EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Mackay of Drumadoon Lord Philip	[2012] CSIH 82 XA27/09   OPINION OF THE COURT   delivered by LADY PATON   in the cause   ARUN GUPTA   Pursuer and Appellant;   against   WEST LOTHIAN COUNCIL   Defenders and Respondents:       _______

 

Act: Party

Alt: R. Macpherson, Solicitor Advocate; Simpson & Marwick WS

 

23 October 2012

Introduction

[1] In 2003 the appellant raised an ordinary action in Linlithgow Sheriff Court against the respondents concerning property at 2 Burnbrae, Whitburn. There followed various procedural hearings and appeals at the instance of the appellant. The first substantive hearing in the case (a debate) was to take place at 10am on 8 December 2008. At an earlier procedural hearing on 3 December 2008, the appellant represented himself. He had several motions for the attention of the court, including a motion for leave to appeal against the interlocutor allowing a debate, a motion for summary decree against the respondents, and a motion for an order barring Messrs Simpson & Marwick from participating in further hearings in the action. After some discussion, the appellant made a motion that the sheriff should recuse himself on the ground of his alleged bias against the appellant. The motion for recusal was opposed by Mr Macpherson, solicitor-advocate for the respondents. The sheriff considered the submissions and refused the motion. The other motions at the instance of the appellant were continued to the diet of debate on 8 December.

[2] On 8 December 2008 the appellant again represented himself. At about 10.15  am, he produced, at the bar of the court, a 12-page manuscript document entitled "Pursuer's Common Law Appeal to the Inner House of the Court of Session". The document contained references to events in the present litigation and in other litigations involving the appellant and the respondents. However, the main focus of the document was a challenge to the sheriff's refusal to recuse himself. A debate then took place on the question whether or not the appellant required leave to appeal against the sheriff's interlocutor of 3 December 2008. The appellant contended that he did not, as he was entitled to a "common law appeal without leave", which had the effect that the case should immediately be transferred to the Court of Session. He cited previous occasions in his own litigations where that had occurred. In his written grounds of appeal before us, the appellant complained that the sheriff remained silent during his submissions relating to those previous occasions. That silence, according to the appellant, amounted to dishonesty which disqualified the sheriff from holding the position of sheriff. The sheriff was also "being controlled" by Mr Macpherson for the respondents.

[3] Having considered the submissions presented to him on 8 December 2008, the sheriff issued his decision. Mr Macpherson took a contemporaneous note of that decision as follows:

"I have considered the submissions. The sheriff court is a creature of statute. No authority that has been placed before me suggests that I have any power to deal with an appeal under these circumstances. The Sheriff Courts Act is very clear as to where an appeal can be lodged without leave. The sheriff clerk has no duty to transmit this appeal process and the appeal is therefore incompetent. I invite Mr Gupta to continue with his submissions regarding his earlier motions."

 

[4] The appellant responded by stating that he considered that the sheriff should have recused himself on 3 December 2008, and that all his actings since 3 December 2008 were unlawful. He should not have purported to continue the other motions to that diet on 8 December 2008. The appellant collected his papers and left the court.

[5] Mr Macpherson for the respondents then moved the court to dismiss the action. The sheriff wished intimation of that motion to be given to the appellant. He accordingly continued the debate and the outstanding motions to 15 December 2008 and ordered that intimation be given to the appellant that, in the event of his failure to appear on that date, decree might be granted against him. The relevant intimation was served personally upon the appellant by sheriff-officers. In his written grounds of appeal before us, the appellant complained that much of the wording of the interlocutor of 8 December 2008 was that of the sheriff, whereas it should have been that of the independent clerk of court. Also the sheriff should not have refused the motion for his recusal but should have referred the matter to another sheriff for his decision (as Sheriff Fleming had done in 2005: cf Sheriff Fleming's Note dated 26 May 2005).

[6] On 15 December 2008 the appellant failed to appear. The sheriff dismissed the action in terms of Rule 16.2(2)(c) of the Ordinary Cause Rules 1993. The dismissal of the action was intimated to the appellant. On 24 December 2008, the appellant timeously marked the current appeal against that dismissal in terms of the Sheriff Courts (Scotland) Act 1907. No leave was required, it being a final interlocutor. The appeal then came before the Inner House of the Court of Session.

 

Submissions by the appellant

[7] In challenging the final interlocutor, namely the decree of dismissal dated 15 December 2008, the appellant submitted that the sheriff had no jurisdiction following upon the presentation of the common law appeal on 8 December 2008. He contended that there was a common law right of appeal in sheriff court proceedings, quite distinct from and additional to the statutory rights of appeal provided by the Sheriff Courts (Scotland) Act 1907. Accordingly although, in terms of the statute, leave would have been required for any appeal against the sheriff's refusal to recuse himself (that being an interim matter and neither a final interlocutor nor an interlocutor falling within any of the categories specified in section 27), such leave was not required for a common law appeal. As soon as a litigant such as the appellant presented a common law appeal at the bar of the court, the sheriff clerk was obliged to transmit the sheriff court process to the Deputy Principal Clerk of Session at the Court of Session who should fix an Inner House appeal hearing before three judges. The sheriff had no jurisdiction from that point onwards. Any steps which the sheriff had purportedly taken following upon the presentation of the appellant's common law appeal at about 10.15 am on 8 December 2008 were incompetent, as he had no jurisdiction. It followed that the continuation of the case until 15 December 2008, the intimation to the appellant, and the purported decree of dismissal granted by the sheriff on 15 December 2008, were incompetent and without effect, and should be recalled.

[8] As authority for his propositions relating to a common law appeal without leave, the appellant made general and undocumented references to inter alia Lord Macphail as a recognised authority on sheriff court procedure, and to an unspecified "act of court" said to have been introduced by Sheriff Principal Macphail (as he then was) in February 2005, in which it was suggested that the case of VAG Finance & Co Ltd v Maureen Smith (1988) should be followed. The "act of court" to which the appellant referred would appear to be Practice Note No. 1, 2005, in the Sheriffdom of Lothian and Borders "Appeals to the Sheriff Principal". Under the heading "Incompetent Interlocutors", paragraph 2.4 provides:

"An appeal may be taken to the Sheriff Principal, without the leave of the sheriff, against an interlocutor which is incompetent in the sense that the sheriff had no power or right to pronounce it (Kirk v Kirk 14 March 2003, following VAG Finance Ltd v Smith 1988 SLT (Sh Ct) 59, 1988 SCLR 598)."

 

That Practice Note reflects the views of Sheriff Principal Macphail as set out in paragraph 14.12 of Macphail, Sheriff Court Practice (1^st ed. 1988) referring to VAG Finance Ltd v Smith where Sheriff Principal Caplan decided that a sheriff principal had a "supereminent jurisdiction" to correct an error on the ground of incompetency and to grant redress where a sheriff pronounced an interlocutor which he did not have authority to pronounce. The appellant did not refer to any case reports. However he pointed out that in his own litigations he had, on occasions, sought to appeal to the Court of Session by lodging with the sheriff clerk a document entitled "common law appeal", and that on several of these occasions the sheriff court process had immediately been transferred to the Court of Session. There, in terms of the then Court of Session rule 40.12, the process had been placed before a single Lord Ordinary for a sifting procedure. On at least two occasions (one involving Lord Coulsfield in February 1999 and one Lord Kingarth in January 2006), the common law appeal had been allowed to proceed to a bench of three judges in the Inner House.

[9] As authority for his propositions relating to bias, the appellant relied upon his written grounds of appeal and his 12-page document entitled "Pursuer's Common Law Appeal to the Inner House of the Court of Session", referring to Sheriff's Fleming's Note dated 26 May 2005 (which cited various authorities). He thus incorporated references inter alia to Law v Chartered Institute of Patent Agents [1919] Ch 276 at p 289; Davidson, Petitioner 2004 SLT 895 at p 898A para 7; Black v Scott Lithgow 1990 SLT 612; Blair v Sampson January 16 1814 FC (1814-1815 High Court of Justiciary App 501); Hoekstra v HM Advocate (No 1) 2000 JC 387, 2000 SLT 602; Robbie the Pict, Petitioner 2003 SCCR 99; Macphail, Sheriff Court Practice; Henderson's Trs v Dunfermline District Committee of Fife County Council (1896) 12 Sh Ct Rep 58; Marshall, General Principles of Scots Law (7^th ed) at p 155; Porter v Magill [2002] 2 AC 357; Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781; 2004 SLT 14; Mellors, Petitioner 2002 SCCR 1007; Unity Trust Bank plc v Martin Frost &c 2001 SCLR 350.

 

[10] In conclusion, the appellant invited the court to grant his appeal, and to recall all the sheriff court orders and interlocutors following upon the presentation of the common law appeal on 8 December 2008, including the decree of dismissal on 15 December 2008.

 

Submissions for the respondents

[11] Mr Macpherson invited the court to refuse the appeal. In his submission, it was doubtful whether a common law right of appeal such as that contended for by the appellant existed. Reference was made to section 27 of the Sheriff Courts (Scotland) Act 1907; Dobie, Sheriff Court Practice pages 298 to 299; Moss' Empires Ltd v Assessor for Glasgow 1917 SC (HL) 1, at page 11; and Macphail, Sheriff Court Practice (3^rd ed) paragraph 18-12.

 

Discussion

[12] The appellant contends that the sheriff's conduct in December 2008 was such that any reasonable objective observer would have concluded that the sheriff was biased against him. The appellant also contends that the sheriff's actings since 8 December 2008 were unlawful, incompetent, without jurisdiction, and without effect.

[13] The appellant's complaints are set out in his written grounds of appeal and in his 12-page manuscript document headed "Pursuer's Common Law Appeal to the Inner House of the Court of Session". His main criticisms are summarised below. This court did not consider it necessary to order a report from the sheriff, or to institute any other form of inquiry. We are content to assess the appellant's case on the basis of his ex parte statements, which, it must be noted, have not been established in evidence as representing a precise factual record of events.

 

The appellant's complaints and criticisms
[14]

(1) On 3 December 2008, the sheriff was not minded to grant inter alia the appellant's motion for summary decree against the respondents, or his motion to have Messrs Simpson & Marwick (the respondents' agents) barred from participating in further hearings of the action. According to the appellant, the sheriff's approach demonstrated bias against him.

(2) The sheriff then refused the appellant's motion for his recusal. According to the appellant, the sheriff should not have taken that decision himself, but should have followed a procedure adopted by Sheriff Fleming in another case on 26 May 2005 (recorded in the sheriff's note of that date) and should have remitted the motion to another sheriff or to the sheriff principal for his determination.

(3) The other motions which were before the court on 3 December 2008, including the appellant's motion for summary decree against the respondents, were continued to 8 December 2008. According to the appellant, the sheriff "did not want to know" that the respondents had no defence to the appellant's action.

(4) At the next diet on 8 December 2008, the sheriff remained silent during the appellant's submissions on his 12-page common law appeal to the Inner House of the Court of Session, particularly during the appellant's submissions about the sifting decisions of Lord Coulsfield in February 1999 and Lord Kingarth in January 2006, when the appellant's common law appeals without leave in other cases were passed by the sifting judges and placed before the Inner House. The sheriff's silence, according to the appellant, demonstrated dishonesty on the part of the sheriff and bias against the appellant.

(5) The sheriff pronounced an interlocutor of 8 December 2008 when he was, according to the appellant, fully aware that he had no jurisdiction to pronounce that interlocutor in view of the lodging at about 10.15 am that day of the common law appeal without leave.

(6) The interlocutor of 8 December 2008 contained the sheriff's own wording, rather than that of the clerk of court. But in any event the interlocutor was ultra vires as the sheriff had no power to act after about 10.15 am that day.

(7) The sheriff stated on several occasions that it was his court, and that he decided the procedure.

(8) At the hearings in December 2008, the sheriff was, according to the appellant, being "controlled" by the solicitor-advocate for the respondents.

 

Our opinion in relation to the appellant's complaints and criticisms
[15] In the context of bias, we acknowledge the guidance contained in the authorities referred to in paragraph [9] above. For present purposes, we find the concept of bias most succinctly defined by Lord Hope in Porter v Magill [2002] 2 AC 357, [2002] 2 WLR 37, at paragraph [103] when he said:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

[16] We have carefully considered the material contained in the appellant's oral and written submissions, his grounds of appeal, and his 12-page manuscript document entitled "Pursuer's Common Law Appeal to the Inner House of the Court of Session". We have found nothing to suggest that the sheriff in December 2008 might have acted in a way demonstrating bias against the appellant; nor have we found anything which gives the appearance of bias on his part. Further, we have found nothing to support the contention that the sheriff acted illegally, incompetently, without jurisdiction, or without effect.

[17] In particular, with reference to sub-paragraphs (1) to (8) in paragraph [14] above, we make the following observations:

(1) The sheriff's reluctance to grant a motion for summary decree against the respondents, or a motion to have law agents barred from participating in further hearings of the action, was an approach which the sheriff was entitled to adopt on the information available, particularly if a preliminary plea challenging the relevancy and specification of the action was to be debated on 8 December 2008. Such an approach does not in our view demonstrate bias against the appellant in the sense defined in the authorities referred to in paragraph [9] above.

(2) As for the sheriff's refusal of the appellant's subsequent motion to recuse himself on the ground of bias, the sheriff had a duty to consider that motion and to reach a view about whether he had, or had not, done or said anything justifying the granting of such a motion, and to deal with the motion accordingly. We note that in 2005 Sheriff Fleming, in the particular circumstances of his case, decided to remit the appellant's motion for recusal on the ground of bias to another sheriff for his determination. One of the reasons for such a remit is to allow the acts or words complained of to be considered by an independent court. In the present case the appellant, on 24 December 2008 (i.e. very shortly after the hearings on 3, 8 and 15 December 2008) marked a competent appeal against the final interlocutor in terms of section 27 of the Sheriff Courts (Scotland) Act 1907. It is that appeal which is currently before us, as the appellant's 12-page manuscript document headed "Pursuer's Common Law Appeal to the Inner House of the Court of Session" was refused as incompetent by Lord Nimmo Smith at the sift procedure on 16 December 2008 . In the course of the current competent appeal against the decree of dismissal of 15 December 2008 (being a final interlocutor appealable in terms of section 27 of the Sheriff Courts (Scotland) Act 1907), the appellant has had a full opportunity to address this court about the allegations of bias on the part of the sheriff. It is therefore unnecessary, in the particular circumstances of this case, for a remit to another sheriff to be considered, as it falls to this court to rule upon the appellant's complaints of bias.

(3) The sheriff was entitled to continue certain motions to the next diet. It is part of a sheriff's function to organise the time-tabling of motions and diets in a cause. If there is a preliminary plea challenging the relevancy and specification of an action, it may be more logical to deal with that plea before any motion for summary decree. No bias against the appellant was, in our opinion, demonstrated.

(4) A sheriff is entitled to remain silent during submissions, although he is equally entitled to intervene to ask questions or to make comments. In our view, such a silence cannot be characterised as demonstrating bias or dishonesty on the part of the sheriff. Furthermore, the sifting procedure is just that - a sifting procedure. It is not a final decision that any appeal allowed through the sift is a competent one.

(5) A common law appeal without leave to a sheriff principal was ruled not to exist by Lord Justice Clerk Ross in the Second Division in Gupta v Laurie 1994 SCLR 176, at page 177F, when he observed that:

"... [a] Sheriff Principal has no supervisory jurisdiction at common law over judicial decisions of a sheriff. Rights of appeal against decisions of sheriffs are regulated by statute [i.e. sections 27 to 29 of the 1907Act]."

That ruling, being a clear statement that no common law appeal without leave can be taken to a sheriff principal, in our view takes precedence over the various views, opinions, and decisions of sheriff principals and sheriffs in cases such as VAG Finance Ltd v Smith 1988 SLT (Sh Ct) 59; City of Glasgow DC v McAleer 1992 SCLR 195 (Notes); City of Edinburgh DC v Robbin 1994 SCLR 43; and Gray v Gray 1996 SCLR 531 (which in our view was wrongly decided on this point). The ruling also takes precedence over certain legal texts and practice notes including Practice Note No. 1, 2005, in the Sheriffdom of Lothian and Borders "Appeals to the Sheriff Principal" (referred to in paragraph [8] above); and Macphail, Sheriff Court Practice (1^st ed 1988) at paragraph 18-12 (a fortiori as that passage was significantly qualified in the 2^nd and 3^rd editions). In relation to appeals without leave to the Inner House of the Court of Session, Lord Justice Clerk Wheatley in the Second Division at page 293 of Lord Advocate v Johnston 1983 SLT 290 recognised a "common law supereminent power to entertain [appeals from a sheriff/sheriff-principal without leave] ... to rectify an injustice occasioned by the sheriff doing something which in the proper exercise of his judicial duty he was not entitled to do" (cf Macfadyen Court of Session Practice, page 1-[14] paragraph 4; Maclaren Court of Session Practice, pages 986-987; Maxwell, The Practice of the Court of Session, page 125; Macphail Sheriff Court Practice paragraph 18.92). In recent years the supervisory jurisdiction of the Court of Session has generally been invoked by means of a petition to the Court of Session (for example, for judicial review, or to the nobile officium). As the appellant's submissions have been made in the context of a competent appeal within the statutory scheme (namely the appeal marked on 24 December 2008), and as all the appellant's criticisms concerning the procedure in the sheriff court are being dealt with in this appeal, it follows that the appellant cannot pray in aid a common law right of appeal without leave: cf Macfadyen, Court of Session Practice, page 1-[14]; West v Secretary of State for Scotland 1992 SC 385, 1992 SLT 636. In this context, it is our opinion that an attempt by a party such as the appellant to invoke a common law right of appeal without leave (by, for example, lodging a manuscript document as did the appellant) does not deprive the sheriff of his jurisdiction. The purported appeal may, in due course, be considered by the Court of Session: but the lodging of such a document does not bring the sheriff's jurisdiction to an end.

(6) An interlocutor is a document of the sheriff. It cannot be suggested that he is not entitled to draft it, or to revise a draft prepared for him.

(7) In our opinion, the sheriff's statements that the court was his court, and that it was he who decided the procedure, did not demonstrate any bias against the appellant.

(8) It is part of the function of a sheriff to listen to submissions, to accept some, and to reject others. Acceptance of certain submissions or certain proposed lines of action does not in our opinion demonstrate that the sheriff was being "controlled" by a party or lawyer. Nor does it demonstrate bias as defined in the authorities cited in paragraph [9] above.

 

Decision
[18] For the reasons given above, it is clear that the sheriff did not err, nor did he demonstrate conduct amounting to bias against the appellant or which might be perceived to amount to such bias, nor were his actings in December 2008 unlawful, incompetent, ultra vires or without effect. The appeal is refused.