EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
|
Lord Mackay of DrumadoonLady DorrianLord Wheatley
|
|
First, second and third defenders and respondents: Clark QC, Barne; Balfour & Manson LLP
4 June 2013
Introduction
[1] This is a
reclaiming motion at the instance of the pursuer and reclaimer in an action of
count reckoning, payment and reduction which she raised in the Court of Session
during 2004 (A205/04). The action is one of a number of actions in which the pursuer
has been a party since the death of her former husband, James Clark, who died
on 5 December 1985 ("the deceased"). These actions have been raised on account
of the non-payment out of the deceased's estate of monthly maintenance payments
to which the pursuer became entitled in 1977, when she divorced her former
husband. The pursuer maintains that the arrears of monthly payments now exceed
£150,000.
[2] It is
convenient to refer to this action as the "private action". The private action,
in which the pursuer sues in her own right, has been pursued against a number
of defenders, including Patrick Wilson, Charles Pagan WS and Susan Venters, the
first, second and third defenders. The first and second defenders were executors
administrating the estate of the deceased until they were removed from office
by an interlocutor pronounced in the Court of Session on 27 May 1999. At the same time a judicial factor was appointed to the deceased's estate. The first
defender had been assumed as an executor by Deed of Assumption dated 13 December 1985 and the second defender by Deed of Assumption dated 13 and 21 June 1991. The third defender was a partner in the former firm of Messrs. J & G
Wilson, Solicitors. The late John Simpson Wilson ("John Wilson"), a former
partner in the same firm of solicitors, had been an executor on the estate of
the deceased from 1985 until his own death on 27 May 1991.
[3] The
background to and history of the dispute between the pursuer and the executors
of the deceased's estate are set out in detail in a number of opinions relating
to the private action, including Opinions of the Court delivered by Lady Paton on 11 June 2009 ([2009] CSIH 48) and 16 February 2010. The private action
was dismissed insofar as directed against all six defenders on 11 June
2009 and on 16 February 2010 the pursuer was found liable to all six of
the defenders in the expenses of this action, insofar as those expenses had not
already been dealt with.
The awards of expenses in favour of the first, second and third defenders remain unpaid. Those defenders are the respondents to this reclaiming motion.
[4] In another
action arising out of the non-payment of the maintenance payments due to the
pursuer (A1767/03), the pursuer, as judicial factor on the executry estate of
the deceased, now sues the former executors. That action was raised by the judicial
factor who was appointed in 1999, following a petition at the instance of the
pursuer seeking the sequestration of the executry estate of the deceased. The
original judicial factor died in 2006 and on 13 March 2007 the pursuer was appointed by the court to replace him as judicial factor. Since then the
pursuer has appeared in that action as a party litigant. That action is
conveniently referred to as the "judicial factor's action" (A1767/03).
[5] The
history of the judicial factor's action is set out in a number of opinions
issued since the action was raised including the Opinion of Morag Wise, QC,
sitting as a temporary judge, dated 19 November 2009 ([2009] CSOH 153)
and the Opinion of the Court delivered by Lord Carloway dated 27 March
2012 ([2012] CSIH 29). In the judicial factor's action a proof has been
allowed in respect of certain of the remedies sought by the pursuer. A diet of
proof has not yet been fixed. Since the pursuer was appointed judicial factor
and, as such, became the pursuer in that action, a number of awards of expenses
have been made against her in her capacity as judicial factor.
Hearings before Lord Tyre and Lady Smith in the present action
[6] On 19 March 2012 the pursuer enrolled a motion in the private action in which she sought
inter alia an order remitting the private action ob contingentiam
upon the judicial factor's action (A1767/03). At a hearing on 21 March 2012 the Lord Ordinary, Lord Tyre, refused the motion seeking to remit
the private action as craved. His reasons for refusing the motion were
subsequently set out in an opinion dated 12 October 2012 ([2012] CSOH 160). They included that he was not satisfied that there was any
contingency between the two actions, the private action (A205/04) and the
judicial factor's action (A1767/03). As Lord Tyre noted in his opinion in the
private action all the substantial issues had been dealt with by a final judgment.
The only live issue that remained related to the amount recoverable in respect
of the fees charged by a solicitor advocate, who had been instructed to appear
for one of the defenders. Lord Tyre took the view there was no
contingency between that issue and those issues which arise and remain outstanding
in the judicial factor's action (A1767/03). Lord Tyre expressed concern
as to the competency of seeking to review in one action (A1767/03) an award of
expenses previously made and not appealed in another action (A205/04). He
considered it would not be in the interests of justice to prolong the life of
the private action (A205/04) for that purpose. He also took account of the fact
that there was no exact identity of parties and that the grounds of actions in
the two actions were different, although arising out of the same original circumstances.
Lord Tyre also placed considerable weight on the fact that on 16 February 2010 the Inner House in A205/04 had rejected a submission that the determination
of the expenses in the private action (A205/04) should await the outcome of the
judicial factor's action (A1767/03) (see para [3] of the Opinion of Lady Paton).
[7] On
25 May 2012 the pursuer enrolled a motion in the private action that
sought inter alia an order that the private action be sisted on the
dependence of the outcome of the application which the pursuer had made to the
Supreme Court of the United Kingdom on 8 May 2012 in a Notice of Appeal in the judicial
factor's action. By means of that application the pursuer sought that the
private action (A205/04) be remitted ob contingentiam and conjoined with
the judicial factor's action (A1767/03).
[8] The motion
enrolled on 25 May 2012 was opposed on behalf of the first, second, third and
fourth defenders. The motion was heard by Lady Smith on 29 May 2012, who considered the written reasons the pursuer had submitted in support of the
motion together with the oral submissions of the pursuer and counsel for the
defenders. The motion was refused that day. As explained in a written opinion
which she subsequently issued, Lady Smith took the view that the pursuer had
not demonstrated circumstances which could justify the private action being
sisted. In particular Lady Smith was not satisfied that there were any
reasonable prospects of the private action being conjoined with the judicial
factor's action by the Supreme Court. Lady Smith noted that the
outstanding issue between the parties in the private action was not whether or
not the first, second and third defenders were entitled to expenses, but what sums
were payable by the pursuer in respect of the awards in their favour.
Lady Smith indicated that she could not understand how or on what basis the
pursuer considered that the entitlement of the defenders to expenses in the
private action could be opened up again, were the private action to be conjoined
with an appeal to the Supreme Court in the judicial factor's action.
[9] On 5 July 2012 a panel of three Justices of the Supreme Court, Lords Kerr, Dyson
and Carnwath, refused the pursuer's application to have waived the requirement
of the Supreme Court that two counsel certify that it was reasonable for the
pursuer to pursue the appeal she had lodged with the Supreme Court. As a consequence
of that decision the pursuer was unable to proceed with the proposed appeal.
Submissions by the pursuer.
[10] In this
reclaiming motion the pursuer lodged Grounds of Appeal and a Note of Argument. Ground
1 contended that on 29 May 2012 Lady Smith had erred in the exercise of her
discretion in refusing to sist the private action pending the outcome of the
pursuer's application to the Supreme Court in the judicial factor's action. In terms
of Ground 4 of her application to the Supreme Court the pursuer had sought to
have the private action (A205/4) conjoined with the judicial factor's action
(A1767/03), together with relief from those orders.
[11] Ground 2
contended that on 21 March 2012 Lord Tyre had erred in refusing to remit the
private action (A205/4) ob contingentiam upon the dependence of the
judicial factor's action (A1767/03).
[12] Ground 3
contended that because the defenders in the private action were threatening to
enforce their awards of expenses against the pursuer, there was a risk that
they might seek to remove the pursuer from being in a position to pursue the
judicial factor's action. For that reason the court, in exercise of its nobile
officium, should sist the private action on the dependence of the outcome
of the judicial factor's action.
[13] Ground 4
contended that the pursuer's Convention rights in article 6 in of the European
Convention on Human Rights ("ECHR") had been violated by "denial of 'access to
justice' and 'a right to a fair hearing' due to the denial of 'equality of
arms' through a denial of 'professional representation' arising out of the
conflict of interest inherent in the mutuality of the monopoly provision of the
Master Policy Professional Indemnity Insurance Scheme established by the Law
Society of Scotland (and approved by the Lord President of the Court of
Session) being compulsory for all 10,000 + practicing solicitors in Scotland".
[14] The pursuer
informed us that following the refusal of her application to the Supreme Court,
to dispense with the requirement that her Notice of Appeal be signed by two
counsel, she had been unable to proceed with an appeal to the Supreme Court.
She had, however, submitted an application directly to the ECtHR. The ECtHR
had confirmed receiving the application on 21 August 2012. A copy of the pursuer's application, which was extensive, has not been lodged in process in
this action, nor was it made available during the hearing of the reclaiming
motion. However the pursuer outlined in her Note of Argument the basis of her
application to the ECtHR seeking a declarator that her Convention rights had
been infringed.
[15] The pursuer
explained that she did not recognise that the Court of Session had the lawful
authority or power to make any further decisions with regard to her
'commonwealth' until the ECtHR had adjudicated upon the Court of Session's
compliance with human rights law or otherwise. In the event that she was
successful in her application to have the proceedings in the present action
(A205/04) and the judicial factor's action (A1767/03) declared incompatible
with her human rights, it would follow that all of the decisions of judges of
the Court of Session in both actions had been unjudicial (sic) and
unlawful and accordingly would fall and become the subject of immediate
reduction.
[16] The pursuer
explained that there had been no equality of arms. She had been unable to
engage professional assistance to represent her in the actions in which she was
involved. This was because solicitors would not act for her on account of the
fact that, as previously mentioned, all solicitors in Scotland require to have their professional indemnity insurance covered by the one master
policy issued by one insurance company. Those insurers were already involved
as insurers of the former executors of the estate of the deceased and in
covering the legal expenses of a number of the defenders in the actions in
which the pursuer was a party. That was why the pursuer had been unable to
obtain the services of solicitors to represent her.
[17] The pursuer
explained that on the basis of those contentions she was seeking a declarator
from the ECtHR that she had been denied fairness by the Court of Session and
had frequently suffered infringement of her Convention rights in terms of
article 6 to a fair hearing before an impartial tribunal. Against that
background, the pursuer now sought to have the private action (A205/04) sisted.
As mentioned above, this was to prevent the awards of expenses made against her
in the private action being relied on as a basis for sequestrating her. In the
event that happened, she would no longer be able to act as judicial factor on
the estate of the deceased. If this action, the private action, was sisted that
would prevent her from sustaining further loss until the outcome of her
application to the ECtHR was known. The pursuer also indicated that if
necessary she would seek the sist of the judicial factor's action
(A1767/03).
[18] During the
course of her submissions the pursuer recognised that she could not dispute
that a sist would cause some prejudice to the defenders. However she submitted
that the granting of a sist would restrict the damage she was suffering on
account of the lack of equality of arms. It would also remove the risk of any
further rulings being made against her by members of the court who may be biased
against her. Moreover any prejudice suffered by the defenders fell to be
considered against the fact that over many years she had not received the
maintenance payments to which she had been entitled.
[19] The pursuer
recognised that the first hurdle she would require to overcome in connection
with her application to the ECtHR would be to have her application declared admissible.
She also recognised that even if she overcame that hurdle the ECtHR had no
power to overturn the decisions of the Court of Session. That was why she was
only seeking declarators that her Convention rights had been infringed by this
court. She was not seeking an award of compensation. She explained that
should her application to the ECtHR be successful she would use the declarators
in her favour as a basis for seeking reduction of the various decisions which
had passed against her in the Court of Session.
[20] Returning
to the practical issues which arose in respect of the decisions that were the
subject of the present reclaiming motion the pursuer explained that in respect
of the motion refused by Lord Tyre, she did not now seek a remit of the
private action (A205/04) ob contingentiam upon the judicial factor's
action (A1767/03) or conjunction of the two actions.
[21] In
respect of the motion refused by Lady Smith, the pursuer recognised that the
purpose of the motion had now been overtaken by events. That was because her
application to the Supreme Court to proceed with an appeal without the
signatures of two counsel had been unsuccessful.
[22] In
these circumstances the pursuer explained she did no longer sought from this
court the conjunction of the private action and the judicial factor's action.
The motion she now made was that the private action should be sisted pending
the outcome of her application to the ECtHR. She indicated it was possible she
would enrol a similar motion in the judicial factor's action.
Submissions on behalf of the defenders
[23] Senior
counsel for the defenders moved the court to refuse the motion to sist the
private action. He argued that the granting of a sist, pending proceedings
before the ECtHR, would cause serious prejudice to the defenders. Serious
allegations made by the pursuers had been hanging over the defenders for a
period in excess of nine years. A number of those allegations had been
dealt with in the private action. The defenders were entitled to have that
action brought to a conclusion.
[24] Senior
counsel suggested that there was no way of forecasting how long proceedings
before the ECtHR could last. Were the private action to be sisted, pending the
outcome of the proceedings before the ECtHR, it was perfectly possible that the
defenders would be unable to enforce the awards of expenses in their favour for
a number of years.
[25] Senior
counsel noted that a similar motion, seeking to defer the determination of the
expenses of the private action, until the conclusion of the judicial factor's
action, had been considered by the Extra Division chaired by Lady Paton in
February 2010 and had been refused (see Opinion of Lady Paton dated
16 February 2010).
[26] Senior
counsel indicated that the expenses in the private action had increased as the
case against the defenders had been expanded upon. Even although all three of
the defenders were covered by professional indemnity insurers, the expenses awarded
against the pursuer should be paid.
[27] In
any event it was obvious that the pursuer faced a number of hurdles in her
application to the ECtHR. In the first instance her application required to be
declared admissible by the court. This would require the pursuer to
demonstrate that she had exhausted all her domestic remedies (see The Law of
Human Rights; Edited by Clayton and Tomlinson paras 23.59 - 23.61). It was
by no means clear that the pursuer had done so. All that appeared to have been
included in her application to the ECtHR were allegations of a very general and
wide ranging nature about the attitude of the court to the pursuer and the
denial of independent representation. Those allegations were now being founded
upon as a basis for sisting the pursuer's action.
[28] Senior
counsel for the respondents submitted that having regard to the wide ranging
nature of the assertions the pursuer was now making before the ECtHR these
should have been initially raised in the Court of Session and the court invited
to address the issues involved. If the pursuer wished to found on specific allegations
as to how her Convention rights had been infringed when particular rulings had
been made against her, it would have been necessary for the pursuer to set out
these allegations in written pleadings in which she could have focussed the issues
she sought to raise for determination by the court.
[29] It
was stressed that the pursuer was adopting a very broad approach. Effectively
she was contending that no party litigant, appearing against a legally
represented opponent, was able to obtain justice from the court. Her complaint
about the denial of independent representation on account of the existence of a
master policy covering the professional indemnity insurance of solicitors in
private practice in Scotland was difficult to give credence to.
[30] Senior
counsel for the defenders submitted that the pursuer's allegations of
partiality on the part of the judges in favour of professional pleaders and a
bias against the pursuer herself were unsubstantiated and indeed controverted
by the evidence. On at least five occasions the court had found in favour of
the pursuer in actions that arose out of the non-payment of maintenance
payments out of the estate of the deceased. For example in the judicial
factor's action the pursuer had succeeded in resisting a challenge by the
defenders to have the whole case dismissed. Temporary Judge Wise had allowed
elements of the judicial factor's action to proceed to proof (see [2009] CSOH 153). Secondly the pursuer had successfully resisted a reclaiming
motion against Temporary Judge Wise's interlocutor in her favour [2012
CSIH29). Thirdly on 13 March 2007 the pursuer had been appointed judicial
factor on the estate of her late husband, replacing the original judicial
factor who died during 2006. She had done so in the face of opposition to her appointment
on the part of the defenders in the judicial factor's action and had
subsequently been sisted as the pursuer in the action. Fourthly the pursuer had
successfully sought the judicial review of the taxation by the Auditor of the
Court of Session of accounts of expenses against her. Fifthly she had
persuaded Lord Doherty on 26 October 2010 and Lord Stewart on 21 January 2011 to allow further amendment of her pleadings in the judicial factor's
action. On each occasion the amendment had taken place in terms of a minute of
amendment she had lodged and she had thereby expanded the basis of her claim
against the defenders in that action.
[31] Senior
counsel for the defenders submitted that a more appropriate way of looking at
decisions which had gone against the pursuer was to take the view that there had
been a lack of merit in her side of the issues involved. By way of example, that
was well illustrated by the decision of the Extra Division on 11 June 2009 in the private action ([2009] CSIH 48), to which reference has already been
made.
[32] Senior
counsel also made submissions on the issue of the possible bankruptcy of the pursuer,
which she herself had raised. He pointed out that in the judicial factor's
action the defenders hold a number of awards of expenses against the pursuer.
He submitted that in the event that the pursuer was declared bankrupt, any
judicial factor appointed to her estate would be in a position to take an objective
view of the actions she was still pursuing against the defenders.
Discussion
[33] We
have given very careful consideration to the notes of argument which were
lodged on behalf of the pursuer and the respondents, the first, second and
third defenders. In considering those notes of argument and the oral
submissions presented to us, we have also had regard to the contents of the opinions
previously issued in the private action and the judicial factor's action, to
which we have referred. Having done so, we are quite satisfied that we should not
sist the private action.
[34] In
giving our reasons for that decision it is appropriate for us to stress that we
are dealing with a reclaiming motion against the decisions of Lady Smith dated 29 May 2012 and Lord Tyre dated 21 March 2012. For the reasons we have referred to in paragraphs [21] and [22], events have moved on since those hearings
took place. The only issue now before this court is whether the private action
should be sisted, pending the outcome of the pursuers' application to the ECtHR.
It is not for this Extra Division to reconsider and amend the rulings which other
Divisions of the court have previously made.
[35] The
pursuer now argues that the court should sist the private action to allow the
judicial factor's action to proceed. She no longer contends that the private
action and the judicial factor's action should be conjoined. An important
background to the motion for the sist is that the pursuer has had a number of
awards of expenses made against her in the private action, awards of expenses
which remain unsettled. The possibility of her being declared bankrupt at the
instigation of one or more of the defenders who hold(s) an award of expenses
against the pursuer cannot be excluded.
[36] The
Grounds of Appeal lodged on behalf of the pursuer have been summarised earlier
in this opinion. Although they refer to the fact that the pursuer had sought to
raise proceedings in the Supreme Court with a view to seeking a reference to
the ECtHR, they make only limited reference to what the pursuer now alleges,
which is that in this action and the judicial factor's action the pursuer's Convention
rights under article 6 have been violated, on account of a denial of equality
of arms arising on account of the unavailability of independent professional
representation. In her Note of Argument the pursuer sets out a number of other criticisms
of the court, some of which are presented in a very general basis.
[37] None
of these issues have been raised in the written pleadings in the actions which
are before the court and no specific remedies based on a judicial determination
of the allegations have as yet been sought. It is not for this court to revisit
issues as to whether a Lord Ordinary or judges sitting in the Inner House have
erred in the decisions they have reached, apart from the decisions of Lady Smith and Lord Tyre that are under review in this reclaiming motion.
[38] As
far as the hearing on 29 May 2012 is concerned, the pursuer seeks to criticise Lady Smith for not having accepted pro veritate from the pursuer that she had lodged with
the Supreme Court a Notice of Appeal in the judicial factor's action (A1767/03).
As Lady Smith makes clear in her opinion, counsel for the defenders informed Lady Smith that "no appeal to the Supreme Court had been lodged in this action." He is also recorded
as having advised Lady Smith that the pursuer had not secured the signatures of
two counsel in support of such an appeal or a ruling by the Supreme Court
dispensing with the requirement for such signatures. Against that background
he is recorded as having submitted that there was not, at that time, any
realistic prospect of there being any litigation in the Supreme Court. It appears
that some days before the hearing of the motion on 29 May 2012, the respondents' solicitors had been provided with a copy of the Notice of Appeal, which
the pursuer had lodged with the Supreme Court on 8 May 2012. Indeed a copy of that Notice of Appeal had been lodged in process in the judicial factor's action.
Had the pursuer placed a copy of that Notice of Appeal before the court, or had
counsel for the respondents been instructed to do so, Lady Smith would have
been provided with a fuller description of the position. However, we are not
persuaded that even if that had occurred Lady Smith would have reached a
different conclusion
[39] As
far as the question of legal representation is concerned, it is important to
bear in mind that the court, itself, is unable to do anything to arrange legal representation
for a party litigant such as the pursuer. The members of the court are fully
aware of the costs that can be involved in funding legal representation. As
far as the Master Policy issue is concerned, all that the court can observe, as
a matter within the experience of its members, is that over the years there
have been a number of litigations in the Court of Session in which firms of
solicitors have acted for pursuers seeking damages from others firms of solicitors,
for loss caused by professional negligence on the part of such defenders. We
are unaware of any such cases in which the existence of the Master Policy, to
which the pursuer has referred, rendered it impossible for the pursuer to
instruct a solicitor and counsel.
[40] The
court also recognises that there have been a number of occasions in the dispute
between the pursuer and the executors of her late husband's estate in which
findings have been made in favour of the pursuer.
[41] Turning
to the proceedings before the ECtHR on which the pursuer has embarked, the
court is well aware that such proceedings are liable to be lengthy and
complicated. They are not, of course, directed against the defenders in her
litigations in the Court of Session. The pursuer's application has still to
pass the admissibility hurdle. There is nothing before this court that would
enable the court to express a view as to the prospects of success for the
pursuer's application to the ECtHR. Indeed it would not be appropriate for
this court to do so.
[42] Despite
the wide ranging submissions which were made to us, the position is clear. All
the issues that arose from the written pleadings in the private action
(A205/04) have already been resolved by this court. All that remains
outstanding is a dispute as to the quantification of the defenders' expenses
and the settlement of the expenses awarded to them. The pursuer no longer seeks
that this court should conjoin the private action (A205/04) with the judicial
factor's action (A1767/03). In the whole circumstances, we are not persuaded that
it would be an appropriate exercise of our discretion for this court to sist
the private action (A205/04), pending the outcome of the proceedings that the
pursuer has sought to raise in the ECtHR. In these circumstances the reclaiming
motion in respect of the interlocutors of Lady Smith and Lord Tyre is refused.