EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Marnoch	[2009] CSIH 45 P2150/07 OPINION OF THE COURT delivered by LORD REED in the cause THE LORD ADVOCATE Petitioner; against ANDREW McNAMARA Respondent: _______

Petitioner: McBrearty; Scottish Government Legal Directorate

Respondent: Party

4 June 2009

Introduction
[1] This is an application by the Lord Advocate for an order to be made in respect of the respondent under section 1 of the Vexatious Actions (Scotland) Act 1898 as amended ("the 1898 Act"). The application is based on the respondent's involvement in four legal actions, as explained below. It is opposed by the respondent.

The relevant legislation
[2] Before considering the material relied on in support of the application, it is convenient to consider the relevant legislation with a view to deciding how such an application should be approached.

[3] Section 1 of the 1898 Act 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 the Lord Ordinary on the Bills in the Court of Session, having satisfied the Lord Ordinary 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."

In accordance with section 3(1) of the Administration of Justice (Scotland) Act 1933, the reference to the Lord Ordinary on the Bills is to be construed as a reference to a judge sitting in the Outer House.

[4] There are few reported decisions under the 1898 Act, and in only one, HM Advocate v Frost 2007 SC 215, was the legislation considered in any detail. That was the only relevant decision to which we were referred in the course of the parties' submissions. There are however a larger number of English cases, some of which are cited in the opinion in Frost, and cases from elsewhere in the Commonwealth, which have been decided under similar legislation and which throw additional light on its proper interpretation. Although none of the English or Commonwealth case law is critical to our decision in the present case, we shall make reference to it, partly in order to draw attention to the existence of a substantial body of law in which many of the issues arising under the 1898 Act have already been the subject of judicial consideration.

[5] The 1898 Act was modelled upon the Vexatious Actions Act 1896, which applied in England and Wales and was, mutatis mutandis, in almost identical terms. Equivalent legislation was also introduced in other Commonwealth jurisdictions, including Canada, Australia and New Zealand. The circumstances which led to the enactment of the 1896 Act were explained by the High Court of Australia in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at page 316:

"In moving the second reading of the bill in the House of Lords, Lord Halsbury referred in detail to numerous actions that had been brought by one person against a number of other persons, including judges and other persons holding public office. It was said that 'the time had arrived when some sort of stop should be put to such proceedings'. The Bill provided that an application for an order that a person should not issue process without leave should be made by the Attorney-General. The person to whom Lord Halsbury referred had brought some forty-eight actions, the details of which were given. His name was Alexander Chaffers. An application against him was the first case brought under the 1896 Act. It is reported as Ex parte the Attorney-General; Re Alexander Chaffers (1897) 76 LT 351; 45 WR 365"

(see also Re Vexatious Actions Act, 1896; Re Boaler [1915] 1 KB 21 per Scrutton J at pages 39-40).

[6] The 1896 Act was enacted against the background of the court's inherent jurisdiction to prevent abuses of process, as Lord Woolf MR explained in Ebert v Venvil [2000] Ch 484 at pages 495-496. The language used in the 1896 Act reflects that background: it is derived from judicial dicta relating to the court's inherent jurisdiction, such as that of Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Case 210 at pages 220-221:

"... from early times ... the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing ...".

[7] In Scotland, also, the court possesses an inherent power to prevent abuses of process (see e.g. Moore v Scottish Daily Record 2009 SLT 27 at paragraphs 13-14 per Lord Justice Clerk Gill). It has been said that an action might be an abuse of process "if it wastefully occupied the time and resources of the court in a claim that was obviously without merit" (Clarke v Fennoscandia Ltd (No. 3) 2005 SLT 511 at paragraph 17 per Lord Justice Clerk Gill); that the court might "prevent proliferation of litigation in relation to essentially the same dispute and the same issues" (Clarke at paragraph 40 per Lord Clarke, with whose opinion Lord Justice Clerk Gill and Lord Menzies expressed agreement); and that an action might be dismissed as incompetent if it was not brought for a legitimate purpose (Clarke v Fennoscandia Ltd 2008 SC (HL) 122 at paragraph 35 per Lord Rodger of Earlsferry). As we shall explain, these are all descriptions of proceedings which might be characterised, in the language of the 1896 and 1898 Acts, as vexatious.

[8] The Scottish authorities establishing and illustrating the court's inherent power to protect itself from an abuse of its process are concerned with proceedings which were pending before the court, and with the taking of steps in those proceedings so as to prevent the court's process from being abused. Whether the courts in Scotland have an inherent power to prevent the commencement of further proceedings by a particular person, except by leave of the court, is less clear (and is a question on which different views have been taken, in relation to the powers of the English and Australian courts, in Ebert v Venvil and Commonwealth Trading Bank v Inglis respectively). The purpose of the 1896 Act appears to have been to confer upon the High Court a statutory basis for exercising such a power (as Professor Michael Taggart explains in his article, "Alexander Chaffers and the Genesis of the Vexatious Actions Act 1896" [2004] CLJ 656 at page 679).Similarly, in relation to Scotland, the significance of the 1898 Act was that it conferred upon the court a statutory power to make such an order, on the application of the Lord Advocate. It thus enabled the court to anticipate potential future abuses of its process, without having to wait until an abuse occurred in proceedings which were pending before it: the court could make an order of a precautionary nature under the Act where a person had a history of having habitually and persistently abused its process.

[9] The 1898 Act is thus a measure of a procedural character, which supplements the court's inherent power to prevent abuses of its process. The effect of an order under the Act is correspondingly limited. It does not deprive the person in question of his right of access to the court, but requires him, before he again exercises that right, to satisfy the court that the proceedings which he proposes to institute will not be an abuse of its process.

[10] We note that the character of the equivalent legislation in other jurisdictions has been similarly analysed. In Jones v Skyring (1992) 109 ALR 303, for example, an equivalent Australian provision was described by Toohey J in the High Court of Australia as being "concerned with practice and procedure, reinforcing the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance." In Attorney-General v Vernazza [1960] AC 965, which concerned a successor provision to section 1 of the 1896 Act, Lord Denning observed at page 977 that the provision

"... does not prevent Mr Vernazza from continuing proceedings which it is proper for him to carry on. It only prevents him from continuing proceedings which are an abuse of the process of the court. If the proceedings are not an abuse and he has prima facie grounds for them, then he will be given leave to continue them."

[11] The power conferred by the 1898 Act is thus procedural in character and designed to prevent abuses of process. An order under the Act is made by the court itself, and imposes a control over future proceedings which is exercised by the court. Nevertheless, the power conferred by the Act (and by equivalent provisions elsewhere) is of a serious character, as an order under the Act "denies to such a litigant a right that all other citizens have, namely, to call upon the Court to adjudicate a claim simply by making it in Court in the prescribed manner" (Attorney-General v Wentworth (1988) 14 NSWLR 481 at page 484 per Roden J). The fact that the 1898 Act provides for the exercise of a constitutional right (as the right of access to the court was described by Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at page 977) to be impeded or curtailed has implications for its interpretation, as we shall explain.

[12] As we have noted, section 1 of the 1898 Act requires that the court be satisfied of a number of matters before it "may" make an order. The matters of which it must be satisfied can be summarised as being:

(1) that the person against whom the order is sought has "instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings ... in the Court of Session or in any inferior court"; and

(2) that he has acted in the foregoing manner "habitually and persistently."

Each of these statutory requirements raises questions of interpretation.

[13] The first question which requires to be considered is what is meant, in this context, by the phrase "instituted ... legal proceedings." That is a question which has been much discussed in other jurisdictions, and the same difficulties of interpretation arise in the Scottish context. Plainly, a person who initiates proceedings in the Court of Session or the sheriff court as a pursuer or petitioner will fall within the scope of the phrase. But there are many other situations where the answer is less obvious. In the present case, for example, the Lord Advocate founds on circumstances in which the respondent sought to sist himself as a party to a counterclaim, reclaimed against the refusal of the application (and against other decisions in the Outer House) and made allegations, in the course of proceedings in which he was a defender and counterclaimer, which led to the holding of a preliminary proof. It is necessary to know whether such conduct amounts to the institution of legal proceedings within the meaning of the 1898 Act in order to decide whether, on the particular occasion in question, the respondent "instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings."

[14] In considering this question, we note in the first place two cases decided in the years shortly preceding the enactment of the 1898 Act. In Hood Barrs v Cathcart [1894] 3 Ch 376 the Court of Appeal considered a provision in the Married Women's Property Act 1893 which enabled the payment of costs to be ordered in certain circumstances "in any action or proceeding ... instituted by a woman." The question arose whether that provision applied where a woman appealed in a case in which she was the defendant. It was held that it did not. Lindley LJ said at pages 378-379:

'It appears to me that the word 'instituted' is an important one, and that the expression 'proceeding instituted' means some action in which a married woman is the actor, in the sense of having started it, and does not include motions made by a married woman who is a defendant, or appeals by a married woman who is a defendant. I do not think the language of the section is large enough to hit such a case as the present. An appeal is not a 'proceeding instituted' as the expression is understood by lawyers."

Davey LJ, at page 380, placed particular emphasis on the word "instituted":

"Now, I take it that the words 'action or proceeding' must mean some action, or some proceeding in the nature of an action; that is to say, a proceeding in which a lis is initiated; and it appears to me that 'instituted' would be an inapt word for any such proceeding as has been suggested by [counsel]. I have never myself heard of an appeal being 'instituted', and I do not suppose any one ever heard of such an expression being applied to an appeal; whereas 'instituted' is an apt word for the commencement of a suit."

[15] That decision was approved by the House of Lords in Hood Barrs v Heriot [1897] AC 177. Lord Herschell, in whose speech the other members of the House concurred, drew attention at page 179 to the consequences of adopting a wider interpretation:

"If we were to hold that an appeal presented by a married woman is a 'proceeding instituted' by her, then I do not think it would be possible to avoid holding that any proceeding taken by a married woman in the course of an action against her would be a proceeding within the meaning of the section. The Court, in each of those steps she might take in an action brought against her, would have jurisdiction to enter upon this inquiry and to deal separately and independently with the costs of each of those 'proceedings' under the section. I do not think that was ever intended, nor do I think that the words which the Legislature has employed are apt to give the Court any such jurisdiction. The words 'in any action or proceeding instituted,' refer I think to an action or some other litigation initiated by the married woman. Unless the proceeding is one which initiates litigation, it seems to me that it is not a proceeding within the true intent and meaning of the clause upon which reliance is placed."

[16] A similar approach was adopted in John Robinson & Co Ltd v The King [1921] 3 KB 183, where the Court of Appeal had to consider whether an appeal was a "legal proceeding ... instituted", within the meaning of the Indemnity Act 1920. More recently, in Advocate General v Macdonald 2003 SC (HL) 35 a question arose whether an appeal to this court by the Ministry of Defence against a decision of the Employment Appeal Tribunal constituted "proceedings brought by ... a public authority" for the purposes of section 22(4) of the Human Rights Act 1998. Lord Nicholls of Birkenhead, with whose reasoning Lord Hobhouse of Woodborough and Lord Scott of Foscote expressed agreement, said at paragraph 23:

"On a natural reading of the subsection, proceedings are brought when they are first initiated: by the issue of a writ, or making a discrimination claim, or whatever. Subsequent steps in the proceedings, including an appeal, are all part of the proceedings for the purposes of sec 7(1)(b) of the Act. They are directed towards the proper disposal of the proceedings. In the ordinary course they are not themselves separate proceedings for the purposes of sec 22(4)."

[17] Parliament can be taken to have been aware of the decisions in Hood Barrs v Cathcart and Hood Barrs v Heriot when it enacted the 1898 Act. Nevertheless, caution must be exercised in relying on the interpretation of words in another statute dealing with a different subject-matter from the one to be construed. It is necessary, when construing the words as they are used in the 1898 Act, to have regard to the specific statutory context. We note, in the first place, the background to the 1896 Act as explained in Commonwealth Trading Bank v Inglis and Re Boaler. The problem which led to the passing of that Act was the bringing by Mr Chaffers and others of a plethora of actions against numerous holders of public office. The activities of such a prodigious litigant appear to have presented a problem because of the absence of an established practice, or in Scotland at least of any clear power, enabling the court to prevent potential abuses of process in future proceedings as distinct from proceedings already pending before the court. The apparent need for a clear power to anticipate abuses of process in proceedings which were not yet before the court suggests that the intention of Parliament in enacting the 1896 Act (and also, by inference, in enacting the equivalent provisions in the 1898 Act) may have been to address the mischief of the institution of actions which were vexatious, rather than abuses of process (such as the taking of vexatious appeals or the making of vexatious incidental applications) in proceedings which were already before the court.

[18] Next, we note that the short title of the Act, as enacted by section 2, refers to "vexatious actions." That again tends to suggest that the intention of Parliament was to address the mischief of the institution of actions which were vexatious. The same impression is conveyed by the sidenote of section 1:

"Power of Court of Session to prohibit institution of action without leave." The taking of an appeal, or of an incidental step in the course of proceedings, or the making of an allegation in the course of proceedings, would not naturally be described as the institution of an action. The short title and the sidenote are, of course, far from conclusive; but, like the ordinary sense of the words used in section 1 itself, they are pointers towards Parliament's intention (cf R v Montila [2004] 1 WLR 3141 at paragraphs 31-36 per Lord Hope of Craighead).

[19] It is also necessary to bear in mind that the 1898 Act authorises an interference with the rights of the citizen. The extent to which it does so is limited: it is, as we have explained, designed to prevent abuses of the process of the court; and no-one has a right to indulge in abuses of process. Nevertheless, since the right of access to the court is a constitutional right, an Act of Parliament which provides for the exercise of that right to be impeded or curtailed falls within the scope of the presumption that statutory interferences with constitutional rights should receive a strict rather than an expansive construction.

[20] There are a number of reported decisions on the 1896 Act, and equivalent provisions elsewhere, which offer further assistance. The earliest of these is Re Boaler. The question before the court in that case - whether "legal proceedings" included criminal proceedings - is not one which we require to consider; but the judgment of Scrutton J, in particular, contains observations which are of more general relevance. In interpreting the 1896 Act, his Lordship was influenced by the background to the Act and its short title, but also based his decision on what he described at page 39 as "the presumption against interference with the vital rights and liberties of the subject". He considered that the words used in the Act should be given "that meaning which effects the least interference with those rights." Kennedy LJ applied the same presumption (at page 34).

[21] Consideration was also given to the meaning of the words "instituted ... legal proceedings" in the case of Vernazza, when it was before the Court of Appeal (Re Vernazza [1960] 1 QB 197). The court rejected both the contention that the words meant nothing more than the commencement of an action by a writ, and the contention that the taking of any step in an action was the institution of proceedings. The court appears to have considered, in particular, that the commencement of proceedings by summons, in the course of a liquidation, might be regarded as the institution of proceedings. It did not find it necessary to express a concluded view in relation to appeals, although the majority of the court (Ormerod and Willmer LJJ) were inclined to favour the view that an appeal to the Court of Appeal was the institution of a separate proceeding. The court does not appear to have been referred to the decisions in Hood Barrs v Cathcart, Hood Barrs v Heriot, Re Boaler and John Robinson & Co Ltd v The King. These matters were not considered in the subsequent appeal to the House of Lords, which was concerned with a separate aspect of the case.

[22] The question as to what is meant by "instituted .... legal proceedings" has not arisen in the same way in more recent English case law, as the English provision governing the making of such orders has been repeatedly amended so as to extend its scope. In particular, in 1959 the then current provision (section 51 of the Supreme Court of Judicature (Consolidation) Act 1925), which had replaced section 1 of the 1896 Act and was in similar terms, was amended by the Supreme Court of Judicature (Amendment) Act 1959 so that, if an order was made under the section, leave was required not only to "institute" any legal proceedings but also to continue any legal proceedings which had been instituted before the order was made. The circumstances in which such an order (now known as a civil proceedings order) can be made were extended by section 42(1) of the Supreme Courts Act 1981, which remains in force. Section 42(1) (as amended) enables a civil proceedings order to be made where:

"any person has habitually and persistently and without any reasonable ground -

(a) instituted vexatious proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or

(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another."

A "civil proceedings order" is defined by section 42(1A) as meaning an order that

"(a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;

(b) any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and

(c) no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court".

[23] Section 42(1)(b) reflects the fact that applications in the course of proceedings (including proceedings instituted by another person) may be vexatious and may be made without any reasonable ground. It is readily understandable that the English legislation should have been amended so as to enable such applications to form the basis of a civil proceedings order. Section 42(1)(b) does not however have any equivalent in the 1898 Act. Furthermore, in Attorney-General v Jones [1990] 1 WLR 859 (as explained in Henry J Garratt & Co v Ewing [1991] 1 WLR 1356) the Court of Appeal held that appeals to that court from the High Court or inferior courts fell within the scope of section 42(1)(b), since they were applications in the course of proceedings which had been instituted in the lower court. Again, it is readily understandable that appeals should be capable of forming the basis of a civil proceedings order, since they may be vexatious and may be brought without any reasonable ground. As we have observed, however, section 42(1)(b) has no equivalent in the 1898 Act. The court also held in Attorney-General v Jones that a counterclaim made in the High Court or a lower court fell within the scope of section 42(1)(a), since it was a method of instituting proceedings. Referring to the rule of court which governed the making of a counterclaim, Lord Donaldson of Lymington MR said (at page 861):

"[A] defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action may, instead of bringing a separate action, make a counterclaim ... A counterclaiming defendant therefore institutes the proceedings in relation to the counterclaim in exactly the same way as a plaintiff institutes proceedings in relation to a claim."

That reasoning would apply with equal force to a counterclaim made under the equivalent Scottish rules.

[24] We should also note a few of the many decisions from elsewhere in the Commonwealth where the meaning of the phrase "instituted .... legal proceedings", in the context of legislation corresponding to section 1 of the 1898 Act, has been considered. We note first the conclusions reached, after a full citation of authority, in Foy v Foy (No. 2) (1980) 102 DLR (3d) 342, a decision of the Court of Appeal for Ontario which has been followed in subsequent Canadian cases. The court concluded (at page 353):

"... the word 'instituted' in "instituted vexatious legal proceedings" ... only applies to the commencement of an action or proceeding by writ or originating notice of motion or similar originating proceedings."

The legislation therefore did not apply to interlocutory proceedings (ibid). Furthermore, in the light of the decisions in Hood Barrs v Cathcart, Hood Barrs v Heriot and John Robinson & Co Ltd v The King, the court also concluded (at page 355):

"... the launching of an appeal is not the institution of a separate legal proceeding within the meaning of ... the Act."

[25] It is also relevant to note two decisions of the High Court of New Zealand. In Attorney-General v Hill [1993] 7 PRNZ 20 the Court held (at page 23) that a person who was substituted as a plaintiff in existing proceedings could not be considered to have "instituted" those proceedings for the purposes of the relevant provision. In Attorney-General v Collier [2001] NZAR 137 the court held that interlocutory applications were not the "institution of proceedings" and declined to treat appeals as separate "proceedings", observing (at paragraph 32) that

"... some caution is necessary in an expansive approach to the language of a section which impacts upon rights of access to the Courts."

The court emphasised that the provision (which, so far as relevant, was in similar terms to section 1 of the 1898 Act) was more limited in its terms, and therefore also in its scope, than section 42 of the English Act of 1981.

[26] We also note two relevant decisions of the Supreme Court of New South Wales. In Hunter's Hill Municipal Council v Pedler (1976) 1 NSWLR 478 Yeldham J expressed the opinion at page 488 that interlocutory proceedings taken in the course of an action instituted by another person which was still current were not "proceedings instituted" for the purposes of the legislation, but that an appeal should be regarded as the institution of legal proceedings, since it was equivalent in substance to an attempt to set aside a final decision, and it was to the substance of the matter that regard must be had and not to its form. In Attorney-General v Wentworth, on the other hand, Roden J approached the interpretation of the provision (at pages 486-487) on the basis that it should be given a strict construction, following Re Boaler. After citing the judgment in the Hunter's Hill case, Roden J adopted only the observation that it was the substance of the matter rather than the form that must be considered, and expressed the opinion (at page 492) that interlocutory proceedings were capable of being regarded as "proceedings instituted" for the purposes of the provision "if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings." We would observe, in relation to the Hunter's Hill decision, that in Scottish procedure the difference between an appeal and an attempt to set aside a final decision would be regarded as more than merely formal.

[27] Until the case of HM Advocate v Frost, the meaning of the words "instituted ... legal proceedings" had not been considered in any detail in any reported Scottish decision. We note, however, that in Lord Advocate v Rizza 1962 SLT (Notes) 8 Lord President Clyde said that the 1898 Act had been placed upon the statute book to deal with "the persistent institution of vexatious litigations without reasonable grounds for raising such proceedings", and summarised the effect of the Act as being not a bar "against the raising of actions" but a protection to defenders "against actions which ... might be oppressive". Those observations were adopted by Lord President Emslie in Lord Advocate v Henderson 1983 SLT 518 at page 519. We respectfully agree with those observations, which reflect the background to the legislation and the natural meaning of the words in question.

[28] The meaning of the words "instituted ... legal proceedings" was considered in greater detail in HM Advocate v Frost. With the exception of Attorney-General v Jones, however, the court was not referred to any of the authorities bearing on this point which we have discussed. The court considered (at paragraph 28), and rejected as unduly narrow, an interpretation of the words "instituted ... legal proceedings" as meaning that the person must have been a pursuer. The court concluded, in particular, that the lodging of a counterclaim must be seen as equivalent to the raising of an action, and hence as the institution of proceedings. The court also stated (at paragraph 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 1984 SLT 434, 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."

[29] We have to express our reservations as to the correctness of the conclusion reached in that paragraph (without, as we have explained, reference to most of the relevant authorities, or to most of the points which we have discussed). It appears to us that a narrower interpretation of the phrase "instituted ... legal proceedings" would reflect a more natural construction of the words. The enrolling of a motion for review of a Lord Ordinary's interlocutor would not in our opinion ordinarily be described as the "institution" of proceedings in the Court of Session. That interpretation is supported, as we have explained, by the construction placed by the courts on almost identical words both prior to the 1898 Act and subsequently. It is also supported, as we have explained, by the background to the Act, the short title and the sidenote to section 1. It is consistent with the avoidance of an expansive construction of legislation interfering with the constitutional right of access to the court. It is also consistent with the conclusion reached in relation to appeals in Attorney-General v Jones (as explained in Henry J Garratt & Co v Ewing) and in the case of Foy, and with the general approach to construction adopted in Re Boaler and Attorney-General v Collier.

[30] It is unnecessary, and would be unwise, for us to attempt to produce a definition of "the institution of proceedings" for present purposes, a task described by Willmer LJ in Re Vernazza (at page 215) as "almost impossible." Interpreting section 1 of the 1898 Act in the manner which we have suggested, it would not be confined to the initiation of proceedings by summons or petition. We agree that it includes the lodging of a counterclaim, for the reasons explained in the cases of Attorney-General v Jones and Frost. As was said in Attorney-General v Wentworth, it is the substance of the matter rather than the form that must be considered. On the other hand, for the reasons explained in Attorney-General v Hill, we would find it more difficult to regard a person who was sisted as a party to an existing counterclaim as falling within the scope of section 1; but, for reasons we shall explain, it is unnecessary for us to decide that question in the present case. Similarly, we do not require to rely on the reclaiming motions enrolled by the respondent. As we have indicated, however, we find it difficult in any event to accept that a reclaiming motion would ordinarily fall within the ambit of the provisions. The approach adopted in Lord Advocate v Cooney does not appear to us to be inconsistent with that view. The appeals referred to in that case were in proceedings instituted by the vexatious litigant: they do not appear to have been treated as separate "proceedings" for the purposes of the 1898 Act. The taking of hopeless appeals was one of a number of aspects of the proceedings which were said to be relevant "since they are illustrative of the vexatious nature of the litigant" (per Lord Justice-Clerk Wheatley at page 434). In the case of Frost, the proceedings on the basis of which the court concluded (at paragraph 38) that the requirements for an order under the 1898 Act were satisfied were actions in which the litigant in question had been a pursuer. In reaching its conclusion, the court does not appear to have treated reclaiming motions as separate proceedings. In those circumstances, the first sentence in paragraph 29 of the court's opinion in that case does not appear to us to form part of the ratio of the decision.

[31] We consider next the requirement that the person against whom the order is sought must have instituted "vexatious legal proceedings without any reasonable ground." The word "vexatious" was not defined in the 1896 or 1898 Acts. As we have explained, however, it was (and remains) a familiar term in practice relating to abuses of process, and it has been understood as bearing the same meaning in the 1896 and 1898 Acts. The meaning of the term was considered by Lord Phillips of Worth Matravers MR, delivering the judgment of the court, in Bhamjee v Forsdick [2004] 1 WLR 88 at paragraph 7:

"The courts have traditionally described the bringing of hopeless actions and applications as 'vexatious', although this adjective no longer appears in the Civil Procedure Rules: compare RSC Ord 18, r 19(1)(b) with CPR r 3.4(2). In Attorney-General v Barker [2000] 1 FLR 759 Lord Bingham of Cornhill CJ, with whom Klevan J agreed, said, at p 764, para 19 that 'vexatious' was a familiar term in legal parlance. He added:

'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.'"

As Toohey J observed in Jones v Skyring (at paragraph 33), "there is perhaps some tautology" in a provision which requires that proceedings be vexatious and without any reasonable ground. We respectfully agree with the view expressed in the case of Frost (at paragraph 30) that "legal proceedings may be properly seen as 'vexatious' if they are devoid of reasonable grounds for their institution".

[32] Characteristic features of vexatious proceedings were identified by the High Court of New Zealand in Attorney-General v Collier at paragraph 36:

"Vexatious litigation is frequently accompanied by complex pleadings, a widening circle of defendants as litigation proceeds, frequency of striking out of part or all of the statements of claim, inability to accept unfavourable decisions, escalating extravagant or scandalous claims (frequently involving allegations of conspiracy or fraud) and failure to pursue proceedings once instituted. The authorities cited to us from other jurisdictions demonstrate the consistency with which characteristics such as these are present in vexatious litigation."

[33] This approach is consistent with the Scottish authorities. In Lord Advocate v Cooney, for example, the court referred to:

"... the nature of the actions the respondent has raised, the persons he has convened as defenders, his purpose in using or rather abusing the legal processes to carry on a war of attrition, the hopelessness of his actions yet his persistence in pursuing them to the limits which the law allows, and the damaging effects of this conduct on his victims."

[34] We note, however, that an important distinction has been drawn in England and elsewhere, for the purposes of the legislation concerned with vexatious litigants, between an action which is vexatious and an action which is conducted vexatiously. In Re Langton [1966] 1 WLR 1575 Lord Parker LCJ said at page 1578:

"Despite the fact that it may be said that the manner in which that action was conducted was vexatious, it must be remembered that the respondent acted in person, and, not only that, but that the action itself could not be said to be a vexatious action; it was one which the respondent was fully entitled to litigate and did litigate and accordingly, so far as these proceedings are concerned, I ignore that action except as a matter of history."

That approach has been followed in Australia (e.g. in Attorney-General v Wentworth at page 496) and New Zealand. In Attorney-General v Collier, for example, the court said (at paragraph 31):

"It is therefore not the manner in which proceedings are conducted which is in issue in considering the Crown's application, but whether the nature and substance of the proceedings themselves can be characterised as vexatious."

We are content to follow that approach in the present case.

[35] We now consider the fundamental requirement that the person against whom the order is sought must have instituted the proceedings in question "without any reasonable ground for instituting such proceedings." In that regard, we note that in HM Advocate v Frost the court said at paragraph 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 1983 SLT 518 and Lord Advocate v Cooney 1984 SLT 434."

[36] We agree that there can be no question, on an application under the 1898 Act, of re-litigating the merits of earlier proceedings which have already been the subject of adjudication (cf Attorney-General v Jones at page 863). The court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances. We have to express our reservations, however, as to whether proceedings can be treated as having been instituted without any reasonable ground "simply upon the basis that those proceedings failed, or were abandoned." As Roden J commented in Attorney-General v Wentworth at page 498:

"It would be an unhappy situation indeed, if one could only argue a unique, doubtful or 'unlikely' proposition of law, at risk of being declared vexatious."

In our opinion, the fact that proceedings failed or were abandoned does not of itself warrant the conclusion that they were instituted without any reasonable ground. We respectfully agree, in this respect, with the observations of the High Court of New Zealand in Attorney-General v Collier at paragraph 40:

"The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way.....Similarly, while the fact that a proceeding once filed is not pursued is not of itself indicative that it is without substance, the filing of a number of proceedings which are not pursued may be evidence of vexatiousness in all the circumstances."

[37] The Scottish decisions are in our view consistent with this approach. In Lord Advocate v Henderson the court reached its conclusion (at page 519) "having examined the pleadings in the actions relied upon by the Lord Advocate and the history of the actions thereafter." In Lord Advocate v Cooney the court appears to have examined the proceedings instituted by the respondent in some detail, and noted that "his actions have been variously described by judges as hopeless, irrelevant, incompetent and without merit." Similar observations were made in HM Advocate v Bell 2002 SLT 527 (at page 530), where again the court did not confine its attention to the outcome of the proceedings in question. In the case of Frost, the court examined in detail the circumstances in which, and grounds upon which, the proceedings were commenced, and the observations made by the judges who had dealt with those proceedings.

[38] We next consider the requirement that the vexatious legal proceedings must have been instituted without any reasonable ground "habitually and persistently". In the case of Frost, it was said (at paragraph 27) that "these words imply that, to constitute a proper basis for an application, there must be at least more than one such proceeding". We respectfully agree; but it appears to us that the meaning of each of these words goes beyond the number of the proceedings in question. In Attorney-General v Wentworth Roden J, although not attempting a definition of universal application, observed at page 492:

"'Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; 'persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness".

Those observations have been accepted in subsequent Australian cases. They are consistent with observations in recent English authorities (such as Attorney-General v Barker at paragraph 22 per Lord Bingham LCJ, and Attorney-General v Covey [2001] EWCA Civ 254 at paragraph 57, approving the observations of Rose LJ in the Divisional Court), and appear to us to be helpful in identifying the distinct shades of meaning of the two terms which Parliament has selected.

[39] The importance of the requirement that the institution of vexatious legal proceedings without any reasonable ground has been habitual and persistent is illustrated by some of the decided cases. In the case of Foy, for example, the court found that it had no jurisdiction to make an order, as there were only two actions on which an order might be based, and they were held (at page 356) to be "not sufficient to bring the [appellant] within the words 'habitually and persistently'." In Attorney-General v Barker the court reached a similar conclusion. Although there were in that case 19 actions in question, they had all been commenced within a three month period when the defendant had apparently been suffering from a mental breakdown. By the time of the hearing, he had been returned to health, and it appeared unlikely that he would embark on further litigation. The same conclusion was reached in Attorney-General v Wentworth, where there were three actions on which an order might be based, and those actions were set in the context of a much larger number of actions which could not be described as vexatious, some of which had been successful. It appears to us, in the light of that decision, that it may be necessary to qualify the statement of the court in Frost (at paragraph 41) that:

"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 ...".

As was said in Attorney-General v Covey, it is necessary to look at the whole history of the respondent's litigious activity; and, depending on the circumstances, it is conceivable that a history of instituting proceedings which were not vexatious may have a bearing on the court's assessment of whether the respondent can be said to have "habitually" instituted vexatious proceedings.

[40] The next point we require to note is that, if it is established that the conditions laid down in section 1 of the 1898 Act are met, the court has a discretion to make an order under the section, but is not obliged to do so. Whether, where the conditions are met, the court will exercise its discretion to make an order will depend on the court's assessment of whether it is appropriate to do so in the interests of justice. In exercising its discretion, the court is entitled to have regard to any matter which is relevant to that assessment, including the conduct of the litigant in other proceedings besides those which form the basis of the court's jurisdiction to make the order. The prima facie right of all citizens to invoke the jurisdiction of the civil courts, and the availability of other powers to deal with abuses of process, will be relevant considerations. So too will be the need to protect members of the public, and the resources of the court itself, against further abuses of process. The extent to which vexatious litigation drains the resources of the court, in particular, is a matter of considerable concern. In that regard, the court in Frost expressed its agreement (at paragraph 44) with what had been said by Staughton LJ in Attorney-General v Jones at page 865, where he explained why there must come a time when it is right for a court to exercise its power to make a civil proceedings order against a vexatious litigant. He said that there were 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."

As has been said in other cases, it is necessary to look at the whole picture, having regard to the cumulative effect of the litigant's activities, both on the other persons involved in the proceedings and on the administration of justice generally. It also has to be borne in mind that an order under the section operates not as a bar to the bringing of further proceedings but as a filter.

[41] Finally, in relation to the legislation, it is convenient at this point to consider the respondent's contention that the making of an order under the 1898 Act is incompatible with the Convention right of access to a court, guaranteed by Article 6(1) of the European Convention of Human Rights. That contention must be rejected, for reasons which were fully explained by the Court of Appeal in Bhamjee v Forsdick at paragraphs 16-17:

"16 ... It is now well settled both at common law and under Strasbourg jurisprudence that a court has power to regulate its affairs in such a way that its processes are not abused. The governing principles are set out clearly in the judgments of the European Court of Human Rights in Golder v United Kingdom (1975) 1 EHRR 524, 536, 537, paras 36, 38-39, Ashingdane v United Kingdom (1985) 7 EHRR 528, 546, para 57 and Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, 475, para 59. These cases proclaim the message that the right of access to the courts may be subject to limitations in the form of regulation by the state, so long as two conditions are satisfied: (i) the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired; (ii) a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

17 In H v United Kingdom (1985) 45 DR 281 the European Commission of Human Rights applied these principles when it decided that an order refusing the applicant leave to bring an action by virtue of an earlier order made against him under the Vexatious Actions (Scotland) Act 1898 did not constitute an arguable violation of his Convention rights. Indeed, it said, at p 285, that 'some form of regulation of access to court is necessary in the interests of the proper administration of justice and must therefore be regarded as a legitimate aim'."

As the Commission noted in H v United Kingdom (at page 285), the order made under the 1898 Act did not limit the applicant's access to court completely, but provided for review by a senior judge of any case the applicant wished to bring. Such a review was not such as to deny the essence of the right of access to court; it had a legitimate aim; and it was not disproportionate to the aim pursued.

The proceedings in question
[42] The petition is founded upon four proceedings. We shall consider these in chronological order.

1. Tods Murray WS v Arakin Ltd

[43] In 1996 Tods Murray WS, a firm of solicitors, raised an action against Arakin Ltd for payment of their professional fees in respect of earlier proceedings in which they had acted on behalf of Arakin, including proceedings brought against Arakin by their former accountants for payment of their professional fees. Arakin were (and remain) a company in which the respondent was one of the principal shareholders and directors, the other shareholders and directors being members of his family. Arakin defended the action on grounds relating to the rendering of the fees: in particular, it was argued that VAT invoices had not been rendered in conformity with the relevant VAT legislation. They also lodged a counterclaim in the action, seeking payment of damages in respect of loss said to have been suffered as a result of the pursuers' breach of contract or negligence. The defenders were initially represented in the action by Levy & McRae, another firm of solicitors. In 2000 the respondent and Mr Martin Frost applied by minute to be sisted as parties to the counterclaim (but not the principal action) in place of the existing defenders, having taken an assignation of Arakin's interest in the litigation. On 16 May 2000 the Lord Ordinary refused the motion as incompetent, but granted leave to reclaim: he observed that the motion for leave to reclaim had not been opposed, and that no authority bearing directly on the issue had been cited. On 10 April 2001 the reclaiming motion was refused. The respondent and Mr Frost then applied by minute to be sisted as parties to both the action and the counterclaim in place of Arakin. That application was granted on 29 May 2001. The respondent and Mr Frost then took part in the proceedings as the defenders.

[44] In the subsequent course of the proceedings, allegations were made by the defenders to the effect that the pursuers and their solicitors, Simpson & Marwick, had deliberately tampered with the court process in order to deceive the court and defraud Arakin. The allegations were made in a number of documents. It is sufficient, in order to convey the general tenor, to refer to two of them. In a document dated 10 January 2002, of which the respondent was the author, it was said that a production had been removed from the process as "a deliberate act to hide the glaring inconsistencies and additions", that another production had been "tampered with to prejudice Arakin or Frost/McNamara", and that another production had been "tampered with to make [another production] look authentic." A further document of which the respondent was the author, submitted for a hearing on 13 February 2002, alleged that the pursuers or their solicitors had "continued to knowingly and wilfully deceive the court, all with intent to defraud Arakin", and that "Tods Murray knowingly and wilfully gave the court false accounts with the intent to fraudulently recover sums from Arakin". On 6 March 2002 the court decided, seemingly ex proprio motu, to order a proof to determine the validity of the allegations that the process had been tampered with.

[45] The evidence at the proof lasted fifteen days and was completed in August 2003. In her Opinion, dated 31 October 2003, the Lord Ordinary found that none of the allegations to the effect that the process had been tampered with had been substantiated. She noted that none of the fourteen witnesses led in evidence by the defenders had been approached before the allegations had been made and insisted in. In relation to one of the witnesses, who was at the time the Dean of the Faculty of Advocates, she commented that "he had no relevant evidence to give and it was difficult to see why he had been called as a witness". She observed that "the defenders regarded the proof as a vehicle for seeking to air grievances that went far beyond the issues" remitted to proof. She commented that the defenders "persisted in attempting to pursue irrelevant lines of enquiry, which was time consuming and distracted from the issues with which the proof was concerned". She noted that the defenders were unwilling to accept her rulings as to the scope of the proof, insisting that her interpretation of the interlocutor allowing the proof was wrong. She also noted evidence given by Mr Frost, in the course of being examined by Mr McNamara, to the effect that the evidence at the proof had assisted them in their cases against Levy & McRae and Alexander Stone & Co (which we discuss below), and would assist in future proceedings against the solicitors acting on behalf of the pursuers. The Lord Ordinary commented:

"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 [allowing the proof]".

[46] The Lord Ordinary summarised the respondent's evidence. Two aspects are relevant to the present proceedings. First, the respondent "persisted in the general allegation that there had been tampering and doctoring of the process and said there had been collusion and conspiracy amongst the legal profession". He accused witnesses, and Tods Murray's counsel, of lying to the court. Secondly, he "confirmed that he and Mr Frost had taken assignations of various claims in order to pursue litigation". There were said to be five such claims, three of which (including the counterclaim in that action) were claims by Arakin, one of which was a claim by Mrs Joan Pentland-Clark, and the last of which was a claim by the Usher family. The respondent and Mr Frost were said to have purchased the two latter claims.

[47] The Lord Ordinary concluded that none of the allegations made by the defenders were well founded, and that they had been based on unfounded assumption and suspicion. No enquiries had been made before the allegations were insisted in and the proof was fixed. She commented 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", and that "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." She observed:

"In all the circumstances, I have reached the view that [counsel for the pursuers] 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."

[48] In the present proceedings, counsel for the petitioner submitted that the proceedings in Tods Murray WS v Arakin were relevant to meeting the requirements of section 1 of the 1898 Act. They had been treated as relevant in that regard in HM Advocate v Frost, seemingly on the basis that the respondent and Mr Frost were counterclaimers in those proceedings. It was however accepted that the counterclaim could not be said to lack reasonable grounds: the proceedings remained before the court, and no decision on the merits either of the principal action or of the counterclaim had yet been taken. The application in 2000 to be sisted as parties to the counterclaim could however be regarded as the institution of legal proceedings without reasonable grounds; and the subsequent reclaiming motion could also be so regarded. In any event, if the requirements of section 1 were satisfied by the other proceedings founded upon, the respondent's conduct in relation to Tods Murray WS v Arakin had plainly been vexatious, and was relevant to the court's exercise of its discretion.

[49] In answer, the respondent explained that Arakin had originally instructed Levy & McRae and other solicitors to defend the proceedings brought against it by Tods Murray. After five firms of solicitors had withdrawn from acting, the respondent had resigned his directorship of Arakin and taken an assignation from it in order to defend its interests in the litigation. In view of the respondent's lack of knowledge of court procedure, the assignation had included Mr Frost, who had held himself out as a person with expertise in conducting litigation. Mr Frost had also acquired assignations from Mrs Pentland-Clark and the Usher family, but the respondent had been party to proceedings, as an assignee, only on behalf of Arakin. He had subsequently broken off relations with Mr Frost. He regretted his involvement with Mr Frost, and the consequences which that involvement had had for the use of court time. The respondent added, in his answers, that neither he nor Arakin was able to obtain independent and impartial representation against members of the Law Society of Scotland, by reason of the arrangements for professional indemnity insurance for all practising solicitors in Scotland, and that he had in consequence been denied a fair hearing as required under Article 6(1) of the European Convention and the Human Rights Act 1998. The respondent in addition presented detailed arguments in order to demonstrate that there were reasonable grounds for the defence of the proceedings brought by Tods Murray and for the counterclaim against them.

[50] In considering the relevance of these proceedings to section 1 of the 1898 Act, we note in the first place that the principal action was instituted by Tods Murray, and that it has not been suggested to us that the counterclaim to the action was instituted without reasonable grounds. The application made by the respondent and Mr Frost in 2000 to be sisted as parties to the counterclaim was unsuccessful, but we are not persuaded that it, or the subsequent reclaiming motion, can be said to be have been instituted without any reasonable ground, bearing in mind that the Lord Ordinary granted leave to reclaim, that the motion for leave to reclaim was unopposed, and that there was seemingly no authority bearing directly on the issue. In those circumstances, it is unnecessary to decide whether the application to be sisted, or the reclaiming motion, could be regarded as the institution of legal proceedings within the meaning of section 1 of the 1898 Act. The making of the allegations of tampering with the process, in the course of the proceedings, cannot in our view be regarded as being in itself the institution of proceedings, and the decision to allow a proof of those allegations appears to have been taken by the Lord Ordinary ex proprio motu. We conclude, accordingly, that the proceedings in Tods Murray WS v Arakin are not relevant to the requirements of section 1. The conduct of the respondent in those proceedings during 2002 and 2003 is however potentially relevant to the exercise of the court's discretion under section 1, in the event that the requirements of the section are otherwise satisfied. That appears to us to have been the basis on which the court proceeded in HM Advocate v Frost, where it reached its conclusion (at paragraph 38) that the requirements of section 1 were met in the light of other proceedings, but treated Mr Frost's conduct in relation to Tods Murray WS v Arakin as relevant to the exercise of its discretion. In the present case, a consideration of the respondent's conduct can therefore be deferred until we have decided whether the other proceedings relied upon are sufficient to meet the requirements of section 1.

2. McNamara and Frost v Levy & McRae

[51] In April 2000 the respondent and Mr Frost raised an action in the sheriff court, as assignees of Arakin, against Levy & McRae, a firm of solicitors. They sought damages of over £5 million as compensation for losses said to have been suffered as a result of the defenders' breach of contract or negligence when acting on behalf of Arakin in the case of Tods Murray WS v Arakin. The action was brought after Levy & McRae had sued Arakin for payment of their professional fees. It proceeded to a debate on the relevancy of the pursuers' pleadings, which began before Sheriff Peebles on 23 February 2001. At the outset of the debate, Sheriff Peebles was requested by the pursuers to decline jurisdiction on the ground that he was a personal friend of a partner in Tods Murray. The sheriff declined to recuse himself, observing that the action was one between the pursuers and Levy & McRae. The debate proceeded but was not completed that day. A further diet was fixed for 21 May 2001. That diet did not proceed, as on 18 May 2001 the respondent and Mr Frost commenced proceedings against the First Minister and Sheriff Peebles (discussed below). In December 2001 the action against Levy & McRae was remitted to the Court of Session, where a further hearing on relevancy was fixed for 20 and 21 March 2003. That hearing was discharged the previous day, the pursuers being found liable for the expenses of the discharged diet. A further diet was then fixed for 2 and 3 October 2003. During the intervening period the pursuers lodged a minute of amendment which sought to replace their existing pleadings in their entirety, introducing inter alia a claim by the respondent personally for damages of over £600,000. At the hearing on 2 October 2003, the debate on relevancy did not proceed. The Lord Ordinary ordered the pursuers to lodge pleadings which were in the proper form. There were then repeated delays in having the continued diet fixed, due partly to the illness of the Lord Ordinary. It was ultimately set down to proceed on 15 and 16 February 2005. At the hearing on 15 February 2005 the pursuer was not present but was represented by counsel, who sought a discharge of the diet. On the motion of the defenders, and with the concurrence of Mr Frost, the Lord Ordinary dismissed the action. No opinion was issued. It does not appear from the interlocutor that the motion for dismissal was opposed by counsel on behalf of the respondent. In any event, it was concurred in by Mr Frost, who was one of the joint assignees pursuing the action. The decree of dismissal was not reclaimed against.

[52] We note that the closed record in the proceedings contains no conclusions. It contains allegations that Simpson & Marwick obtained a warrant to arrest and inhibit on the dependence of the action brought by Tods Murray against Arakin by means of a fraudulent deception of the court. The allegations of professional negligence made by the pursuers against Levy & McRae were, as the respondent accepted before us, made and persisted in without the support of any expert opinion.

[53] Counsel for the petitioner submitted that the court was entitled to conclude that these proceedings had been instituted without any reasonable ground. They could properly be described as vexatious not only for that reason but also in the light of the manner in which they had been conducted. The respondent on the other hand said that he had been unable to attend the hearing on 15 February 2005 as his wife was then in hospital. He had been content to let the matter rest rather than to pursue any further procedure. The action was not without an arguable basis, although it might have been incompetently pled.

[54] As we have explained, these proceedings were based on allegations of professional negligence which were unsupported by the opinion of anyone qualified to express an opinion on that issue. It is not suggested that they were instituted in the expectation that such support could be obtained; nor does there appear to have been any attempt to obtain such support. In those circumstances, we consider that we are entitled to conclude that the proceedings were instituted without any reasonable ground and were vexatious. The manner in which the proceedings were conducted (e.g. the repeated discharge of hearings, the pursuers' failure to lodge pleadings in the proper form, and their decision at the last minute not to persist further in the action) appears to us to be potentially relevant to the exercise of the court's discretion under section 1, in the event that the requirements of the section are otherwise satisfied.

3. McNamara and Frost v McLeish and Peebles

[55] As we have explained, in February 2001 the respondent and Mr Frost unsuccessfully applied to Sheriff Peebles to recuse himself from hearing the debate in their action against Levy & McRae. The continued debate was due to be heard by Sheriff Peebles on 21 May 2001. In order to prevent Sheriff Peebles from hearing the debate, the respondent and Mr McNamara began proceedings against him personally. The then First Minister was also convened as a defender. The initial writ was served on 18 May 2001. The action was remitted to the Court of Session in August 2001. After sundry procedure it was abandoned by Mr Frost in March 2004. The respondent however continued with the action, and a diet of debate was fixed for 25 November 2004. The respondent abandoned the action at that diet.

[56] The legal basis of the action, so far as directed against the First Minister, is manifestly untenable: the action proceeds on the basis that he owes contractual duties to litigants in the Scottish courts in respect of the provision of sheriffs, and is vicariously liable for wrongs committed by sheriffs, who are described as his employees. So far as directed against Sheriff Peebles, the action is based on allegations of the utmost gravity, including allegations of malice and dishonesty. Before us, the respondent described the allegations against the sheriff as "a load of nonsense".

[57] In his submissions, the respondent maintained that this action had been raised at the insistence of Mr Frost, who had drafted the writ. He conceded however that he had acquiesced. He submitted that, since the defenders had agreed to his abandoning the action without the payment of expenses, the proceedings could not be regarded as vexatious. He submitted that he had reasonable grounds for proceeding against Sheriff Peebles, given the sheriff's friendship with a partner in Tods Murray. He continued to maintain that the sheriff should have recused himself.

[58] It appears to us to be plain that these proceedings were instituted without any reasonable ground, and indeed for a collateral purpose. They were a blatant abuse of the process of the court, and are properly characterised as vexatious. The respondent cannot avoid responsibility for the proceedings: the pleadings bear his signature, and he persisted with the proceedings even after they had been abandoned by Mr Frost.

4. Frost and McNamara v Alexander Stone & Co

[59] In 1998 Alexander Stone & Co, a firm of solicitors, raised an action against Arakin in Glasgow Sheriff Court for payment of their professional fees. They had succeeded Tods Murray as the solicitors acting for Arakin in the defence of the action brought against them by their former accountants for the payment of their fees, and in the counterclaim to that action. In accordance with the usual practice, the pursuers' account was remitted by the sheriff to the auditor of court for taxation. After a taxation hearing at which the defenders were represented, the auditor taxed the fees and issued his report. Following the issue of the auditor's report, the defenders attempted unsuccessfully to obtain an extension of the period for lodging objections. They then appealed against that decision to the sheriff principal, but abandoned the appeal before it was heard. The respondent then applied to be sisted as a party to the proceedings for the purpose of making a counterclaim against the pursuers. That application was refused as incompetent. An appeal to the sheriff principal was likewise refused on 21 November 2000, under reference to the Lord Ordinary's opinion dated 16 May 2000 in Tods Murray WS v Arakin. In the course of his opinion, the sheriff principal observed that "the taxation process is now complete". The matter then proceeded to a debate before the sheriff on the relevancy of the defenders' averments disputing the pursuers' entitlement to their fees as taxed by the auditor of court. The sheriff found that, since the issues raised had been fully canvassed before the auditor, and he had determined that the fees in question had been properly charged, the matter was concluded, and the defenders' pleadings were "an attempt to re-open a matter which is closed". He granted decree on 17 July 2001 for the fees as taxed. The defenders then appealed to the sheriff principal, but the appeal was refused for want of insistence. An attempt was then made to appeal to the Court of Session, but the appeal proceeded at the instance of the respondent and Mr Frost, purportedly acting on the defenders' behalf. On 11 October 2002 the appeal was refused as incompetent. On 19 December 2002 a charge in respect of the sum awarded by the sheriff was served on Arakin.

[60] Shortly thereafter a summons was presented, at the instance of the respondent and Mr Frost as assignees of Arakin, seeking the reduction of the sheriff's decree, suspension and interdict. It appears that the decree was challenged, in particular, on the ground that VAT invoices had not been rendered in respect of the fees in conformity with the relevant VAT legislation. On 30 December 2002 the Lord Ordinary granted an ex parte application, before calling, for interim suspension of the charge and interim interdict of further enforcement of the decree. The defenders then sought the recall of the interim orders, on the basis that the summons did not disclose any legal basis for setting aside a decree in foro. When that motion was heard, the pursuers sought a continuation to allow them to lodge the summons for calling and to introduce by way of amendment substantial further specification of the ground of action. A continuation was granted. The pursuers did not however take either of the steps that had been discussed. Instead, on the morning of the continued diet (16 February 2003), they faxed to the court a document in the form of a new summons. The Lord Ordinary granted the defenders' motion for recall of the interim orders, and refused to allow the summons to be amended by incorporating into it the contents of the faxed document. He issued an opinion in which he explained the concept of res noviter in an action of reduction of a decree, under reference to a passage in the speech of Lord Sumner in McCarroll v McKinstery 1926 SC (HL) 1. The pursuers reclaimed against the decision. The reclaiming motion called on the summar roll on 28 May 2003. The summons had not yet called. The court expressed concern that the reclaimers were raising in argument matters that did not form part of their pleadings. The hearing was continued until 11 June 2003 with a view to the summons meantime being called and the reclaimers considering amendment. On 11 June 2003 the court again continued the case to a later date, when it was to be determined whether the reclaiming motion should be entertained. That continued hearing was fixed for 19 March 2004. During the intervening period, Mr Frost withdrew from the proceedings by granting to the respondent an assignation of his right to pursue the action. The respondent, as the remaining pursuer, then proceeded with the reclaiming motion, which was refused. Lord Hamilton, delivering the opinion of the court dated 1 April 2004, observed (at paragraph 15) that a decree in foro was capable of being reduced only on limited and well-recognised grounds. Among the limitations was that described by Lord Sumner in the dictum which had been cited by the Lord Ordinary. Lord Hamilton noted:

"Mr McNamara did not suggest that that passage was in any respect unsound or that it was inapplicable to the present situation. Although repeatedly invited by this court to address the problem which it presented for his contention, he at no stage did so. His own narrative of events was fatal to [his] contention."

Lord Hamilton concluded (at paragraph 16):

"In these circumstances the pursuer's summons contains no material (at least in so far as relied on by Mr McNamara) which could found a prima facie case for reduction of the decree in foro. Nor was any material brought to our attention by Mr McNamara which could found such a case ...".

Following the issue of that opinion, the pursuer enrolled a motion to have the defenders' fees taxed by the Auditor of the Court of Session, notwithstanding that the fees had already been taxed by the auditor at Glasgow Sheriff Court and that a decree had been granted for payment of the taxed amount. On 21 May 2004 the motion was refused. On 11 January 2005 the pursuer abandoned the action.

[61] The respondent's answers to the present petition, so far as relating to these proceedings, begin with five pages of criticisms of the conduct of the senior counsel who acted on behalf of Alexander Stone & Co in the proceedings in question. The criticisms are not confined to his conduct of those proceedings, but include criticisms of his conduct in more recent proceedings relating to the winding up of Arakin. The allegations made against him, some of which the respondent repeated in his submissions, are of a serious character. They include allegations of deception of the court, and an allegation of collusion with a clerk of court in "doctoring and tampering with the Court Process". It is alleged that the present petition is the result of a complaint made by senior counsel to the petitioner with the intention of preventing the exposure of his misconduct. The respondent submitted in addition that Arakin had been denied access to justice, in breach of the Human Rights Act 1998, as a result of the unwillingness of any solicitor to act against the mutual interests of solicitors under their arrangements for professional indemnity insurance. In consequence, the respondent had had to present the case himself, without knowledge of legal matters. That had resulted in court time being taken up which would not have been required if he had been able to obtain legal assistance which was independent of the Law Society of Scotland's insurance scheme. The respondent continued to maintain that "the action, while legally incompetent as pled, was not unfounded in fact and law (if properly pled) and therefore cannot be construed as vexatious". He emphasised that the Inner House had not dealt with the merits of the sheriff court decree. He appeared to consider that he might yet be able to challenge that decree successfully.

[62] It appears to us to be clear, particularly in the light of the observations made by Lord Hamilton, that these proceedings were instituted without any reasonable ground. They were an attempt to overturn a decree in foro, after the competent appeal procedures had been exhausted, in the absence of any matter which could be described as res noviter. As such, they were in our opinion utterly hopeless, and can properly be described as vexatious.

The requirements of section 1 of the 1898 Act
[63] Section 1 of the 1898 Act is applicable where a person has "habitually and persistently instituted vexatious legal proceedings without any reasonable ground". For the reasons we have explained, we are satisfied that the respondent instituted the proceedings in McNamara and Frost v Levy & McRae, McNamara and Frost v McLeish and Peebles and Frost and McNamara v Alexander Stone & Co without any reasonable ground, and that each of those proceedings was vexatious. The next question which we require to consider is whether the respondents' institution of such proceedings can properly be described as habitual and persistent.

[64] As we have explained, the action against Levy & McRae arose out of the earlier proceedings involving Tods Murray and was based on the contention that Arakin's defence in that earlier action had not been properly conducted by their then solicitors. The action against the First Minister and Sheriff Peebles in turn arose out of the proceedings against Levy & McRae, and was based on the contention that the sheriff who had heard part of those proceedings ought not to have done so, because of his supposed relationship with Tods Murray. The action against Alexander Stone & Co arose out of earlier proceedings brought by Alexander Stone & Co against Arakin, and sought to challenge the outcome of those proceedings. All of these actions were essentially attempts, in one form or another, to re-litigate an issue dealt with in earlier proceedings. They all demonstrate the respondent's unwillingness to accept the decisions of the court: unwillingness to accept the decision of Sheriff Peebles not to recuse himself, in the Levy & McRae action, led to the raising of proceedings against him in order to prevent him from continuing to hear the case; and unwillingness to accept the decision of the sheriff, in the action brought by Alexander Stone & Co against Arakin, led to the raising of the action of reduction of the sheriff court decree. They disclose a pattern of behaviour, which can be described as habitual, involving a failure to accept decisions which are no longer open to legal challenge, and the drawing of defenders into a widening circle of litigation because of their involvement in a prior proceeding in which the respondent failed to secure the result which he desired. They also demonstrate persistence: determination, a willingness to continue in the face of difficulty, and a refusal to take no for an answer. In these circumstances, although the proceedings in question are only three in number, we are nevertheless satisfied that they justify the conclusion that the respondent has instituted vexatious proceedings habitually and persistently.

The exercise of discretion
[65] Counsel for the petitioner invited us to exercise our discretion to make an order under section 1 of the 1898 Act having regard in particular to the nature of the allegations made by the respondent in proceedings such as those brought against the First Minister and Sheriff Peebles; the respondent's conduct of proceedings as described, for example, by the Lord Ordinary in Tods Murray WS v Arakin; the worry, expense and inconvenience occasioned to the parties against whom the respondent instituted proceedings; and the effect of the respondent's activities on judicial resources, the court system and other litigants. Some emphasis was also placed on the fact that the respondent had instituted proceedings as an assignee, although it was accepted that, as a director and shareholder in Arakin, he had a personal interest in that company's affairs and was in a different position from Mr Frost. The respondent invited the court to refrain from making such an order. He expressed regret that he had relied on Mr Frost in the proceedings in question. He accepted that his lack of legal expertise had caused delay in proceedings, and that his pleadings and submissions had at times been irrelevant as a consequence of his lack of legal knowledge and his inability to obtain independent legal representation. He submitted however that the proceedings in question, although defectively pleaded, had a sound foundation. He emphasised that he had been endeavouring to pursue litigation with a view to redressing what he believed to be serious wrongs done to his family company and to himself, albeit with a lack of understanding of the relevant principles of law and procedural requirements. He pointed out that he was a person of substantial means and that he had met every award of expenses made against him. It was open to other parties to proceedings instituted by him to seek an order for caution, or for an interim award of expenses, in order to ensure that their expenses would be met. He submitted that, in the absence of impecuniosity, there was no basis for any argument that an order under the 1898 Act was necessary in the public interest.

[66] As we have explained, in considering whether to exercise our discretion to make an order under the 1898 Act, we are entitled to have regard to the entire history of the three actions which are relevant to meeting the requirements of section 1, including the manner in which those actions were conducted. We are also entitled to have regard to the proceedings in the case of Tods Murray WS v Arakin, to the respondent's written pleadings and oral submissions in the present proceedings, and to any other matter which is germane to our assessment of whether such an order is appropriate in the interests of justice. In relation to the manner in which the proceedings have been conducted, we note in the first place the respondent's willingness to persist with hopeless actions well beyond the point when, on any rational assessment, the time had come to stop. This is demonstrated most clearly by the proceedings against Alexander Stone & Co, which were persisted in for a period of years after the fundamental defect had been explained by the Lord Ordinary in his opinion dated 14 February 2003. Even after the Inner House had refused the reclaiming motion and had explained once more the finality of the sheriff court decree, the respondent made a further attempt to re-open the question by having the fees taxed for a second time. The result has been a waste of judicial time and resources, as well as of the resources of the other party to the litigation (in so far as they have not recovered the expense which they have incurred). We also note the respondent's habit of proceeding with actions over a period of years only to abandon them when a substantial hearing was fixed, as in the proceedings against Levy & McRae and in those against the First Minister and Sheriff Peebles, resulting in a further waste of time and resources.

[67] The proceedings in the case of Tods Murray WS v Arakin are relevant in a number of respects to the exercise of our discretion. We shall confine our attention to the allegations which led to the proof held in 2003, and to the findings of the Lord Ordinary following that proof: we shall not comment on the principal action or the counterclaim, as they remain in dependence before the court. The first point we note is the making of allegations of extreme gravity: something which was also a feature of other proceedings we have discussed, including in particular the proceedings against the First Minister and Sheriff Peebles. There is no abuse of process necessarily involved in the making of allegations, no matter how serious, against solicitors, sheriffs or holders of high office. The courts must be, and are, prepared to receive and deal with such allegations, as is demonstrated by the proceedings in the Tods Murray case and the action against the First Minister and Sheriff Peebles, in particular. To make such allegations recklessly is however a serious abuse of process. It is not for us to investigate whether all the many and various allegations from time to time made by the respondent were ill-founded or not; and we cannot simply assume that, because they are serious and are expressed without restraint, they must necessarily be groundless. The allegations made against Tods Murray and their solicitors in Tods Murray WS v Arakin have however been thoroughly investigated and, after proof, have been found to be without any reasonable basis. In addition, as we have already noted, the respondent accepted that the allegations made against Sheriff Peebles were "a load of nonsense". The making of reckless allegations of the nature made in those cases was, as we have explained, a serious abuse of process.

[68] Next, we note that, according to the findings of the Lord Ordinary, the proof in the Tods Murray action was used by the respondent for purposes unconnected with the issues in that case; and, as we have already noted, the proceedings against the First Minister and Sheriff Peebles were also used for a collateral purpose. That was a further abuse of process.

[69] In relation to the Tods Murray action, we also note the Lord Ordinary's observation that a great deal of time was wasted as a result of the disorganised presentation of the respondent's case and the persistent pursuit of irrelevant matters notwithstanding the rulings of the court. We have already noted, in relation to other proceedings, the waste of court time through incompetent presentation (e.g. in the action against Levy & McRae, when a hearing had to be discharged because of the pursuers' failure to lodge pleadings in the proper form), and an unwillingness to accept the orders of the court (e.g. the decision of Sheriff Peebles not to recuse himself in the action against Levy & McRae).

[70] Turning finally to the respondent's pleadings and submissions in the present proceedings, we note that they display some of the features of the earlier proceedings. The respondent has continued to maintain that Sheriff Peebles ought to have recused himself, and that the decree granted in Alexander Stone & Co v Arakin Ltd was ultra vires of the sheriff. More generally, he has sought to demonstrate that proceedings which have already been adjudged to be devoid of merit were in reality meritorious, as if the present proceedings were a further opportunity to have the court consider issues which have already been determined. It is not however only in that respect that his pleadings and submissions have contained material which is irrelevant to the issues before the court. In addition, the respondent has made allegations of a serious character concerning senior counsel's conduct in the proceedings relating to the winding up of Arakin. Those allegations are irrelevant to the present proceedings. It is also material to our exercise of our discretion that the respondent persisted in addressing the court on irrelevant matters despite being repeatedly directed that they were of no relevance and that he should move on.

[71] A further feature of the history which we take into account is that all the targets of groundless litigation, and of reckless allegations, have been lawyers or judges who encountered the respondent, in a purely professional or judicial capacity, in connection with court proceedings. Such persons cannot avoid an involvement with disappointed litigants in the course of carrying out their professional and judicial functions. It is however in the public interest that they should be able to perform those functions without being harassed by groundless litigation.

[72] The fact that the respondent has brought some of the proceedings in question as an assignee, on the other hand, appears to us to be of little if any significance. There is of course nothing objectionable in principle in the assignation of rights, or in the institution of proceedings by the assignee. In the case of Frost, the court attached significance to Mr Frost's practice of entering into commercial arrangements under which he took assignations for the purpose of bringing proceedings in which he would appear as a party litigant. In circumstances where the requirements of the 1898 Act were met, the fact that he was effectively carrying on a business as a litigant was a relevant factor. From what the respondent has told us, however, it would appear that he is not in a comparable position. The fact that he has instituted proceedings as an assignee of his family company, in circumstances where the company had no professional legal representation and might otherwise have lacked representation altogether, does not appear to us to be a significant factor in the exercise of our discretion.

[73] The fact that the respondent appears to have met all awards of expenses against him, and to have sufficient means to meet further awards, is a relevant factor, but is far from conclusive. An award of expenses in favour of the party against whom vexatious proceedings are conducted does not prevent the worry, inconvenience and irrecoverable expense occasioned by such proceedings. Nor does it prevent the waste of judicial and other court resources, or the consequential effect which that has on other litigants.

[74] We bear in mind the serious nature of an order under the 1898 Act, which is reflected in the stringent requirements that must be met before the court possesses the power to make such an order. We also however bear in mind that, as we have explained, the Act is designed to protect the court's own processes against the unwarranted usurpation of its time and resources, which, as Staughton LJ said in Attorney-General v Jones, 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". Linked with that objective is the need to protect the community at large, including other litigants, against the disruption caused to the court system by the repeated institution of groundless proceedings. The Act is also designed to protect those who would otherwise be subjected to the worry and expense caused by vexatious litigation. In the circumstances of the present case, we are satisfied that each of those objectives warrants the making of an order against the respondent. We shall accordingly grant the prayer of the petition.