Scottish Sheriff Court Decisions

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Cite as: [2004] ScotSC 24

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A3898/03

JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the cause

ALEXANDER MALEY

PURSUERS

against

SCOTTISH MINISTERS

DEFENDER

Act: Kelly, Solicitor, Taylor & Kelly, Coatbridge.

Alt: Miss Poole, Advocate, instructed by The Solicitor to the Scottish Executive.

GLASGOW, 31 March 2004.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor complained of dated 14 November 2003; refuses the motion of the defenders and respondents to certify the cause as suitable for the employment of junior counsel for the purposes of the appeal; finds the pursuer and appellant liable as assisted person to the defenders and respondents in the expenses occasioned by the appeal and remits the account thereof when lodged to the auditor of court to tax and to report thereon; remits the cause to the sheriff to proceed as accords.

NOTE:
[1] This action along with six others of a similar nature called before the sheriff on 14 November 2003. On the motion of the defenders and respondents it was sisted pending the outcome of the case of Robert Napier v The Scottish Ministers which proceeded to proof in the Court of Session in the autumn of 2003 and had been taken to avizandum. In each of the other cases the cause had been sisted on the motion of the pursuer; motions to recall the sist in each of those cases were refused.

[2] In the six cases in which recall of the sist was refused a motion for leave to appeal was made and refused by the sheriff. Notwithstanding the absence of leave to appeal these cases called before me for an appeal hearing. It was agreed that it was not necessary for me to deal with these cases as the decision in the present case, if favourable to the pursuer and appellant, could be founded on at renewed motions to the sheriff to recall the sists in the other proceedings.

[3] As the sheriff has observed in his Note, all these cases are actions for damages in which pursuer was formerly a prisoner in HMP Barlinnie. In each case he contends that the conditions in which he was held, in particular in relation to cell size, heating, ventilation, dietary regime and the practice of slopping out, constituted a breach of human rights and led to loss, injury and damage. The case of Napier relates to conditions in the same prison at the same interval time as the conditions complained of in the seven sheriff court actions. That case was one of judicial review in which the petitioner seeks a series of declarators based on the proposition that the conditions of his detention breached Articles 3 and 8 of the European Convention of Human Rights, together with an award of damages of just satisfaction in terms of Section 8(4) of the Human Rights Act 1998.

[4] The essence of the sheriff's decision to refuse to recall the sist in present case is to be found in two paragraphs in his Note which are in the following terms:

"The respondent's position was simple; no further procedure should be sanctioned at this stage because the court in Napier has now heard the proof and taken the case to avizandum. I was given a copy of the print in that case, from which it is obvious that it does indeed, broadly speaking, raise the same issues as are raised in this case, in respect of the same prison, and at the same time (or at least during that currency of the same regime). I was told that the case had been heard, that the court listened to six weeks of evidence, that 17 witnesses gave evidence for the pursuer (10 of them experts) that 12 witnesses gave evidence for the respondents (11 of them experts), and that there were 121 productions.

The case has gone to avizandum and the Lord Ordinary is well aware of the significance of the outcome and its potential effect on other cases in the pipeline. The respondents accepted that they would require to give the findings careful scrutiny, and that it may well be that they will be determinative of factual aspects which are raised in this case (and the other associated cases), so as to make further proof futile. Ultimately, of course, on the other hand there may well still require to be further proof of these matters led in the sheriff court actions, but that it made no sense, at this stage, to press on with these actions when the other case has gone so far down the line".

[5] The submissions for the pursuer and appellant commenced with the proposition that it is a general principle of civil procedure that an action should be litigated without interruption to a conclusion in conformity with the set of rules of practice and procedure, and that each party is entitled to insist upon the cause proceeding to judgment. Support for that proposition was sought from the remarks of Lord Deas in Connell v Grierson, 1865 3 M 1166 at 1167 where he said:

"Prima facie it is a matter of right to either party to insist upon the cause going on, and the onus lies on him who wishes to stop".

It was further contended that, whilst it might be appropriate in certain circumstances to sist a cause to await the outcome of other proceedings, the general rule was that it was improper to do so until the pleadings in both actions were fully adjusted. In Clydesdale Bank v D & H Cohen, 1943 SC 244 an action was raised in the Sheriff Court at the instance of a bank against the guarantor of one of their customers. Subsequently the customer brought an action in the Court of Session against the bank for reduction of a debit entry in its current account. Before the record in either action had been closed the defenders in the first action moved that it be sisted. The motion was refused by the sheriff in hoc statu. That decision was upheld by the Second Division with the observation that it would be open to the defenders to renew their motion "at the appropriate stage". The rule founded on was applied in N G Napier Ltd v Corbett, 1963 70 Sh Ct Reps 23. Reference was also made to Higgins v Glasgow Corporation, 1954 SLT (Sh Ct) 73 and Purves v North British Railway Co, 1848 10 D 853. In Macphail Sheriff Court Practice 2nd Ed it is stated at para 13.73 that:

"Whether it is...appropriate to sist a cause to await the decision in another action is a question of circumstances. It is in any event improper to sist until the pleadings in both actions are fully adjusted".

[6] That, it was contended, was a proper statement of the law. The present situation was that only skeleton defences had been lodged by the defenders and respondents and it was accordingly "improper" to grant a sist at this stage. The solicitor for the pursuer and appellant then developed an argument in which he sought to demonstrate that the issues in the present case and Napier were not necessarily the same and that consequently the case of Napier could not be regarded as a "test case" with the degree of emphasis that the sheriff appeared to have placed on that concept. It was open to the respondents, he maintained, to argue that the decision in Napier did not bind them in other cases. He referred to the case of Peers v Greek Government, [2001] 10 BHRC 364. That was a case in which complaints of breaches of Articles 3 and 8 of the Convention by a prisoner who had been detained in a Greek Prison were upheld. Paragraph 67 of the judgment indicated that ill-treatment must attain a "minimum level of severity" if it is to be regarded as falling within the scope of Article 3. That depended on "all the circumstances of the case" including duration of the treatment and its physical and mental affects and "in some cases the sex, age and state of health of the victim". In considering whether treatment is "degrading" within the meaning of Article 3 it was observed that the court "will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned it adversely affects his or her personality in a manner incompatible with Article 3". There was accordingly both an objective and subjective element to the tests which would be applied and the outcome of every case depended on the effect on the individual victim. No case could be said to be the same because each one depended on the different manner in which the pursuer was affected by the conditions complained of.

[7] The solicitor for the pursuer and appellant proceeded to identify three errors which he contended were present in the sheriff's Note. The first was a comment that the six other cases had been "sisted to await the outcome of the case of Napier v Scottish Ministers as it was represented to the court that that case, proceeding in the Court of Session, raised similar issues in respect of the same prison, over the same period of time". He had observed that "it seemed sensible to sist further procedure in the Sheriff Court cases to await the outcome" and "it is also important to point out that the motion to have those other cases sisted was enrolled on behalf of the pursuers not respondents". In fact the cases had been sisted of consent, in three instances to await the outcome of legal aid applications and in the other three because of a specific restriction placed by the Legal Aid Board that they were to be sisted pending the outcome of Napier. That restriction had now been lifted. Secondly, in relation to an argument that Napier should not be regarded as a test case the sheriff had noted an observation that "intention had already been formed to appeal the decision in Napier. This intention he had attributed to the pursuer's advisors and had "deplored" the notion that an intention to appeal had been formed before the judgment had even been issued. In point of fact what had been represented to the sheriff was that the respondents' senior counsel had indicated that the decision in Napier would be appealed if it was adverse to his clients. Thirdly, it was wrong of the sheriff to found on the fact that the respondents had lodged defences when these were merely skeleton. He had observed that "the pursuer's solicitor not only knows what the defences will say, he knows what the defence is, because he has heard all the witnesses give evidence to support it in Napier". In fact it was wholly unclear whether the respondents intended to rely on the defence in every case that the minimum level of severity had not been breached in relation to the particular pursuer. Moreover, in certain cases which had been raised in Edinburgh Sheriff Court the respondents had relied on a defence of time-bar. It was accordingly, incorrect to say that the defence was known until such time as full defences had been stated.

[8] The solicitor for the pursuer and appellant made two final points. The first was that there appeared to be no reported case which had been sisted pending a decision in a related action at the open record stage in the face of opposition. Secondly, and distinctly, although the Note of Appeal made reference to the possibility that if the case was to remain sisted pending the decision in Napier that might breach the reasonable time requirement in terms of Article 6 of the European Convention of Human Rights, it was conceded that such a stage had not been reached yet.

[9] In reply counsel for the respondents contended that the decision whether to sist an action was a matter for the sheriff's discretion: Connell v Grierson (supra), Kell v Kell, 1985 SLT (Sh Ct) 52. The court should accordingly apply the restrictive approach to the review of discretionary decisions on the basis of the general rules set out in paragraphs 18.111 to 18.112 in Macphail Sheriff Court Practice (2nd Ed).

[10] Secondly, it was contended that there was no legal rule that there can be no sist of an action until pleadings are fully adjusted. Such a rule did not fit with contemporary rules of procedure. It was inconsistent with many cases in which sists are commonly granted prior to the closing of the record. It fettered the court's discretion and was undesirable because it could have the effect of forcing parties into incurring unnecessary expense and wasting judicial time: see the remarks of Sheriff Allan G Walker QC in Graham v National Coal Board, 1964 SLT (Sh Ct) 53.

[11] To the extent that the stage of the pleadings was a relevant factor, it was to be noted that the sheriff had considered these. He considered it significant that the actions were not "one-off" actions and that the pursuers were likely to know the substance of any defence from Napier and other cases. He had also considered it possible to distinguish on their facts earlier cases which suggested that a sist should not be granted at this stage. It was also to be observed that none of the earlier cases involved issues of public law in the way which the present cases did. There were now some 58 actions in Glasgow Sheriff Court of a similar nature. That underlined the need to adopt an approach which avoided unnecessary expense and waste of judicial time.

[12] It was further argued that whilst it may be a general principle that a party is entitled to insist on a cause proceeding to judgment it was well-established that the court may order a sist where that was in the interests of justice: Macphail (supra) para 13.71. As the sheriff had identified there were areas of overlap with Napier in the present and the other cases giving rise to issues of duplication of work and needless expense if all were to proceed. The sheriff had taken these into account. He had taken into account that the current actions were class actions, a factor which had been of relevance in Central SMT Co v County Council of Lanarkshire, 1949 SC 450. Again the distinction was made between cases concerned solely with private rights and multiple actions raising issues of public law.

[13] Further it was submitted that the sheriff was correct to find that there was no rule of law requiring consent to a sist. Sists were frequently granted in the face of opposition. Moreover, there were examples of cases where actions had been sisted pending the determination of related actions even if these were not to be determinative of the outcome of the case under consideration. Examples cited were Central SMT Co v County Council of Lanarkshire, (supra) (sist of actions by injured passengers for determination of Court of Session actions between bus company and local authority); Girvan Petitioner, 1984 SLT 92 (sist of action for custody in Scotland by great aunt for divorce proceedings in England between mother and father) and Davidson & Ors v Davidson's Trustee, 1952 SLT (N) 3 (sist of action of count reckoning and payment to allow determination of related action of multiplepoinding).

[14] Finally, against the main thrust of the pursuer and appellant's argument it was contended that the sheriff had not regarded Napier as necessarily a "test case". He had accepted that further proof on certain factual aspects might be necessary in the sheriff court actions notwithstanding the outcome of Napier. There were substantial areas of overlap. Counsel referred in some detail to the pleadings in both the present case and Napier, and pointed out that many of the averments were common to both cases and were not specific to the present pursuer. On any view it would be necessary in all cases where Article 3 was founded on to give consideration to the actual conditions to which the prisoners were exposed, and whether the object was to debase them (Peers, supra paras 67-68). These were issues which were common to all.

[15] In the alternative, if the court decided that there was reason to set aside the sheriff's decision it was submitted that in the exercise of an independent discretion the same decision would be reached. There was limited prejudice in waiting until the decision in Napier became available. Interest would be available to compensate for any wait in receiving damages. There were now some 60 actions of a "class" nature. Both sides were publicly funded. Significant amounts of work and expenditure would be required to advance these causes. That could turn out to be unnecessary if the decision in Napier had the effect of reducing the areas in dispute.

[16] Finally, counsel contended that the three matters identified on behalf of the appellant as constituting "errors" in the sheriff's judgment were not material to his decision. As I understood the position, she did not demur from the suggestion that the sheriff may have been in error in these respects.

Decision
[17] It is in my judgment necessary to take as a starting point the identification of any particular rules or principles which were applicable in the situation with which the sheriff had to deal. It is against the background of those rules and principles that his undoubted discretion required to be exercised. The main contention advanced by the pursuer and appellant is based on the observations in Macphail in para 13.79 to the effect that it is improper to sist until pleadings in related actions are fully adjusted. That sentence follows a passage in which the author identifies specific situations in which it is appropriate to sist a cause to await the outcome of other proceedings, for example, enabling a pursuer to establish his title to sue in a separate action. It is clear from the context in which the sentence founded on appears that the proposition that it is "improper" to sist until pleadings have been adjusted is not advanced as one of general application, but it is confined to situations where there are two sets of related pleadings. The respondents' argument that "there is no legal rule that there can be no sist of an action until pleadings are fully adjusted" may be correct as a matter of generality but does not take into account the speciality of the circumstances. It seems to me to be in accordance with the principle that a party is entitled to insist on a cause to proceeding to judgment that this insistence may only be hindered where the other party has disclosed the full nature of his defence. I am not persuaded that a more relaxed attitude towards amendment in contemporary practice undermines the authority of Clydesdale Bank v D & H Cohen. A passage in the Opinion of Lord Mackay in my view remains pertinent. He said:

"The proper purpose of the stage of any litigation which falls between lodging the defences and closing the record is to ascertain with exactitude and in a binding manner the attitude of the parties to the various pleas for the pursuer and pleas in defence. Other questions than the present have, it is true, occasionally been raised and considered during that process but only of necessity; such, for instance, as an order to inspect premises in order solely that the pleadings may be properly adjusted; and sometimes application is considered to preserve the testimony of a witness who is near the point of death. All such cases require that very special circumstances be pled in order to justify any interruption of the ordinary course of finding out what parties are at litigation about".

[18] In his Note the sheriff refers to "an attempt to say that a decision to sist at this stage was incompetent" for which Clydesdale Bank v Cohen was cited as an authority. The sheriff distinguished that case on the basis that the parties to the two actions were not identical, the issues were not identical, and neither action was at such an advanced stage. The contention which was advanced before me was not one of competency, but "propriety", and whilst it may be that I have been invited to approach the matter differently to the sheriff, the view which I have indicated above necessarily leads me to the conclusion that the "rule" contended for by the pursuer and appellant is not to be lightly rejected no matter how one seeks to distinguish Clydesdale Bank v Cohen. I, therefore, conclude that the pursuer and appellant is well-founded in relying on the proposition set out in para 13.73 of Macphail and that the rejection of it, which I perceive to be implicit in the sheriff's opinion, constituted a misdirection.

[19] Apart from that I am not persuaded that the three matters on which the sheriff was said to have to erred can simply be treated as "immaterial". He, himself, regarded it as "important to point out" that the motion to sist in the other cases was on behalf of the pursuers, having prefaced that remark by observing that these cases were sisted to await the outcome of Napier, "a course which appeared sensible". I am prepared to accept that the observation about an intention to appeal, whether based on a misunderstanding or not, was probably immaterial to the sheriff's decision. On the other hand, I consider that his comment that "the pursuer's solicitor not only knows what the defences will say, he knows what the defence is, because he has heard all the witnesses give evidence to support it in Napier" was central to his decision. That observation was not in my view wholly accurate in that it failed to take into account the fact that the defences were skeleton and that there might be a minimal level of severity argument directed against this pursuer. The possibility of a time-bar defence is one which I discount having regard to the dates in which the present pursuer was incarcerated.

[20] In that situation I am persuaded that this is situation in which the failure to give due weight to the general rule which applies in the particular situation constituted a misdirection and that in any event incorrect material matters influenced the decision which the sheriff took. I am accordingly persuaded that the situation is one in which I should consider the matter afresh. In doing that I pose the question set by Lord Mackay in Clydesdale Bank v Cohen although I do not confine it to examination of the pleadings. The question is, are there very special circumstances which exist to justify an interruption of the ordinary course of finding out what parties are at litigation about?

[21] That question I have not found easy to answer, keeping in mind that the onus of justifying an interruption in the proceedings is very firmly on the party who seeks it. I also have regard to the fact that this is an action which is founded on an alleged breach of fundamental human rights and the presumption in favour of proceeding, and requiring the defenders to disclose the full nature of their position, must be a strong one. I also bear firmly in mind that the outcome of the case of Napier may not have a decisive effect on the position of the case which is before me. These factors point in favour of recalling the sist. On the other hand, I consider that counsel for the defenders and respondents was well-founded in contending that there were special circumstances in a situation where there exists a multiplicity of actions all of which contain extensive pleadings in identical terms and which raise fundamental issues of public law. I am influenced to some extent by the large number of cases now before the court. It would call for a significant amount of work for the pleadings to be completed in each of these cases and a significant level of court time and resources devoted to progressing them. Much of this could turn out to be unnecessary if the decision in Napier has the effect of reducing the areas in dispute. In these special circumstances, and keeping in mind that the decision in Napier must now be close to release, I am satisfied that the present action, and indeed those related to it should remain sisted.

[22] In these circumstances I refuse the appeal. I have found the pursuer and appellant liable to the respondents as an assisted person in expenses. I was moved by counsel for the respondents to certify the cause as suitable for the employment of junior counsel for the purposes of the appeal. Whilst I am indebted to counsel for her careful written submissions and oral argument - as indeed as I am to the solicitor for the pursuer and appellant - I am of the view that the issue of whether or not the cause should be sisted at this stage is one which might have been dealt with by a solicitor. That motion is accordingly refused.