Scottish Sheriff Court Decisions

EDWARD EDELSTEN CAIRNS v. TORQ PARTNERSHIP LIMITED [2000] ScotSC 4 (23rd March, 2000)

W1080/99

GLASGOW, 23 March 2000.

The Sheriff Principal, having resumed consideration of the cause, holds the appeal to be incompetent; declines to answer the question of law and adheres to the interlocutor dated 20 October 1999 complained of; finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal and assigns Monday 10 April 2000 at 10.00 am within the Sheriff Court, 1 Carlton Place, Glasgow as a diet of assessment.

This appeal arises following a summary cause proof. The pursuer, acting on his own behalf, sued the defenders for £1300 in respect of two outstanding invoices dated 8 January 1999. He contended that the defender company instructed him to provide certain services in his capacity as a chartered management accountant, namely the production of financial forecasts and the assessment of existing accounting routines. A written note of defence was lodged on behalf of the defenders. In terms of that it was contended that the pursuer "who appeared to be without gainful employment" had been allowed to observe the operating methods of the defenders for a period of between two and three days and had been allowed to remove the defenders' financial forecasts with a view to producing "an otherwise identical version of same" on his own computer. It was denied that he had been given any instructions to provide professional services and it was contended that in any event the sum sued for was excessive. From that brief summary it will be readily understood that a sharp issue of credibility arose as between the pursuer on the one hand and representatives of the defenders on the other as to whether the pursuer was ever given the instructions which he asserted.

At the proof the evidence led on behalf of the defenders did not entirely accord with the written note of defence. It is recorded in finding in fact (5) made by the sheriff that on 9 December 1999 the pursuer met Mr Khan, the defenders' managing director, and told him that he had no work. Mr Khan had agreed that the pursuer would come to the defenders' business premises for a period of three days that month. They agreed that the pursuer would receive £20 each day during this three day period and that at the end they would discuss whether the pursuer could be offered a job by the defenders. The findings in fact go on to record that the pursuer did attend at the defenders' business premises and in the course of three days undertook to produce on his home computer certain information in formatted form which was an improvement on the information carried by the defenders. At the conclusion of the three day period Mr Khan gave the pursuer £60 in accordance with the agreement but decided not to make him any offer of employment. It is recorded that thereafter the defenders employed a firm of accountants to provide accountancy and audit services at a cost of £50 per week. It will thus be seen that, despite the deviation from the terms of their written note of defence, the sheriff had accepted what was said by Mr Khan in preference to the evidence given by the pursuer. He specifically held that it had not been established that the defenders had instructed the pursuer to provide professional accountancy services. He also raised some doubts in his note as to the basis on which the pursuer's charges were levied. It is apparent that the dispute between the parties was essentially one of fact and that the sheriff was not required to resolve any questions of law.

By letter dated 21 October 1999 the pursuer indicated that he wished to appeal, stating that the grounds were that "The conduct of the presiding sheriff was unjust, oppressive and contrary to natural justice". He set out, in effect, four specific complaints. The first was that whilst being cross-examined by the solicitor for the defenders the sheriff had told the pursuer that he was being "too aggressive" and had said, according to the pursuer, "I don't like" and "watch it" in a "threatening manner". These remarks, the pursuer maintained, displayed a bias against him. He further complained that during cross-examination of Mr Khan the sheriff had commented that what the director was saying "meant that I was attempting to commit a fraud and that he may have to involve the procurator fiscal". This, according to the pursuer "indicated that the sheriff had formed a view as to the credibility of witnesses without having heard all the evidence in the case, and justice was not accordingly seen to be done". He made a third complaint of bias saying that during cross-examination of Mr Khan the sheriff had stated that he, the pursuer, was in danger of being in contempt of court. Finally, he complained that the sheriff had expressed annoyance at difficulty in following the pursuer's references to productions. This, the pursuer maintains, was again a display of bias against him and did not take into account the fact that the defenders' agents had failed to obtain copies of the productions which the pursuer had submitted to the court. In advancing these grounds of appeal the pursuer made reference to "the principles established in Hogg v Normand, 1992 and Sneddon v Lees, 1996".

I pause at this stage to draw attention to the provisions of Section 38 of the Sheriff Courts (Scotland) Act 1971 and Rule 81 of the Summary Cause Rules 1976. Section 38 provides for an appeal to the Sheriff Principal in a summary cause "on any point of law from the final judgment of the sheriff" and makes provision for appeals in summary causes other than small claims to the Court of Session. It goes on to state "but save as aforesaid an interlocutor of the sheriff or the sheriff principal in any such cause shall not be subject to review". Rule 81, after making provision for a request for a stated case to be made by Note of Appeal specifying the ground upon which the appeal is to proceed and for the subsequent issue of a stated case provides that each of the parties shall lodge with the sheriff clerk a note of the questions of law which he wishes to raise during the appeal together with a Note of Adjustments. There follows provision for a hearing on the proposed adjustments.

The sheriff appears to have treated the pursuer's letter of 21 October 1999 as a competent Note of Appeal and a draft Stated Case was duly issued. In it the sheriff dealt with the issues raised in the pursuer's letter of 21 October. He began by saying that he had asked the pursuer at the outset of the proof if he was aware of the procedure and the Summary Cause Rules and having been told by the pursuer that he was not explained to him the manner in which the proceedings required to be conducted. The sheriff goes on to narrate that during cross-examination of the pursuer by the defenders' solicitor it became apparent that the pursuer did not like being cross-examined. He became, according to the sheriff, unnecessarily discourteous and ultimately overly aggressive towards the defenders' solicitor. According to the sheriff a firm warning was given. The sheriff says "I made it clear to the pursuer that I did not like rudeness and I told him to watch that his answers were not aggressive or rude". In relation to the reference to reporting matters to the procurator fiscal the sheriff recorded that he had made this observation when Mr Khan made certain serious allegations in the course of his evidence with a view to making it clear to Mr Khan that it might be necessary for further investigations to be made into what was being said. He also records that it was necessary during the pursuer's cross-examination of Mr Khan to exercise some control over the manner in which this was proceeding in order to give Mr Khan a proper opportunity to answer a question before the pursuer moved on to the next one. Finally, the sheriff reported that purely by chance he had come across a separate action raised by the pursuer against the Chartered Institute of Management Accountants in which the pursuer alleged that the Institute had altered their position in relation to a letter concerning the pursuer which had been written to the then Minister for Industry and Local Government. This letter had been founded on by the pursuer in the present proceedings as evidence of his good character, although the sheriff had apparently regarded it as being of little relevance. The sheriff did however express disquiet that the pursuer should have founded upon the letter when the writers of it had altered their position.

The draft Stated Case was duly issued to the pursuer who responded by letter dated 4 November 1999. He began with the words "adjustments I wish to make are the following additions". There followed 11 numbered paragraphs. These did not constitute adjustments in the recognised sense but contained at least one fresh allegation of a display of bias on the part of the sheriff; substantial development of what the pursuer had to say in respect of his original complaints; some comments regarding the pursuer's proceedings against the Chartered Institute of Management Accountants; and some complaints regarding the manner in which the sheriff had prepared the Stated Case. The letter did not contain any proposed questions of law. The opening sentence of the first paragraph reads:

A sentence then reads:

In paragraph 8 the pursuer wrote:

A hearing on adjustments took place on 24 November 1999 at which the pursuer alone was present. The sheriff made no addition to his draft findings in fact. He made some additions to the Note. He commented:

In relation to the pursuer's complaints about his observations at the commencement of the proceedings the sheriff said:

On receipt of the Stated Case I entertained some doubts as to the competency of the appeal. On 10 December 1999 I pronounced an interlocutor appointing parties to be heard on the appeal on 23 February 2000. I appended to that interlocutor a Note drawing attention to the terms of Section 38 of the 1971 Act and Rule 81 of the Summary Cause Rules. I said:

The pursuer responded by letter of 15 December 1999 headed "Note of Questions of Law". There followed eight numbered paragraphs none of which was in the form of a question. The first read:

The remainder were in a similar vein; they contain assertions of what the pursuer contended to be the position, for example, no. 4 which reads:

Rather than engage in any further discussion I issued, on 21 December 1999 an interlocutor in the following terms:

and appended a Note:

At the hearing before me on 23 February 2000 the pursuer commenced his submissions by dealing with the matter of whether a question of law was properly contained in the Stated Case. He referred to the Milne v Uniroyal Englebert Tyres Ltd 1995 SLT (Sh Ct) 23 in which the sheriff was criticised for failing to include a question of law a in a Draft Stated Case. That it must be pointed out was an appeal in a small claim; Rule 29 of the Small Claim Rules 1988 imposes on the sheriff the duty of including inappropriate questions of law in a Draft Stated Case. The present action is a summary cause and as I have indicated under Rule 81 of the Summary Cause Rules it is a matter for the parties to lodge a note of their questions of law. The sheriff in the present case cannot be criticised for not including a question or questions of law in the Stated Case.

The pursuer next addressed the issue of whether the matters raised in his appeal constituted "Questions of Law". He referred to Walker, the Scottish Legal System, and in particular to a passage which in the sixth edition appears at p 184. That passage sets out that a question of law is one which raises a problem of the applicability or otherwise of some rule or principal of the law, or whether a particular doctrine of law covers the case presented. The pursuer developed his submissions by reference to Sneddon v Lees, 1996 SLT 294 and Hogg v Normand, 1992 SLT 736. Sneddon v Lees was a case in which a conviction under summary criminal procedure was quashed where the sheriff asked an inappropriate question of a defence witness in an antagonistic manner and after convicting the accused had repeatedly said to him "You did this didn't you". The pursuer referred to passages in the Opinion of the court where reference is made to the view of a listener or observer that the sheriff was behaving in a manner which displayed animosity towards the complainer. In Hogg v Normand, a conviction was similarly quashed where the sheriff had made remarks relating to the evidence of complainers which indicated that he had reached a view as to their credibility. The pursuer submitted that the principles derived from these cases should apply in a civil case and that the court should uphold his appeal. It was not, I am bound, to say entirely clear from his submissions what course he wished me to take in that event.

I am not entirely convinced that such principles as are contained in Sneddon v Lees and Hogg v Normand, are applicable to civil litigation without some measure of qualification. It is well nigh impossible, for example, to expect a sheriff to listen to submissions without giving some indication as to the way his or her mind is working. There is plainly a need for greater restraint whilst listening to the evidence of witnesses but interventions from the bench are inevitable particularly in cases where party litigants are appearing. Situations will arise where such litigants require assistance on the one hand or restraint on the other and in either case it will be extremely difficult for the sheriff to avoid creating the impression that, at least, at that point in time, he is favouring one party or another. Controlling the proceedings, particularly when a party litigant appears, is always a difficult task, and temperamental differences make it inevitable that some sheriffs will appear to take a firmer line than others. These considerations may however point simply to the conclusion that an appellate court should, where it has the power to do so , be slow to intervene in matters of this nature. I accept, nevertheless, without hesitation the broad proposition that a sheriff must act within the requirements of natural justice. If an appellate court is satisfied that a judge of first instance has engaged in an open display of hostility towards a party or has shown bias against him or his representative from the outset of the proceedings I do not doubt that it would be appropriate to intervene if there is power to do so.

I have much greater doubt as to the powers available to me in a case of this nature. Cases under summary criminal procedure are of no assistance because of the specific right of an appellant under Section 175(5) of the Criminal Procedure (Scotland) Act 1995 to bring under review any alleged miscarriage of justice. In a summary cause the right of appeal has been limited by Parliament to one "on a point of law". I can sympathise with the argument of the pursuer to the extent that adherence to the rules of natural justice involves the application of a doctrine of law but I do not consider that complaints of alleged irregularities in the conduct of the proceedings constitute points of law within the meaning of Section 38. It is evident from the provisions of that section that Parliament intended to create for cases where the amounts involved are small a procedure which is expeditious and economical, and which is not open to prolonged and expensive appeals. In restricting the right of appeal Parliament has conferred on the sheriff, as judge of first instance, the power to reach decisions on all questions of fact without any constraint by way of appeal as to the manner in which that task is to be approached. The reposing of that power implies a confidence in the ability and capacity of sheriffs to decide cases fairly and impartially. If that trust is abused the remedy lies elsewhere. Further, and in any event Rule 83 of the Summary Cause Rules restricts the power of a Sheriff Principal on hearing an appeal to adhering or varying the decree appealed against, recalling the decree and substituting another or remitting if considered desirable to the sheriff for any reason other than to have further evidence led. It is quite clear that none of these remedies would be appropriate in the present situation were I to uphold the appeal. The only appropriate step would be order a fresh enquiry and there is simply no power to do that. In these circumstances I am of the opinion that the present appeal is incompetent. It raises an issue as to the regularity of the proceedings, not a question of law, and does not identify any remedy which the court is in a position to provide.

Even if I am wrong on the above matters however this is not a situation in which I would be disposed to interfere. I have already indicated the need for a judge of first instance in civil proceedings to be permitted a certain amount of latitude in controlling the proceedings particularly where a party litigant is involved. An appellate court is poorly placed to appreciate what may have gone on before a judge hearing evidence and what steps were required on his part to exercise proper control. There are other factors which militate against over enthusiastic intervention. Most litigations have an unsuccessful party. Most of those who fail, particularly if they fail because they have not been believed, will have a perception that, "the judge was against me". They very well be right in that perception. Unless there exists however on the face of the proceedings or on the basis of unconvertible evidence, information which demonstrates that the judge was biased from the outset or wholly unreasonable and unjust in his approach, there is very little an appeal court can do. In particular, it cannot and should not be receptive to complaints of increasing impatience on the part of a judge or of efforts on his part to take a firm control of the proceedings before him when these complaints are advanced by an unsuccessful party whose case may have been devoid of merit. In the two criminal cases founded on by the pursuer the conduct complained of on the part of the sheriffs was a matter of admission by the Crown. That situation does not arise here. Apart from one observation, which I shall mention later, the most one could say is that the pursuer and the sheriff are at odds on whether there was any conduct which displayed a want of impartiality. It would be quite wrong, and would strike at the whole nature of our judicial process, to accept the appellant's complaints as necessarily correct. In point of fact I am satisfied that to a material extent they are unfounded. It is a wholly unwarranted inference to suggest that by saying that the pursuer was at some disadvantage because he was not familiar with the summary cause rules the sheriff was indicating that he was less likely to succeed in his claim. The sheriffs in this court are more than familiar with the appearance of party litigants in summary causes and small claims and a right of unrepresented parties to do so is universally acknowledged. There is nothing improper in a sheriff warning a witness, whether he is a party or not, that he is being over aggressive when being cross-examined and indeed on occasions such an observation may properly be construed as an attempt to be helpful. I do not see that pointing out to Mr Khan that what he was saying inferred that the pursuer was attempting to commit a fraud amounted to any more than bringing home to Mr Khan the serious nature of his allegation. Whilst it is slightly more difficult to know what to make of the allegation that the sheriff warned the pursuer that he was in danger of being in contempt of court whilst cross-examining Mr Khan on the face of it this does not appear to be anything more than an attempt by the sheriff to control the manner in which the cross-examination was being conducted. It is, I consider unfortunate that at the conclusion of the proceedings when making his findings the sheriff chose to describe the pursuer as "a deeply unpleasant individual". Even if the sheriff had genuinely formed that view I do not consider that such a remark was necessary. Equally, the sheriff's observation that the grounds of appeal amount to an unwarranted and unjustified attack upon him are views which would have been better left for an appellate body to decide. I am not however satisfied that these views can be held to vitiate the decision which the sheriff reached and accordingly, had I had power to intervene, I would not have been disposed to do so.

I have only to add - although it is probably unnecessary for me to do so - that so far as the appeal proceeding were concerned the pursuer conducted these with complete courtesy and total restraint. In the circumstances however I have no option but to refuse the appeal and hold him liable in the expenses.