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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Hill v. The Law Society Of Scotland & Anor [2005] ScotSC 40 (14 July 2005)
URL: http://www.bailii.org/scot/cases/ScotSC/2005/40.html
Cite as: [2005] ScotSC 40
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Case Reference No: A2440/02
JUDGMENT OF SHERIFF N M P MORRISON, QC
in the cause
BERNARD HILL
Pursuer
against
THE LAW SOCIETY OF SCOTLAND
First Defender
and
LESLIE H CUMMING
Second Defender
EDINBURGH, 14 July 2005
The sheriff, having resumed consideration of the cause at debate, finds the pursuer's craves 1(a) and (b) to be incompetent and dismisses the action in respect of those craves; sustains the defenders' second plea-in-law and dismisses the action; reserves the question of expenses and appoints 9th August 2005 at 2.00 pm as a hearing on expenses.
NOTE
Introduction
1. In this case the pursuer sues for declarator and damages of £10 million. Three declarators are sought, namely, (a) that the first defender unlawfully withdrew the pursuer's practising certificate, (b) that the first defender obtained a wrongous interdict against the pursuer and (c) that the defenders passed false information concerning the pursuer to the Crown Office to have him falsely charged with a crime.
2. At debate, the defenders challenged the competency of two of the declarators and the relevancy and specification of aspects of the pursuer's pleadings.
Can the competency of declarators 1(a) and (b) be challenged in this debate?
3. The first point to be dealt with is whether competency could be argued at this debate. The pursuer pointed out that the sheriff principal had, by interlocutor of 16 December 2003, allowed a debate solely on certain issues of relevancy. He excluded issues of competency which had been raised in the Chapter 22 Note, No 15 of process, under the guise of relevancy. Mr Skinner, for the defenders, argued that the insertion of a plea to the competency allowed by the sheriff principal on 16 January 2004 permitted him to argue the point. It should be noted that the plea added as a new first plea-in-law related only to competency of craves 1(a) and (b).
4. I disagree with the defenders' argument. The original interlocutor of 6 August 2003, after repelling one plea, allowed a debate on the defenders' remaining preliminary pleas (sic). There was in fact only one other plea and that was a plea to the relevancy. That interlocutor was recalled by the sheriff principal and there were excluded by him from debate the matters in paragraphs 1[a] and [b] of the Chapter 22 Note, No 15 of process. Those paragraphs dealt with the issues of competency in relation to crave 1(a) and (b). No subsequent interlocutor allowed those issues to go to debate, and certainly not the interlocutor of 16 January 2004.
5. In the alternative, Mr Skinner argued that I could deal with the competency argument as it was pars judicis for the court to deal with them. The pursuer argued that I should not deal with competency on this ground for the following reasons. The defenders only decided on a plea to the competency very late in the day. They should have thought about that immediately. It is a bit of stealth on the defenders' part to argue competency now: first they raised the question of time bar which was not pursued, then they sought to have him find caution to proceed with the action, then they tried to introduce competency via the Chapter 22 Note. Having got a debate on relevancy the defenders then sneak a competency plea in. Although they put in a plea of competency they have not said why the case is incompetent, there is merely a bald statement that it is incompetent. The defenders were betting on the court saying that it was pars judicis to deal with the matter and were taking advantage of a back door method.
6. The pursuer's reasons are insufficient reasons in my opinion for the court to turn a blind eye to the clear and stark issues of competency in this case. The pursuer did not argue that he was not prepared to deal with the issue of incompetency. He told me that he could deal with them, was aware of the issues raised specifically in the revised Chapter 22 Note, No 23 of process, and had received the bundle of authorities relating to competency from the defenders on an earlier occasion.
7. It is pars judicis for the court to deal with competency, even if there is no plea: Macphail, Sheriff Court Practice, 2nd edn, paras 2.14 and 9.121. I heard a full argument from both parties on the issue of competency. It is to be noted that in his decision of 16 December 2003, the sheriff principal drew attention to the fact that it was pars judicis to deal with it. I now turn to deal with the issues of competency.
The declarator in crave 1(a)
8. The pursuer seeks to have it declared that the pursuer's practising certificate was unlawfully withdrawn on 24 April 1998. The first defender purported to act under section 40 of the Solicitors (Scotland) Act 1980.
9. The first point made by Mr Skinner was that the pursuer was seeking a bare declarator as he was not seeking reduction of the decision by the Council of the Law Society on 24 April 1998. Bare declarators are generally incompetent: Maxwell's Court of Session Practice, p 360; Sinclair-Lockhart's Trustees -v- Central Land Board, 1950 SLT 283, 285. The pursuer argues that he is not seeking a bare declarator since he is also seeking damages. The pursuer does not seek reduction of the unlawful or pretended decision but declarator of and damages for an unlawful decision.
10. Oddly, if the court declared the decision unlawful it would nonetheless remain effective until reduced. But the declarator is bare in the sense that there are no executorial conclusions such as reduction. A bare declarator is competent if it deals with some right which if declared would benefit the pursuer. A declarator here would have no effect on the decision itself. Declaring a decision unlawful is not, however, declaration of a right. I do not think that the crave is competent on this ground, but there is a more fundamental ground on which the crave may be said to be incompetent.
11. Section 40(3) of the 1980 Act provides a means of challenging a decision made or purported to be made under section 40(1). This is an appeal to the Court of Session. The pursuer appealed to the Court of Session but abandoned it and the appeal was dismissed on 23 March 2003.
12. Mr Skinner argued that the pursuer was seeking to challenge in the sheriff court a decision which had been appealed to the Court of Session and dismissed. This was incompetent. Firstly, there had to be a reduction sought which was not competent in the sheriff court unless ope exceptionis (Brown -v- Hamilton District Council, 1983 SC (HL) 1, 45 per Lord Fraser of Tulleybelton) and the right of appeal had to be exhausted first (Crawford -v- Lennox, (1852) 14D 1029, 1033, and Mitchell -v- Aberdeen Insurance Committee, 1918 SC 415, 429 (obiter)). Secondly, the supervisory jurisdiction over decisions of administrative bodies such as the first defender was reserved exclusively to the Court of Session: Brown, above, at p 45. What the pursuer sought in crave 1(a) was exclusively a jurisdiction of the Court of Session.
13. The pursuer recognised that the case of Brown caused him some difficulty. He sought to distinguish it on the ground that in that case the sheriff was being asked to tell a local authority how to implement a statute. The pursuer was not seeking to do that in this case, he sought merely to have the decision declared unlawful. Furthermore, there was nothing to reduce here because there was no decision, there was merely a pretence. He explained that he had abandoned his appeal under section 40(3) of the 1980 Act and allowed it to be dismissed because he told the Inner House that his appeal was misconceived. He could not appeal under that statutory provision because there had not been a decision made under section 40(1), only a pretence, as the provisions of section 40(1) had not been followed. Under that statutory provision he had an "opportunity to be heard". All he was invited to do by the second defender's letter of 7 April 1998 was to make representations either in writing or via a Council member. That letter did not give details of the respects in which he had been in breach of the accounts rules, merely that he had been in breach of them. He could not, therefore, make representations in advance of knowing what the specific allegations were and was not invited to the meeting at which the allegations may have been made to the Council. In his letter of 14 April 1998 in reply to that letter, the pursuer indicated that he would be on holiday at the time of the meeting on 24 April; but he told me that that was not the reason that he did not attend the meeting on 24 April. The reason he did not attend the meeting was that he had not been invited to do so and did not know when and where it would take place on that date. Had he been invited, he would have cancelled his holiday.
14. The pursuer may well have had an argument in his appeal to the Court of Session that he was not given an opportunity to be heard on 24 April 1998 and that the specific allegations were not put to him in the letter of 7 April, but the pursuer decided that his appeal was misconceived and abandoned it. In any event, in my opinion, the argument that the declarator sought involves an exercise of a supervisory jurisdiction reserved to the Court of Session is unanswerable. The decision in Brown makes it clear that the sheriff has not jurisdiction to grant the declarator sought. Whether or not a reduction must also be sought (which could not be sought in the sheriff court), only the Court of Session could grant the declarator sought.
15. There is a further basis of incompetency. The pursuer did exercise his right under section 40(3) by presenting an appeal against the purported decision. That appeal was dismissed. There is no other statutory right. Any further challenge of unlawfulness would have to involve an application to the supervisory jurisdiction of the Court of Session by judicial review. The pursuer's basis for abandoning his appeal is itself misconceived. The process in which to challenge the purported decision as a pretence was an appeal to the Court of Session or judicial review.
The declarator in crave 1(b)
16. The pursuer seeks to have it declared that the first defender obtained a wrongous interim interdict against the pursuer on 15 May 1998. The order prohibits the pursuer from representing or holding himself out as practising as a solicitor (see No 5/1/5 of process). It is alleged that the order was sought in bad faith. This is specified in article 8 of condescendence. There is no averment that the pursuer ever sought to have the order recalled.
17. The defenders' first point is the same as in relation to 1(a), namely, that the pursuer seeks a bare declarator. The pursuer says that it is not a bare declarator because he seeks damages as well.
18. In my opinion the answer here is the same as I have stated in relation to crave 1(a). Even if I am wrong about that, there is a more fundamental ground of incompetency about this crave.
19. One cannot challenge a decision of the Court of Session in the sheriff court by declarator. The method of challenging a decision of the Court of Session is by seeking to recall or reclaim against the interim interdict granted in the Court of Session. One cannot challenge the decision by declarator in an inferior court such as the sheriff court, even indirectly, by averring that the decision was obtained in bad faith or malice and suing the person alleged to have acted in bad faith. Such allegations could be argued in the Court of Session. This crave is incompetent in the sheriff court on this ground.
Relevancy of crave 1(c) and article 9 of condescendence
20. The pursuer seeks declarator that the defenders passed false information concerning the pursuer to the Crown Office in order to have him falsely charged with a crime. The averments in support of this are in article 9 of condescendence. It is clear from this article that the information said to be false was that the pursuer was suspended by the first defender's council under section 40(1) of the 1980 Act.
21. While the pursuer argued that the suspension was a pretended decision or pretence, Mr Skinner submitted that it was a decision which stood and had effect until reduced or otherwise set aside.
22. In my opinion the decision of 24 April 1998, purported or pretended, is nonetheless a decision which is valid on the face of it until set aside. The defenders cannot, therefore, be said to have passed false information by informing the police that the pursuer was suspended from practice by a decision on the face of it made under section 40(1).
Relevancy of pursuer's averments of bad faith and malice
23. The pursuer's pleadings are liberally sprinkled with averments of bad faith and malice. Mr Skinner attacked these, and in particular article 10 of condescendence, as lacking in specification of the particulars in which bad faith and malice are allegedly evinced. He referred to Macauley -v- North Uist School Board, (1887) 15R 99, 102 per Lord Craighill to the effect that malice must be alleged and that facts and circumstances sufficient to warrant a conclusion of malice must be set forth in the pleadings. He also referred to Elder -v- Gillespie, 1922 SLT 32, 34 where Lord Morison said that the standard of specification of malice must be such as to make the charge of malice prima facie reasonable.
24. The pursuer accepted that, having regard to paragraph 11A of Schedule 1 to the 1980 Act, he could not succeed in a claim for damages unless there was bad faith. The bad faith on which he relied was that the defenders ignored the actions lawfully served on them, everything was done to try to stop the pursuer, and everything was done by stealth. Instead of lodging defences in this action, the defenders raised the issue of the pursuer's appeal to the Court of Session, they tried to argue that this action was time-barred but never told him why when he wrote to ask, and the original Chapter 22 Note sought to argue competency under the guise of relevancy. In relation to article 10, the pursuer indicated that I would find sufficient averments of malice in the record of the action in Paisley Sheriff Court by the first defender against him, reference to which was made and adopted as part of his pleadings in this case by the Minute of Amendment No 25 of process which had been allowed. Answer 1 of that record gives a fuller history of the troubles that the pursuer said he had had with the defenders.
25. I accept the proposition that there must be sufficient averments to make the charge of bad faith prima facie reasonable. It is not bad faith simply that an interdict is granted, an order is purportedly made under section 40(1) of the 1980 Act, that the pursuer is struck off the roll of solicitors, that the prosecuting authorities are informed of such orders or decisions or that anything else is done in consequence of such interdict, orders or decisions. It would have to be established, in my opinion, that someone acted in bad faith in instigating the process for seeking a court or other order or decision or in making the order or decision. Merely to state that these things were done in bad faith is not enough.
26. The closest the pursuer's pleadings come to averring a fact to support the charge of bad faith are those relating to holding the council meeting of 24 April 1998 without the pursuer having an opportunity to be heard after the pursuer intimated he would be on holiday: see the averments in articles 10, 11, 13 and 14 and answer 1 of the record in the Paisley Sheriff Court action. It is not bad faith, however, simply to fail to follow a correct procedure (if that were the case), and an irregularity in procedure is not of itself evidence of bad faith. The basis on which the decision of 24 April 1998 was purportedly reached was that there was a breach of the accounts rules. At the very least the pursuer would have to offer to prove that there had been no such breach and that this was so. The pursuer makes no such averments. The averments, such as in article 7, that he denies failing or refusing to comply with the accounts rules do not amount to such in my opinion. Even answer 1 of the record in the Paisley Sheriff Court action, particularly at page 8, do not amount to such averments. In my opinion the averments of bad faith are lacking in specification.
27. I have to say, also, that I do not regard adopting the whole record of another action as part of a party's pleadings as an appropriate means of adding averments to those pleadings.
Relevancy of article 6 of condescendence
28. In article 6 the pursuer avers that the defenders had arranged for The Herald newspaper to be present in court to hear a statement made in court by the defenders on 6 May 1998, that the pursuer had been suspended from practice on 24 April 1998, and which was published in that newspaper the next day. The defenders had lied by representing that the pursuer had been lawfully suspended and the statement was defamatory.
29. Mr Skinner argued that what was said in court was absolutely privileged: Rome -v- Watson, (1898) 25 R 733. The pursuer said that absolute privilege applied only if what was said was true and the suspension on 24 April was a pretence and not true.
30. While absolute privilege applies to the advocate, in my opinion only qualified privilege applies to the litigant in relation to statements made in court or in his pleadings on his behalf: Williamson -v- Umphray and Robertson, (1890) 17R 907. It is the litigants, the defenders, who are sued here, not the advocate. The privilege is qualified because it flies off if there is malice. There are no averments of malice in this article of condescendence. Article 6 is, therefore, irrelevant. There is a further point. That the pursuer was suspended is an accurate statement and the decision to suspend him is, on the face of it, lawful until set aside. It is not, therefore, untrue to say that the pursuer was suspended from practice.
Relevancy of article 17 of condescendence
31. In article 17 the pursuer avers that he was struck off the roll of solicitors on 15 February 2001 and that this would not have arisen had the defenders not removed the pursuer's practising certificate on 24 April 1998.
32. It is not at all clear from the averments how the pursuer being struck off by a decision of the disciplinary tribunal is a direct consequence of the decision of 24 April 1998. The pursuer does aver that he refused to co-operate with the defenders following the decision of 24 April and that he was the only solicitor whose name was struck off for allegedly being insolent towards the tribunal. If the averment is that the pursuer was struck off because he was insolent to the tribunal that does not indicate that the decision of the tribunal was one that followed from the decision of 24 April. These averments are irrelevant.
Relevance of article 21 of condescendence
33. In article 21 the pursuer exhorts and admonishes the judiciary to do justice, to summon up the courage to confront the defenders and grant decree.
34. The pursuer submitted that he had had a hard time. Since 21 April 1998 he had hit a blank wall with his business in court. At first he had taken article 21 out of the writ but had put it back in as he considered that it was justified.
35. It seems to me that these averments are irrelevant to the craves and his claim against the defenders. They may be comments that the pursuer wishes to make, but they add nothing to the relevancy of the action.
Relevancy of averments of damages
36. Mr Skinner attacked the lack of specification of a claim for damages for £10 million in article 19 of condescendence. The pursuer avers that the sum sued for was "a global figure which represents a notional sum for patrimonial loss and a substantial sum for solatium". His reputation was affected. He seeks "aggravated damages". There are no averments specifying the patrimonial loss. There are no averments supporting the basis for solatium. The pursuer was seeking penal damages unknown to the law of Scotland.
37. The pursuer said that he had had difficulty with the question of damages. He did not know how one quantified damages for the disgrace of such pretence as had occurred in this case. He wanted the court to show its displeasure at the highest degree.
38. One imagines that the pursuer's claim for damages is founded in a wrong done to the pursuer's reputation by the defenders, although this is not expressed explicitly with clarity. Aggravated damages are recoverable in appropriate circumstances for defamation. One would, however, expect to see in the pleadings some averments of the reputation the pursuer had which was lost, the value and profit of his practice which was lost and the extent to which the loss of his reputation had become known publicly. Such averments are absent. The pleadings are lacking in specification.
Conclusion
39. In the result, parts (a) and (b) of crave 1 are dismissed as incompetent, crave 1(c) is dismissed as irrelevant, and the action is dismissed also on the ground of lack of specification. (The defenders' plea to the relevancy and specification was re-numbered as the second plea-in-law by the interlocutor of 16 January 2004.)
40. Although I had hoped to deal with the question of expenses at debate, both parties insisted that the question be reserved to be dealt with after this decision.