EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 33
Lord Brodie Lord Drummond Young Lady Clark of Calton	A537/09 OPINION OF THE COURT delivered by LORD BRODIE in the cause WILLIAM FORBES Pursuer and Reclaimer; against STRATHCLYDE PARTNERSHIP FOR TRANSPORT First Defender and Respondent; and TRANSPORT SCOTLAND Second Defender and Respondent: _______________

Act: Party

Alt: Sheldon QC; Maclay Murray & Spens LLP

9 April 2014

Introduction

[1] This is an application, in terms of section 40(1)(b) of the Court of Session Act 1988, for leave to appeal an interlocutory judgment of the Inner House to the United Kingdom Supreme Court. The applicant is William Forbes. He is the pursuer and reclaimer in an action, inter alia for damages for infringement of copyright. The defenders in the action are Strathclyde Partnership for Transport and Transport Scotland. Strathclyde Partnership for Transport, the first defender, is an administrative body incorporated by an order under section 1(1) of the Transport (Scotland) Act 2005. Transport Scotland, the second defender, is an executive agency of the Scottish Government and successor to the Scottish Executive Development Department, Transport Division. The second defender has no separate legal personality from the Scottish Ministers. The infringement of copyright alleged by the pursuer relates to developed plans for a fixed heavy rail link between Glasgow City Centre and Glasgow International Airport.

[2] The judgment which the applicant wishes to appeal is contained in an interlocutor of the Inner House (as constituted by Lord Brodie sitting as a procedural judge) dated 19 December 2013, read together with the preceding interlocutor, dated 26 November 2013. In summary, the applicant had applied to this court by motion for commission and diligence for the recovery of two documents in respect of which the defenders claimed commercial confidentiality. The purpose for which the applicant sought recovery was to have disclosed to him the terms of the agreement between the first and second defenders as to their liability inter se for judicial expenses incurred in relation to the action at the instance of the applicant. In terms of the interlocutor of 26 November 2013 the defenders were ordered to deliver a full copy of both documents to the clerk of court. That having been done and Lord Brodie having had the opportunity to consider the two documents with a view to determining which provisions thereof were relevant to the issue of liability for judicial expenses, in terms of the interlocutor of 19 December 2013, diligence was granted for recovery in respect of one of the documents, but only to the extent of specified clauses in the other document. It is the effective excerpting of material from one of the documents which the applicant wishes to challenge by way of an appeal to the United Kingdom Supreme Court.

[3] The full terms of the interlocutors of 26 November and 19 December 2013 are as follows:

"Edinburgh 26 November 2013

The Lords having considered the opposed motion and specification of documents number 36 of process and having heard the pursuer personally and counsel for the defenders thereon the single bills, appoint the defenders to deliver to Mr R Jenkins, Clerk to the Inner House, within seven days from this date, a full copy of each agreement referred to by the Auditor of Court and referred to during the hearing; Reserve meantime the expenses of today's hearing and the expenses involved in the process of recovery of the documents.

Edinburgh 19 December 2013

The Lords, having resumed consideration of (a) the pursuer's motion enrolled on 6 November 2013, (b) the form of opposition enrolled by the defenders on 6 November 2013 and (c) the pursuer's specification of documents number 36 of process, and having considered (i) the letter from Maclay Murray & Spens dated 29 November 2013, number 37 of process, (ii) the minute of agreement between the Scottish Ministers and Strathclyde Partnership for Transport dated 19 May 2008 and (iii) the subsidiary agreement between the Scottish Ministers and Strathclyde Partnership for Transport dated 13 and 18 November 2009, grant diligence against havers for recovery of the documents called for in call 1 of the pursuer's specification of documents number 36 of process, but only to the following extent - clauses 8.1, 8.1.4, 8.2.1, 8.2.2 and 8.2.3 of the minute of agreement dated 19 May 2008 and all of the subsidiary agreement between the Scottish Ministers and Strathclyde Partnership for Transport dated 13 and 18 November 2009; quoad ultra refuse the motion."

Background

[4] Following discussion on the procedure roll the action at the instance of the applicant was dismissed by Lord Glennie in terms of his interlocutor of 18 February 2011. The applicant reclaimed. The reclaiming motion was refused by an Extra Division of the Inner House for the reasons set out in the court's opinion of 2 May 2012. The defenders were found entitled to their expenses as against the applicant. The account of expenses was taxed by the Auditor of the Court of Session at the sum of £144,572.08, as appears from the Auditor's report dated 12 July 2013. The applicant lodged a note of objections to the Auditor's report on 23 August 2013. The Auditor responded to the note of objections by way of a minute lodged on 25 October 2013.

[5] Among the issues raised by the applicant in his note of objection to the Auditor's report is one relating to the incidence of VAT. It is the position of the defenders that the practical conduct of the defence to the action was put in the hands of the second defenders following on provision for indemnity in respect of judicial expenses which had been made by minute of agreement between the defenders dated 19 May 2008 and subsidiary agreement between the defenders dated 13 and 18 November 2009. Invoices in respect of judicial expenses rendered by their solicitors to the second defenders were subject to a charge to VAT. The second defenders are not entitled to recover VAT in respect of said costs. Accordingly, the Auditor, in allowing items of judicial expenses as against the pursuer, included in the amount the element of VAT. In order to substantiate the contractual arrangements as between the first and second defenders, their representative provided the Auditor with copies of the agreement and the subsidiary agreement.

[6] In the course of the taxation copies of the agreement in the subsidiary agreement were not provided to the applicant. In his minute the Auditor states that the applicant did not ask to see these documents but had he done so the Auditor would have advised him that he was not entitled to see them unless with the agreement of those representing the defenders.

[7] We understand that the defenders were prepared to provide the applicant with copies of the agreement and the subsidiary agreement, redacted to exclude provisions which did not relate to judicial expenses, but the applicant was not prepared to accept this as sufficient disclosure of what he considered to be information relevant to the taxation of the account of expenses. He accordingly made the application to this court which came before the procedural judge and was dealt with in terms of the interlocutors of 26 November and 19 December 2013.

Grounds on which the applicant seeks leave to appeal to the Supreme Court

[8] The application for leave to appeal is in the following terms:

"1. That on 19^th December 2013 the Extra Division of the Inner House of the Court of Session refused the application of the Applicant for specification and delivery of identified documents held by the Defenders in the matter of William Forbes (Pursuer) against Strathclyde Partnership for Transport (First Defender) and Transport Scotland (Second Defender); Court reference A537/09. A copy of the interlocutor of the Extra Division of the Inner House is produced with this application.

2. That no reasons were given by the Extra Division for its decision of 19^th December 2013 and against which leave to appeal is sought.

3. That the ground on which the Applicant seeks leave to appeal to the United Kingdom Supreme Court against the decision of the Extra Division of the Inner House of 19^th December 2013 are as follows:-

3.1 The interlocutor being appealed on the one hand allows some, selected, new evidence to be given to the Applicant but otherwise dismisses the request of the Applicant to amend his Note of Objection dated 9^th October 2013, to allow such evidence to be taken into account. It should be noted that, in the opinion of the Applicant, the information released warrants a reconsideration of his Note of Objection. As such the decision of the Court is irrational and irrationality in such a form is accepted as a violation of Article 6 of the European Convention of Human Rights, a Convention right upheld by the Human Rights Act 1998 (the "HRA"). Section 6(1) fo the HRA makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

3.2 The Applicant and the Defenders separately made applications to the Court to take account of the same documentation prior to the issue of the interlocutor of 19^th December 2013. Whilst there may have been issues over the exact timing of the receipt of that new information, both parties separately requested that the Court take account of it. Failure to take account of relevant information is a further violation of the Applicant's Article 6 Convention rights to a fair trial. The documentation in the form of the First Defender's response to a request by the Applicant, made under the Freedom of Information (Scotland) Act 2002, is included in Appendix 2.

3.3 Since the issue of the interlocutor being appealed further new evidence in the form of the First Defender's review of their response to the Freedom of Information request has been obtained by the Applicant. As it serves to support the Applicant's claim of irrationality in heading 3.1, it is included in Appendix 3.

3.4 The interlocutor being appealed effectively overrules the decision of the Auditor of the Court of Session who specifically identified the documents being sought by the Applicant in his Minute dated 24^th October 2013. It is well established that an appeal court will not overrule a lower court or tribunal which has made a decision based on a consideration of the evidence unless with good reason. The departure of the Extra Division of the Inner House from that established procedure is a procedural impropriety which is unfair and a violation of the Applicant's Article 6 Convention right to a fair trial.

3.5 The interlocutor being appealed prevents the Applicant from obtaining information which has been lodged in process by the Defenders and has been specifically referred to in the decision making of the Court. The interlocutor prohibits the Applicant from being able to consider and comment upon information which clearly the Defenders submitted in support of their case. Such limitations on a party's right to receive and consider all relevant information is a denial of Equality of Arms; it is unfair and a violation of the Applicant's Article 6 Convention rights which are protected by statute.

3.6 The Second Defender in this action is the Scottish Government; it has assumed responsibility for the conduct of the defence. The main contention in the course of the proceedings has been the ability of the Scottish Government to obtain a decision from the Outer House which was customised to its exact requirements. The interlocutor under appeal and issued by the Inner House again appears to be to the exact requirements of the Second Defenders and, when taking account of the matter as a whole, would lead the knowledgeable independent observer to conclude that there was a real possibility of bias against the applicant by the Extra Division. Bias or the appearance of bias is unfair and a breach of the Applicant's right to a fair trial as guaranteed by Article 6 of the ECHR and upheld by statute. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

3.7 The interlocutor being appealed was not supported by any reasons. The failure to give reasons inhibits a party's ability to understand the decision and to fully consider the possibilities of an appeal. It is accepted that a failure to give reasons is unfair and a breach of those Convention rights contained in Article 6 of the ECHR and guaranteed by statute. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

3.8 The violation of Convention rights is a point of law. Additionally, in respect of claims of judicial bias, the United Kingdom Supreme Court has also recognised that there is the further consideration that these are points of public importance. As such, leave to appeal should be allowed.

4. That this application is made under the statutory right of appeal given by Sections 6(1); 7(1)(a) and 9(1)(a) of the Human Rights Act 1998 and rule 41.2(1)(a) and 41.2(3) of the Rules of the Court of Session 1994.

Grounds of opposition

[9] The form of opposition to the motion lodged on behalf of the defenders is in the following terms:

"1. The pursuer's proposed appeal relates solely to a question of expenses. Appeal to the Supreme Court on such a question is incompetent (Court of Session Practice paragraph J[2], under reference to the case of Caledonian Railway Company Ltd v Barrie (1903) 5F (HL) 10; (1903) 10 SLT 759); In any event

2. There is no reasonable prospect of success for an appeal to the Supreme Court. Parties would be put to unnecessary expense in respect of such an appeal and court time would be wasted.

- A litigant is not entitled to recover any or all documents in the possession of his opponent. He is entitled to see only those documents or those parts of documents which are relevant to the point at issue, and only those documents or those parts of documents which are not subject to a well-founded plea of confidentiality.

- The points now at issue in the present case were the financial arrangements as between the first and second defenders for the conduct of legal proceedings in so far as those were relevant to the taxation of the Account of Expenses charged to the pursuer, in particular whether the second defenders were able to recover VAT payments in respect of legal fees charged to the pursuer in the Account of Expenses. One of the agreements sought by the pursuer contained material which was irrelevant to those issues and which was commercially sensitive.

- The pursuer was entitled to recovery of, at most, those provision of the agreements between the first and second defenders, which bore upon the amount of the expenses properly chargeable to the pursuer. That was precisely the extent of the diligence for recovery ordered by the Court in its interlocutor of 19^th December 2013. Having regard to the arguments heard by the Court, it is plain that the Court accepted by that interlocutor that the remainder of the document was irrelevant to the legal issues with which the pursuer is concerned in the remainder of these proceedings, and in any event was subject to commercial confidentiality.

3. No point of law of difficulty or general importance arises from the Court's said interlocutor. The interlocutor relates to a point of Scottish procedure only. It would not be appropriate to grant leave to appeal in relation to such a point.

- As noted above, the Court's decision is in accordance with Scots law on recovery of documents. The pursuer remains entitled to pursue the arguments presented in his Note of Objections. The fact that he failed to recover documentary material which might assist his arguments in that regard is not a reason to infer a breach of Article 6. He failed to recover all the material sought because some of it was irrelevant to his arguments on his Note of Objection. No point of law arises.

- The only issue arising from the document sought which was relevant to the arguments made in the pursuer's Note of Objections was whether or not the second defenders were liable for VAT. The mere fact that the material relevant to that issue contained in the document sought did not support the Pursuer's arguments is not a reason to infer a breach of Article 6 of the Convention.

- The pursuer's application under Freedom of Information (Scotland) Act 2002 ("FOISA") is a separate matter to the present proceedings. Neither the second defenders, nor the Court are responsible for any response made by the first defenders to a FOISA request by the pursuer.

- At the hearing before the Auditor, the pursuer did not make any request to see the documents subsequently sought by the pursuer in his motion for specification. The Auditor did not take any decision adverse to the pursuer in that regard. There was accordingly nothing for the present Court to over-rule. In any event, the Auditor is an Officer of the Court and is subject to the Court's supervision.

- The point at issue was and is not "the ability of the Scottish Government to obtain a decision from the Outer House which was customised to its exact requirements". The main contention on the merits of these proceedings was an allegation by the pursuer of breach of copyright by the defenders. That allegation was found to be irrelevant, and the defenders were found to be entitled to the expenses of the pursuer's unsuccessful action. The sole issue now arising is whether the defenders are entitled to expenses as taxed by the Auditor.

- The fact that a decision is adverse to a particular party is not a reason to infer bias on the part of the Court. It frequently transpires that the Court accepts the entirety of one party's legal submissions, at the expense of the other. Again, that is not a reason to infer bias on the part of the Court. The Court's decision in the present case was in accordance with the law applicable to the present circumstances. Neither the law nor the Court's said interlocutor treat the present pursuer differently to any other litigant. The pursuer does not set out facts and circumstances from which a reasonable person would infer any real possibility of bias on the part of the Court. There is no breach of Article 6.

4. An appeal to the Supreme Court would lead to unreasonable delay in the taxation process. Substantial parts of the account of expenses are undisputed. The defenders have been found entitled to those expenses and are entitled to a resolution of the Note of Objections procedure without further delay."

Submissions

Pursuer

[10] The applicant, appearing on his own behalf, referred to the grounds in his application for leave. He should have been given sight of the agreements which the Auditor had seen. If necessary, he would have been prepared to give an undertaking to observe confidentiality. The court should not have put itself in a position where it required to interpret the agreements. Without having seen the agreements, the applicant was unable to identify all the points that they may disclose in his favour but from the material which he had had access to it would appear that quite a few invoices had been directed to the first defender. It was the applicant's contention that he should not have to bear the VAT liability. The grounds of opposition to the application for leave sought, in large part, to anticipate what might be argued before the UK Supreme Court. Any delay consequent upon an appeal to the Supreme Court was not the applicant's responsibility. There had been previous delay which had resulted from the defenders' wish to have counsel of their choice which he had been prepared to accommodate. The application raised a fundamental issue of equality of arms. The refusal to give the applicant access to documents which everyone else had seen had undermined his trust in the whole process.

The defenders

[11] Mr Sheldon, on behalf of the defenders, referred to the grounds of opposition. He maintained the position that essentially this was an appeal about expenses and therefore could not competently be appealed to the UK Supreme Court. He emphasised that the applicant has been given access to those parts of the agreements which were relevant to the issue of expenses. Other parts of the agreements were properly to be regarded as confidential, as not being in the public domain. The applicant had complained that the Auditor had not allowed him access to full copies of the two agreements but this was in accordance with usual practice in a taxation. The Auditor may request to see the whole of a solicitor's file in order to satisfy himself that items of expenses are properly charged but that does not mean that the opposite party must be allowed equivalent access. The issue on VAT liability was a narrow one. It could be argued in principle without reference to the agreements. Even if an appeal to the Supreme Court on this matter was not, strictly, incompetent, it raised a question of Scots procedure and was accordingly inappropriate for consideration by the Supreme Court. There was no question of inequality of arms. The interests of the pursuer had been appropriately protected, by the Auditor, in considering whether items in the account were allowable and, by the court, in determining what provisions in the agreements were relevant and ordering recovery in respect of these provisions. Mr Sheldon accordingly submitted that the application should be refused.

Discussion

[12] The applicant's complaint is that he has not been dealt with even-handedly either by the Auditor, or by this court, and, as a result, has been deprived of the opportunity to deploy all such arguments as may be open to him in challenging the Auditor's report on the taxation of the second defender's account of expenses. We understand why the complaint is made. However, being in litigation with a party does not, of itself, give rise to an entitlement to have access to all of that party's documents. Regard must be had to the interests of that party or any other haver of documentary material which, it is claimed, has something to do with matters disputed in the litigation. Where interests conflict the court and its officers may be called on to balance these interests as best they can. In somewhat different ways, that is what has been attempted in the present case. In exercising what is, at least in part, an inquisitorial function, the Auditor has taken steps to satisfy himself about the terms of the defenders' arrangements inter se before allowing items of the second defenders' account against the applicant at taxation, and then the court has ordered delivery of the agreements referred to by the defenders to the court and then granted commission and diligence for their recovery, after excerpting, in order to ensure that the pursuer has had access to what is relevant to the matter in dispute.

[13] What has been done by the Auditor and the court has not, however, satisfied the applicant. He is quite frank; he is mistrustful of the processes with which he has been faced and wants to refer the matter to a superior tribunal for its adjudication. The question for this court, is therefore whether he should be granted leave to do so. As the applicant is aware, in the event of a refusal by the Inner House of the Court of Session, it is open to him to renew his application for leave before the UK Supreme Court.

[14] The first objection to a grant of leave which is advanced on behalf of the defenders is that the proposed appeal, being limited to the matter of expenses, is incompetent. The authority for the proposition that any appeal to the United Kingdom Supreme Court on the question of expenses only is incompetent is the decision of the House of Lords in Caledonian Railway Co Ltd v Barrie [1903] 5F (HL) 10. The report of that decision is not very informative. The pursuer in that case had been unsuccessful before the sheriff in an action for damages arising out of the loss of livestock in a railway accident but the sheriff had awarded expenses to the pursuer because the defender railway company had refused permission to the pursuer's representatives to precognosce the employees of the railway company about the circumstances of the accident. The sheriff was upheld on appeal to the Court of Session. The railway company appealed to the House of Lords. The report does not go further than disclosing that the House of Lords dismissed the appeal as "incompetent as the question was of costs only". For present purposes, we are content to accept the correctness of the proposition that appeal to the Supreme Court on a question of expenses only is incompetent but, in any particular case, there may be an issue as to what is "a question of expenses only". We accept that what the applicant wishes to raise on appeal in the present case concerns expenses but we are not satisfied that it is "a question of expenses only". What the applicant wishes to challenge is the way in which the court dealt with his application for recovery of documents. The purpose of seeking to recover the documents was to assist in advancing his note of objections to the Auditor's report quantifying the expenses payable by the applicant but we see that as different from a question of expenses only.

[15] Taking the proposed appeal to be competent, the question comes to be as to whether it is one in respect of which it is appropriate to grant leave. By no means every case is suitable for consideration by the UK Supreme Court. The test to be applied is whether the proposed appeal raises an arguable point of law of general public importance. We do not consider that the proposed appeal in this case meets that test. The decision complained of was incidental and entirely procedural in nature. It related to whether the applicant should have sight of the whole of a document which might possibly assist him in making a substantive argument. It did not determine any substantive argument. It depended upon the broad interpretation of a document in order to determine whether provisions of that document bore in any way on the matter of judicial expenses. In the judgement of the court the applicant was allowed to recover all material that was relevant. Notwithstanding the way in which the matter is elaborated in the applicant's application for leave, the case raises no arguable point of law. Separately, it raises no point of law of general public importance.

[16] The application is accordingly refused. As we have already observed, it remains open to the applicant to make a further application for leave directly to the United Kingdom Supreme Court. While there is a requirement that, even with leave, a notice of appeal must normally be certified as reasonable by two counsel or solicitors with extended rights of audience, as is observed in the opinion of the court in Singh v Napier [2013] CSIH 5, the requirement for certification may be dispensed with when good reason is shown. It is of course entirely a matter for the applicant whether he intends to take his proposed appeal any further.