Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 78

A234/11

Lord President

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motion by

MOHAMMED ASLAM

Pursuer and Reclaimer

against

GLASGOW CITY COUNCIL

Defenders and Respondents

Reclaimer:  Party

Respondents: Dunlop QC, MacGregor; Glasgow City Council

11 October 2016

Introduction

[1]        The reclaimer complains that he is a victim of injustice at the instance of the respondents, their officials, their legal representatives, his own former legal representatives and at least four Lords Ordinary.  He purports to seek justice for himself whereby, in essence, several adverse decisions in the case, notably those concerning expenses, amendment, the finding of caution and ultimately the grant of absolvitor, should be reversed within the confines of this reclaiming motion.  Some of these decisions were ones which he himself had asked for.

[2]        The reclaiming motion is directed only against the decree of absolvitor pronounced by the Lord Ordinary on 29 July 2015, following upon the reclaimer’s failure to find additional caution of £20,000 which was ordered on 24 June 2015.  That order followed a reclaiming motion against an interlocutor of 4 November 2014 which itself ordered further caution of £20,000.  That reclaiming motion was refused, thus rendering that interlocutor final.

[3]        It is important to note in limine that the reclaimer did not plead that he was impecunious or that he could not find the additional caution.  On the contrary, he said that he could have done so with alacrity.  His position was that he ought not to have been ordained to find caution in the first place; that is by interlocutor of 7 March 2013.  The reasons which he gave for that were related to the justice of his cause and his status as a party litigant, who ought to be protected rather than victimised by the court.  For the same reasons, he argued that he ought not to have been ordained to find additional caution.

[4]        The primary issue remains one of whether the Lord Ordinary erred in granting absolvitor.  That question may involve a reconsideration of some of the previous interlocutors, although, as a matter of competency, not that of the Extra Division refusing the previous reclaiming motion.

Motion to allow Lay Representative

[5]        At a By Order hearing on 10 March 2016, the reclaimer advised the court that he wished the assistance of a lay adviser, namely Richard Thorburn, in the presentation of his appeal.  He was advised that he should enrol the appropriate motion and lodge the relative form.  He was also told by the procedural judge that the prospect of a struck-off solicitor, which is what Mr Thorburn is, being allowed to be a lay representative would be “very remote”.  Notwithstanding that admonition, on 4 October 2016 the reclaimer enrolled a motion in terms of RCS 12 B.2 requesting that Mr Thorburn appear “along with” him “for the purpose of making oral submissions on his behalf”.

[6]        On 24 November 2009, Mr Thorburn was found guilty of professional misconduct in respect of, inter alia, breaches of the Solicitors’ Accounts Rules, failures to lodge deeds timeously, and a failure to have professional indemnity insurance in place.  He had been paying members of his staff in cash and not entering this in the books of his business.  These books were said to have been kept in a manner which did not show the business’s true financial state.  The Scottish Solicitors’ Discipline Tribunal ordered his name stuck from the Roll.

[7]        The reclaimer’s contention was that, despite Mr Thorburn’s antecedents, he would be better at presenting the reclaimer’s arguments because he had framed the written versions, the latest of which was presented at the Bar. 

[8]        The test is whether the grant of the motion would assist the court.  The court was not persuaded that having a struck-off solicitor as a lay representative would assist.  On the contrary, quite apart from anything particular to the case, it would be contrary to public policy to allow persons, who had been regarded as unsuitable to continue in the profession of solicitor, to appear in court to advocate cases on behalf of unrepresented litigants.  The court could have little faith in the provenance of any argument presented by such a person.  The application was refused.

The Litigation

[9]        The reclaimer was sequestrated in the sheriff court at Glasgow on 20 October 2008, having failed to pay council tax following upon the expiry of the induciae of a charge for that amount.  He did not use the statutory procedure for recall within the relevant time limit.  In January 2009 the reclaimer raised proceedings in the sheriff court seeking damages from the respondents for wrongful sequestration.  This was dismissed on 2 November 2009, standing the continued existence of a valid decree.  Appeals to the sheriff principal and the Court of Session failed respectively in May 2010 and May 2011. 

[10]      This action, which was originally for reduction of the decree of sequestration on the basis of a defect in the charge, commenced in May 2011.  It has had a lengthy procedural history, the continuing nature of which is perhaps itself indicative of the need for caution for expenses.  The record closed in September 2011 and the case was destined for a Procedure Roll debate on 25 April 2012.  That diet was discharged on the reclaimer’s motion pending an application for legal aid.  Following an amendment procedure, for which the respondents were responsible, a new Procedure Roll diet was fixed for 31 January 2013. 

[11]      The reclaimer came to be represented by counsel and agents.  A minute of amendment (no 33) was proffered by the reclaimer on 24 January 2013.  This altered the nature of the action from one of reduction to one of damages.  This put the cause back into the same form as the original sheriff court action; a fact belatedly recognised by counsel.  At the Procedure Roll before the Lord Ordinary (Drummond Young) on 31 January, a further minute of amendment for the reclaimer (no 34) was received and the record amended in its terms.  On the reclaimer’s opposed motion, the diet was discharged.  The relative interlocutor appointed the reclaimer to lodge a further minute.  The reclaimer was found liable to the respondents in the expenses of the cause to date.  The expenses were to be on the agent and client scale; thus indicating the court’s view that the conduct of the case by the reclaimer had been, at the very least, unreasonable.  These expenses would have been substantial.  The cause was appointed to call By Order on 7 March 2013.

[12]      When the case called By Order, no further minute of amendment was forthcoming.  Counsel advised that the case would proceed on the basis of the existing pleadings.  A new diet of debate was fixed for 20 June 2013.  Meantime, the same Lord Ordinary (Drummond Young) ordained the reclaimer to find £17,000 caution for expenses, or to consign that amount.  That is the operative interlocutor ordaining caution but, since it has never been reclaimed, the Lord Ordinary has never been asked to provide a written Opinion explaining his decision.  Nevertheless, one of his reasons must have been that the reclaimer had changed the basis of his case and transformed it into one which had already been dismissed in the sheriff court, with that decision being upheld in the Court of Session.  This amount of caution was, in any event, found. 

[13]      At the Procedure Roll on 20 June 2013, the reclaimer sought, and was granted, leave to amend once more; this time after the respondents had completed what must have been compelling submissions on relevancy.  Once again, the reclaimer was found liable by the Lord Ordinary (Pentland) in the expenses of the discharged diet on the agent and client scale.  The new amendment (no 43) changed the case into one based on a breach of undertaking by employees of the respondents in moving for sequestration.  The reclaimer’s agents withdrew from acting in December 2013.  A lack of activity prompted the court to call the case By Order.

[14]      On 20 March 2014 the record was amended in terms of the minute of amendment.  A proof before answer was allowed on the reclaimer’s contention of breach of undertaking.  The proof was fixed for 15 January 2015. Meantime, presumably because of the new volte face, the reclaimer was found liable in the expenses incurred since 20 June 2013.  He was therefore liable to pay all the expenses from the commencement of the action to date.

[15]      On 4 November 2014, the Lord Ordinary (Jones) appointed the reclaimer to find additional caution of £20,000 or to consign that sum.  In terms of Merrick Homes v Duff 1996 SLT 932, the Lord Ordinary held that the issue of whether the reclaimer ought to find caution had already been determined by the interlocutor of 7 March 2013.  The only issue was whether the sum selected was enough.  The respondents’ expenses to June 2013 had been in excess of £16,000 with a further £6,000 or thereby having been incurred to March 2014.  The forthcoming 2 day proof was estimated as likely to cost £10,000 per party per day.  On that basis, the motion for additional caution was granted.

[16]      The reclaimer reclaimed that interlocutor, which included a refusal to sist the cause.  This was refused on 13 January 2015; further substantial expense having thereby been incurred, not least as a result of the discharge of the proof diet fixed for that month, given that no caution had been found.  Shortly thereafter, on 30 January, the reclaimer sought to amend yet again; this time to return the cause to its original state before the advent of the lawyers.  His motion to allow a minute of amendment to be received was refused by the Lord Ordinary (Stewart) on 19 February, with the reclaimer being found liable in further expenses.

[17]      On 24 June 2015 the Lord Ordinary (Pentland) ordained the reclaimer to find a further £20,000 caution, or to consign that sum.  This was because the Lord Ordinary found that the sum already consigned would now, following upon the reclaiming motion and the discharged proof, be inadequate to meet the expenses of the forthcoming 2 day proof.  He too followed Merrick Homes v Duff (supra).  This interlocutor was not reclaimed. 

[18]      Caution was not found.  On 29 July 2015 the Lord Ordinary (Glennie) granted decree of absolvitor in terms of RCS 33.10(a).  He noted that the reclaimer had not said that he wanted more time to find caution, or that he was unable to do so.  He was simply not willing to find it.

Submissions
[19]      The reclaimer requested the court to review a number of earlier interlocutors under the guise of challenging the decree of absolvitor.  His first complaint related to the late transfer of instructions relative to the Procedure Roll on 31 January 2013, culminating in counsel’s inability to present any argument on the pursuer’s pleadings which had recently been converted into the same form as that which had previously failed.  The contention was that the Lord Ordinary had failed to recognise a “gross dereliction” of counsel’s duties.  The preparation of the minute of amendment by counsel had been a serious blunder.  Because the reclaimer had not been at fault personally, the award of expenses on an agent and client scale had been excessive and could not be justified.  As an exercise of discretion, it had been “plainly wrong” (Britton v Central Regional Council 1986 SLT 207), despite the absence of any opposition to the respondents’ motion at the time.

[20]      The reclaimer next attacked the ordaining of caution on 7 March 2013.  He maintained that the Lord Ordinary would have been influenced by what had gone on before him relative to the conduct and amendment of the case.  The ordering of caution was exceptional and unusual (Maxwell: Court of Session Practice 221).  The award of agent and client expenses was a penalty, but that ought not to have played a part in the ordering of caution.  Litigants ought not to be prevented from pursuing claims made in good faith.

[21]      The third complaint related to the Lord Ordinary’s conduct of the hearing on 20 March 2014, at which a proof before answer was allowed.  The reclaimer maintained that he was somehow intimidated into moving his amendment and asking for a proof before answer.  The Lord Ordinary had behaved in an unjudicial manner (Hynd v West Fife Co-operative 1980 SLT 41) amounting to a conspiracy with the respondents’ counsel.  The reclaimer had acted under duress.  

[22]      The fourth complaint was about the refusal to allow the amendment proffered in February 2015.  The reclaimer pleaded for a liberal and permissive amendment regime (Maxwell (supra) 214).  His amendment fulfilled the criterion in the rules (RCS 24.1).

[23]      The fifth criticism was of the decision to order additional caution on 24 June 2015.  This related to the earlier decisions on caution, as was the only submission directly related to the decree of absolvitor itself.  In that regard, whilst founding upon the terms of RCS 38.6(1) as permitting the review of prior interlocutors, it was maintained that the Extra Division had relied on Merrick Homes (supra) in declining to do so.  The Division had not issued a written Opinion explaining its reasoning. It ought to have decided the matter of competency first.  It was accepted that previous interlocutors could only be opened up for the purpose of doing justice in respect of the interlocutor subject to review (John Muir Trust v Scottish Ministers [2016] CSIH 61)

[24]      The respondents submitted that there was no warrant for challenging the exercise of a discretion to award expenses in respect of the abortive diet of debate and relative amendment procedure where the reclaimer had failed to obtain, or request, the views of the Lord Ordinary (Hodge v British Coal Corporation 1992 SLT 484).  It was not appropriate for the reclaimer to attack this award in a second reclaiming motion when he had not attacked it in the first.  The decision could not be interfered with except on the standard grounds for review (Britton v Central Regional Council (supra) and Hynd v West Fife Co-op (supra).

[25]      The result of the Extra Division’s refusal of the previous reclaiming motion was to affirm the interlocutors requiring caution and additional caution.  In any event, there were circumstances which can lead to the conclusion that it would be inappropriate to review a prior interlocutor (McCue v Scottish Daily Record 1998 SC 811).  The parties had acted on the basis that the ordaining of caution had been valid.  The decision had also been a discretionary one and was not challenged on any of the conventional grounds.

[26]      The motions to amend and for a proof had been from the reclaimer.  It was not appropriate to review an interlocutor pronounced on a party’s own application (McGuinness v Bremner 1988 SLT 340).  This interlocutor had also not been challenged in the previous reclaiming motion.  It had been a discretionary decision.  The same applied to the interlocutor of February 2015, which refused further amendment against a background of unreasonable conduct by the reclaimer in seeking to re-introduce matters long since abandoned.  This was an attempt to abuse the court process.  Again no request had been made to the Lord Ordinary to provide a written Opinion. 

[27]      The decision ordering further caution in June 2005 had been one taken in the context of the Extra Division’s affirmation of the interlocutors ordaining of caution and additional caution.  That being so, the only issue was whether it was appropriate to ordain additional caution (Merrick Homes v Duff (supra)).  The decision to do so was, once more, a discretionary one.  No error of law had been identified.  The same applied to the decree of absolvitor.

Decision

[28]      The decisions of the Lords Ordinary in relation to expenses, including caution, were all matters for the discretion of the courts at first instance.  The first hurdle for the reclaimer, however, and it is an insurmountable one, is that the first decision to ordain the reclaimer to find additional caution was unsuccessfully reclaimed.  That decision had been the subject of a motion for review, made without leave of the Lord Ordinary because the relative interlocutor had also included a refusal to sist the cause (a matter then not requiring leave).  The Extra Division declined to rule the motion, in so far as relating to caution, as incompetent (which it may well have been) in the absence of leave to reclaim.  It dealt with it on the merits. 

[29]      It is not disputed that, in the course of the Extra Division hearing, the reclaimer’s argument, as it was before this court, was not that the amount of additional caution was excessive but that the interlocutor ordaining caution in the first place had been wrong.  That was a competent argument, notwithstanding the absence of an interlocutor granting absolvitor at that stage, standing the Full Bench decision in McCue v Scottish Daily Record 1998 SC 811.  Where absolvitor is granted following a failure to find caution, it is open to the party to argue that the requirement to find caution was itself granted in error. 

[30]      Nevertheless, the refusal of the reclaiming motion relative to the finding of additional caution rendered that interlocutor final.  The effect of that is that the interlocutor ordaining caution in the first place must also be regarded as final, since the former could not exist without the latter.  On this basis alone, this reclaiming motion falls to be refused in the absence of an argument on quantum.

[31]      In any event, if this court were reviewing the original order of 7 March 2013, it would have been unable to find any flaw in that decision.  The first problem for the reclaimer is his failure to ask the Lord Ordinary to provide any written reasons for ordaining caution.  He did not attempt to reclaim the relative interlocutor.  It is not surprising therefore that the Lord Ordinary did not produce a formal Opinion.  Furthermore the reclaimer acted upon the order.  He found caution.  Having decided in this reclaiming motion to attack the Lord Ordinary’s exercise of his discretion, as he had done before the Extra Division in the earlier unsuccessful one, it was incumbent upon him to request a written Opinion from the Lord Ordinary (Hodge v British Coal Corporation 1992 SLT 484, LP (Hope) at 486).  Having failed to do so and having acted upon the decision without reclaiming, the court does not consider it appropriate to interfere with the Lord Ordinary’s decision.

[32]      In any event, the reclaimer seeks first to avoid responsibility for the conduct of his case, and thus the contra awards of expenses, by blaming his own counsel.  This is not a legitimate approach.  Whatever claim he may have against his legal representatives, the conduct of the litigation is his responsibility as the relevant party (see eg Niven v Holmes 1979 SLT (Sh Ct) 15).  He must face the consequences of that conduct in his dealings with the other party.  The award of agent and client expenses in connection with the lost Procedure Roll diet and relative amendment procedure was fully justified, not opposed and not reclaimed.  Once more, no written Opinion was sought.

[33]      On the basis of the limited information which the court has about the reasons for caution being ordained, it was a reasonable exercise of a discretion where the reclaimer had altered the basis of his case into one which had previously been found wanting by a sheriff, the sheriff principal and an Extra Division of the Court of Session.  The case thus had very limited prospects of success.  In such circumstances, where there was clear concern about the reclaimer’s ability to pay the expenses in the event of failure, ordaining the finding of caution by a pursuer is not an unusual course of action (MacFadyen: Court of Session Practice, paras 505-510).

[34]      The relevance of the conduct of the diet, at which the reclaimer was allowed to amend and a proof was allowed, is not at all clear.  These steps were moved for by the reclaimer.  He can hardly complain about the outcome and can certainly not seek to reverse it in a reclaiming motion (McGuinness v Bremner 1988 SLT 340, Lord Jauncey at 341 following Watson v Russell (1894) 21 R 433).  It was accepted by the reclaimer that earlier interlocutors can only be opened up under RCS 38.6(2) for the purpose of doing justice in respect of an interlocutor which has been competently reclaimed (John Muir Trust v Scottish Ministers [2016] CSIH 61, LP (Carloway) at para [57]).  Doing justice in relation to the decree of absolvitor does not involve a consideration of the prior interlocutors allowing or refusing amendment, discharging diets, allowing a proof, or (at least in the circumstances of this case) awarding expenses in relation to a variety of procedural steps. 

[35]      It is of some note that the reclaimer is not a person who is easily intimidated by judicial authority.  He is quite capable of conducting himself in an aggressive and threatening manner, as he did during the hearing of the reclaiming motion.  His proposition that he was acting under duress is firmly rejected.

[36]      Given the protracted and changing procedural meanderings of the reclaimer, the Lord Ordinary’s refusal to allow yet another amendment after almost 4 years of the dependence of the action cannot be criticised.  Once more, the relevance of this decision to the ordaining of additional caution is opaque.  The Lord Ordinary was not asked to write on the matter.  It is important to note that the proposed amendment was an attempt to reverse the previous amendments after the allowance of proof, albeit by seeking a declarator relative to the award of sequestration rather than reduction. 

[37]      For all of these reasons, there is no merit in this motion for review, which is therefore refused.

[38]      Finally, it is disappointing to note that the reasons for a decision of an Extra Division, refusing a reclaiming motion to order additional caution for expenses, in which the competency of such a motion without leave was challenged, was not reduced to some form of writing, or capable of being so reduced, so that future courts, which required to determine matters, perhaps of a similar nature in the same process, could be in a position to understand immediately the basis for that decision.  There is, of course, no requirement to issue a formal written Opinion, but the basic reasons for such a decision should at least either be recorded electronically or extended and attached to the relative interlocutor.