject of the petition. There was no close analysis of the features
of the litigations founded upon. Counsel
also relied upon Attorney General v Barker [2000] 1 F.L.R. 759
and, in particular, the observations of Lord Bingham of Cornhill at
pages 764-765 on the subject of what was meant by the adjective
"vexatious". He also founded upon Attorney General v Covey and Attorney General v Matthews [2001] E.W.C.A.Civ 254, particularly
paragraphs 53-57 and 69. Finally,
before addressing himself to the proceedings founded upon in this petition,
counsel drew attention to Lord Advocate
v James Bell 23 March 2001
(unreported), in which, in paragraph 12, the court indicated that a
limitation imposed to restrict the activities of a vexatious litigant was
compatible with the requirements of Article 6 of the European Convention
on Human Rights and Fundamental Freedoms, since an order under the 1898 Act did
not prevent the respondent from raising actions altogether; it required only
that he should obtain leave from a Lord Ordinary before doing so.
[10] Counsel for
the petitioner went on to draw attention to a number of legal proceedings
initiated by the respondent. The first
of these was Martin Frost & Andrew
McNamara v Alexander Stone & Co,
an action for reduction of a decree granted in Glasgow Sheriff Court in favour of the defenders against
Arakin Ltd. The sheriff court action
related to a claim for payment of professional fees. In that action the pursuers relied for their
title to sue on a document headed "Assignation of Claim" granted by Arakin Ltd
in consideration of a payment of £100 paid by the pursuers. In connection with these proceedings
reference was made to an Opinion of Lord Bracadale, dated 14 February
2003, 6/19
of process, and an Opinion of the First Division, delivered by Lord Hamilton,
dated 1 April 2004, 6/20 of process. Lord Bracadale concluded that the
pursuers had failed to make out a prima
facie case in the action. The
subsequent reclaiming motion was refused.
Counsel submitted that it was clear that that action had been vexatious. It represented an attack on a decree in
favour of the defenders in the action, which amounted to an attempt to avoid
payment. It was legitimate to have
regard to the conduct of associated proceedings. In that connection reference was made to paragraph 3
of the Opinion of the First Division.
[11] The second of
the proceedings relied upon was Andrew
McNamara and Martin Frost v (First)
The First Minister, Henry McLeish M.S.P. and (Second) Ian Peebles. The pleadings in this action were 6/21 of process. In the action the pursuers sought reparation
for alleged loss, injury and damage sustained by them through the "malice and
faults" of the "employees" of the first defender. The essential complaint was a lack of
impartiality on the part of Sheriff Peebles and malicious selection of him as a
sheriff by the First Minister. The
action was ultimately abandoned. It
contained reckless and completely unfounded averments of malice. This action was plainly vexatious.
[12] The third of
the proceedings relied upon was Martin
Frost & John Parkes v Cintec
International Ltd in which a number of remedies were sought including
payment of sums of £15 million and £10 million. The pleadings in the action were 6/22 of
process. The subject matter of this
litigation had been the subject matter of other litigation in the High Court of
Justice in London. A judgment
delivered in those proceedings was 6/23 of process. An Opinion delivered in this action by a
temporary judge is 6/24 of process. It
is evident from the judgment of Laddie J., 6/23 of process,
paragraph 10, that the proceedings in Scotland were raised in breach of an
assurance given to that judge.
Subsequently, Lord McEwan decided that the Court of Session did not
have jurisdiction to entertain this action. That decision was the subject of a reclaiming
motion, which was refused. The
respondent had abandoned this action, so far as his interest was concerned, on 19 October
2004. It was plain that this action had never had
any reasonable grounds.
[13] Counsel for
the petitioner submitted that the three cases just referred to raised a
sharp point. Where an individual raised
proceedings on the basis of an assignation or other mechanism, whereby the
assignee could appear as a party litigant, but in reality was acting for
another, (1) there was no reasonable ground of action, and (2) such
litigation was vexatious. The
objectionable nature of what the respondent had done in these and many other
actions was described by Lady Smith in her Opinion following proof in Tods Murray W.S. v Arakin Ltd, dated 31 October 2003, 6/18 of process, in
paragraphs 56-62.
[14] In the first
and second of the proceedings relied upon by the petitioner, counsel pointed
out that the respondent had relied upon an assignation from Arakin Ltd. The terms of the assignation could be seen
from paragraph 4 of the Opinion of Lord Macfadyen in Tods Murray W.S. v Arakin Ltd, dated 16 May 2000, 6/16 of process. In that action a counterclaim for
£1 million had been lodged by the defenders. The consequences of that particular
assignation were fully described by Lady Smith in her Opinion of 31
October 2003. A further manifestation of the respondent's
use of assignations to pursue claims was to be seen in an action at the
instance of Joan Pentland-Clark v (First) John H. Macfie W.S. and
(Second) Gordon Innes W.S., in which an Opinion was delivered by
Lord Hardie on 21 May 2004.
The true nature of the respondent's activities had been the subject of
evidence given by him in the case of Tods
Murray W.S. v Arakin Ltd,
narrated in paragraph 42 of Lady Smith's Opinion. The respondent's activities, as there
described, could properly be characterised as vexatious. It was plain that the respondent had sought
to evade the rules relating to those who could properly appear for others in
the Court of Session. It was not in the
public interest that such activity should be permitted to continue. Elaborating his position, counsel pointed out
that Laddie J. in Cintec
International Ltd v John Humphries
Parkes & Martin Frost formed the view that the respondent had acted as
advocate for John Humphries Parkes, who had not been well served by him. The restrictions imposed on representation in
the Court of Session were conceived in the public interest. The respondent had evaded those
restrictions.
[15] Counsel went
on to draw attention to features of the conduct of the respondent which
illustrated the importance of those restrictions. First, the respondent had demonstrated a
propensity to make assertions and averments in legal actions, which had no
basis in fact. In that connection
reference was made to paragraphs 25 and 50-53 of Lady Smith's Opinion,
6/18 of process, and to Lord Eassie's Opinion in Unity Trust Bank plc v (First) Martin Frost and (Second) Linda
Stewart Anderson or Frost, 6/4 of process, at paragraphs 37 and
49. Reference was also made to the
judgment of Laddie J. at paragraph 82, No 6/23 of process. Secondly, examination of the very numerous
judgments and opinions issued in litigations to which the respondent was a
party showed that the respondent had occupied quite inordinate periods of court
time by pursuing matters which were irrelevant.
In this connection reference was made to the Opinion of an Extra Division
in Unity Trust Bank plc v Martin Frost & Another (No. 2) 2001 S.C.L.R.,
paragraph 13, Tods Murray W.S. v
Arakin Ltd at paragraphs 25-27 and 52
in the Opinion of Lady Smith, 6/18 of process, and Laddie J. in his
judgment, already referred to, at paragraphs 80-82. Thirdly, it was evident from opinions and
judgments in other cases that the respondent had used court procedure to air
grievances that went far beyond the matters properly arising in the cases
concerned. In that connection reference
was made to the observations in paragraphs 25 and 26 of Lady Smith's Opinion in
Tods Murray W.S. v Arakin Ltd, 6/18 of process. Fourthly, the respondent had on a number of
occasions made motions in litigations that judges should decline to hear cases,
without justification. Examples of that
were to be found in Unity Trust Bank plc v Martin Frost & Another (No 2)
and Cintec International Ltd v John Humphries Parkes & Martin Frost,
in the judgment of Laddie J. at paragraph 17. Fifthly,
as already demonstrated, the respondent had raised legal proceedings in breach
of an undertaking given to the High Court in England.
Sixthly, the pleadings of the respondent in legal actions left very much
to be desired, as appeared from observations in Unity Trust Bank plc v Martin
Frost & Another 2001 S.C.L.R. 344, paragraph 3 and
paragraph 7 of the Opinion of Lord Eassie in Unity Trust Bank plc v Martin
Frost & Linda Stewart Anderson or Frost, dated 4 March
2005.
[16] These were all
situations in which, if an individual were a party litigant, the court would
accommodate them to some degree.
However, the position here was quite different, since the respondent had
been engaging in advocacy, without appropriate qualifications or skills. The result was that he had raised actions and
brought counterclaims without reasonable grounds and in a vexatious
manner. The three particular cases
on which counsel founded had been instituted by the respondent, although there
was much other material which indicated the nature of the respondent's
activities, particularly the observations of Lady Smith in Tods Murray W.S. v Arakin Ltd.
The three particular cases founded upon had to be looked at against
the background described. Counsel also founded
upon the behaviour of the respondent in the other litigations to which
reference had been made.
[17] Section 1
of the 1898 Act was narrowly drafted.
It was concerned with a situation where a person had "habitually and
persistently instituted vexatious legal proceedings without any reasonable
ground for instituting such proceedings", not vexatious persons. Nevertheless the requirements of the section
were satisfied in the circumstances here.
[18] In relation to
Cintec International Ltd v John Humphries Parkes & Martin Frost,
counsel made certain further points.
First, he pointed out that an attempt had been made to appeal the
decision of Laddie J. That
application was refused by the Court of Appeal, as appeared from 6/28 of
process. Leave to appeal to the House of
Lords was also refused, as appeared from the Opinion of Lord McEwan, dated
9 September 2005, 6/31 of process,
paragraph 5. Secondly, an award of
costs had been made against John Humphries Parkes and Martin Frost in
the proceedings in the High Court in England, the extent of which was in excess
of £200,000. That had led to the sequestration
of the respondent and Mr Parkes.
However, a petition for recall of the award of sequestration had now
been lodged, without apparent justification.
Thirdly, counsel again made reference to the raising of proceedings in Scotland against Cintec International Ltd,
which was without justification. He
explained that he sought to support the petition in relation to a fourth case, Frost v Unity Trust Bank plc, instituted by the respondent, in which
reduction of a personal bond and standard security was sought. The history of that litigation was set out in
detail at pages 13-19 of the record in the present petition and also in
6/6, 7 and 9 of process. That action had
been held to have been irrelevant and was dismissed after debate. That decision had been the subject of a
reclaiming motion at the hearing of which averments had been added by amendment
by the respondent resulting in the allowance of a preliminary proof before
answer. The action had been abandoned
just before the proof. In due course the
issues to be raised in the proof before answer were tested in Unity Trust Bank plc v (First) Martin Frost and (Second) Linda
Stewart Anderson or Frost.
Lord Eassie, in his Opinion dated 2 October
2003,
concluded that there was no basis in fact for the respondent's position, as
appeared from paragraphs 28-50 of his Opinion, 6/4 of process. Much time had been expended on these
questions. The issue raised by the
respondent was not a relevant basis for reduction. That action was ultimately abandoned before
proof, as appeared from the report in 1997 S.L.T. 1358. It was worth noting that at a particular
stage in that action, the respondent had sought to amend, but his amendment was
refused. Thereafter he had presented a
petition to the nobile officium to be
allowed to amend his pleadings, as appeared from the Opinion of Temporary Judge
Horsburgh, dated 2 February 1996, 6/6 of process, at page 5. In the whole circumstances the prayer of the
petition should be granted.
Submissions of the
Respondent
[19] The respondent
addressed us at length. At times his
submissions were coherent, at others they were rambling and incomprehensible to
anyone not possessing an encyclopaedic knowledge of his own affairs. He persistently addressed us at length upon
matters which were plainly irrelevant to the issues arising in this
petition. Further, from time to time he
sought to contend that decisions made and opinions expressed by other judges in
other courts in other litigations were ill-founded. In these circumstances, it is virtually
impossible to devise a coherent summary of what he had to say. Nevertheless, certain comprehensible points
appeared to emerge.
[20] The respondent
contended that the petitioner's basis for the present petition was unfounded in
fact. Furthermore, the petitioner had
"cherry picked" certain cases, for his own purposes. He had omitted to mention many of the
processes in which the respondent had been involved and Opinions pronounced in
them, which radically altered the perspective of the respondent as a
litigator. In relation to Cintec International Ltd v John Humphries Parkes and Martin Frost,
the respondent said that he had been accused of breaching an undertaking to the
English
Court. He accepted that he
did state what was narrated by Laddie J., to the effect that he would not
raise proceedings. However, there had
developed a "race" to get into the relevant court, which accounted for the
raising of the Scottish proceedings.
Furthermore, it had to be borne in mind that legal proceedings raised by
the respondent had required the leave of a Lord Ordinary in terms of Rule of
Court 4.2(6). In the case of the
proceedings against Cintec International Ltd, a Lord Ordinary had granted leave
to proceed. The respondent went on to
describe in minute detail the background to the raising of those
proceedings. In doing so he observed
that, in the last twenty five years, he had been involved in more
than 500 litigations, ten per cent of which had been in Scotland.
The remainder had been raised in England, in the European Union, in the United States of America and in Canada.
He claimed that in well over ninety per cent of these litigations
he had been represented by solicitors and counsel.
[21] After
addressing us at length on the subject of the litigations involving Cintec
International Ltd, the respondent turned to the case of McNamara and Frost v The
First Minister and Peebles. He
explained in great detail the circumstances in which that action had come to be
raised. However, the respondent did not
attempt to persuade us that the raising of the action against the First
Minister and Sheriff Peebles could be said to have been upon reasonable
grounds. Thereafter he reverted to
further discussion of the Cintec International Ltd litigations. Thereafter he moved on to consider in great
detail the circumstances in which the Unity Trust Bank plc litigations
occurred. Towards the end of the three
day diet originally fixed for the hearing of this petition, the respondent
showed signs of becoming ill. Accordingly
the hearing was adjourned since, in any event, it would not have been completed
in the time made available for it. At
the close of the proceedings on that occasion, counsel for the petitioner
indicated that he would be asking the court to grant the prayer of the petition
on a narrow basis, that of the use of assignations in several of the actions
founded upon.
[22] At a further
diet, counsel for the petitioner moved for leave to amend in terms of his
minute of amendment and answers for the respondent. The respondent did not oppose that
motion. The purpose of the minute of
amendment was said to be to bring the pleadings up to date having regard to the
passage of more than a year since the first diet of hearing.
[23] Following
allowance of the amendment, the respondent once again addressed the court. He contended that the use of assignations
could not be seen as vexatious under the terms of section 1 of the 1898
Act. If a right to pursue an action were
acquired by assignation, there was nothing vexatious about the assignee
pursuing the claim, since, by virtue of the assignation, it had become his. Furthermore, the respondent stated that he
had never perceived himself as representing others in cases where assignations
had been taken. He saw himself as
representing his own interest whether as an individual, or in a partnership, or
as a member of a company. In
circumstances where the respondent had sued or been sued along with another,
such as Andrew McNamara, or John Humphries Parkes, in such situations,
the party to the action was a partnership, taking the form of a joint
venture. However, the present
proceedings had been directed against the respondent personally. In these circumstances it was not open to the
court to take into account such cases.
[24] The respondent
then proceeded to address the court in relation to the details of a number of
cases on which counsel for the petitioner had not founded. The purpose of that exercise was not made clear
to us. The respondent went on to say
that his purpose in the present petition was to ask the court to allow a
proof. He appeared to suggest that the
decision making of this court would be assisted by the hearing of
evidence. He did not explain exactly
what the scope of any proof might be.
[25] He then went
on to criticise a number of individuals; a number of members of the legal profession
whom he had encountered could not be described as honest. In connection with a number of problems
related to such persons the respondent had been advised to go to the
police. He stated that in fact he had
been in contact with the Metropolitan Police and had been interviewed in
connection with the "cash for peerages" inquiry, which he appeared to consider
relevant to the task that we had to perform.
Unity Trust Bank plc had loaned £4 million to the Labour
Party. The respondent proceeded next to
criticise the circumstances in which he and his property had been ejected from
Edenside House, Kelso, at the instance of Unity Trust Bank plc. He also considered in detail the circumstances
of the administration of the individual voluntary arrangement into which he had
entered with his creditors. The
respondent complained that the Scottish courts had not given proper recognition
to that arrangement.
[26] The respondent
then ranged over a large number of matters which he conceived had relevance to
the present proceedings. He drew
attention to actions in which he had been involved which, he submitted, by no
stretch of the imagination, could be described as vexatious litigations. He drew attention to his sequestration. It was his contention that, standing the
individual voluntary arrangement, the sequestration should not have been
awarded. The respondent had been a
frequent litigator because he was not someone who was prepared to give up the
fight in the face of a perceived wrong.
There were many features of the Scottish legal system of which the
respondent disapproved. He criticised
officials of the Court of Session in respect of the issue of an interlocutor
earlier this year, delay in which he contended had prevented him from appealing
to the House of Lords. The interlocutor
had been found very much later than the date on which the Opinion to which it
related had been issued. The respondent
reverted to discussion of the conduct of Unity Trust Bank plc and his expulsion
from Edenside House, Kelso. The manner
in which that operation had been conducted was most unsatisfactory. Once again the respondent engaged in
formulation of a series of criticisms of Unity Trust Bank plc. That organisation had been responsible for a
substantial part of the respondent's life having been taken up in anxious
litigations. He considered that he was
the victim in all this, rather than being a vexatious litigant.
The decision
[27] The present
petition is brought under section 1 of the 1898 Act which provides:
"It shall be lawful for the Lord
Advocate to apply to either Division of the Inner House of the Court of Session
for an order under this Act, and if he satisfies the Court that any person has
habitually and persistently instituted vexatious legal proceedings without any
reasonable ground for instituting such proceedings, whether in the Court of
Session or in any inferior court, and whether against the same person or
against different persons, the Court may order that no legal proceedings shall
be instituted by that person in the Court of Session or any other court unless
he obtains the leave of a judge sitting in the Outer House on the Bills in the
Court of Session, having satisfied the judge that such legal proceeding is not
vexatious, and that there is prima facie
ground for such proceeding. A copy of
such order shall be published in the Edinburgh Gazette."
Before coming to consider the factual basis of the petition,
it is appropriate for us to examine the terms of the legislation with a view to
seeing what material may or may not be relevant to an application made under it. The section speaks of any person who "has
habitually and persistently" instituted the specified proceedings. It appears to us that these words imply that,
to constitute a proper basis for an application, there must at least be more
than one such proceeding. However, we do
not consider that it is possible to specify some minimum number of proceedings
which is required before an application can succeed. In this connection, something will depend
upon the nature of the proceedings and the circumstances in which they are
brought.
[28] The person who
may be the subject of an order under section 1 of the 1898 Act is a person
who has "instituted" proceedings of the kind described. It might be thought that this word requires
that the person who is the subject of the application has habitually and
persistently been a pursuer in proceedings of the kind described. We consider, however, that that
interpretation of the section is unduly narrow.
We think that a person may be said to have "instituted" proceedings in
other circumstances also. Under Rule of
Court 25.1(1) provision is made authorising a defender in any action other
than a family action to lodge a counterclaim against a pursuer in the
circumstances there defined. These
circumstances are:
"(a) where the counterclaim might
have been made in a separate action in which it would not have been necessary
to call as a defender any person other than the pursuer; and
(b) in respect of any matter - (i)
forming part, or arising out of the grounds, of the action by the pursuer; (ii)
the decision of which is necessary for the determination of the question in
controversy between the parties; or (iii) which, if the pursuer had been a
person not otherwise subject to the jurisdiction of the Court, might have been
the subject-matter of an action against that pursuer in which jurisdiction
would have arisen by reconvention."
Having regard to the terms of this Rule of Court we consider
that the lodging of a counterclaim falling within the terms of the rule must be
seen as equivalent to the raising of an action and hence the institution of the
proceedings concerned. Thus we conclude
that a person may be said to have "instituted vexatious legal proceedings" if,
in a counterclaim, that person has commenced proceedings having the quality
desiderated by the section. We are
confirmed in this view by consideration of what was said in Attorney General v Jones [1990] 1 W.L.R. 859. That case was concerned with an application
by the Attorney General under section 42(1) of the Supreme Court Act 1981,
which speaks of any person who has:
"habitually and persistently and
without any reasonable ground - (a) instituted vexatious civil
proceedings, whether in the High Court or any inferior Court ...".
In that case it was held by the Court of Appeal that a
counterclaiming defendant instituted proceedings in relation to the
counterclaim in exactly the same way as a plaintiff instituted proceedings in
relation to a claim, as appears from what was said by Lord Donaldson of
Lymington M.R. at page 861. It
appears to us that the words used in section 42(1) are so similar to the
words used in section 1 of the 1898 Act and that the provisions of
Rule of Court 25.1(1) are so similar to the terms of the relevant English rule
regarding counterclaims, namely Ord.15, r.2, that what was said in that
case in this respect applies with equal force to the situation in Scotland.
[29] We have also
reached the conclusion that the enrolling of a reclaiming motion in an action
to which a person is a party, whether as a pursuer or defender, may properly be
seen as the institution of proceedings susceptible of control under
section 1 of the 1898 Act. The
enrolling of a reclaiming motion is for several purposes seen as a separate
proceeding; furthermore, in Lord Advocate v Cooney, the court, in reaching its conclusion that an order should
be made under section 1 of the 1898 Act, took into account the
lodging of appeals against the dismissal of certain actions after the
respondent in that petition had failed to lodge caution.
[30] Turning to the
words "vexatious legal proceedings" and "without any reasonable ground for
instituting such proceedings" in section 1 of the 1898 Act, it is our view that
there is a close connection between the concepts expressed in these
expressions. It appears to us that legal
proceedings may be properly seen as "vexatious" if they are devoid of
reasonable grounds for their institution.
However, it does appear to us possible that legal proceedings might
properly be seen as "vexatious", even if there were "reasonable grounds for
instituting such proceedings", although proceedings instituted in those
circumstances would not be a sufficient basis for an application under
section 1. We are confirmed in this
approach to these words by what was said by Lord Bingham of Cornhill C.J.
in Attorney-General v Barker [2000] 1 F.L.R. 759,
another application under section 42 of the Supreme Court Act 1981. At page 764 Lord Bingham said:
"'Vexatious' is a familiar term in
legal parlance. The hallmark of a
vexatious proceeding is in my judgment that it has little or no basis in law
(or at least no discernible basis); that whatever the intention of the
proceeding may be, its effect is to subject the defendant to inconvenience,
harassment and expense out of all proportion to any gain likely to accrue to
the claimant; and that it involves an abuse of the process of the court, meaning
by that a use of the court process for a purpose or in a way which is
significantly different from the ordinary and proper use of the court process. Those conditions are in my view met in this
case."
[31] As regards the
words "without any reasonable ground", it is our view that this court, in
adjudicating upon an application such as this one, may conclude that certain
proceedings had no reasonable ground simply upon the basis that those
proceedings failed, or were abandoned before determination. In a case such as this, it would plainly be
impracticable to re-examine the merits, or lack of them, of all of the
proceedings founded upon by the petitioner.
We therefore feel able to proceed upon the basis of determinations made
by other judges in the proceedings founded upon. That was the course followed by the court in Lord Advocate v Henderson and Lord Advocate v
Cooney.
[32] It will be
noted that the basis for an application under section 1 of the
1898 Act is said to be proceedings "whether in the Court of Session or in
any inferior court". We consider that
these words imply that the proceedings which may be the basis for an
application before this court must be proceedings within Scotland.
We do not think that those words are consistent with any other view. Accordingly, we do not consider that the
proceedings before Laddie J. in Cintec
International Ltd v John Humphries
Parkes and Martin Frost, which were the subject of extensive discussion
before us, can be directly relevant to the determination of this application.
[33] Finally, in
this connection, it appears to us that the words of section 1 of the
1898 Act do not require the court to make an order even if it concludes
that the preconditions for such an order have been established. What the section does is to confer upon the
court a discretion to make an order if, in all the circumstances, it considers
that that course is appropriate.
[34] It will be
evident from our narrative of the discussion before us that it ranged far and
wide, into the highways, but also the byways of the respondent's
litigations. Happily we do not find it
necessary to take into account all of the various actions to which reference
was made, since counsel for the petitioner came to focus attention particularly
on a limited number of actions. The
first of these was that of Frost &
McNamara v Alexander Stone & Co,
the subject of averment in the petition between pages 32 and 35 and also
the subject matter of Nos 6/19 and 20 of process. In this action the respondent and
Mr McNamara raised proceedings seeking reduction of a sheriff court decree
granted at Glasgow Sheriff Court in favour of Alexander Stone
& Co against Arakin Ltd. The
involvement of Mr McNamara and the respondent in this action depended upon
an assignation by Arakin Ltd of claims against the defenders. The history of the proceedings is set out in
the averments mentioned and cannot be the subject of dispute. The Lord Ordinary concluded that the pursuers
had failed to make out a prima facie
case. The respondent and Mr McNamara
reclaimed, but the court refused the reclaiming motion. It should be observed that during the course
of this litigation the respondent withdrew from the proceedings by granting
Mr McNamara an assignation of his right to pursue the action.
[35] The second litigation
on which particular attention was focused was McNamara & Frost v The
First Minister and Sheriff Ian Peebles. The pleadings in this action are 6/21 of
process. The averments made by the
pursuers can only be described as bizarre, outrageous and irrelevant. They contain allegations of malice against
both defenders without any comprehensible basis upon which malice could be
inferred. Furthermore, the convening of
the First Minister, who is described as the "employer" of the second defender,
who is a sheriff, is plainly completely misconceived. This action was, in due course, abandoned.
[36] The third
action which was the focus of particular attention was Martin Frost & John Parkes v Cintec International Ltd.
The summons in the action is 6/22 of process. This action is the subject of averment
between pages 35 and 40 of the record.
In it it is averred that the respondent is a "friend and sleeping business
partner of the second pursuer". The
defenders entered appearance for the sole purpose of taking a plea of no
jurisdiction. The case was appointed to
the Procedure Roll on the defenders' plea of no jurisdiction. In due course the Lord Ordinary sustained the
plea of no jurisdiction. A subsequent
reclaiming motion was refused. It is to
be noted that this action was raised admittedly in breach of an undertaking
given by the respondent to Laddie J. in the proceedings involving Cintec
International Ltd in the High Court in England.
No doubt, appreciating the unwisdom involved in these proceedings, the
respondent abandoned them, so far as his interest was concerned, on 19
October 2004.
[37] Attention was
also focused particularly on the proceedings in Frost & Another v Unity
Trust Bank plc, which is the subject of averments between pages 13 and
19 of the record. This action was
dismissed after debate, as appears from the Opinion of the temporary judge, 6/6
of process, on the basis that it was irrelevant. There was a reclaiming motion following upon
that decision, during the course of which amendments were made on behalf of the
pursuers, with the result that a preliminary proof before answer was
allowed. The action was subsequently
abandoned just before proof, although that was not the end of the story, as
appears from the averments made in relation to notes of objections to the
auditor's report, dealt with in averments at pages 16 to 18 of the record.
[38] On the basis
of these particular proceedings, which are just some of those which were the
subject of discussion before us, we are quite satisfied that the requirements
for an order under section 1 of the 1898 Act can be said to exist. Nevertheless, there is more. We refer, in particular, to Tods Murray W.S. v Arakin Ltd, the subject
of extensive averments between pages 20 and 32 of the record. Arakin Ltd lodged a counterclaim in this
action seeking payment of £1 million in respect of loss and damage said to
have been suffered by the defenders through the pursuers' breach of contract or
negligence. In 2000, the respondent and
Andrew McNamara enrolled a motion seeking to have themselves sisted as
assignees to the counterclaim in room and place of Arakin Ltd. On 9 May 2000 the Lord Ordinary refused that
motion as incompetent. However the
respondent and Mr McNamara reclaimed the interlocutors of 9 May
2000, but by
interlocutor of 10 April 2001 the reclaiming motion was
refused. However, on 29 May
2001 the
respondent and Mr McNamara were indeed sisted as parties to both the
action and the counterclaim in room and place of Arakin Ltd. Thereafter they appeared in the action as
party litigants. The complicated
sequence of events that followed in this action is described at page 21 of
the record and following pages. It is
sufficient to note that a proof was allowed into the validity of allegations by
the respondent and Mr McNamara to the effect that the pursuers and their
agents had tampered with the process.
The evidence in the proof lasted for fifteen days. The respondent and Mr McNamara called
fourteen witnesses, including the Dean of the Faculty of Advocates. The Lord Ordinary subsequently noted in her
Opinion that the Dean of Faculty "had no relevant evidence to give and it was
difficult to see why he had been called as a witness." The Opinion of the Lord Ordinary is 6/18 of
process. At paragraphs 50 to 62 of
that Opinion the Lord Ordinary makes certain general observations regarding the
conduct of this proof by the respondent and Mr McNamara, having held that
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. In paragraph 51 the Lord Ordinary
observed:
"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."
In paragraph 52 she stated:
"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 ...".
In paragraph 53 she said:
"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."
In paragraph 56 the Lord Ordinary gave her impression of
the position of the respondent in relation to that litigation:
"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. ..."
Finally , in paragraph 62, the Lord Ordinary continued:
"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 to 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."
We consider that these observations are particularly apt in
the context of this petition in which certain of the cases founded upon by the
petitioner were cases in which the respondent had become involved by virtue of
an assignation in his favour of the rights of another. These views expressed by the Lord Ordinary in
that case were echoed by Laddie J. in paragraph 82 of his judgment in
Cintec International Ltd v John Humphries Parkes & Martin
Frost.
[39] At this stage
it is right that we should deal with certain issues raised by the respondent in
response to the present petition. First,
it was contended by him that this petition was directed against him as an
individual, not against a partnership in which he was a partner. He argued that, in cases where there had been
an assignation to him along with another, the reality of the situation was that
there had been created a partnership in the form of a joint venture. Accordingly such litigations as that could
not form a relevant basis for the present petition. We reject that argument. If it were truly the case that, in certain
litigations where assignations had been taken by the respondent along with
another, there existed a partnership, by virtue of the assignation and the
agreement of the assignees to form a partnership, reference should have been
made in those litigations to that partnership.
It should have been designated as a party to the action concerned. That has not been done. Furthermore, it would, of course, have been a
consequence of a situation in which a partnership, as a separate legal persona, was a party to an action that
the respondent, as an unqualified person not having rights of audience in this
court to represent others, would have been unable to represent the partnership. No such situation was recognised.
[40] Secondly, at
certain stages of his submissions, the respondent contended that there should
be a proof in this petition. It was
never made clear to us by the respondent why he considered that a proof was
necessary. However, we suppose that he
thought that course appropriate because he challenged what other judges in the
litigations founded upon by the petitioner had said concerning those
litigations. If that were the basis for
his argument in favour of a proof, it is one which we reject. In both Lord
Advocate v Henderson and Lord Advocate v Cooney
the court was prepared to proceed upon the basis of decisions reached by other
judges and opinions expressed by other judges in the litigations which were the
basis of those applications. We see no
reason why we should do otherwise. It
would be quite contrary to principle to allow the respondent in this petition
to open up issues which have been litigated before other courts and decided finally
against his contentions.
[41] Thirdly, in
the course of his submissions to us, the respondent maintained that he had been
a party to a number of litigations in which to a greater or lesser extent he
had succeeded. He appeared to think
that, for that reason, the present petition should be refused. We consider that there is no merit in that
contention. The fact that, in certain
cases, the respondent may have succeeded in obtaining a decision in his favour
is irrelevant to the issue which we have to decide in this case. The question for us is whether the matters
set forth in section 1 of the 1898 Act, as a necessary basis for an
order under that section, have been established. If they have, it matters not what may or may
not have occurred in other litigations.
[42] Finally, the
respondent attributed importance to the fact that in those litigations which
had been commenced by him as a party litigant it had been necessary for him to
obtain leave from a Lord Ordinary to proceed without the requisite signature on
the initiating summons, in terms of Rule of Court 4.2(5). While it has been necessary for the
respondent to obtain such leave in certain cases and while he has done that,
that does not, in our opinion, necessarily lead to the conclusion that the
proceedings so initiated were not vexatious and without reasonable
grounds. The granting of leave in terms
of the Rule of Court may signify no more than that the Lord Ordinary granting
it has been satisfied that the summons concerned was in proper form. In the nature of things, a Lord Ordinary
granting such leave may not be able to form any conclusion as to whether there
exist reasonable grounds for instituting the proceedings concerned.
[43] Although no oral
argument was addressed to us on the matter, it is our responsibility to
consider whether the making of an order under section 1 of the 1898 Act would
be incompatible with the respondent's rights under Article 6 of the
Convention on Human Rights and Fundamental Freedoms. We are in no doubt that there would be no
such incompatibility. It is well
recognised that the kind of restraint which is available in terms of
section 1 of the 1898 Act is in fact compatible with
Article 6. In that connection we
refer to what was said in Lord Advocate
v James Bell 23 March
2001
(unreported) at paragraph 12, by Lord Coulsfield, delivering the
Opinion of the Court:
"As regards compatibility with the
European Convention, counsel for the petitioner referred to H. v The
United Kingdom 1985 45 D.R. 281, a decision of the Commission,
which considers previous court decisions and holds that a limitation imposed to
restrict the activities of a vexatious litigant is compatible with the
requirements of Article 6. An order
under the 1898 Act does not prevent the respondent from raising actions
altogether: it only requires that he
should obtain leave from a Lord Ordinary before doing so."
[44] In considering
the exercise of our discretion, we think it right to bear in mind what was said
by Staughton L.J. in Attorney
General v Jones, at
page 865:
"The power to restrain someone from
commencing or continuing legal proceedings is no doubt a drastic restriction of
his civil rights, and is still a restriction if it is subject to the grant of
leave by a High Court judge. But there
must come a time when it is right to exercise that power, for at least
two reasons. First, the opponents
who are harassed by the worry and expense of vexatious litigation are entitled
to protection; secondly, the resources of the judicial system are barely
sufficient to afford justice without unreasonable delay to those who do have
genuine grievances, and should not be squandered on those who do not."
Similar views were expressed in Bhamjee v Forsdick &
Others [2004] 1 W.L.R. 88 by Lord Phillips of Worth Matravers.
[45] In all the
circumstances, having regard to the conduct of the respondent, amply
demonstrated in the litigations which form the basis of the present
application, we are wholly satisfied that the appropriate course is for us to
exercise our discretion by making the order sought. In reaching this conclusion we have been
particularly influenced by the fact that the respondent has made a practice of
taking assignations from other persons of their interests in claims or
litigations, upon that basis then proceeding to have himself sisted as a party
to those litigations, and then practising his own particular brand of
advocacy. That has involved the making
of reckless and unfounded allegations, the wholly unnecessary prolongation of
legal proceedings by the exploration of the legally irrelevant, the subjection
of his opponents to the trouble and expense of countering his allegations, with
little hope of any remedy becoming available to them, in practice, through an
award of expenses, on account of the fact that the respondent has been
sequestrated, and the diversion of scarce public resources in the court system
to the investigation of groundless claims.
Accordingly we shall grant the prayer of the petition.
