SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Eassie Lord Drummond Young	[2012] CSIH 54 XA96/11 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the cause DR PRIM SINGH Pursuer and Appellant; against BRIAN NAPIER, QC Defender and Respondent: _______

Pursuer and Appellant: Party

Defender and Respondent: Duncan; HBM Sayers

21 June 2012

The claim and the history

[1] The present action arises out of proceedings alleging unfair dismissal that were brought by the present appellant against his former employers, BBSRC and the Roslin Institute. The appellant was unsuccessful in the Employment Tribunal ("ET") and the Employment Appeal Tribunal ("EAT"), and appealed to the Court of Session, where his appeal was refused. The respondent is a Queen's Counsel practising inter alia in the field of employment law. The appellant avers that he consulted with the respondent in connection with the appeal proceedings in the Court of Session, and the present action is brought on the basis of that professional relationship.

[2] The appellant seeks two remedies: first, declarator that the respondent is in breach of the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000; and secondly, payment of the sum of £11,000. The basis on which these remedies are sought is set out in the pleas in law. In relation to declarator, the appellant states that he "is entitled to have the respondent publicly examined by the sheriff". Such examination seems to be the operative remedy that is sought in supplement of the bare declarator mentioned in the crave. In relation to the pecuniary crave, the appellant states that, having wrongly made payment to the respondent, he is entitled to repayment, and further that the respondent having been unjustly enriched by the appellant is obliged to return the amount of such enrichment to the appellant. The basis for the pecuniary claim accordingly appears to be unjustified enrichment, or more specifically repetition.

[3] In his pleadings the appellant incorporates two fairly lengthy documents, respectively entitled "A Summary History" and "A Critical Appraisal of the Defender's Calls". The statements of fact made in those documents are in summary as follows. The appellant first made contact with the respondent in 2003, through the auspices of the Commission for Racial Equality. At that point the respondent advised the appellant that he had a prima facie case of discrimination and race victimization against his employers at the Roslin Institute. The respondent's next contact with the appellant is said to have occurred in June 2004. At that time the appellant was represented by a solicitor within the offices of the Commission for Racial Equality, and he is said to have liaised the respondent about a hearing of the appellant's claim that was forthcoming later in the year. The appellant alleges that at this time the respondent stated that he would take on the case pro bono. In June 2004 further discussions are said to have taken place between the appellant and the respondent about the forthcoming hearing and possible settlement of the claim. The respondent mentioned what he considered a reasonable settlement figure, and stated that if the appellant would not accept such an offer he could no longer continue to represent him. The appellant was dismissed from his employment on 15 June 2004. He states that he believed that the respondent knew from discussion with counsel for the Institute that he was going to be dismissed unlawfully on that date, and that he used that knowledge in an attempt to frighten the appellant into a "derisory" settlement. That is said to be an act of race discrimination.

[4] Following his dismissal the appellant used English lawyers to make a claim for unfair dismissal against his former employers. The English lawyers handled the proceedings in the ET and the EAT, but when an appeal was made to the Court of Session, in 2007, the respondent once again became involved. He drafted grounds of appeal against the decisions of the ET and EAT. The grounds of appeal were short, amounting to 5 paragraphs. The Scottish solicitors advised that this was not a cause for concern provided that further detail was provided prior to the court hearing. Nevertheless, the appellant alleges that the respondent's preparation of "abbreviated" grounds of appeal was a further act of race discrimination. The appellant then states that discussions took place between the respondent and Mr Ian Truscott, QC, counsel for BBSRC and the Roslin Institute, about the appeal to the Court of Session. They decided that one day would suffice for the hearing of the appeal. The date arranged for the hearing was 21 November 2008. In May 2008 the Scottish solicitors who were acting for the appellant withdrew from representation, as did the respondent, and on 2 July 2008 the appellant asked the Court to sist the hearing of his appeal to enable him either to reach an extrajudicial settlement or to arrange for new representation. The Lord President is said to have expressed surprise at the short time allowed for the hearing of the appeal, in view of the length of the judgment of the ET. The appellant states that it occurred to him at this point that the respondent and Mr Truscott might have discriminated against him on the basis of his ethnic origin. The sist was refused.

[5] On 1 August 2008 the appellant served RR 65 questionnaires on the respondent and Mr Truscott; these are a form of questionnaire that is authorized under section 65 of the Race Relations Act 1976, and we return to their significance at paragraph [8] below. The appellant received a response from the respondent dated 1 September 2008. He was not satisfied with that response; he states that the respondent did not reply in any detail to certain questions, including those asking for comparator information. Consequently the appellant wrote once again to the respondent on 10 September 2008. The hearing fixed for 21 November was discharged on the day of the hearing. Nothing is said about the ultimate fate of the action.

[6] Thereafter the appellant raised the present action against the respondent. In his defences the respondent has stated a plea to the relevancy and specification of the appellant's averments, and a further plea to the effect that the appellant's averments regarding unjustified treatment are irrelevant and lacking in specification. The respondent has further tabled a plea to the competency of the remedies sought in terms of the Race Relations Act 1976; that relates to the appellant's first crave, in which he seeks declarator of a contravention of the Act. The action proceeded to debate before Sheriff Holligan on those preliminary pleas. On 24 June 2010 the sheriff sustained all three preliminary pleas and dismissed the action. The appellant appealed to the sheriff principal, who on 29 July 2011 refused the appeal and adhered to the sheriff's interlocutor. The appellant has now appealed against the sheriff principal's decision to the Court of Session. The appellant also raised proceedings against Mr Ian Truscott. That action proceeded to debate before the sheriff and sheriff principal, who dismissed the action. The appellant then appealed to the Court of Session. An Extra Division refused his appeal on 16 December 2011: Singh v Truscott, [2011] CSIH 84. In that action, as in this, the appellant founded on the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000. He sought declarator that Mr Truscott was in breach of those Acts, and payment of the sum of £10,000. The pecuniary claim appears to have been based on reparation rather than repetition, as in the present action. In that action the appellant averred that he had served an RR 65 questionnaire on Mr Truscott and had not obtained satisfactory information in response. On that basis the appellant claimed that Mr Truscott should be examined before a sheriff on the subject matter of the questionnaire. That ground of action is almost identical to that relied on in support of the first crave in the present case.

The appellant's arguments

[7] In appealing to the Court of Session, the appellant appeared to present three arguments. First, in relation to the first crave, the appellant submitted that the sheriff and sheriff principal had erred in failing to understand the purpose of the RR 65 questionnaire procedure. That procedure is intended to enable a person such as the appellant to ask questions in order to decide whether or not to bring legal proceedings for discrimination and, if so, to present his complaint in the most effective way. The appellant alleged that the respondent's responses to the questionnaire were inadequate, and at common law there was a right that he should be publicly examined. Secondly, the sheriff and sheriff principal had erred in not allowing a preliminary proof on the parties' pleadings to determine whether the respondent lied in his initial interaction with the appellant. The sheriff and sheriff principal had wrongly dismissed the appellant's case based on breach of the Race Relations Acts on the ground that it was lacking in relevancy and specification. Thirdly, the sheriff and sheriff principal had been wrong to refuse the appellant proof of his averments in support of a claim based on repetition. Such a case had been adequately pled. We will deal with each of these three lines of argument in turn.

The Race Relations Acts and the RR 65 questionnaire

[8] The appellant's first argument relates to the first crave of the initial writ. In that crave the appellant seeks declarator that the respondent is in breach of the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000 (provisions now repealed and replaced by the Equality Act 2010). In this connection, he relies on his sending the RR 65 questionnaire to the respondent on 1 August 2008, the respondent's reply dated 1 September 2008 and a further letter sent by the appellant to the respondent on 10 September 2008 expressing the need for further information. On the basis of these letters, declarator is sought in terms of the crave together with an order that the respondent should be publicly examined by the sheriff, apparently on the basis of the information sought in the questionnaire. The questionnaire is a document authorised by section 65 of the Race Relations Act 1976. So far as material that section, in its amended form, provides as follows:

"(1) With a view to helping a person ('the person aggrieved') who considers he may have been discriminated against or subjected to harassment in contravention of this Act to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Minister shall by order prescribe -

(a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; ...

(2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not) -

(a) the question, and any reply by the respondent ... shall, subject to the following provisions of this section, be admissible as evidence in the proceedings;

(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or, where the question relates to discrimination on grounds of race or ethnic or national origins, or to harassment, the period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act".

Both the function of an RR 65 questionnaire and the significance of any inadequate reply appear clearly from that section. The questionnaire is designed to obtain evidence of discrimination or harassment by eliciting comparators, and the evidence so produced is admissible as evidence in legal proceedings brought under the Act. If there is no reply, or the reply is evasive or equivocal, the relevant court or tribunal is entitled to draw any inference from that fact that it considers just and equitable, and may in particular draw the inference that the person receiving the questionnaire committed an unlawful act.

[8] What the Act does not do, however, is to give a person serving a questionnaire any direct right against the alleged perpetrator of discrimination either to compel him to complete the questionnaire or to have him publicly examined on account of his failure to do so. This matter was addressed by both the sheriff and the sheriff principal. The sheriff stated, at paragraph [14] of his judgment, that the principal function of section 65 was evidential, and that failure to comply with its terms did not give rise to a cause of action in itself. Moreover, there was no power to make a declarator as sought by the appellant. The sheriff principal dealt with this matter as follows (at page 12 of her Note):

"One would look in vain throughout the Race Relations Act 1976 (as amended) to find any provision which entitled a party to have another person publicly examined before the sheriff. The concept of public examination is one which is familiar in insolvency law but there is no equivalent provision in the Race Relations Act which the appellant could refer me to or which is referred to in his pleadings.

The sheriff correctly observes that the principal objective of section 65 of the 1976 Act is evidential. Section 65 makes provision for a person who considers that he may have been discriminated against to proceed by way of questionnaire served on the proposed respondent. Both the questions and responses in the questionnaire are admissible in evidence in subsequent proceedings and indeed an adverse inference may be drawn if there is a failure to reply or otherwise to give an evasive or equivocal response. That is the only consequence of a failure to respond or an inadequate response".

[9] In Singh v Truscott, [2011] CSIH 84, the action brought by the appellant against counsel who acted for his employers, Lord Clarke, delivering the opinion of the Court, expressly approved of the first of the paragraphs that we have quoted from the sheriff principal's opinion in the present case. On that basis the court held that the appellant's claim against Mr Truscott was irrelevant in so far as it sought a declarator that Mr Truscott was in breach of the Race Relations Act 1976 and for a public examination of him by the sheriff. The decision of the court in Singh v Truscott is of course binding on us. We are of opinion in any event that it is manifestly correct; the Race Relations Act 1976 as amended confers no right to a bare declarator or to public examination by the sheriff. That is a complete answer to the appellant's claim for declarator that the respondent is in breach of the Race Relations Act and, to the extent that it is distinct, his assertion that the respondent should be publicly examined by the sheriff. We accordingly affirm the decisions of the sheriff and sheriff principal and hold that part of the appellant's claim to be irrelevant.

The relevancy and specification of the appellant's case based on the Race Relations Acts

[11] Although it is not clear from his pleadings, it appears that the appellant claims that the respondent is in breach of section 20 of the Race Relations Act 1976. This is the basic section that makes it unlawful for any person concerned with the provision of goods, facilities or services to the public to discriminate against a person on racial grounds. Further reference is made by the appellant to sections 30 and 33 of the 1976 Act, which deal with giving instructions to commit unlawful acts or aiding unlawful acts, including those that are rendered unlawful by section 20. The sheriff held that the reference to such statutory provisions was either irrelevant to any remedies sought or was not supported by any relevant factual averments. The sheriff principal agreed. She referred to the appellant's first crave, which was for a bare declarator that there had been a breach of the 1976 Act. She pointed out that there was a complete disassociation between the crave and the plea in law which purported to support it (the plea relating to public examination by the sheriff). She held further that, according to the clear terms of the Act, there must be a specific act of discrimination which is struck at by the Act. That introduced the concept of comparison: a pursuer in a discrimination case might show that a person of a different racial group was or would have been more favourably treated by the respondent in circumstances that are properly comparable. A comparator, actual or hypothetical, must be identified. No comparator was identified in the present case. The appellant further failed to identify the matters on the part of the respondent which were proscribed by the Act. The court could not make an inference of discrimination without there being specific averments relating to the comparative exercise set out in the Act. The reference to sections 20, 30 and 33 added nothing by way of specification; the appellant's averments did not provide any factual basis to demonstrate a contravention of section 20, and proceedings alleging contravention of section 30(1) could be brought only by the Commission for Equality and Human Rights.

[12] We agree with the opinions expressed on this matter by the sheriff and sheriff principal. In his note of arguments for the hearing before us, the appellant states that he relies on four categories of discriminatory acts. First, he says that at their initial meeting the respondent lied to him (a person of Indian ethnic origin) when he said that he would undertake the appellant's case pro bono. That is said to be contrary to section 20 of the 1976 Act, as the pursuer was not afforded the same service as a British or white person would have been given by the respondent. Secondly, the respondent attempted to threaten the appellant into a derisory settlement of his claim against his former employers, again contrary to section 20 of the Act; once again, it is said that the appellant was not afforded the same service as would have been given to a British or white person. Thirdly, the respondent submitted abbreviated grounds of appeal which did not include the ground of bias. Once again this is said to be contrary to section 20 of the Act. Fourthly, the respondent is said to have colluded with Mr Truscott to reduce the appeal hearing to only one day. Collusion between the respondent and Mr Truscott is said to be contrary to sections 30 and 33 of the Act.

[13] In Singh v Truscott, supra, the Court considered the requirements of relevancy and specification in a discrimination claim brought under the 1976 Act as amended. The basis for such a claim is set out in section 57, which provides as follows

"(1) A claim by any person ('the claimant') that another person ('the respondent') -

(a) has committed an act against the claimant which is unlawful by virtue of Part III [other than, in relation to discrimination on grounds of race, or ethnic or national origins, or harassment, section 26A or 26B]; or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act against the claimant

may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty".

After referring to this provision, Lord Clarke's opinion continues (at para [28]):

"The legislature has, accordingly, prescribed the procedural route whereby legitimate complaints under the Act may be made the subject of court proceedings. It has, in particular, prescribed that they are to be equiparated to an action, in Scotland, for breach of statutory duty.... That requires, also, the giving of adequate notice, not only to the other party, but to the Court as to what the basis in fact and law of the claim is. There is no procedure provided for in the 1976 Act or elsewhere which allows for the avoidance or dilution of these requirements in a claim brought under the Race Relations Act. In particular, as the Sheriff Principal in the case of Singh v Napier observed, there is certainly no procedure available in our system to allow a person who considers that he may have been aggrieved by another, due to unlawful actions in terms of the 1976 Act, to carry out, or have carried out on his behalf, an inquiry into whether or not such a claim truly exists".

[14] As with the significance of the RR 65 questionnaire, the decision of the Court in that case is binding on us. The 1976 Act provides its own rights of action, and in relation to a breach of section 20 or any of the other provisions rendering discrimination unlawful the remedy is an action under section 57. The claim is to be treated as a claim in reparation for breach of statutory duty. Moreover, as Lord Clarke points out, adequate notice is required of the details of the claim. In this connection it is appropriate to refer to a passage in the opinion of Mummery LJ in Madarassy v Nomura International PLC, [2007] ICR 867; [2007] EWCA Civ 33, at para 56:

"The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination".

In the present case the appellant's averments do not include an offer to prove any difference of treatment. The averments merely mention what is said to have been an unsatisfactory response to the RR 65 questionnaire, without any detail as to how the response was unsatisfactory. Even in the supplementary documents referred to in paragraph [3] above, the appellant only makes a series of assertions about the matters summarized in paragraph [12] above and asserts that these are instances of racial discrimination, as the same service would not, it is said, have been given to a British or white person. These are nothing more than assertions; no comparators are given, and it is clear that without proper comparators, along the lines set out by Mummery LJ, no proper inference of discrimination can be drawn. Consequently we must agree with the sheriff and sheriff principal that no relevant or specific case of discrimination is made.

The relevancy and specification of the appellant's claim for repetition

[15] The appellant's claim for payment of the sum of £11,000 by way of repetition is not clearly stated in the pleadings. The appellant avers that the respondent "wrongly received money which needs to be returned to the pursuer". No further specification is given in the pleadings, but on the basis of the supplementary documents referred to above at paragraph [3] it appears that the essence of the claim is that, after agreeing to represent the appellant on a pro bono basis, the respondent wrongfully took fees for his work. The only payment that is referred to specifically is a fee of £1,750 plus VAT (and it may be, on the basis of the documents, that the fee was truly £1,250); this was for drafting grounds of appeal and associated work in respect of the appeal from the decision of the EAT. That fee note appears to have been rendered on 19 September 2007.

[16] The sheriff, at paragraph [15] of his judgment, refers to the appellant's pleadings and supplementary documents, and states that what the pursuer appears to narrate is an involvement by the defender in proceedings in 2004, followed by a gap before the defender was instructed by different agents in respect of drafting grounds of appeal in about 2007. The appellant failed to aver what was paid, by whom and when, and that was fatal to the relevancy of his case. The appellant sought a preliminary proof, but that required the pleading of a relevant case, and that was lacking. The sheriff principal dealt with this matter at pages 14-15 of her Note. She stated that the appellant's contention that any factual dispute must result in a proof or preliminary proof was patently absurd and wrong. The sheriff had correctly identified the deficiencies in the appellant's averments in support of the pecuniary crave, and the supplementary documents did not help because they failed to specify fees rendered and paid to the respondent during the period when he agreed to accept instructions on a pro bono basis. The appellant failed to specify the error which might allow him to seek the remedy of repetition of money paid by him, and he failed to aver the basis upon which he had sustained a loss. These failures meant that his case in support of the second crave was fundamentally irrelevant.

[17] In our opinion the decisions of the sheriff and sheriff principal on this matter were plainly correct. Neither in the pleadings nor in the supplementary documents lodged by the appellant is there any statement of how the respondent might have been unjustly enriched as a result of payments made by the appellant. Nothing is said about payments made by the appellant to the respondent apart from the single fee note. In respect of that fee note, it is significant that, even if the respondent did agree to act pro bono, that is said to have occurred in 2003 or 2004, when the respondent was giving advice about the appellant's original claim against the Roslin Institute. The fee note, however, is dated September 2007, and related to the appeal from the EAT to the Court of Session. Thus a gap of at least three years existed, and proceedings had moved on significantly during that period. In these circumstances, even if there had been an indication that no fee would be charged for the original advice, some explanation is clearly required as to why that should apply to the relatively onerous work required in an appeal to the Court of Session. No such explanation is forthcoming, however. Consequently the single fee note cannot be of significance without considerable further explanation, and no other payments are either averred or referred to in the supporting documents. In these circumstances the appellant's case based on repetition is wholly lacking in specification and must accordingly be dismissed.

Disposal

[18] For the foregoing reasons we will affirm the decisions of the sheriff and sheriff principal in their entirety and refuse the appeal.