Scottish Sheriff Court Decisions

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Cite as: [2003] ScotSC 55

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A788/03

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		ROBERT ANDERSON BENNETT
		Pursuer and Appellant
		against
		THE SCOTTISH DOWN'S SYNDROME ASSOCIATION
		Defenders and Respondents

Act: Party

Alt: Mr Upton, advocate, instructed by Brechin Tindal Oatts, Glasgow

Aberdeen: 4^th November 2003

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 13^th August 2003 under deletion of the words "and in respect that the initial writ had not been returned by the due date"; finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits to the sheriff to proceed as accords.

Note

This note explains the reasons for my decision to refuse the appeals by the pursuer and appellant in this case and in the related actions which he has raised against Aberdeen City Council ("ACC") (A786/03) and Grampian Police ("GP") (A787/03). I was advised by their counsel that the correct designation of the defenders and respondents in this case is Down's Syndrome Scotland ("DSS"). The circumstances which have given rise to the three claims are very similar in each case and, more to the point for present purposes, the procedural histories of the three cases are almost identical and the issues upon which the three appeals turn are identical. It was for this reason that the three appeals were heard by myself simultaneously.

In the present case the pursuer craves decree for payment by DSS of the sum of £20,000 as damages to compensate him for the loss and injury said to have been sustained by him through the fault and breach of statutory duty of an employee of DSS. In short, it is said that this employee acted wrongfully and negligently in assisting the pursuer's wife to remove their child from the matrimonial home in Aberdeen to an address in London. This is all said to have happened on 18^th September 2000, and since then the pursuer says that he has had no contact with his child. In the action against ACC the basis of the pursuer's claim (which this time is for payment of damages of £40,000) is very similar, only in this case it is said that social workers employed by ACC assisted the pursuer's wife to remove the child from the matrimonial home. And in the action against GP (in which the sum sued for is also £40,000) the factual background is again very similar except that in this case it is said that police officers assisted the pursuer's wife to remove the child.

In each case the action was raised on 23^rd April 2003. The actions were duly served upon the defenders and on 1^st May 2003 the pursuer (who has represented himself throughout the proceedings) returned the initial writs to the sheriff clerk's office. Each writ should then have been placed in the relevant process folder. Unfortunately this did not happen, and it was only after the Options Hearings on 13^th August 2003 that the writs were placed in the relevant folders.

A notice of intention to defend was lodged in each case, and on 16^th May 2003 the sheriff clerk depute signed an interlocutor in each case appointing 30^th July 2003 as the last date for adjustment of the pleadings and 13^th August 2003 as the date for the Options Hearing. These dates were duly intimated to the parties on the appropriate form G5 and in this context it should be noted that the copy of the form which was sent in each case to the pursuer told him that 8^th August 2003 was the last date upon which to lodge the record.

On 21^st July 2003 the pursuer lodged a motion (no. 7/1 of process) in each case in the following terms:

BENNETT the Pursuer moves the court on the grounds:

Sist the cause to allow the pursuer legal aid application to be determined, and to allow the on going proceedings regarding the child Rachel Bennett and to await the outcome.

It has now come to light that there are privileged documents which the pursuer has not seen which may be relevant to the outcome to the pursuer's action.

The motions were duly intimated and were called before Sheriff Buchanan on 30^th July 2003 when the pursuer appeared on his own behalf and the defenders were all represented by the same solicitor. Having heard the pursuer and the solicitor on the motions, the sheriff continued consideration of them to the Options Hearings fixed for 13^th August 2003 according to the interlocutors "to ascertain if the pursuer has been granted legal aid for his review of an earlier decision to refuse legal aid".

On 13^th August 2003 all three cases were called before Sheriff Cowan. Despite what had been said in the form G5 which had been sent to the pursuer in each case, and despite also the terms of rule 9.11(2) which provides that not later than two days before the Options Hearing the pursuer shall lodge a certified copy of the record in process, the pursuer had not lodged a copy of the record in any of the three cases. Since, as already indicated, the initial writs had not been placed as they should have been in the relevant process folders, the sheriff was, understandably, under the mistaken impression that the pursuer had failed also to comply in each case with rule 9.3 which provides that the pursuer shall return the initial writ to the sheriff clerk within seven days after the expiry of the period of notice. The upshot of the proceedings was that in each case the sheriff pronounced an interlocutor in the following terms:

The Sheriff, having heard the Pursuer personally and having heard the Agent for the Defenders on the Motion for the Pursuer no 7/1 of process to sist the cause, Refuses same; having heard the Pursuer personally and having heard the Agent for the Defender on the Motion for the Defenders made at Bar for decree of dismissal, by default, in respect that no Record has been lodged and in respect that the Initial Writ had not been returned by the due date, Grants said motion and Dismisses the cause; Finds the Pursuer liable to the Defenders in the expenses of the cause as taxed; Allows an Account thereof to be given in and Remits same when lodged to the Auditor of Court to tax and to report.

These are the interlocutors which are now under appeal. To each of the interlocutors the sheriff appended a note in the following terms:

NOTE TO INTERLOCUTOR OF 13 AUGUST 2003

Mr Bennet sought to argue his motion, 7/1 of Process. His position was that he would be prejudiced in his presentation of his action if the motion were not granted. It became clear during the discussion on the motion that the "review" mentioned therein was not a review by the Legal Aid Board of an earlier decision, but an application for judicial review of the Board's decision to refuse Legal Aid.

He also stated that documents had been provided by the defenders to the court in England which was dealing with an action at the instance of his wife. He was prejudiced by not being able to see these documents.

It seemed to me that it was not appropriate to sist the action pending an application for judicial review. The matter of documents in an English process was not a reason for sisting these proceedings.

The agent for the defenders moved me to dismiss the cause on the basis of the pursuer's default in not lodging a Record. It was also clear from the process that the Initial Writ had not been returned after service.

Mr Bennet was not able to explain his failure to comply with the rules in either respect but preferred to focus on his motion 7/1 repeating that to refuse to sist the case would be a breach of his human rights.

I inquired whether there was any reason for his failure to return the Initial Writ and explained that without it it was not possible for me to understand the nature of his action. Without the record I could not conduct the Options Hearing. He gave no explanation but said that he required the documents referred to in his motion to show that the defenders had breached his human rights.

In the whole circumstances I took the view that no reason had been given for either default and the defenders were entitled to have the action against them dismissed with expenses.

On 18^th August 2003 the pursuer lodged a note of appeal in each case. These three notes of appeal appear to be in identical terms. The grounds of appeal in each case extend to thirteen pages of typescript, and appended to each note of appeal are three productions. The first of these is a copy of the certificate of citation of the relevant defenders, the second is a copy of a letter dated 6^th August 2003 from George Mathers & Co, solicitors, to the pursuer and the third is a copy of what purports to be a transcript of proceedings in another case altogether before Sheriff Harris on 13^th June 2003. The notes of appeal and their appended grounds of appeal and productions speak for themselves, and I do not think that it is necessary to repeat them in full here.

In each note of appeal the pursuer requested Sheriff Cowan to write a note. This of course she had already done. But it appeared that the grounds of appeal in each case referred to matters which she had not covered in her note and I therefore thought it right to give her an opportunity to provide a supplementary note in each case in response to these grounds of appeal. This I did in terms of an interlocutor pronounced by myself in each case on 20^th August 2003. I made it clear that it was up to the sheriff to decide whether or not she wished to issue a supplementary note in each case.

In the event the sheriff did issue supplementary notes on 11^th September 2003. These are all in identical terms. It is evident from what the sheriff says that she sought only to address the first five numbered paragraphs on page 1 of the grounds of appeal which are headed "Facts of the Case" and which read:

The basis of dismissal of my application by Sheriff Cowan was that the Initial Writ had not been returned there after service.

I submit that this was untrue as the Writ was returned to the Court on 1^st May 2003 and stamped with Court seal (see exhibit RB 1). Sheriff Cowan was made aware but choose to ignore my plea.

My solicitors, Mr W Findlay of the firm George Mathers & Co informed the court that there is an on going application regarding Legal Aid and Judicial Review the Sheriff refused to accept this ( exhibit RB 2).

Sheriff Harris at the hearing of 13^th June 2003, stated that "Now the legal aid application runes from the day the application was lodged in the application, so strictly speaking when this motion was rolled the defender was entitled to legal aid" (exhibit RB 3). Sheriff Cowan was made aware of the Court's finding but once again choose to ignore it.

Sheriff Cowan awarded the cost to the other side despite my plea that I was on State income with no other independent means.

The exhibits RB 1, RB 2 and RB 3 referred to here are the three copy documents which had been appended to the grounds of appeal in each case.

The sheriff's supplementary note in each case reads as follows:

11September 2003

Having seen the Sheriff Principal's interlocutor of 20 August and his note, having also read the five grounds of appeal, I can only comment as follows:

The absence of the initial writ was only one of the grounds on which I found the pursuer to be in default.

The initial writ was not in the Process when it was before me nor had its return been marked on the Inventory of Process.

Mr Findlay did not address me and was not in Court.

I cannot comment.

The appellant having occasioned the expense of the litigation, it was appropriate that he bear the expense thereof.

At the hearing of the appeals on 23^rd October 2003 the pursuer represented himself. DSS were represented by counsel and ACC and GP by a solicitor. As already indicated, I heard submissions in all three appeals at the same time.

Before rehearsing the pursuer's submissions, I should mention that, in addition to the present actions, he has raised an action of divorce in this court against his wife in which he seeks, inter alia, an order that their child should reside with him. This action was sisted by Sheriff Harris by interlocutor dated 9^th July 2003 to await the outcome of proceedings in London at the instance of the pursuer's wife. The pursuer has appealed against Sheriff Harris's interlocutor to myself, and this appeal has still to be heard. In the proceedings in London the pursuer's wife seeks orders to do with the welfare of their child. Not being familiar with English law and procedure, I am not altogether clear about what is happening in these proceedings but, as I understand them, an order has been made by the court in London to the effect that the child should reside with the pursuer's wife and the pursuer is seeking to challenge this order. Finally, in the course of his submissions, he also mentioned an application which he had made to the European Court of Human Rights, but I know nothing of this.

Opening the appeal, the pursuer drew attention firstly to the fact that he had timeously returned the initial writ in each of the present three actions (and I confirmed to him that there was no doubt about this). He then stated that he had moved Sheriff Cowan to sist the three actions. He explained that he had applied for legal aid on 6^th September 2001 to take action against the present three defenders and that his applications were still being processed by the Scottish Legal Aid Board. But, having said this, he explained that Mr Findlay, solicitor, of George Mathers and Co had been asked to make three new applications for legal aid to pursue the three defenders and had now done so. According to what Sheriff Harris had stated at a hearing on 13^th June 2003 (which I think was in the context of the pursuer's action of divorce against his wife) legal aid ran from the date of the application and it followed, so the pursuer said, that he had had legal aid to pursue the three defenders since 6^th September 2001. In this connection he produced copies of a letter dated 27^th August 2003 from the Scottish Legal Aid Board to George Mathers & Co and two letters from that firm to himself dated respectively 13^th and 20^th October 2003. These have been placed with his productions in the process folder for his action against DSS.

The pursuer said that he had also asked for the current proceedings to be sisted since evidence might come to light in his action of divorce, in the proceedings in London and also in the context of his application to the European Court of Human Rights about the assistance that had been given by the employees of the three defenders to his wife when she had removed the child from the matrimonial home. As I understood it, his submission was that he would be prejudiced in the conduct of the present three cases if they were allowed to proceed pending the disposal of his action of divorce, the proceedings in London and his application to the European Court. In this context, the pursuer mentioned too that he had never been given access to his files in England. I did not find his argument here easy to follow, but it appeared that there had been some correspondence between the pursuer's Member of Parliament, Mr Frank Doran, and a representative of the Lord Chancellor's Department in London. The suggestion appeared to be that there had been some privileged communications between the pursuer's wife and one of the judges involved in the English proceedings which the pursuer had been unable to see.

The pursuer observed that it was difficult to understand why Sheriff Cowan should not have sisted the present three actions when Sheriff Harris had sisted his action of divorce to await the outcome of the proceedings in London. He then said that his right to a fair trial would be infringed if he was not given an opportunity to receive legal aid. He stated that he was sure that the only way that he would get to the bottom of the matter would be to await the outcome of his action of divorce, the proceedings in London and the application to the European Court so that he could ascertain exactly what assistance had been given by the employees of the three defenders to his wife when she had taken the child to London. He stated that it was very important that he should see the privileged documents which had been written by his wife to the judge in England, but he then acknowledged that someone at the court in London (one of the English judges I think) had gone through the files and had stated that there were no privileged documents among them. He acknowledged too that in the course of a recent hearing in London the judge had given him an opportunity to read all the files himself. He then said that his solicitor had stated that neither his own nor his child's human rights had been considered before the employees of the defenders had taken the action which they had (meaning, presumably, to assist the pursuer's wife to remove the child to London).

In summary, the pursuer submitted that the proceedings in the present three cases should have been sisted by Sheriff Cowan for the reasons which he had indicated.

Counsel for DSS submitted that I should refuse the pursuer's appeal in his action against DSS. He explained that, so far as the representatives of DSS were aware, an application had been made on behalf of the pursuer in about September 2002 to raise an action against DSS. This was vouched by a letter dated 6^th September 2002 which had been written to DSS by their solicitors. The legal aid application itself had been dated 22^nd August 2002 and had been given the reference no. CI/01/2008297/ by the Scottish Legal Aid Board. This application had been refused, and a subsequent application to review the refusal had also been refused. The agents for DSS had been advised of this on 19^th February 2003. This was the last that DSS had heard of any formal step having been taken by or on behalf of the pursuer to seek legal aid to sue them, and this was the sheriff's understanding of the position on 13^th August 2003. The pursuer had stated that Mr Findlay, solicitor, had made an application on his behalf for judicial review and that the Scottish Legal Aid Board had prompted him to make fresh applications for legal aid on behalf of the pursuer. This was not what appeared from the letters dated 13^th and 20^th October 2003 which had been produced by the pursuer. These referred to a legal aid application for a petition for judicial review, and the natural inference was that this was to be a judicial review of a decision of the Scottish Legal Aid Board itself. Accordingly there was nothing in the correspondence to indicate that there was currently pending an application by the pursuer for legal aid to raise an action against DSS. Moreover, unless such an application had been made very recently, then intimation of it would have been received from the Scottish Legal Aid Board, and no such intimation had been received by DSS or their representatives.

Turning to the merits of the appeal, counsel submitted that a heavy onus was placed on an appellant who sought to be reponed against a decree by default. He referred to Morrison v Smith 1876 4R 9, and in particular the judgement of Lord Deas at page 11 where his Lordship stated: "It is a very delicate matter for the court to interfere in cases such as this. It is a most wholesome rule that judgement allowed to go by default should not be opened up except in very special circumstances" (and see also Winning v Napier, Son, & Co Limited 1963 SC 293). Counsel submitted that it was for the pursuer therefore to put forward cogent reasons why Sheriff Cowan's decision should be reversed. He proceeded then to examine that part of her interlocutor in terms of which she had granted decree of dismissal by default. He emphasised that he did not found upon the failure by the pursuer to return the initial writ. But he drew attention to the fact that the sheriff had founded also on his failure to lodge a record for the Options Hearing as he had been required to do by rule 9.11(2). Counsel pointed out that no explanation had been proffered by the pursuer to the sheriff as to why the record had not been lodged and in these circumstances decree by default had been both competent and justified. Reference was made here to Group 4 Total Security Limited v Jaymarke Developments Limited 1995 SCLR 303 and DTZ Debenham Thorpe v I Henderson Transport Services 1995 SC 282. In the latter case Lord President Hope observed at page 285D/E: "As the matter was at the sheriff's discretion in terms of rule 16.2(2), the question for this court is whether it has been shown that she misdirected herself in law, failed to take into account a relevant and material factor, left some relevant and material factor out of account or reached a result which was wholly unreasonable". In the present case, said counsel, none of the grounds upon which the sheriff's decision might be challenged on appeal had been made out. It was true that the pursuer was a party litigant, but there was no room for the view that the requirements of the rules should not apply to him in exactly the same way as they did to a party who was represented.

Counsel accepted that it was clear that, in granting decree by default, the sheriff had proceeded upon two grounds, namely the pursuer's failure to return the initial writ and his failure to lodge a record. Counsel submitted that the sheriff had made it clear in her notes that these two grounds were independent and he submitted that, if she was mistaken (as she clearly was) about one of these grounds, then this did not mean that the matter was at large on appeal so long as her decision on the other ground was not open to challenge. But even if he was wrong about this, and the matter was now at large on appeal, the decision to grant decree by default should still be affirmed. Here counsel emphasised in particular that the pursuer had still not lodged a certified copy of the record, nor had he proffered any explanation either to the sheriff or on appeal for his failure to lodge the record. In this context counsel submitted also that the pursuer in his pleadings had failed to make out a prima facie case of fault on the part of either the pursuer's wife or the employee of DSS, and he pointed out in particular that in terms of section 2 of the Children (Scotland) Act 1995 either parent of a child may without the consent of the other exercise the right to have their child living with him or her, as the case may be, or otherwise to regulate the child's residence.

Turning to the sheriff's decision to refuse the pursuer's motion to sist the cause, counsel reiterated that there was no pending application on behalf of the pursuer for legal aid to pursue a claim against DSS. Moreover, his original application for legal aid had been refused, as had the application for a review of this decision. At best for the pursuer it was possible that there was pending an application for legal aid to pursue a petition for judicial review. But it was not appropriate, said counsel, to sist the present proceedings unless it was clear that a petition for judicial review was under way and the pleadings in that matter were available. The situation at present was all too speculative to justify a sist. At the very least the court would have to be appraised of what the possible grounds for the petition for judicial review might be and in the absence of such material the court could not make a judgement as to whether or not a sist would be appropriate. As for the pursuer's point that evidence relevant to the present proceedings might be thrown up in the course of the other actions to which reference had been made, counsel submitted that the possibility that evidence might be recovered in these other actions was not a good ground for sisting the current proceedings. There were, said counsel other methods available to the pursuer to recover evidence sought by him. The sheriff had been right to refuse the motion to sist and no good reason had been put forward by the pursuer to reverse her decision.

Counsel submitted that in any event the sheriff's decision to refuse the motion to sist could not be reviewed on appeal since leave to appeal against this part of her decision was necessary and had not been sought by the pursuer nor granted by the sheriff. This, said counsel, was so notwithstanding that leave to appeal was not required in order to challenge the sheriff's decision to grant decree of dismissal by default.

The solicitor for ACC and GP adopted the submissions of counsel. She suggested that the pursuer's fundamental difficulty was that he had not addressed the sheriff's decisions to dismiss the actions and had put forward no cogent reason why his appeals should succeed. In effect, he had simply renewed his motion to sist in each case. ACC and GP had received notice on 26^th November 2002 of the pursuer's original applications for legal aid to raise actions against them. They had been informed that these applications had been refused, and then on 10^th January 2003 they had been advised further that applications for review of the original decisions had also been refused. This was the last that had been heard by either ACC or GP about applications by the pursuer for legal aid. Thus they were not aware of any live applications by him. As for the merits of the pursuer's claim against each of ACC and GP, their solicitor drew attention to the rule 22 notes which had been lodged on their behalf and she submitted, in short, that on the face of the pursuer's pleadings there had been no breach of any duty by the defenders or their employees which would give rise to a right of action by the pursuer against these defenders. It was acknowledged that the pursuer was a party litigant, but the G5 forms which had been sent to him by the sheriff clerk's office had advised him of the date by which the record in each action required to be lodged. In all the circumstances the pursuer's appeals in the cases against ACC and GP should be refused.

In a brief reply, the pursuer suggested that there was no way in which he could have lodged records in the three actions by the dates specified since he had had no legal training. Referring to article 6 of the European Convention on Human Rights, he submitted that this established a requirement for legal representation. He reiterated that he had applied for legal aid to raise actions against the present defenders and he asserted that he had a good case in law against each of them. He maintained that what had happened had been a pre-planned abduction of his child. He referred to a letter dated 6^th June 2002 from a Deborah Baillie who described herself as a Consultant in Health and Social Work Law. A copy of this letter is among the pursuer's productions in each case and, according to him, it supported the claim which he had made against each of the defenders. He said that there was no way in which he could argue his case fairly and that, if his appeals were refused, he would make an application to the European Court of Human Rights.

In terms of her interlocutor dated 13^th August 2003 in each case the sheriff made three decisions, namely (1) to refuse the pursuer's motion to sist the cause, (2) to grant decree of dismissal by default, and (3) to find the pursuer liable to the defenders in the taxed expenses of the cause. These decisions were all made by her in the exercise of her discretion, and it is well settled that an appellate court may only interfere with such a decision if it is shown that the court of first instance has misdirected itself in law, misapprehended the material facts, taken into account an irrelevant factor, left out of account a relevant factor or reached a decision which may be categorised as wholly unreasonable or plainly wrong. In certain situations an appellate court may also interfere if additional material has come to light which was not before the court of first instance or if there has been a material change of circumstances since it made its decision. Unless one or more of these grounds are established, it is nothing to the point that the appellate court might have reached a different decision on the facts from that which was reached by the court of first instance.

It will be apparent from the account which I have given of his submissions that the pursuer did not, as I understood him, seek to argue that there were any grounds upon which I might properly interfere with the sheriff's decision to refuse his motion in each case to sist the cause. Rather, he effectively sought to re-argue the motions and to persuade me that the three actions should be sisted. There is thus no basis made out upon which I might disturb the sheriff's decision in this respect.

I may perhaps add that, had I had to consider the motions afresh, I am confident that I should have reached precisely the same conclusion as the sheriff did. It is I think clear that when the three actions were before her there was in fact pending only an application for legal aid on his behalf to present a petition for judicial review of an earlier decision by the Scottish Legal Aid Board. This is apparent from the letter dated 27^th August 2003 from the Board to George Mathers & Co which indicates that the application was refused. It seems from that firm's letters to the pursuer dated 13^th and 20^th October 2003 that a further application for legal aid to present a petition for judicial review has been made to the Board on the pursuer's behalf, and this was still pending when the appeal was heard on 23^rd October 2003. But no indication has been given of the grounds for the application, nor of the grounds upon which, if the application is successful, a petition for judicial review might follow. Nor of course has any indication been given of the prospects of success of such a petition or what the consequences would be for the present three actions if the petition were to be successful. What is known is that the pursuer's original applications for legal aid to raise actions against the three defenders were refused, as were applications to review these decisions. Against this background it seems to me that the circumstances of the pursuer's current application for legal aid are altogether too speculative to justify sisting the present three actions to await the outcome of the application.

The pursuer also argued that these actions should be sisted to await the outcome of his action of divorce in this court against his wife, the proceedings at her instance in London and his application to the European Court of Human Rights. The argument appeared to be that these would throw up evidence of assistance which had been given by the defenders' employees to the pursuer's wife when she had removed the child from the matrimonial home in Aberdeen. Given that this happened in September 2000, it may be asked whether such evidence would in fact be likely to emerge since it would scarcely be of relevance to any decision that had to be made now about the welfare of the child in any of these three proceedings. Moreover, it is not obvious that there will be an opportunity in any of the three proceedings for such evidence to emerge. And finally, it seems to me that, if he wishes to pursue his claims against the present three defenders, then it is up to the pursuer to gather whatever evidence he considers relevant and necessary, and he ought not to rely on others in the context of other proceedings to produce the evidence for him. So again I do not think that it would be appropriate to sist the current actions to await the outcome of these other proceedings.

As for the pursuer's point about privileged communications, it is still not clear to me what it is thought that these communications may be about or why they may be supposed to be of relevance to the current actions. The pursuer seemed to think that his wife had written to one or more of the judges involved in the proceedings at her instance in London and, as I understood him, he was of the view that these communications had been referred to in an affidavit which his wife had sworn in the context of those proceedings. No. 5/4 of process in the action against DSS is a copy of an affidavit dated 29^th November 2000 by the pursuer's wife. I have read and re-read this and can find no trace of any reference to letters which she might have herself written to the court in London. At best there is a statement in paragraph 3 to the effect that her solicitors wrote to the court on 30^th October 2000 and gave her address. As already indicated, the pursuer also mentioned that there had been some correspondence between the Lord Chancellor's Department and his Member of Parliament about these so-called privileged communications. But it was not clear from what he said what was the import of this correspondence and no letter to or from the Lord Chancellor's Department has, so far as I am aware, been produced by the pursuer in the current proceedings. Here too therefore the possible existence of such correspondence, or of the communications to which it might refer, seems to me to afford far too speculative a basis upon which to consider sisting the present actions.

In view of what I have said so far it is unnecessary that I should express an opinion on the submission of counsel for DSS to the effect that the pursuer ought in any event to have sought leave to appeal from the sheriff against her decision to refuse the motions to sist the causes.

The pursuer advanced no separate argument to challenge the sheriff's decision in each case to dismiss the action by default. In point of fact it is plain that she was mistaken (through no fault of hers) in thinking that the initial writs had not been returned timeously after service to the sheriff clerk's office. The defenders' position was that the other ground upon which the sheriff had granted decree by default, namely the pursuer's failure to lodge records, fell to be judged on its own and afforded ample justification for the sheriff's decision. My own view is that, the sheriff having been mistaken about one important element in her reasoning process, the question whether or not decree by default in each case should be granted is at large on appeal. But having said this, I am quite satisfied that it was appropriate to grant decree by default in each case in light of the pursuer's failure to lodge the records. The importance of lodging a record timeously before an Options Hearing was made very clear in the two authorities cited by counsel for DSS, and it is unnecessary that I should repeat at length here what was said in those cases. It should also be recalled, as was pointed out by the solicitor for ACC and GP, that the G5 forms which were sent to the pursuer by the sheriff clerk specifically advised him of the date by which the records were to be lodged. Having failed to lodge them before the Options Hearings, the pursuer might (I do not say that he would) have retrieved the situation by lodging them before the hearing of the appeals or at least offering some explanation for his inability to do so. But no such explanation has been forthcoming, nor have the records been produced notwithstanding that it is plain from the appearance of some of the documents which he has produced that the pursuer has access to word-processing facilities and, moreover, has at least some understanding of the rules which govern actions of this kind.

In the course of his submissions the pursuer said nothing to challenge the sheriff's decision in each case to find him liable to the defenders in expenses. In any event, the three actions having been dismissed, there would have have to have to been some distinctly unusual circumstances to justify a departure from the normal rule that expenses should follow success in an action.

In his grounds of appeal in each case the pursuer included detailed arguments about a number of articles in the European Convention on Human Rights. But he did not refer to these arguments when he came to address me at the hearing of the appeals beyond making a passing reference to article 6. The submission here was, as I understood it, to the effect that his right to a fair trial had been infringed as a result of his having been denied legal aid. But he did not develop the submission and all I think I need to say about it is that in the context of civil proceedings article 6 does not demand that a litigant should have an absolute right to legal aid even in a case where there is no reasonable prospect of success or at least a probabilis causa litigandi.

Both counsel for DSS and the solicitor for ACC and GP moved for expenses in the event that the appeals were unsuccessful. They have been, and I have therefore found the pursuer liable in expenses to the defenders.