Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 23
A374/13	OPINION OF LORD STEWART in the cause SHETLAND ISLANDS COUNCIL Pursuers; against RICHARD NEIL MACDIARMID ANDERSON as Executor Nominate of the late MRS PATRICIA ANDERSON Defender: ________________

Pursuers: Gale QC; Ledingham Chalmers LLP

Defender: Party

13 February 2014

[1] In 1975, as retirement approached, Major W A Anderson MC, TD, MA, JP bought some land in Shetland overlooking the East Voe of Scalloway. He and his wife built a house there. They called their house "The Sea Chest".

[2] As the name implies the East Voe is an inlet of the sea. A public road runs from Scalloway along the east side of the East Voe. The Andersons built their house on the site of an old fishing station between the road and the shore of the voe. The road as it existed when "The Sea Chest" was built was single track and unclassified. In due course the public road was extended southwards over bridges to the port of Hamnavoe. The road was upgraded, widened to become a two lane highway and classified as the B9074. Surface water collected in the roadside ditch on the landward side of the B9074. The ditch drains through a culvert under the road which discharges on the seaward side into the "The Sea Chest" property. Initially the Andersons had no complaint about this.

[3] The peat-covered East Voe Hill rises steeply on the landward side of the B9074. From about 1990 the hillside above the B9074 was developed for housing. There are now 20 houses on East Voe Hill above "The Sea Chest". No arrangements were made by the public authorities for draining surface water from the development. The Andersons' perception was that the volume of water discharged on to their property substantially increased as more houses were built. They attributed the increase to run-off from the development into the roadside ditch, from where it was discharged through the culvert on to their property. The major died in 2003. Mrs Patricia Irvine Anderson, his widow, brought proceedings by petition for judicial review against Shetland Islands Council and Scottish Water.

[4] The petition alleged that "The Sea Chest" had suffered and was suffering structural damage by reason of the Council's omissions in the performance of their duties as planning and roads authority and also by reason of omissions by Scottish Water, successor to the Council as sewerage authority, in the discharge of their duties. An interested third party joined the proceedings. The proceedings were spectacularly unsuccessful, though this is not to say that the public authorities might not have been answerable in another form of process or on grounds different from those pled or indeed on submissions different from those advanced. The facts can be gleaned from the opinion of the Extra Division [Anderson v Shetland Islands Council 2010 SC 446].

[5] Expenses were awarded against Mrs Anderson. Awards against her in the Court of Session are said to have amounted to £120,000, more than the value of "The Sea Chest". Shetland Islands Council brought the present action to enforce the awards made in their favour. The sums sued for are (1) £53,465.60, being the taxed amount of expenses in the Outer House and the Inner House of the Court of Session, with interest, for which decree has been granted and extracted ; and (2) £16,752.77, being the certificated costs awarded in the Supreme Court of the United Kingdom, with interest. (I am unclear as to why it is thought necessary to raise these further proceedings to enforce the extracted decree: but that is by the way.) Mrs Anderson having died in 2012, the pursuers are trying to enforce these awards by an action for payment against Mrs Anderson's estate. They convened as defender her son Richard Anderson, advocate, in his capacity as executor nominate. The defender lodged defences and stated a counterclaim.

[6] The pursuers have enrolled a motion for summary decree in terms of RCS 21.2 on the ground that "there is no defence to the action, or a part of it, disclosed in the defences." Mr Gale QC appeared at the hearing for Shetland Islands Council and Mr Anderson represented himself qua executor. Difficulties have previously emerged about Mr Anderson's equivocal status as pleader in litigations about "The Sea Chest": but no question is raised by Mr Gale about the propriety of Mr Anderson addressing me as an executor-litigant in person. Mr Anderson also tells me that he and his brother are the beneficiaries of his late mother's will and that he has his brother's concurrence [cf. Anderson, Re Application for Judicial Review [2007] CSOH 110; Anderson v Shetland Islands Council & Anor [2011] CSOH 187; Anderson v Shetland Islands Council & Anor (Rev 1) [2012] UKSC 7 at §§ 9, 15(b)]. I heard submissions in this and a related matter over three days, 13 to 15 November 2013. Having made avizandum I have decided that Mr Gale is right that there is no defence to the action disclosed in the defences; and I have decided to grant the motion for summary decree.

RCS 21 and the "defence" in the present action

[7] A motion for summary decree is an application which should be susceptible, as the name implies, of determination in summary fashion. To hear an application over three days and then to think about it for three months as I have done does not, I have to confess, seem very "summary". The principal mischief against which RCS 21 is directed is the tabling of skeleton defences to frustrate or at least delay the enforcement of unanswerable claims. On the other hand I do not think the intendment of the rule is that its salutary effect can be avoided by going to the opposite end of the spectrum and loading the defence with averments and references to extraneous documents. In the present case the "defence" that has to be assessed includes the defences as such and a counterclaim, both documents long and dense, the voluminous record in the petition for judicial review, the opinion of the Lord Ordinary in that process running to 733 paragraphs, the opinion of the Extra Division, the judgment of the Supreme Court, extensive notes of argument prepared for this summary decree application, and numerous other documents referred to in submissions. Mr Anderson makes averments of incompetence, misfeasance, bias and corruption by public officials and office holders which require what used to be called "anxious scrutiny" before that phrase was appropriated by asylum and immigration jurisprudence. I have to be uneasy when Mr Gale QC, who is seeking summary decree and whose submissions in the judicial review proceedings found favour with the Court, now describes one of the Court of Session opinions, unprompted, as "not a paradigm of legal reasoning". How is this to be squared with the ruling of the Supreme Court that the appeal against the decision of the Extra Division "appears to be wholly without merit"? I cannot exclude the possibility that the Andersons have suffered a substantive injustice. Clearly the outcome, whatever, will have potentially serious effects. In short, the matter is a complex and delicate one. Nonetheless it does in my view come within the rule [cf. Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85 at §§ 13-18].

[8] The defences seek (after amendment at the bar) reduction ope exceptionis of the awards of expenses, pleading that the awards have been obtained "as a result of unlawful et separatim unreasonable et separatim ultra vires conduct". The defences expressly incorporate the counterclaim by reference [defences, eg answer 2, second last sentence]. The counterclaim concludes for reduction of four "interlocutors", being the interlocutors of the Lord Ordinary and of the Extra Division of the Inner House of the Court of Session respectively dismissing the petition and adhering to the dismissal of the petition, the Extra Division's order for expenses and the extract decree for expenses in the Court of Session. The counterclaim concludes, too, for reduction of the order of the Supreme Court requiring Mrs Anderson to lodge security for costs and for reduction of the certificate of assessment of costs in the Supreme Court. The defender also counterclaims for damages in the sum of £75,000 in respect of the upset caused to Mrs Anderson by the damage to her property, by the refusal of the Council to accept responsibility, by the "wrongful and fraudulent failure on the part of Shetland Islands Council to disclose with candour" certain material facts, by being denied an administrative law remedy and an opportunity to present evidence, by being presented with interlocutors containing awards against her in a total sum of £120,000, and by the fact that the opinions of Scottish counsel which she obtained and paid for were concealed from the Supreme Court. It is averred that these upsets hastened Mrs Anderson's demise and put the administration of her estate under undue strain. The conclusions of the counterclaim are supported by pleas-in-law referring to alleged "wrongful and fraudulent actions for which Shetland Islands Council are responsible". The counterclaim expressly incorporates the averments in the defences, on the understanding that the defences are called "the Principal Action" [counterclaim, final sentence of statements 1 to 6 inclusive].

[9] The defender does not seek to set aside all relevant orders. There must have been, for example, an order of the Supreme Court striking out the appeal: but that is not mentioned. There is another technical point, I deduce, which has not been taken. On the account given above the interlocutors under challenge, or some of them, relate to Scottish Water and the third party as well so that, at the very least, any quashing of those orders would have to be qualified. Further, the claim for damages even if relevant cannot be a defence as such and there is no plea of set off. For the rest, it is sensible to work backwards, starting with the decisions of the Supreme Court. If the Supreme Court's decisions are vulnerable, there is no need to look further. This is on the view that - subject to the question whether all relevant orders are being attacked - setting aside the decisions of the Supreme Court would open the way for the defender to challenge the decisions of the Court of Session in that forum, picking up where Mrs Anderson left off, as it were.

[10] For the purpose of the summary decree motion Mr Gale QC for the pursuers concedes that it is competent to seek reduction in the Court of Session, on the ground of fraud, of decrees of the Court of Session and of judgments and orders of the Supreme Court [D Maxwell, The Practice of the Court of Session (Edinburgh, 1980), 581]. I accept the concession for present purposes; and I note that the proposition might possibly be extended to certain other grounds of reduction on the basis of the authorities cited in Maxwell's Practice.

Alleged interference with justice in the Supreme Court

[11] Mr Anderson's complaint about the Supreme Court is that the Supreme Court proceeded on the basis of a material error of fact which was of the Supreme Court registrar's making. When Mrs Anderson's appeal to the Supreme Court was allowed to proceed, but before the full hearing, the Council and Scottish Water made applications for security for costs. The applications were granted in the sums of £20,000 for each respondent. The Supreme Court made an order requiring Mrs Anderson to lodge a cheque for the total sum of £40,000 with the registrar within 28 days. Mrs Anderson could not afford to do this and, it is implied, did not do it with the result, I assume, that her appeal was struck out in terms of Practice Direction 4.7.5.

[12] According to Mr Anderson, part of the reason why the Supreme Court required security to be lodged was that Mrs Anderson had, it was said, failed to comply with the terms of Supreme Court Practice Direction 4.2.2. The direction provides [my underlining]:

"The notice of appeal must be signed by the appellants or their agents. In appeals where permission to appeal is not required (for example, in most Scottish appeals) the notice of appeal must be certified as reasonable by two counsel from the relevant jurisdiction and signed by them ..."

Mr Anderson tells me that Mrs Anderson's original notice of appeal was supported by "two respected English senior counsel, Robin Purchas QC and Peter Hamilton QC". (I have since discovered that he means Peter Harrison QC.) This did not meet the "relevant jurisdiction" requirements of the Practice Direction: but an extension of time was allowed till 11 April 2011. On 11 April 2011 Mrs Anderson filed a notice of appeal bearing to be supported by Sir Crispin Agnew of Lochnaw QC and Richard Anderson, advocate, both of the Scots Bar, and by Robin Purchas QC and Peter Hamilton [sic] QC, of the Bar of England & Wales. Counsel could not tell me what, precisely, "certification" means. Since the direction talks about the notice being "certified" and "signed", "certification" presumably means something different from "signature". The relevant box in the notice of appeal form SC001 asks for "Counsel's name or signature" [sic]. The names in the East Voe proceedings were given in Richard Anderson's handwriting notwithstanding that actual signatures are required for Scots appeals [cf. Supreme Court Practice Direction 4.2.2, footnote 1 and Practice Direction 1.2.25]

[13] Richard Anderson, advocate, is of course the defender (in a representative capacity) in the present proceedings. He tells me that certification took the form of opinions from the counsel in question including himself. Although apparently not in strict compliance with the practice direction, this was accepted as sufficient. (Arguably, as regards certification, it was more than required by the practice direction, assuming we are talking about positive, reasoned opinions.) By letter dated 16 May 2011 the registrar informed Mrs Anderson that her appeal would be allowed to proceed (to a full hearing). Mrs Anderson then applied for legal aid.

[14] Legal aid was refused; and it was at that point that applications were made by the Council and Scottish Water for security for costs. The applications were decided on the papers without an oral hearing by a panel chaired by Lord Hope of Craighead. The other members were Lord Kerr of Tonaghmore and Lord Reed. At paragraph 8 of the panel's judgment the facts were rehearsed as follows [my underlining]:

"7. The appeal to this court has been brought under section 40(1)(a) of the Court of Session Act 1988. As the Extra Division's interlocutor was a final interlocutor Mrs Anderson did not require to be given leave to bring her appeal before this court. But she was required by Supreme Court Practice Direction 4.2.2 to have her notice of appeal certified as reasonable by two counsel from Scotland. She was unable to obtain these certificates. She asked the Dean of the Faculty of Advocates to assist her by nominating counsel to undertake this responsibility, but he declined to do so as he was of the opinion that her appeal could not be regarded as reasonable. Mrs Anderson then obtained opinions from two members of the Bar in England in which they said that her appeal had reasonable prospects of success. But their opinions did not satisfy the requirements of the practice direction. They were not from the relevant jurisdiction, and the grounds on which they based their opinions differed from those on which Mrs Anderson's case was argued in the Court of Session.

8. Mrs Anderson submitted her notice of appeal on 11 April 2011. Although it had not been certified by counsel as reasonable the court permitted her notice to be received so that she could apply for legal aid, which she did..."

At paragraph 15 the panel found that the case for security was compelling having regard to four considerations, including [my underlining]:

"(b) Second, this is an appeal that appears to be wholly without merit. Mrs Anderson has been unable to find any counsel in Scotland willing to say that it is reasonable, and she has been refused legal aid. Her son, by whom the proceedings are being conducted on Mrs Anderson's behalf, is incapable of providing her with independent legal advice. The notice of appeal that has been lodged on her behalf identifies the various statutory provisions on which she founds. But no attempt is made to answer the criticism of her pleadings which formed the basis of the finding by the Extra Division that they were irrelevant."

In the panel's judgment the cumulative effect of the four considerations "more than justifies the order which the respondents seek, subject only to the amount of the security..." That was on 29 February 2012. The order for security was issued on the same day so that the deadline would have expired on 28 March 2012.

[15] The extracts just quoted are from the judgment as issued to parties at the time. Paragraph 8 of the judgment posted on the Supreme Court website now reads as follows:

"8. Mrs Anderson submitted her notice of appeal on 11 April 2011. It was accompanied by opinions which had been provided by two members of the Scottish Bar. One of them was Mrs Anderson's son, Mr R N M Anderson. Although the notice of appeal had not been certified by them as reasonable as the practice direction requires the court permitted it to be received so that she could apply for legal aid, which she then did."

However, paragraph 7 remains the same and paragraph 15 (b) still reads as it did when issued, including the words: "Mrs Anderson has been unable to find any counsel in Scotland willing to say that it is reasonable, and she has been refused legal aid."

[16] Before the deadline for lodging security passed a letter of complaint signed by Mrs Anderson and dated 16 March 2012 was received by the President of the Supreme Court, Lord Phillips of Worth Matravers; and, although I have not seen a copy, the tenor appears from the reply, dated 3 April 2012, a copy of which is produced. Lord Philips addressed his letter to the defender because, sadly, Mrs Anderson had passed away on 19 March 2012. Lord Phillips stated that:

"... the certificates [ie the opinions of counsel] were accepted by the Supreme Court and the appeal was allowed to proceed. It is perhaps regrettable that this was not referred to in Lord Hope's judgment but it is unquestionably the case that pursuit of the appeal was permitted on the foot of the certificates.

The decision to order your mother to give security for costs was, therefore, entirely unrelated to the matter of the certificates. That did not - indeed could not - play any part in the decision...

[...]

I must firmly reject the charge that the statement of reasons is 'redolent of bias and prejudice'. All three justices gave careful and impartial consideration to the applications which led to the order for security for costs."

[17] We know that there was a further letter from Mr Anderson, because on 26 April 2012 the registrar replied:

"Lord Hope has asked me to inform you that he has read your letter of 20 April 2012.

Having discussed the contents of your letter with Lord Kerr and Lord Reed the Justices have decided that they do not wish to re-open their decision. They do, however, propose to correct the minor factual error in the judgment, even though it is not material to their decision."

The result, according to the defender, is the revised paragraph 8 on the website.

[18] Mr Anderson apparently returned to the question in a letter of 13 June 2012. On 29 June 2012 the chief executive of the Supreme Court replied:

"In your letter you return to the theme of obtaining counsel's opinions. It has already been explained to you on a number of occasions that this was not the reason that the Order for Security for Costs was made. The conclusion expressed in paragraph 15 of the judgment, that the appeal "appears to be wholly without merit", although it was associated with the statement that your mother had been unable to find counsel in Scotland willing to say that her case was reasonable, did not rely on that circumstance. It could not have done.

"The conclusion which was reached by all three members of the panel, that your mother's appeal was without merit, was based on their consideration of all the papers, and by forming their own independent judgment on the possibility of it succeeding. There can be no question of the Order being rescinded..."

The chief executive concluded by saying that she had been directed by Lord Phillips to inform the defender that the correspondence should be regarded as closed.

[19] Mr Anderson submits that the "correction" of the "minor factual error" in paragraph 8 of the judgment leaving paragraphs 7 and 15 uncorrected results in "a complete non-sequitur": it converts the judgment of the Supreme Court from one that is erroneous on the face of the record into one that is both erroneous and irrational. He submits that the statement that the factual error "could not play a part in the decision" is correct in the sense that the error is an irrelevant factor that should not have played a part in the decision: but, Mr Anderson submits, despite the counter-assertions about a non-material "association" and about non-reliance, it is clear on a plain reading of the words that the error was relied on and was material to the decision. He also implies that, for the purpose of deciding whether the appeal had merit, the panel should have had regard to the terms of all opinions by Scots and English counsel. I can see where Mr Anderson is coming from.

[20] Indeed, were this an application for judicial review I might have expected to hear more extensive analysis of the reasoning which supports the granting of the order for security: but this is not a judicial review; and Mr Anderson, correctly, does not invite me to treat it as such. The cricketing analogy that Lord Sands used to explain the decisive effect of judgments of the House of Lords applies equally to judgments of the Supreme Court: "It disna' maitter if the ba' hit yer neb; if the umpire says yer oot yer  oot." Unless, of course, you can demonstrate that someone has pulled the wool over the umpire's eyes, which is what Mr Anderson says he is offering to prove [Assessor for Aberdeen v Collie 1932 SC 304 at 312 per Lord Sands; Lord Hope of Craighead, "Decision Overruled-Facing up to Judicial Fallibility", (2003) 14 KCLJ 121].

Digression

[21] At this point I have to digress. There is a context. The papers disclose two tendencies in Mr Anderson's approach to litigation: the first is a tendency to personalise issues; and the second is an apparently related tendency to suspect that individuals in official positions, including judges, act from improper motives and often with an animus against Mr Anderson personally. This is nothing new.

[22] I notice from the decision of the European Court of Human Rights in the case of Richard Anderson v United Kingdom App No 19859/04 [2010] ECHR 145 (9 February 2010), that, in the underlying domestic proceedings about liability for statutory repairs to Mr Anderson's fire-damaged flat, Mr Anderson tried to have an architect and company executive found guilty of contempt of court for bearing false witness, made allegations to the effect that Edinburgh Council's statutory repair notices were invalid on grounds of "fraud and illegal conspiracy" and criticised his opponents' pleadings for "lack of candour". For a further flavour, see the opinion of the Lord Ordinary in one of the underlying cases Anderson v Express Investment Company Ltd [2002] CSOH 251 [on appeal, Anderson v Express Investment Company Ltd & Anor [2003] CSIH 311; see also Anderson v Commercial Union Assurance Co Plc 1998 SC 197]. I notice that Mr Anderson represented himself in the various domestic proceedings (so far as I have information) and in the European Court of Human Rights. One of his complaints in Europe was that his cases had been decided in Scotland on the pleadings without giving the opportunity to adduce evidence.

[23] Returning to the present, in his submissions to me Mr Anderson alluded to earlier proceedings, which he called "the case about a fire in my flat", mentioning those proceedings for supposed evidence of pre-existing bias by one of the Inner House judges who subsequently decided his mother's judicial review in 2010 - this can only mean, if it means anything, the case of Anderson v Express Investment Company Ltd & Anor [2003] CSIH 311 as opposed to the case of Anderson v Commercial Union Assurance Co Plc 1998 SC 197 referred to in the counterclaim. All of the themes previously seen in the litigations about the statutory repairs - alleged contempt of court, alleged fraud and conspiracy, alleged lack of candour, alleged bias, failure to allow evidence and self-representation - recur in the present litigation [see also my related opinion issued today in the case of Anderson v Shetland Islands Council]. Mr Gale tells me that Mr Anderson has made misconduct complaints against the counsel who appeared for the other respondents in the judicial review proceedings and about a judge who dealt with a procedural matter in the related proceedings.

[24] It would be incautious to say that Mr Anderson's complaints in the earlier proceedings about the Edinburgh Council's statutory repair notice system were necessarily without foundation: since then, as is notorious, there has been a police investigation into the repair notice system and the property preservation department. Equally I suppose I should not be too quick to shut my mind to the allegations Mr Anderson now makes and to his allegations about liability for water damage to "The Sea Chest". Keeping an open mind about such things is not, however, the same as endorsing Mr Anderson's approach to pleading.

Alleged interference with communications in the Supreme Court

[25] In the present case there is a vague but potentially crucial averment about "interference with the communications of the Defender" [defences, answer 7; counterclaim, statement 5]. I asked Mr Anderson about this. He volunteered his belief that he is under surveillance at the instance of the Lord Advocate. The surveillance started in the 1980s, it is said, meaning presumably, in light of what follows, after 21 December 1988. Mr Anderson has become aware of the surveillance in the last couple of years. All his email traffic and his hard copy correspondence is being intercepted and read. His telephone communications, landline and mobile, are monitored. This is said to relate to the fact that he has acted for one of the Lockerbie bombing/Pan Am Flight 103 campaigners. Mr Anderson's note of argument states:

"It is respectfully submitted that it is an interference with the administration of justice in the adversarial system operated under the Law of Scotland for communications to be interfered with and the results of said interference with communications used to direct the outcome of a litigation outwith the precincts of the Court. It is submitted that this abuse has taken place here and the Court is respectfully requested to take cognisance thereof. This action has been intimated to the Lord Advocate (without response) who should be ordained to appear before the Court to explain such interference and communication."

I did not understand why Mr Anderson should think it useful to intimate his concerns about surveillance to the Lord Advocate who is allegedly directing the surveillance: but to be fair, Mr Anderson also made it clear in oral submissions, when pressed for details, that the Lockerbie-related surveillance or suspected surveillance is not relevant to the present case. The interference alleged in the counterclaim is interference by the registrar of the Supreme Court.

[26] As elaborated with the assistance of Mr Anderson's explanations at the bar the allegation is that the registrar of the Supreme Court "interfered" with "the defender's communications" in the sense that she manipulated the information placed before the Justices and thereby deceived them. The averment in context is as follows [counterclaim, statement 5]:

"Explained that in order to protect the reputations of Lord [name] and other Judges extraordinary steps have been taken including interference with the communications of the Defender. For the same reason the Registrar of the UKSC did not place the Opinions of Scottish Counsel before the Panel of Justices... In the above circumstances the Order and Certificate of Assessment signed by [the Registrar] following upon it are unsound and fall to be reduced."

"For the same reason" is to be understood as meaning "to protect reputations". Further detail of the alleged interference is given in the defences, answer 3. Mr Anderson avers that in connection with the application for security for costs the registrar "failed to place before said Panel of Justices the Opinions of the Scottish Counsel"; that the registrar provided the panel with the "entirely wrong" information that Mrs Anderson was unable to obtain certificates from Scottish counsel; that the registrar provided the panel with the "entirely wrong" information that Mrs Anderson "then" obtained opinions from two members of the bar in England; that the registrar provided the panel with the "entirely wrong" information that Mrs Anderson had been unable to find any counsel in Scotland willing to say that her appeal was reasonable; that the registrar has since attempted to cover up her errors; that the registrar purported to make a "correction" to the original judgment and issued a revised judgment; that the judgment now does not make sense; and that as a result of "the errors condescended upon by the UKSC Registrar... the judgment is unsafe and falls to be reduced in terms of the attached Counterclaim".

[27] Mr Anderson suggests that the registrar acted to "protect the reputations of Lord [name] and other Judges" [defences, answer 5; counterclaim answer 7]. The implication to this effect follows on an averment of actual bias on the part of one of the judges of the Extra Division: but it is not as if the notice of appeal to the Supreme Court alleged bias. The grounds of appeal in the notice refer to non-reputational, black letter law issues such as misinterpretation by the Extra Division of section 7 of the Sewerage (Scotland) Act 1968. How was the registrar supposed to know that reputations were at stake; and why should the registrar have been motivated to withhold the opinions in order to protect judicial reputations? It is unfathomable. I agree with Mr Gale QC for Shetland Islands Council that the facts averred in defence by Mr Anderson are incapable of supporting the inference which Mr Anderson says must be drawn.

[28] Interestingly, a somewhat different version of the registrar's supposed motivation is given elsewhere. Parties are agreed that I can look beyond the pleadings for an assessment of the defence [Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85 at §§ 17, 19]. In this connection I was directed to a copy claim form, produced by Mr Anderson, showing that on 21 July 2012, acting as his mother's personal representative, he lodged a claim for damages against "HM Courts and Tribunals, Ministry of Justice" in the Central London County Court. The claim was described as "Interference with the administration of justice alternatively negligence and damages..." The particulars of claim allege a breach by the Supreme Court registrar or her staff of their duty to deliver to the Justices inter alia "a proper copy of any Appeal lodged with relevant supporting information" and also a breach by the registrar or her staff of their duty "not to be influenced by any other person, no matter how important they may seem and no matter whether they are members of the security or police services, a former Judge, or a Lawyer, or a Solicitor" in relation to placing information before the Justices. It is said that the registrar or staff for whom she is responsible "concealed" the proper terms of the appeal from the Justices. The concealment was, allegedly, of the opinions of counsel certifying that the appeal was reasonable. The registrar allegedly tried to cover up and provided erroneous and false information to the President and the chief executive of the Supreme Court respectively.

[29] The supporting witness statement by Mr Anderson states [paragraph 32]:

"I have reason to believe that the actions of the Supreme Court staff involved are deliberate... I believe that no person, whether security or police or a former Judge or a Lawyer or Solicitor is entitled to interfere with the administration of justice in such a manner as to control the information placed before a Judge for a Decision."

Mr Anderson's "reason to believe" that the concealment was deliberate is, if I understand correctly, his belief that there is a conspiracy to "destroy" him, arising from his complaints to the Faculty of Advocates at an unspecified time or at unspecified times, perhaps, from the context, as long ago as 1990, about the allegedly corrupt practices of advocates' clerks directing work to some counsel in preference to others. He offers no testimony to show that the registrar of the Supreme Court knows about this or has any connection with the conspiracy or has been influenced by any person involved in the conspiracy. On 2 October 2012 the claim was struck out by the Deputy District Judge pursuant to CPR 3.4(G) on the basis that "the court considers that the claim is totally without merit".

[30] Drawing the threads together, I am satisfied that what is alleged to have happened in the Supreme Court constitutes no kind of defence to the pursuers' claim for expenses. The counterclaim for reduction of the awards of expenses is supported by a plea directed at "wrongful and fraudulent actions for which Shetland Islands Council are responsible." There is nothing to link Shetland Islands Council with the alleged acts and omissions of the Supreme Court registrar.

[31] The plea for reduction attached to the defences (added by amendment at the bar) does not, by itself, impute responsibility for alleged "unlawful", "unreasonable" and "ultra vires" conduct to anybody in particular: but the essential averment at the end of answers 3 and 4 states [my underlining]: "Further explained and averred that the Judgment issued now does not make sense and as a result of the errors condescended upon above by the UKSC Registrar is unsafe and falls to be reduced in terms of the attached Counterclaim which is referred to for its whole terms and is held to be incorporated herein brevitatis causa." This brings the reader back to the proposition that Shetland Islands Council are responsible for the alleged misfeasances of the registrar, a proposition for which there is no support on averment in either the defences or the counterclaim.

[32] It may be that what is being maintained is that there was "interference" and "concealment" by the registrar and her staff on her or their own account, rather than as an instrument of Shetland Islands Council. A court of competent jurisdiction, Central London County Court, has already struck out this claim. The only preview of evidence offered by Mr Anderson alludes to the conspiracy to destroy him without demonstrating how this links with the allegedly "deliberate" acts and omissions of the registrar and her staff.

[33] While that may dispose of the allegation of "deliberate interference" it does not necessarily mean there was no error, negligence or oversight on the part of the registrar or her staff. In oral submissions Mr Anderson puts it thus: "The registrar messed up the presentation of papers to the Justices." If that be true, it is not in my opinion a legal ground for setting aside the judgment of the Supreme Court and the resultant certificate of costs. Besides, on the documents presented to this Court by Shetland Islands Council the Justices have had an opportunity of revisiting their judgment in the light of representations made about the papers supposedly not presented to them. They have decided to make a factual correction and to leave the substance of the judgment and the outcome unchanged. Being realistic, Mr Anderson simply has no chance of proving that there has been a "fraud" on the Supreme Court, in the sense that the Court has been deceived, where, as here, the Justices have had an opportunity to consider the matter and have determined otherwise. I conclude that the alleged conduct of the registrar of the Supreme Court cannot constitute a defence to Shetland Islands Council's claim for payment of the expenses awarded by the Supreme Court or by the Courts below.

Alleged bias in the Inner House

[34] The ground advanced for setting aside the interlocutors of the Inner House is that there was actual, otherwise subjective bias on the part of one of the judges, a retired judge re-employed to sit part time by virtue of section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 as amended. This bias objection appears to be stated at common law although I recognise that there is a Convention Rights dimension in terms of ECHR article 6 (independent and impartial tribunal). No case law was cited on either side. I reject Mr Gale's submission that the averments should be deleted, or at least disregarded for present purposes, simply because they are "scandalous", which they undoubtedly are. Scandalous averments may be deleted where the averments are also irrelevant: averments about bias may or may not be relevant [Scanlan v City of Edinburgh District Council 1995 SLT (Sh Ct) 89 at 91]. The Opinion of the Extra Division was actually delivered by another judge; and Mr Gale QC for Shetland Islands Council criticises the allegation of bias on the basis that there is an absence of averment as to how the supposed bias influenced the decision.

[35] I think the main reason why the bias "defence" faces difficulty is that, as Mr Gale submits, Mr Anderson did not state his objection timeously. The bias is alleged to consist of resentment against Mr Anderson arising from Mr Anderson's complaints to the Faculty of Advocates made I infer, insofar as they bear upon this judge when he was still in practice as an advocate, more than 20 years ago. The complaints were about the allegedly corrupt practices of advocates' clerks directing work to some counsel in preference to others, the implication being that the judge, then practising at the bar, was one of the favoured counsel. Mr Anderson rather faintly suggests that any rule about failure to take a plea of bias only applies in cases of objective bias and does not apply where the bias is actual or subjective, as is alleged in this case.

[36] I reject Mr Anderson's submission and conclude that he is barred by implied waiver from now pleading bias. He knew about the supposed bias beforehand. Indeed he as good as says that he has known for more than 20 years that the judge in question has, as Mr Anderson perceives it, borne resentment against him. He avers that the bias was manifest when the judge ruled against him in a case decided in 1997 [defences, answer 7; counterclaim, statement 5]. (Mr Anderson refers to the wrong case in his pleadings, by which I mean that the judge in question did not sit in the case cited although, in a related case decided in 2003, he was part of the bench and did deliver the judgment of the Court: but this does not disturb the principle.) Lord Neaves put the matter as follows in the case of Duke of Athole v Robertson (1869) 8 M 299 at 302:

"There are other objections which not only ought to be taken at first, but which cannot be afterwards stated, unless they have merely emerged or newly come to the parties' knowledge. Such are those objections of partiality or enmity, which must originate with the party stating them, and which, if not stated at once, cannot afterwards be proponed, for the very obvious reason that no man is entitled to  litigate in the  hope of a  favourable judgment, and then, when he gets judgment against him, repudiate the jurisdiction. He must be held, from his silence, either to have been conscious that the objection was ill founded, or to have passed from it for ever."

[37] Lord Neaves supported his opinion by citing, among other venerable authorities, Robert Henryson's 15^th century fable The Sheep and the Dog, where the sheep moves the wolf to recuse himself as judge on the ground of historic enmity: the sheep knew to move for declinature in limine, before a plea on the merits was entered [the following version is taken from D Parkinson (ed), Robert Henryson: the Complete Works (Michigan, 2010), "Fables", stanza 1190]:

"This is my cause in motive and effect:

The law sayis it is richt perrillous

Till enter pley befoir ane juge suspect

And ye, schir wolff, hes bene richt odious

To me for with your tuskis ravenous

Hes slane full mony kinnismen of myne,

Thairfoir as juge suspect I yow declyne."

Lord Neaves' dictum was applied by Lord McCluskey delivering the Opinion of the Extra Division in F & Anor v Constanda & Anor [1998] CSIH 32 (20 October 1998). In the present case no mention of bias was made until the appeal to the Supreme Court was struck out. Mr Anderson is an advocate. He was fully informed of the facts; he knew the law; and he made his election. The plea comes too late.

[38] Mr Anderson also avers that "it was arranged" that the allegedly biased judge would be appointed to the bench to hear the judicial review appeal. Mr Anderson intends that the reader should understand something more than a random administrative decision. He implies that the judge in question actually requested to sit in order to disadvantage Mr Anderson. He also avers that the judge drafted the judgment, although it was delivered by someone else. These things are not within Mr Anderson's knowledge: he makes these assertions without evidence; and he asks me to find out from the Court administration whether they are true. I do not think it is my function to go fishing on Mr Anderson's behalf. I shall treat these averments as pro non scripto.

Alleged fraud and concealment by Shetland Islands Council

[39] Mr Anderson alleges that all the "interlocutors" complained of - in the Outer House, in the Inner House and the Supreme Court - were obtained by virtue of certain "machinations or contrivances" by two named officials of Shetland Islands Council. The machinations were calculated to exclude from the Council's written pleadings and to conceal from the Court certain material facts, so it is said.

[40] The allegedly concealed facts were (a) that, when planning permission was granted for the first houses above "The Sea Chest", the Council devised a plan for the collection and treatment of surface water on the site which was left unimplemented; (b) that when a planning application was made to develop the site for a further sixteen houses the application was rejected following a strong adverse recommendation from the planning department relating to a concern about the collection and treatment of surface water and the fact that the development was contrary to the Council's zoning policy; (c) that the proposed development site was then leased to the Council's chief executive and re-zoned for housing and that the planning application for sixteen houses was then renewed (and presumably, though Mr Anderson does not say so, granted); (d) that at no time did the Council and Scottish Water give consideration to "the treatment of surface water arising as a result of new housing" and the "incorporation" of surface water into the Council's roadside drains above "The Sea Chest". In the counterclaim it is averred that one of the said officials arranged for the area which was intended, in terms of the Council's plan, to be used for the collection of and treatment of surface water "to remain untreated in the maintenance programs [sic] of Shetland Islands Council". It is averred that the information given by the said officials for inclusion in the Council's pleadings was false. In the defences the Council's pleadings are averred to have been fraudulent meaning, from the context, by concealment and omission of the matters referred to above.

[41] The counterclaim makes an averment about the motivation of the officials in the following terms: "They did so out of malice, for personal gain and for personal aggrandizement [sic] in a Local Authority Council which was institutionally corrupt." There are averments - which I should mention to show that I have read the averments and not ignored them -about collateral matters allegedly illustrative of a background of institutional corruption and about subsequent actings by the said officials allegedly illustrative of their fraudulent conduct. There is some elaboration of the facts in Mr Anderson's note of argument.

[42] Mr Anderson's note of argument refers to two English cases and an Australian case about the tort of misfeasance in public office; and Mr Gale QC joins issue citing the Three Rivers case and Lord Bonomy's decision in Robert Phipps. Mr Gale's submission is that the averments are inadequate to support an inference of improper motive. That may well be correct: however, in my view, this part of the debate is largely beside the point for the reason that, where the allegation is one of deception of, and fraud on the Court, the whys and wherefores are essentially immaterial [Jones v Swansea City Council [1990] 1 WLR 1453]; Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335; Northern Territory v Mengel (1995) 69 AJLR 527; Three  Rivers District Council and Others v Governor and Company of the Bank of England [2003] 2AC 1 at §§ 189-196 per Lord Steyn; Phipps v Royal College of Surgeons of Edinburgh [2010] CSOH 58].

[43] The real difficulty for Mr Anderson is this. He concedes that he knew about these facts, allegedly concealed from the Court, and that he could have put them in issue. Indeed, he did put in issue, though not with the present emphasis, the Council's pre-existing plan for the collection and treatment of surface water which, by implication, had not been implemented, for example in the following averments [petition, article 5(3), article 5(6)]:

"It was open to [Shetland Islands Council and Scottish Water] (and plans to do so were drawn up which they are called on to produce) to install an accompanying public pipeline that would effectually drain the area of surface water.

[...]

It is averred to be a relatively simple matter to provide a pipeline carrying surface water from said area a little further down an adjacent slope at the foot of which said surface water could safely be discharged into the sea with [without?] troubling or causing damage to any private property. Plans and specifications have already been drawn up by [Shetland Islands Council] prior to responsibility for these matters being transferred to [Scottish Water] and [Shetland Islands Council] are called upon to produce these."

The matter is elaborated in Mr Anderson's note of argument for the present hearing, paragraph 8, from which it appears that the matter was known about, before his death in 2003, by Major Anderson (who was a councillor). The petition also mentions the leasing by the Chief Executive of land from the developer [article 5(3)] and the granting of planning permission for housing "in the face of existing 'green belt' planning policy" [article 5(2)] although, it is fair to say, these matters are not tied together and are not identical to the averments now made. I think - my note is cryptic - that Mr Anderson told me that he did recover the planning department's original recommendation (against extending the housing development) in the judicial review proceedings. It seems to me, however, that of all the allegedly concealed facts, the averment that there was an unimplemented drainage plan is the important one for the reason that prima facie it evidences both the existence of a duty that the public authorities appear to contest and the non-implementation of that duty. Mr Anderson himself says this is "the essential issue". The other matters add colour.

[44] It is the case that Shetland Islands Council denied the existence of the plan in their answers to the petition for judicial review. If the plan truly exists then the Council were in breach of the duty of candour incumbent on all litigation parties, and incumbent above all on public authorities engaged in judicial review proceedings and their legal representatives [Ellon Castle Estates Co Ltd v MacDonald 1975 SLT (Notes) 66; R v Lancashire County Council ex p Huddlestone [1986] 2 All ER 941 at 945 per Sir John Donaldson MR]. In this I agree with Mr Anderson. The result, however, assuming the existence of the plan, was not a fraud upon the Court because the Court, both the Lord Ordinary and the Extra Division, decided the matter as one of relevancy, that is, taking Mr Anderson's averments pro veritate, in other words, assuming the truth of what Mr Anderson had to say about the pre-existing plan and everything else. (The document schedule annexed to the petition for judicial review referred to "Specification and Plan drawn up by SIC to convey water from the area to which this petition relates down a nearby slope and into the sea": Mr Anderson did not explain to me whether he had tried to recover the plan under a Court order and, if not, why not.) My conclusion is that the interlocutors and other instruments complained of have not been obtained by deception and cannot be set aside. In this respect too there is no defence to the claims for payment. Overall I am satisfied that Mr Anderson's defence must fail and I shall grant summary decree.

Equity and reason

[45] Mr Anderson pleads a number of factors which he says argue in equity and reason for non-enforcement of the awards of expenses, at least for the time being. Mr Gale QC submits that the Court has no discretion: if there is no defence, summary decree must be granted. Mr Gale is broadly speaking correct [RCS 21.2(4)]: but of course there are other ways of postponing the outcome, such as by sisting the cause before determining the motion or by superseding extract after determining the motion. Mr Anderson does not table a plea for a sist and has not made a motion to sist or asked for supersession.

[46] I am not persuaded to postpone the outcome. Mr Anderson jalouses that the true reason why the Council wish to enforce the awards of expenses is to terminate his ordinary action for damages in nuisance against the Council. That is not admitted by Mr Gale QC: but I suspect it may well be right. One of the reasons Mr Anderson maintains that this would be unfair is because, he says, the Extra Division decided the judicial review on the basis of a concession made by Mr Gale QC for Shetland Islands Council that, if an increase in water discharge from the culvert causing damage were to be proved, then the Council would be liable at common law [cf. Anderson v Shetland Islands Council [2010] CSIH 15 at §§ 8 and 11]. I do not think the so-called "concession" can properly be said to be the basis of the Extra Division's opinion. The basis of the Extra Division's opinion was that the various cases brought in respect of alleged non-fulfilment of statutory duties were, on a proper interpretation of the statutory provisions, irrelevant, although Mr Anderson might have a remedy at common law.

[47] If Mr Anderson does or could have a good remedy at common law, I do not see that as a reason to postpone the enforcement of adverse awards of expenses to which his unsuccessful pursuit of statutory remedies has given rise in the circumstances of this case. The result of immediate enforcement may be that "The Sea Chest" ceases to belong to his late mother's estate and that the damages action becomes academic. That is one of the risks of getting involved in litigation of this kind on this scale without protecting the asset or the litigant. Mr Anderson's confirmation to the estate as executor nominate shows the only substantial asset to be "The Sea Chest".

[48] My reading of the situation is that Mr Anderson tried to obtain judicial review at his mother's instance without his mother taking title to the property from her late husband's executors. The property, remaining part of the late Major Anderson's estate, would have been protected in a suit at the instance of Mrs Anderson as mere occupier: but when a plea of "no title to sue" was taken it seems that Mrs Anderson was advised, rightly or wrongly, to record her title as heritable proprietor [cf. Anderson v Shetland Islands Council [2010] CSIH 15 at § 2]. I do not have information as to whether Mrs Anderson tried to obtain legal aid and, if not, why not; or whether legal aid was refused and, if so, why. Without the benefit of legal aid and the protection that assisted-person status gives against adverse awards of expenses, Mrs Anderson, had she remained in life, would have risked losing her home. This is a sad story and a disturbing one: but taking all circumstances brought to my attention into account I do not see that it is now inequitable or unreasonable to permit Shetland Islands Council, who have so far stayed their hand, to enforce the awards of expenses in their favour, at their own discretion.

[49] For completeness I have to record that Mr Anderson has many other complaints which I have not addressed. These include that the Court of Session has failed to implement properly a judicial review procedure as envisaged by the Dunpark Working Party in 1984; that Mrs Anderson's application should have been heard by a specialist, nominated judge in terms of RCS 58.5; and that the determination of Mrs Anderson's judicial review was confided to a judge who had never before heard a judicial review. Even on a good day with a fair wind these and other matters which I have not addressed specifically do not afford a defence.

[50] I shall repel the pleas annexed to the defences and grant summary decree in terms of the first and second conclusions of the summons reserving meantime all questions of expenses. Technically, I think, the counterclaim remains live and I shall appoint the case to call By Order to discuss how that matter is to proceed or to be disposed of. The reserved questions of expenses can be discussed then.