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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Paton

Lord Mackay of Drumadoon

Lord Marnoch

[2013] CSIH 50

P746/10

OPINION OF THE COURT

delivered by LADY PATON

in the petition of

THE RIGHT HONOURABLE ELISH ANGIOLINI QC, Her Majesty's Advocate

Petitioner;

against

JAMES DUFF

Respondent:

for

an order under the Vexatious Actions (Scotland) Act 1898

_______________

Act: Balfour; Scottish Government Legal Directorate - Petitioner

Alt: Party - Respondent

12 June 2013

Introduction

[1] The respondent raised numerous court actions against inter alios the Lord Advocate, the Chief Constable of Dumfries and Galloway Constabulary, a local authority (Dumfries and Galloway Council), and the former trustee in his sequestration. As a result of the number and nature of those actions, the Lord Advocate raised the present petition (P746/10) seeking to have the respondent declared a vexatious litigant. A hearing took place on 28 November 2012. The respondent represented himself, as he has done in many of his litigations.

The respondent's submissions and counsel's reply

[2] At the outset, the respondent made the following submissions:

The respondent had previously moved the court to ordain the petitioner to state precisely what was "vexatious" about the actions. The petitioner had not done so.
There was a conflict of interests as the petitioner was the Lord Advocate who would obviously support a chief constable, yet one of the respondent's main complaints was that the Chief Constable of Dumfries and Galloway Constabulary and his officers had fabricated police reports.
There was a conflict of interests as counsel appearing for the petitioner (Mr Balfour) had represented the Dumfries police and Dumfries and Galloway Council.
It was appropriate to sist the present petition (P746/10) to await the outcome of the respondent's appeal against the decision of the Inner House dated 18 May 2012 to the European Court of Human Rights in Strasbourg (see case number 12 below, Duff v Shearer (B56/11, XA48/11)).
The respondent stated that Brendan Kearney, the former head of legal services of Dumfries and Galloway Council, had been disciplined and sacked in May 2012. According to the respondent, it was Mr Kearney who had suggested that the respondent should be declared a vexatious litigant.
There was a conspiracy dating back to the 1980s to have the respondent declared a vexatious litigant (see, for example, a police report dated 18 June 1986).

[3] Counsel for the petitioner responded as follows:

The written argument for the petitioner set out why it was contended that the litigations were vexatious.
This court could properly decide whether the petitioner was a vexatious litigant by applying the statutory test to the objective information placed before the court.
Counsel stated that he had not in fact represented either the Dumfries police or Dumfries and Galloway Council.
The appeal which had gone to Strasbourg was only one of many cases. It might take some time before the outcome was known.
Counsel had no knowledge of the allegations concerning Mr Kearney.
Any question of a conspiracy was for this court to assess.

[4] Having taken time for consideration, this court concluded that there was nothing in the six points raised by the respondent which prevented the court from considering the merits of the petition P746/10 and answers, largely on the basis of the written pleadings, notes of argument, and productions. Parties were so advised.

[5] The respondent then reminded the court that he was seeking to have case number 1 below (Duff v Forbes) re-opened. A motion was to come before Lord Glennie in December 2012 (as to which, see paragraphs [10] to [12] below).

The respondent's sequestrations

[6] The respondent was sequestrated on 27 May 1976. On 10 March 1993, Lord Morison granted the trustee his discharge. In his judgment, Lord Morison observed (at page 7) that averments in the respondent's minute of amendment criticising the trustee's conduct of the sequestration were -

" ... utterly lacking in any specification. It is impossible to tell in what respect or respects the respondent wishes to allege [that the trustee] failed to perform his duties in a proper and diligent manner."

[7] In 2007 the respondent was again sequestrated: see paragraph [18] below.

The respondent's court actions

[8] What follows is a chronological summary of most of the actions raised by the respondent. Sources include (i) the petition as amended on 25 July 2012 number 20 of process; (ii) the respondent's adjusted answers dated 15 November 2010 number 8 of process, his 3-page fax dated 26 January 2012, and a minute of amendment for the respondent dated 30 August 2012 number 22 of process; (iii) productions for the petitioner, namely files containing court papers (tabs 6/1 to 6/28); (iv) a fourth inventory for the petitioner containing two initial writs 6/29 and 6/30; (v) written submissions for the petitioner; (vi) oral submissions presented by counsel for the petitioner and by the respondent at the hearing on 28 November 2012; (vii) a manuscript letter from the respondent to the Court of Session dated 29 November 2012; (viii) information concerning the current position in each action which, at the request of this court, was retrieved from the relevant court processes by the Deputy Principal Clerk of Session (DPCS); and (ix) further information from the Keeper of the Rolls concerning the current position in the petition to the nobile officium.

[9] The summary is restricted to actions initiated by the respondent. As noted by Sheriff Principal C G McKay at paragraph 17 in his opinion in Duff v Forbes (case number 7 below):

" ... Mr Duff explained that the grievances for which he was seeking redress were that he ought not to have been sequestrated in the first place since the debts for which he was made bankrupt were not personal to him but debts of his limited company and secondly that in the course of the sequestration a valuable asset, land belonging to him, had been sold by the trustee to a company of which one of the directors, if not the only director, was a commissioner in his sequestration ..."

The actions are as follows:

1. Duff v Forbes (the trustee in sequestration): the Court of Session

[10] In November 1979 the trustee in sequestration made certain adjudications on the creditors' claims. The respondent appealed those adjudications. On 17 March 1983 Lord Kincraig refused his appeal. The respondent reclaimed, but withdrew his reclaiming motion. In 1986 the respondent presented a petition to the nobile officium seeking an accounting of the trustee's intromissions, in which the prayer was amended to read "to declare the sequestration of James Duff granted on 27 May 1976 to be at an end". The petition was sisted, with motions to recall the sist being refused in 1987. Also in 1987, the respondent petitioned the Court of Session in terms of section 82 of the Bankruptcy (Scotland) Act 1913, again seeking an accounting of the trustee's intromissions. The petition was sisted in 1987. On 10 March 1993, when granting the trustee his discharge, Lord Morison noted in his opinion (page 4) that the section 82 petition sisted in 1987 contained "no live issue". In 1994, the sist in the petition to nobile officium was recalled and a question of expenses dealt with. In 1995 the respondent raised a petition seeking to have Lord Kincraig's decision quashed. The petition was dismissed.

[11] In 2012 the respondent sought to resurrect the section 82 petition which had been sisted some 25 years previously in 1987. The petition was formerly numbered P2/5/87 and is now numbered P153/01. As is recorded in a Note by Lord Menzies dated 13 November 2012 (issued when the court was dealing with the appeal in another process XA72/12, case number 8 Duff v Forbes below):

"[2] Until this month, the last interlocutor in the section 82 petition was pronounced in 1993, some 19 years ago. The petition relates to Mr Duff's sequestration in 1976. We were told by Mr Jones [solicitor advocate] for the defender and respondent that the trustee in sequestration was granted discharge by this court in about March 1993 at a hearing in which Mr Duff was represented by counsel..."

[12] In the 1987 petition, the respondent refers in paragraph 1 to the award of sequestration against him on 27 May 1976, the election of the trustee, the trustee's adjudication of claims in November 1979, the respondent's appeal against those adjudications and the refusal of his appeal on 17 March 1983. In paragraphs 2 and 3, the respondent avers that the debts were owed by a limited company J & J Duff (Lochmaben) Ltd, and not by him personally. The respondent further avers that his appeal was refused "by reason of [his] inability to prove the company and not him was indebted to [the creditor]." In paragraph 4 of the 1987 petition, the respondent refers to section 82 of the Bankruptcy (Scotland) Act 1913 and seeks an accounting from the trustee of his intromissions and management of the bankruptcy estate. In the prayer of the petition, the respondent craves the court to ordain the trustee in bankruptcy to account for his intromissions and management. In his recent adjustments to the 1987 petition, the respondent has added averments inter alia that:

"...The decision of Lord Kincraig dated 17 March 1983 should be treated as void, because a party with no legal right to enter into a process cannot defend the cause. Lord Kincraig acted ultra vires by allowing the [trustee] and his agents to defend the appeal which was clearly an abuse of process. Reference is made to Skinner's Trustee v Keith 4 March 1987. The [trustee's] discharge should be treated as void due to the fact that it was obtained by deception. The [trustee] and his agents deliberately withheld from the court that three court actions were still pending when the [trustee] had lodged his application in October 1991. Reference is made to Swanson v Wight 1836 SC 652."

Further adjustments made by the respondent emphasise that the indebtedness was that of the limited company, and not of the respondent. Two pleas-in-law have also been added by adjustment, as follows:

"1. The decision of Lord Kincraig being obtained by an abuse of process, the decision should be treated as void.

2. The respondent's discharge being obtained by deception, that decision should be treated as void."

At a hearing on 20 December 2012, Lord Glennie issued the following interlocutor:

"The Lord Ordinary having heard the party and solicitor advocate...allows [certain productions and adjustments; orders Notes of Argument]; and allows a procedure roll hearing on the petition and answers as adjusted, and restricted to the competency and relevancy issues..."

The procedure roll debate on issues of competency and relevancy was fixed for 6 June 2013.

[13] In March 2013, the respondent sought to reactivate the petition to the nobile officium, some nineteen years after the sist was recalled in 1994. He enrolled a motion. On 24 April 2013, the case was to be put out By Order for the respondent to address the court on further procedure. That hearing was discharged. A fresh date was fixed for 21 May 2013. On that date, the court heard submissions and refused the prayer of the petition.

1A. Duff v L Barclay & Company (1994: A158/94): the Court of Session

[14] In 1994 the respondent raised an action in the Court of Session seeking reduction of a decree for payment against him obtained by L Barclay & Company. The following information was provided by the DPCS. On 25 November 1994 the respondent was ordained to find caution and to lodge a bond within 14 days. On 6 December 1994 the time within which to lodge caution was prorogated to 16 December 1994. On 14 December 1994 the respondent's motion for leave to reclaim was refused. The action was sisted. On 22 October 1996 (almost two years later) the sist was recalled and the respondent of new ordained to find caution within four weeks. On 19 October 2012 (some 16 years later) the respondent's motion for leave to reclaim against the interlocutor of 22 October 1996 was refused.

2. Duff v Robertson, Wilkes and Merrick Homes Limited (1995): the Court of Session

[15] On 2 February 1995, the respondent raised an action in the Court of Session seeking delivery of half the share capital of Merrick Homes Limited and interdict. The following further information was provided by the DPCS. On 24 January 1995 interim interdict was granted against the defenders prohibiting them from alienating any land to which the third defenders might be entitled at, or in the vicinity of, Mill Loch, Lochmaben and Vendace Avenue, Lochmaben. On 13 August 1996 the interim interdict was recalled. On 28 August 1996 defences for the third defenders were allowed to be received late. There has been no further procedure.

3. Duff v Merrick Homes Limited (2002: A1074/02): the Court of Session

[16] In about 2002 the respondent raised an action in the Court of Session seeking inter alia reduction of missives and of a decree dated 31 January 1996. In an opinion dated 18 March 2003, Temporary Judge Gordon Reid QC noted that there were wholly inspecific allegations (mainly directed against the former trustee in bankruptcy) of collusion, pressure and threats, corruption, blackmail, fraudulent scheme, a plot, gross fraud, fraudulent misrepresentation, underhand deals, fraud practised on the court, pressure threat and blackmail, corrupt administration and gross fraud, fraudulent activities, fraudulent statements, corrupt administration of the respondent's estates and other similar allegations. The judge dismissed the action as irrelevant and lacking in specification. The respondent prepared grounds of appeal alleging inter alia prejudice and bias on the part of the judge. The following further information was provided by the DPCS. On 8 April 2003 the respondent marked a reclaiming motion. On 25 November 2003 the case was appointed to the Summar Roll. On 7 January 2004 the Summar Roll fixed for that date was discharged, and the respondent was ordered to lodge an appendix by 25 February 2004. On 23 April 2004 the case came before the Inner House on the Summar Roll. The reclaiming motion was refused, and the interlocutor of 18 March 2003 adhered to.

4. Duff v Colin Boyd QC (2006: A3553/06): Dumfries Sheriff Court and the Court of Session

[17] In 2006 the respondent raised an action of lawburrows in Dumfries Sheriff Court against Colin Boyd QC as Lord Advocate. The respondent averred that there was a criminal conspiracy between Dumfries police and members of the legal profession in Dumfries to make him bankrupt in order to steal his properties. Police reports had been faked, evidence distorted, and reports falsified. The defender was averred to have incited the procurator fiscal at Dumfries to pervert the course of justice by saying that there was no evidence to support the respondent's complaints against the Dumfries police and other individuals. The defender had perverted the course of justice and acted oppressively by aiding and abetting others to fake reports and spread lies about the respondent, so that he could not get justice or recover his property or damages. The defender was averred to be continuing his vendetta against the respondent to stop him obtaining justice. On 14 September 2006 the action was dismissed as incompetent. On 26 January 2007 an appeal to Sheriff Principal E F Bowen QC was refused. On 8 May 2007 an appeal to the Court of Session was dismissed as incompetent. The respondent was found liable in expenses. To date, no expenses have been paid.

5. Duff v Strang (2006: B347/06, XJ845/07): Dumfries Sheriff Court and the High Court of Justiciary

[18] On 29 November 2006 the respondent raised an action of lawburrows in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (David Strang). The respondent averred that he had been made bankrupt illegally in 1976. He referred to fabricated police reports and evidence, police officers perverting the course of justice and defrauding the respondent, a cover-up about the theft of his car, and a vendetta against him to stop him obtaining justice. On 2 March 2007 Sheriff Smith dismissed the action as incompetent and irrelevant. The respondent appealed to the High Court of Justiciary by Stated Case. The Stated Case was dismissed as incompetent and (obiter) irrelevant: 2008 JC 251. Expenses were awarded against the respondent. These remained unpaid, and as a result the respondent was again sequestrated.

6. Duff v Shearer (2008: A342/08, XA167/09): Dumfries Sheriff Court and the Court of Session

[19] On 1 September 2008 the respondent raised an action in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer). He sought damages of £20 million and interdict. He averred that he had been made bankrupt illegally in 1976; solicitors had conspired to defraud him of his money and lands; police officers had faked reports and perverted the course of justice. He later added adjustments referring to his trustee in sequestration as a "well known fraudster" who had conspired with Dumfries police to bring fabricated charges against the respondent and his ex-wife. The respondent also averred that the Chief Constable's legal team had deceived the court, lied, misled judges in the Court of Session and conspired with clerks of court. On 6 February 2009 Sheriff Johnston refused the respondent's motion to have the Chief Constable's solicitor found guilty of contempt of court for trying to mislead the court. On 5 June 2009 Sheriff Jamieson dismissed the action as irrelevant and lacking in specification. The respondent appealed to the sheriff principal alleging bias on the part of the sheriff and false information provided by the lawyer acting for the Chief Constable. On 2 October 2009 Sheriff Principal B A Lockhart refused the appeal. The respondent appealed to the Court of Session. He was required to lodge grounds of appeal within 28 days of 13 November 2009. The petitioner avers that he failed to do so. However the respondent avers that "grounds of appeal [were] lodged and [are] still pending" (see the respondent's adjusted answers number 8 of process, foot of page 12). By contrast, a Note delivered by Lord Menzies dated 13 November 2012 (XA167/09) states:

"[1] In the action, appeal number XA167/09, the last interlocutor of this court was pronounced on 13 November 2009, exactly three years ago today. In terms of that interlocutor Mr Duff was ordained to lodge grounds of appeal within 28 days. Nothing has happened since. No grounds of appeal have been tendered. Mr Duff has given no satisfactory explanation for the failure to progress this appeal by the lodging of grounds of appeal. He attributed his failure to do so to a mix up.

[2] An appellant has a duty to make progress in an appeal and the court will not permit appeals in which no progress is being made to drag on indefinitely. After the lapse of a period of three years we are in no doubt that this appeal should be refused ..."

The following further information was provided by the DPCS. The court then dismissed the appeal in respect that the respondent had failed to obtemper the interlocutor of 13 November 2009.

7. Duff v Forbes (2008: A82/08): Dumfries Sheriff Court and the Court of Session

[20] On 6 November 2008 the respondent raised an action in Dumfries Sheriff Court against his former trustee in sequestration. He sought damages of £10 million and interdict. He made averments of a conspiracy involving the former trustee, blackmail and pressure, and incorrect entries in the sederunt book. In a later note, he alleged that the defender's solicitors were deliberately misleading the court, and trying to pervert the course of justice. On 15 July 2009 Sheriff Robb assoilzied the defender from the claim of damages, and dismissed the action so far as seeking interdict. The respondent appealed to the sheriff principal, alleging that the sheriff had acted ultra vires and in a biased way; that he had shouted and was aggressive; and that his conduct made it clear that he would not give a party litigant a fair hearing. On 11 November 2009 Sheriff Principal C G McKay refused the appeal. The criticisms of the sheriff were held to be wholly unfounded. The respondent appealed to the Court of Session, but then abandoned his appeal. Expenses were awarded against the respondent but have not been paid.

8. Duff v Forbes (2010: A23/10, XA72/12): Dumfries Sheriff Court and the Court of Session

[21] On 2 February 2010 the respondent raised an action in Dumfries Sheriff Court against his former trustee in sequestration. He sought damages of £15 million and interdict. The basis of the action was similar to that in case number 7 above. Sheriff Jamieson repelled the defender's plea of res judicata in respect of the damages claim. The defender's appeal to the sheriff principal (Temporary Sheriff Principal C N Stoddart) was successful and the defender was assoilzied from the crave for damages. Expenses were awarded against the respondent. Following a hearing on 26 March 2012, Sheriff Jamieson dismissed the remaining part of the action, observing:

"[60] Mr Duff has considerable experience of litigation as a party litigant and ought now to be aware that, at a debate, the court is invited to consider if his pleadings are legally relevant and sufficiently pled to merit the case proceeding to proof; and that an action will be dismissed at debate if 'it must necessarily fail even if all the pursuer's averments are proved': Jamieson v Jamieson 1952 SC (HL) 44 at 50, per Lord Normand. In my opinion the Jamieson test is clearly made out in this case ..."

[22] Expenses were awarded against the respondent. The petitioner avers that respondent is believed to have marked an appeal to the Court of Session, but it is not known what further proceedings (if any) have taken place. The respondent states that "the Court of Session has given the timetable for the appeal procedure": see his minute of amendment number 22 of process, page 4. The following further information was provided by the DPCS. On 27 April 2012 an appeal was registered in the Court of Session (XA72/12). On 24 May 2012 the respondent's motion to sist the appeal was refused, and he was ordered to lodge a process and an appeal print within six weeks. On 16 October 2012 at a procedural hearing the court ordained the respondent to lodge caution of £10,000 within 28 days, and found him liable in the expenses of the opposed motion. The procedural hearing was continued to 20 November 2012. On 13 November 2012, the respondent's motion to sist the appeal was refused, and the date of the procedural hearing confirmed. On 20 November 2012, the respondent did not appear, but the court received a letter from him dated 14 November 2012. The court considered that letter, and ultimately refused the appeal in respect of the respondent's failures to appear or to find caution.

9. Duff v Shearer (April 2010: B131/10): Dumfries Sheriff Court

[23] On 22 April 2010 the respondent raised an action of lawburrows in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer). The basis of the action was similar to that in case number 5 above. On 5 August 2010, following upon a debate, Sheriff Jamieson dismissed the action as irrelevant. The petitioner avers that the respondent did not appeal. However the respondent states that the sheriff clerk's office was responsible for not having the action sent to the Court of Session: see his minute of amendment number 22 of process, page 4. The following further information was provided by the DPCS. Dumfries Sheriff Court confirmed that no appeal was marked and that the respondent has been advised accordingly.

10. Duff v Shearer (September 2010: A234/10, XA154/10): Dumfries Sheriff Court and the Court of Session

[24] On 8 September 2010 the respondent raised a further action in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer) seeking rectification of police reports; an apology; damages of £10 million; and interdict. The circumstances relied upon were similar to those relied upon in case number 6 above. The legal basis of the claim was that police officers had "defamed and discriminated" the respondent. The respondent was ordered to find caution. He did not do so. The respondent states that the cause is back at Dumfries Sheriff Court, and has been sisted. He states further that he will be asking for a review of the £2,000 caution which he describes as "an injustice when the [respondent] has a stateable case": see his minute of amendment number 22 of process, page 5. The following further information was provided by the DPCS. An appeal to the Court of Session was registered on 3 December 2010. On 14 December 2010 the appeal was sisted until 1 February 2011. On 2 June 2012 at a procedural hearing, the respondent's note of argument and appendix were allowed to be received late, and the clerk of court requested a note from the sheriff at Dumfries relating to an interlocutor of 28 October 2010. The appeal was appointed to the Summar Roll for a hearing on 20 October 2011. On 20 October 2011 the respondent's appeal was allowed to the extent of recalling that part of the sheriff's interlocutor of 28 October 2010 reading:

"Deletes as scandalous and irrelevant the pursuer's averments in article 2 of the condescendence except for the words 'These statements are untrue, false, calumnious', and all his averments in article 3 of the condescendence. Deletes for the same reason his third plea-in-law. Dismisses craves 1 and 3 of his initial writ. Quoad ultra, and subject to the requirements of the pursuer to consign £2,000 with the sheriff clerk, allows the action to proceed."

The respondent's appeal to the Court of Session was otherwise refused. The respondent was found liable in expenses, restricted to 50 per cent. On 16 February 2012 the cause was remitted to Dumfries Sheriff Court to proceed as accords. On 22 November 2012 the case was dismissed at Dumfries Sheriff Court. No appeal was marked.

11. Duff v Dumfries and Galloway Council (November 2010: A312/10, XA71/12): Dumfries Sheriff Court and the Court of Session

[25] On 17 November 2010 the respondent raised an action in Dumfries Sheriff Court against Dumfries and Galloway Council seeking compensation of £324,000 and interdict in relation to a drainage and lighting system constructed by the respondent in the 1970s. The respondent averred that the Council had faked a map about the drainage system, and had misled Scottish Water. On 19 July, 18 August and 7 December 2011 Sheriff Jamieson dismissed various parts of the action as irrelevant and lacking in specification. The respondent is understood to have marked an appeal to the sheriff principal, but the petitioner avers that it is not known what further proceedings (if any) have taken place. The respondent for his part states that the appeal is sisted pending a full hearing at Dumfries Sheriff Court on evidence, and that the respondent is waiting for a date from the sheriff court: see his minute of amendment number 22 of process, page 5. The following further information was provided by the DPCS. On 27 April 2012, an appeal was registered in the Court of Session (XA71/12). On 24 May 2012 the appeal was sisted for three months pending a full hearing in Dumfries Sheriff Court on evidence relevant to the appeal. On 25 September 2012, at a By Order hearing in the Court of Session, the respondent was ordained to lodge an appeal print within 7 days, and thereafter the Keeper of the Rolls was to issue a timetable. On 13 November 2012 the court refused a motion to dismiss the appeal, and ordained the respondent to find caution of £2,000. On 8 January 2013 a three-judge procedural hearing took place. The respondent did not appear. He had intimated by a faxed letter dated 14 November 2012 that he would not be finding caution, nor would he be appearing at the procedural hearing. The court dismissed the appeal in respect that the respondent had failed to obtemper the interlocutor of 13 November 2012.

12. Duff v Shearer (February 2011: B56/11, XA48/11): Dumfries Sheriff Court and the Court of Session

[26] On 15 February 2011 the respondent raised an action of lawburrows in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer). The basis of the action was similar to that in case number 9 above. Following a debate on 31 March 2011, Sheriff Jamieson dismissed the action as irrelevant. The respondent appealed to the Court of Session on the basis that the sheriff was not entitled to determine the matter without hearing evidence. On 18 May 2012 the appeal was refused for the reasons given by the Inner House in their judgment of that date (reported 2012 SLT 975). The respondent states in his minute of amendment number 22 of process pages 5 and 6:

" ...[the case] was appealed to the Supreme Court in London ... the respondent was told 'your application to have waived the requirements that two counsel certify that it is reasonable to pursue the appeal has been considered by the panel of three justices concluded [sic] that it is not a case in which dispensation of the requirements should be granted. The points mentioned in the grounds of appeal are not arguable. The decision as to which of the judges should give the opinion in the Inner House was a matter of procedure, which is not open for review in this court' ..."

[27] The respondent advised this court that he has appealed the case to the European Court of Human Rights in Strasbourg: see paragraph [2] above.

13. Duff v Shearer (September 2011: B345/11, XA139/11): Dumfries Sheriff Court and the Court of Session

[28] On 30 September 2011 the respondent raised an action in Dumfries Sheriff Court against the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer). He sought suspension of a charge for payment served on him in respect of the non-payment of the expenses awarded in case number 9 above. On 13 October 2011 Sheriff Jamieson dismissed the action as incompetent. The respondent appealed to the sheriff principal. On 24 November 2011 Sheriff Principal B A Lockhart refused the appeal and awarded expenses against the respondent. In his minute of amendment number 22 of process at page 6, the respondent states that he "has a cause sisted at the Court of Session". The following further information was provided by the DPCS. On 19 December 2011 the respondent's appeal was registered in the Court of Session (XA139/11). On 21 December 2011 the appeal was sisted for two months pending the Summar Roll hearing in appeal XA48/11 (paragraph [26] above). On 27 July 2012 there was no appearance on behalf of the defender, and the appeal was sisted until 24 August 2012. On 25 September 2012 the respondent was ordered to lodge an appeal print within seven days, and the Keeper was thereafter to issue a timetable. On 13 November 2012 the court refused a motion to dismiss the appeal, and ordered the respondent to find caution of £2,000. On 8 January 2013 a three-judge procedural hearing took place. The respondent did not appear. He had intimated by a faxed letter dated 14 November 2012 that he would not be finding caution, nor would he be appearing at the procedural hearing. The court dismissed the appeal in respect that the respondent had failed to obtemper the interlocutor of 13 November 2012.

14. Duff v The Council of the Law Society (July 2012)

[29] A fourth inventory of productions for the petitioner contained an initial writ lodged on 4 July 2012 in which the respondent seeks compensation of £30 million from the Council of the Law Society, and interdict. The respondent refers to complaints which he made about certain solicitors, and avers that the Law Society failed to take appropriate action. On 8 August 2012, Sheriff McColl refused to warrant the writ.

15. Duff v The Scottish Ministers (November 2012)

[30] The fourth inventory also contained an initial writ in which the respondent seeks compensation of £30 million from the Scottish Ministers. The respondent refers to his illegal sequestration and abuses of process, to his complaints to the Scottish executive, and to the latter's failure to respond. By letter to the respondent dated 13 November 2012 it is explained that Sheriff McColl refused to warrant the writ or to be addressed on it.

The respondent's adjusted answers, fax, minute of amendment, and manuscript letter

[31] As noted in paragraph [8] above, the respondent lodged in the current process (P746/10) adjusted answers number 8 of process, a 3-page fax dated 26 January 2012, and a minute of amendment number 22 of process. He also sent the Court of Session a manuscript letter dated 29 November 2012.

[32] In these documents, the respondent denies raising vexatious proceedings. He explains that he had reasonable grounds for raising the actions, and also documentary evidence to support them. His cases were dismissed as a result of a conspiracy between the Lord Advocate, the Dumfries police, solicitors, and court officials (pages 14 and 15 of the adjusted answers number 8 of process). The present petition was false. It had been raised for only one reason, namely to stop the respondent getting access to justice (page 19). Public money had been wasted protecting local solicitors and corrupt police officers (page 20). Fake police reports had been circulated to the Law Society, the Crown Office, and the devolved administration of the Scottish executive, so that no investigations would be carried out (page 20).

[33] The respondent also reiterated inter alia that his sequestration in 1976 was illegal. Any trading (and debts) had been the company's, not the respondent's. His trustee in sequestration had mismanaged his affairs. The respondent had been defrauded of his estate. The respondent made criticisms of the lawyers involved. He stated that judges had been misled, and had also erred. He gave considerable detail in relation to certain litigations.

[34] In his manuscript letter dated 29 November 2012 the respondent pointed out that his cases had come before many sheriffs and judges who had not categorised them as "vexatious". He referred to the hearing in Duff v Dumfries and Galloway Council (XA71/12) on 13 November 2012 before three judges chaired by Lord Menzies. Despite the submissions made by counsel for the Council, the court had ruled that the action should not be dismissed as an abuse of process. (Lord Menzies' Note dated 13 November 2012 confirms that the court was not satisfied in the circumstances that "the high test for abuse of process has been met"; however the court ordered the respondent to find caution as "[the respondent's] case ... if stateable at all, cannot be described as strong", adding "He has failed to obtemper decrees for payment in other causes which may indicate that he is unable to meet current obligations. Indeed he has recently been sequestrated."

Discussion

The Vexatious Actions (Scotland) Act 1898

[35] Section 1 of the Vexatious Actions (Scotland) Act 1898 provides:

"Power of Court of Session to prohibit institution of action without leave

It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of a judge sitting in the Outer House on the Bills in the Court of Session, having satisfied the judge that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding ..."

[36] As noted in Lord Advocate v McNamara 2009 SC 598 paragraphs [35] et seq, the petitioner has to establish the following matters:

(1) Proceedings instituted habitually and persistently

[37] In Attorney General v Barker [2000] 2 FLR 1, at paragraph 22, it was said that:

" ... [the] essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop."

(2) Proceedings instituted without any reasonable ground

[38] As was explained in Lord Advocate v McNamara cit sup:

"[36] ... 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 ..."

(3) The whole circumstances of the litigations

[39] In Lord Advocate v McNamara cit sup, it was noted in paragraph [40] that:

" ... the court has a discretion to make an order under [section 1 of the 1898 Act], 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 HM Advocate v Frost (paragraph 44) expressed its agreement with what had been said by Staughton J in Attorney General v Jones (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."

The respondent's litigations

Habitually and persistently

[40] We refer to the nature and number of actions raised by the respondent during the period 2002 to date as outlined in paragraphs [10] to [30] above. In several instances, where an action was dismissed or an appeal refused, the respondent raised a similar action against the same defender. We are satisfied that the respondent has raised actions in a habitual and persistent manner from 2002 to date.

Without reasonable grounds

[41] On the information available to us, none of the actions raised by the respondent has resulted in the respondent being granted the remedies he sought. The opinions of the courts involved have been almost universally unfavourable to him. In Duff v Merrick Homes Limited (2002, A1074/02 case number 3 above) the temporary judge observed:

" [4] ... [Mr Duff] was unable to identify the parts in the pleadings which contained the essentials of his case whatever that case might be ...

[10] In my opinion, Mr Duff's pleadings are ... generally incomprehensible. It is impossible to identify the crucial facts upon which the remedies he seeks are based. The real substance of the facts making up the case against Merrick cannot be identified. Where Mr Duff's pleadings mention [collusion, pressure and threats, corruption, blackmail, fraudulent scheme, a plot by the trustee and third parties, gross fraud, fraudulent misrepresentation, underhand deals, fraud practised on the court, pressure threat and blackmail, corrupt administration and gross fraud, fraudulent activities, fraudulent statements] ...and other allegations in a similar vein, no or no adequate specification whatsoever is given ..."

[42] In Duff v Colin Boyd QC (2006, A3553/06 case number 4 above) the sheriff principal commented:

"3. ... What [Mr Duff] has argued is that this is not an action brought against the Lord Advocate but against Mr Boyd personally. He has gone so far as to suggest that the defender's representation by solicitors and counsel instructed by the Scottish Executive constitutes an abuse of public funds.

4. The proposition that this is not a case directed against the Lord Advocate is in my view untenable ..."

[43] In Duff v Strang (2006, B347/06, XJ845/07 case number 5 above) the sheriff noted the respondent's contentions that he was illegally made bankrupt in 1976, that police officers had fabricated reports and perverted the course of justice, that they were involved in defrauding the respondent out of his lands, house and money by conspiring with a former solicitor, that there had been a cover-up and a continuing vendetta, and said inter alia:

" ... (page 5) [Mr Duff] advanced no argument in respect of the fundamental points made in respect of the competency and relevancy of the action ... (page 6) it becomes plain that [Mr Duff's] averments are not ones which could ever found a competent application for the remedy of lawburrows. And even if proved by evidence the action would necessarily fail. As such it is neither competent nor relevant ..."

[44] In Duff v Shearer (2008, A342/08, XA167/09 case number 6 above) the sheriff recorded the averment that the respondent was illegally made bankrupt in 1976, together with averments of a conspiracy to defraud him of his money and lands, faked police reports, perverting the course of justice, fabricated charges, deceiving the court, and a conspiracy of solicitors and clerks of court, and concluded:

"[82] The result is, both in relation to the damages claim and the crave for interdict, [Mr Duff] has not set out a relevant case, or made sufficient averments, so as to be entitled [to] the remedies which he craves against the defender. His claims for damages and interdict, as laid, are in my view fundamentally misconceived and thus fundamentally irrelevant ..."

[45] The sheriff principal noted at paragraph 23 of his judgment dated 2 October 2009:

" ... The action ... remains fundamentally irrelevant".

[46] In Duff v Forbes (2008, A82/08 case number 7 above) the sheriff commented inter alia:

" 53 ... The failures in the pleadings after a previous opportunity to amend remain vast. The claim spans over thirty years. Allegations of fraud, blackmail and conspiracy are scattered throughout the pleadings but the majority are without any specification. The pleadings lack coherence ... "

[47] The sheriff principal observed:

"[19] The [respondent's] averments are ... wholly unfocused when looked at to determine how they relate to the sum pursued or the wrongful act or acts ...

[26] ... Mr Duff has wholly misapprehended the purpose of a debate and seems to think all he has to do is make a series of allegations to entitle him to a proof. Perhaps not surprisingly he does not seem to understand the concept of relevancy and that a relevant case has to be made out before a proof will be allowed unless there are some facts that need to be established before the issue of relevancy can be determined ..."

[48] In Duff v Forbes (2010, A23/10, XA72/12 case number 8 above) following a hearing on 26 March 2012, the sheriff said:

"In my opinion, Mr Duff's pleadings in this case were woefully inadequate. They did not support his crave for interdict. His pleadings were diffuse and amounted to complaints against a number of individuals and organisations, all completed, and some considerable time ago. They failed to identify any legal wrong or reasonable apprehension any such wrong was being, or would be, committed by the defender ..."

[49] In Duff v Shearer (April 2010, B131/10 case number 9 above) the sheriff noted at paragraph [64]:

" ... [Mr Duff's] averments in this case fall far short of what is necessary to plead a relevant case of lawburrows based on harm from defamation and accordingly I am persuaded ... that the pursuer's application for lawburrows is irrelevant for that reason ..."

[50] In Duff v Dumfries and Galloway Council (2010, A 312/10, XA71/12 case number 11 above), the sheriff said:

"... I have considered [Mr Duff's] claim as carefully as I am able but I cannot discern any rational basis in law for it ... Mr Duff claims the right to compensation; it is for him to show it exists and to aver the legal basis for it so the defenders have a fair opportunity to investigate and respond to such a claim ... Since he has plainly failed to do this, it follows his averments are irrelevant, failing which lacking in specification."

[51] In Duff v Shearer (February 2011, B56/11, XA48/11 case number 12 above) the sheriff observed:

"[128] Mr Duff clearly feels aggrieved by what he perceives to be an injustice that materially affected the course of his and his family's whole life since 1976. But his action for lawburrows on the basis of the defender not investigating his complaints and allegedly faking reports is fundamentally misconceived ...

[131] ... [Mr Duff] has not pled a relevant case for lawburrows ..."

[52] The Inner House refused the respondent's appeal, and the Supreme Court concluded that:

" ... The points mentioned in the [respondent's] grounds of appeal are not arguable."

[53] In Duff v Shearer (September 2011, B345/11, XA139/11 case number 13 above) the sheriff dismissed the action as incompetent, commenting:

"Mr Duff was truly seeking to bring under review my decree finding him liable in expenses in the second lawburrows action ..."

[54] The sheriff principal for his part concluded:

"I have no hesitation in reaching the conclusion that his appeal should be refused."

[55] We have carefully considered the respondent's oral submissions and his writings, including his written pleadings, fax, and manuscript letter. Nevertheless bearing in mind the consistent lack of success on the respondent's part, and the virtual unanimity of view shared by the sheriffs, sheriffs principal, Court of Session judges, and Supreme Court justices who have dealt with the respondent's cases, we are satisfied that the actions raised by the respondent were raised without reasonable grounds.

The whole circumstances of the actions

[56] As was observed in paragraph [36] of Lord Advocate v McNamara 2009 SC 598:

" ... 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 ..."

[57] In this petition, the respondent is noted as having raised actions against inter alios the Lord Advocate, the Chief Constable of Dumfries and Galloway Constabulary, a former trustee in sequestration, and a local authority (Dumfries and Galloway Council). In these actions the respondent has made repeated allegations of corruption, fraud, blackmail, pressure, collusion, fabricated police reports, police officers perverting the course of justice, a cover-up, a vendetta against him, and conspiracies. The actions and ensuing appeals have been dismissed and awards of expenses made against the respondent. The respondent's reaction has been to fail to pay any expenses; to leave some actions in a procedural limbo; and in several instances to reactivate old proceedings or to raise another action against the same defender in broadly similar terms as a previously unsuccessful action. Considerable time, funds, and resources have been devoted to dealing with the respondent's wholly unsuccessful actions. In our opinion, the circumstances of the litigations confirm and support the petitioner's contention that the respondent is indeed a vexatious litigant.

Decision

[58] For the reasons given above, we are satisfied that the conditions which the Lord Advocate requires to establish in terms of section 1 of the Vexatious Actions (Scotland) Act 1898 have been established. The ultimate disposal is one for our discretion. Exercising that discretion, we shall in all the circumstances grant the prayer of the petition. The order which we pronounce does not prevent access to the courts (paragraph [9] of Lord Advocate v McNamara 2009 SC 598) but imposes a sifting mechanism which in the respondent's case is, in our view, entirely justified.