Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Nelson v. Macbeath [2007] ScotSC 4 (18 January 2007)
URL: http://www.bailii.org/scot/cases/ScotSC/2007/4.html
Cite as: [2007] ScotSC 4

[New search] [Help]

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT WICK

A129/04

JUDGEMENT

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC

in the cause

BARRY NELSON

Pursuer

against

DAVID MacBEATH

Defender and Appellant

Act: Absent

Alt: Mr Stephen Lennon, solicitor, Ewan Harris & Co, Dornoch

Dr Kirsty Hood, advocate, for Highland Law Practice, Wick

Wick: 18^th January 2007

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 6September 2006; finds the defender and appellant liable to the Highland Law Practice in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; certifies the appeal as suitable for the employment by the Highland Law Practice of junior counsel; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] This is an appeal by the defender against the interlocutor of Sheriff Sutherland dated 6 September 2006 in terms of which he refused the defender's motion to have the pursuer's former solicitors, Highland Law Practice ("HLP"), found liable to him for the expenses of the action from 3 September 2004 to 4 March 2005.

[2 ] The sheriff explained his decision in a note which he appended to his interlocutor of 6 September 2006. In paragraph [1] of this note he recorded that the defender's motion called before him on 6 January, 15 March and 18 May 2006, and that the motion was based on the defender's written motion, no. 7/6 of process, and an oral motion made at the bar on 24 November 2005. In paragraphs [2] to [17] he proceeded to summarise the opening submissions made by the defender's solicitor in support of the motion and in paragraphs [18] to [30] he summarised the submissions in response of the solicitor for HLP. At paragraphs [31] to [37] he summarised the final submissions of the defender's solicitor, and at paragraphs [38] to [49] he explained his reasons for refusing the defender's motion. His note speaks for itself, and it is unnecessary that I should set it out in full here.

[3 ] It is apparent from the interlocutor sheets that the case called in court on numerous occasions between 3 September 2004 and 18 May 2006 and that with one exception (on 15 July 2005) Sheriff Sutherland presided at all these hearings. So he had the advantage, denied to an appeal court, of having had a ready familiarity with the circumstances of the case from the outset. He was thus especially well placed to consider the merits of the defender's motion which is the subject of this appeal, and indeed this appeal affords a good illustration of the reason why appeals solely on questions of expenses are severely discouraged - see Macphail's Sheriff Court Practice (3rd Edn) at paragraph 18.117. At the conclusion of the appeal hearing I was tempted to dismiss the appeal there and then with a brief statement of my reasons and the comment that I thought that it was without merit. But in deference to the care with which the defender's solicitor had evidently prepared his lengthy submissions I decided that I had better prepare a written judgement.

[4 ] Given his familiarity with the circumstances of the case, it is perhaps understandable that the sheriff did not feel it necessary to rehearse these in his note before summarising the submissions that were made to him. If I may respectfully say so, I think that it would have been helpful to have found in his note at least a brief opening narrative of the circumstances of the case, and also an explanation of the reasons behind his decisions on the matter of interim interdict which was the subject of the first three hearings on 3, 10 and 24 September 2004, and to which I shall refer in more detail shortly.

[5 ] The initial writ was lodged in court along with the pursuer's first inventory of productions on 2 September 2004. In terms of crave 1 the pursuer sought an order under section 8 of the Protection from Harassment Act 1997 prohibiting the defender from harassing him by approaching him, assaulting him, threatening him, entering his home, damaging his property, interfering with his livestock, or otherwise putting him into a state of alarm or distress. In terms of crave 2 he sought interdict and interdict ad interim to prevent the defender from molesting him by approaching him, abusing him verbally, assaulting him, threatening him, entering his home, damaging his property, interfering with his livestock, or otherwise putting him into a state of alarm or distress.

[6 ] In article 2 of the condescendence the pursuer averred that he was the brother of the tenant of the croft at Knockally, Dunbeath, Caithness and that the defender was the son of the landlord of this croft, Mr John MacBeath. The pursuer averred that he had resided in the croft house for a period in excess of three years and that his sister, Mrs Ivy Pemberton, had agreed with the landlord that she would become the tenant of the croft and would pay £220 per month in order to purchase the croft at a total price of £25,000 from the landlord. It was averred that the landlord and Mrs Pemberton had signed the appropriate papers to put this arrangement into effect in or around 2002 and that Mrs Pemberton had then given the pursuer permission to stay on the croft in the croft house as she only wished to work the land. It was then said that the pursuer had moved into the croft house and had resided there ever since.

[7 ] In article 3 it was averred that the pursuer remained in the croft house without remark or incident until in or around March 2004 when the defender called to see him while he was visiting his sister and asked him when he would be moving out of the croft house at Knockally. It was said that the pursuer told the defender that he would not be moving and that he and his sister had then confirmed that the agreement had been made with the defender's father. It was said that the defender then indicated that he had a power of attorney in respect of his father and that the price of the croft had increased to £60,000. It was averred that the pursuer indicated that they would need to see a valuation and evidence of the power of attorney and that these had not been produced by the defender. Finally it was averred that the defender then told the pursuer that if he did not get out of the croft, he would physically get him out.

[8 ] In articles 4 to 8 of the condescendence the pursuer averred that since in or around the end of July 2004 the defender had mounted a campaign of harassment against him, and details were given of a variety of incidents in which, for example, the defender was said to have broken into the croft house and changed the locks on three separate occasions, packed the pursuer's belongings into cardboard boxes and damaged some of his pictures. On another occasion it was said that the pursuer had received a visit from police officers after the defender had reported to the police that there were two doors in the house which had been stolen and which had in fact been given to the pursuer by a local construction company. In addition the defender had gone into the field surrounding the croft house and had released the pursuer's livestock, and later it was said that the pursuer had received a bill from the electricity company confirming that he had moved from the croft house and that upon inquiry it had become apparent that it had been the defender who had told the electricity company of the pursuer's move.

[9 ] In article 9 the pursuer averred that the defender would continue to harass him and to enter into his home and that he was concerned that every time he had to leave his home he invariably came back to find that the defender had broken in and changed the locks. He averred that the defender had pursued a course of conduct in the form of harassment against him and that he had a reasonable belief that the defender would continue in that course of conduct and that he was therefore entitled to the protection of an interim interdict and thereafter a non-harassment order.

[10 ] Finally the pursuer tabled two pleas-in-law in which, in short, he maintained that he was entitled to the protection of an interim interdict and a non-harassment order, the defender "having engaged in a course of conduct amounting to harassment of the pursuer, as condescended upon and having shown an intention to persist therein".

[11 ] The pursuer's inventory of productions included four items. The first of these was a series of electricity bills addressed to the pursuer at an address other than the croft house at Knockally. The bills relate to the supply of electricity at the croft house and one of them recorded that it was a final bill to 17 July 2004. The second item was a copy of a typed letter dated 3 October 2001 which bears to be signed by John MacBeath and is addressed to Mrs Ivy Preston. (It appears from a letter in the pursuer's second inventory of productions that Mrs Preston and Mrs Pemberton are one and the same person, Preston having been her married name and Pemberton her maiden name). The letter reads as follows:

Dear Ivy

This agreement is made today between myself John MacBeath [landlord] and Ivy A. Preston [tenant] and Ivy A. Preston has life tenency to my land and buildings known as MacBeath Croft Knockally Dunbeath. Caithness. Should my present tenent Mr Barry Nelson decide to vacate the cottage known as MacBeath Cottage at Knockally Dunbeath KW6 6EU the tenancy goes to Mrs I. A. Preston likewise the land and buildings if vacated by Mrs Preston goes to Mr Barry Nelson

Yours sincerely

(Sgd) John MacBeath

[12 ] The third item in the pursuer's first inventory of productions was a copy of a hand-written letter dated 11 January 2002 which is addressed to Mrs Preston and appears to have been written and signed by Mr John MacBeath. It reads:

Dear Mrs Preston

This is to confirm that you & Barry are partners of the said croft at Knockally Dunbeath and I have written to the Crofters Commission regarding grants etc. for you, the sheep will be sorted out as soon as I can manage.

Yours truly

(Sgd) John MacBeath

[13 ] The fourth item was a copy of a printed Form AT5 which is intended to be a notice under section 32 of the Housing (Scotland) Act 1988 to be served on a prospective tenant of a short assured tenancy. The form bears to have been signed by John MacBeath and is dated 23 June 2003. The word "long" has been substituted for the word "short" wherever it appears on the form. In Part 1 of the form the prospective tenant is said to be the pursuer, and Part 2 of the form reads as follows:

I your prospective landlord John MacBeath of No 1 Crakaig, Loth, Helmsdale give notice that the tenancy being offered to you of the house and land and outbuilding MacBeath Croft, Knockally, Dunbeath Caithness KW6 6EU to which this notice relates is to be a long assured tenancy in terms of section 32 of the Housing (Scotland) Act 1988.

[14 ] Whatever may be the legal effect (if any) of this document, the initial impression which it gives is that as at 23 June 2003 Mr John MacBeath was seeking in some way to grant to the pursuer a tenancy of the croft house and land at Knockally of which he (Mr MacBeath) was the landlord.

[15 ] It appears that a caveat had previously been lodged on behalf of the defender, and a hearing therefore took place before the sheriff on 3 September 2004 at which both parties were represented by their respective solicitors, the pursuer's solicitor Miss MacLennan being a partner of HLP. The outcome of the hearing was that the sheriff interdicted the defender ad interim from entering the pursuer's home, damaging his property or interfering with his livestock. He assigned 10 September 2004 as a further hearing and on that date, having heard the parties' solicitors, he continued the interim interdict which he had previously granted until 24 September 2004.

[16 ] On 24 September 2004, having heard the parties' solicitors, the sheriff recalled the interim interdict. As already indicated, it is not apparent from his note why he took this step. It appears that he may have done so having previously indicated that he wished to see some evidence to support the averment in article 2 of the condescendence to the effect that Mrs Pemberton was the tenant of the croft at Knockally. It seems that the question whether or not she was in fact the tenant of the croft at that time loomed large in the mind of both the sheriff and the defender's solicitor, and that when no evidence of this was produced by the pursuer's solicitor the sheriff decided to recall the interim interdict. It is not clear whether the sheriff considered the possibility that, even if Mrs Pemberton was not the tenant of the croft, the pursuer having resided there for more than three years in pursuance of some sort of informal agreement between his sister, himself and Mr John MacBeath would in any event be entitled to the protection of an interdict against a third party, namely the defender, to prevent him entering what was then, at least de facto, his home, damaging his property and interfering with his livestock.

[17 ] On 11 October 2004 the sheriff clerk signed an interlocutor fixing 26 October 2004 as the last date for lodging defences and 7 January 2005 as the date for the options hearing.

[18 ] On 26 October 2004 defences and a first inventory of productions were lodged on behalf of the defender. In the defences attention was drawn to section 26(3) (sic - I think that section 23(3) must have been intended) of the Crofters (Scotland) Act 1993 to the effect that the landlord of a croft shall not, except with the consent in writing of the Crofters Commission, or, if the Commission withhold their consent, except with the consent of the Secretary of State, let the croft or any part thereof to any person, and any letting of the croft otherwise than with such consent shall be null and void. It was averred that no such written consent had been produced and that therefore any letting of the croft to either Mrs Pemberton or the pursuer was null and void. It was averred too that Mrs Pemberton's agents had written to her on 26 November 2003 clearly indicating that the arrangement which had been made with Mr John MacBeath did not have the protection of the Crofters Acts and that she had no valid tenancy of the croft and therefore could not give the pursuer permission to reside in the property. It was further averred that the Form AT5 which had been produced by the pursuer was not apt to create a tenancy of a croft and reference was made to an affidavit by Mr John MacBeath in the defender's inventory of productions in which he (Mr John MacBeath) denied that he had signed the documents previously produced by the pursuer.

[19 ] On the third page of the defences there was a further reference to Mr John MacBeath's affidavit in the following terms:

Reference is again made to item 4 of the Defender's Inventory which is an Affidavit from the Defender's father John McBeath.. At paragraph 2 of the said Affidavit John McBeath indicated that he did enter into an informal verbal agreement with Mrs Ivy Pemberton and the Pursuer to allow them the use of the croft on a 'grace and favour' basis for a payment of £220 per month but only while they raised the £25,000 necessary to purchase the croft. However, neither Mrs Pemberton nor the Pursuer has made any formal offer to purchase the croft. In or around October 2003 the said monthly payments stopped and John McBeath has not received any payments since. The Pursuer is called upon to explain why these payments stopped and his failure to do so will be founded upon. The said Affidavit at paragraph 3 clearly states that John McBeath has not signed any of the documents produced by the Pursuer's agent and he has never at any time entered into any written agreement with Mrs Ivy Pemberton or the Pursuer in respect of the said croft. The 'grace and favour basis' agreement is terminable at will by Mr McBeath. Mrs Pemberton and the Pursuer have been requested by John McBeath's agent to remove themselves from the croft but they have failed to do so.

[20 ] In the final paragraph of answer 2 the defender averred that the pursuer's agents at the second interim interdict hearing had clearly stated that the pursuer had been advised in writing by the solicitor in Inverness then acting for Mrs Pemberton to continue the rental payments but to place them in a separate account and that this had been done. The pursuer was called upon to produce this letter and statements showing that regular monthly payments had been made to a separate account since October 2003.

[21 ] The remaining answers in the defences were, in short, to the effect that the pursuer and Mrs Pemberton had for some time been asked to leave the croft and had failed to do so, that the defender acting on behalf of his father had been within his rights to change the locks and attempt to secure the property and that he had not been harassing the pursuer or releasing his livestock.

[22 ] The defender's inventory of productions included a copy of the letter dated 26 November 2003 to Mrs Pemberton from her solicitor in Inverness and the original of the affidavit by Mr John MacBeath. Of course it was not for the pursuer's solicitor to decide whether or not Mr MacBeath was telling the truth when he denied that he had signed any of the documents in the pursuer's inventory of productions. At the same time it may be said that the signature of Mr MacBeath on the affidavit does look remarkably similar to the signatures on the productions lodged by the pursuer. The inventory also contained copies of two letters dated 20 August 2004 from Mr John MacBeath's agents to the pursuer and Mrs Pemberton respectively. In short they advised both recipients that it was understood that they had vacated the croft at Knockally, that they should remove their remaining belongings and stock, that Mr MacBeath had instructed his son (the defender) to secure the property, that they had no valid crofting tenancy and no right of occupation and that if they persisted in their attempts to gain illegal possession of the property the agents would have no alternative but to raise interdict proceedings against them in the sheriff court.

[23 ] In the defences as originally lodged there were no preliminary pleas, but at some stage during the adjustment process the defender tabled preliminary pleas to the effect that the action was incompetent and that the pursuer's averments were irrelevant and lacking in specification. These were followed up by a rule 22 note which was lodged on behalf of the defender on 30 December 2004. It does not appear to me that this raised any new point of substance beyond what had already been focussed in the pleadings and the productions which had been lodged by both parties. But it did include a final paragraph in the following terms:

The pursuer's agents as officers of court have a duty not to allow the legal process to be abused or to waste court time with an action that has no legal foundation or merit. However, they have failed to discharge their duty in this respect and therefore should be found jointly and severally liable for the expenses of this action.

[24 ] The options hearing duly took place on 7 January 2005 and was continued on the motion of the pursuer, and without objection from the defender, to 4 February 2005.

[25 ] At some stage in the ensuing four weeks adjustments were made to the pursuer's pleadings. In particular a new final paragraph was added to article 2 of the condescendence in the following terms:

The pursuer is entitled to stay on the croft by virtue of the agreement made with Mr MacBeath Snr. It is clear from the documents produced and the terms of the letter from Messrs MacPherson & Co dated 9 April 2002, that the defender's father (the landlord) entered into some form of contractual arrangement with the (pursuer). The defender's father would be fully entitled to raise an action of removing against the pursuer. The pursuer was forced to raise this action in view of the prejudice caused to him by the illegal and criminal action of the defender. The pursuer is fully entitled to the protection of the court whilst the contractual matters are decided by the court. That is all the pursuer seeks in this action. Submitted that acting in a criminal manner with regard to damaging property and interfering with livestock, can never be "a reasonable course of action" and accordingly the statutory defence will not be open to the defender. The pursuer is therefore entitled to the protection of the court and to the orders first and second craved by the pursuer.

[26 ] The reference here to the statutory defence was a reference to section 8(4)(c) of the Protection from Harassment Act 1997 which provides that it should be a defence to any action of harassment to show that the course of conduct complained of is in the particular circumstances reasonable. The letter from Messrs MacPherson & Co was included in a second inventory of productions for the pursuer which was lodged on 4 February 2005. Messrs MacPherson & Co were a firm of solicitors and they wrote on behalf of the pursuer to Mr John MacBeath saying, inter alia, that they understood from the pursuer that Mr MacBeath had agreed to grant him a life tenancy of the croft at a rent of £55 per week, that he would like an option to purchase the property at a fixed price of £25,000 under deduction of all rent paid up to the time of any such purchase and that he wished to enter into a formal tenancy agreement on this basis. Also included in this inventory of productions were a copy letter and an original letter, both apparently in the hand-writing of, and signed by, Mr John MacBeath. The first of these appears to be a response to the letter from Messrs MacPherson & Co, and in it Mr MacBeath stated that he had been speaking to the pursuer on the telephone and he had suggested that he or his sister would pay Mr MacBeath £15,000 and the remaining £10,000 "in a year or two, to which I am quite agreeable to do, as I am keen to get the croft sold". The second of these letters is undated and is addressed to the pursuer's sister. In it Mr MacBeath wrote:

I am seeing my solicitor tomorrow and I am fixing the let of the croft at whatever you may be able to afford. I have also to get in touch with the Crofters Commission to get things sorted out. You may also have the croft on rental purchase until you can get things sorted out.

[27 ] At the continued options hearing on 4 February 2005 the sheriff closed the record and continued the cause to the procedural roll of 4 March 2005 for the lodging of a joint minute.

[28 ] On 4 March 2005 Miss MacLennan, having represented the pursuer since the raising of the action, advised the sheriff that she was withdrawing from acting for him. Thereafter there was a series of procedural hearings, the details of which are not of importance in the present context. In short, the pursuer arranged to be represented by a firm of solicitors in Edinburgh. But this firm too withdrew from acting on behalf of the pursuer on 11 November 2005 and the sheriff proceeded to grant decree of absolvitor in favour of the defender. This left as the only remaining live issue in the action part 2 of the defender's motion, no. 7/6 of process, in terms of which the defender moved the court: "2. Admit (HLP) as party minuter to this action as he will be seeking to make them jointly and severally liable with the pursuer in the expenses of this action; 3 September 2004 - 4 March 2005, at any future hearing of expenses". The sheriff continued consideration of this until 24 November 2005 when, as already indicated, a motion was made by the defender's solicitor at the bar that HLP should be made personally liable for the expenses of the action from 3 September 2004 to 4 March 2005. Again as indicated, this was the subject of further hearings before the sheriff on 6 January, 16 March and 18 May 2006.

[29 ] The narrative which I have given so far is based upon an examination of the contents of the process. It was supplemented at the hearing of the appeal by counsel for HLP who explained that an application for legal aid had been made on behalf of the pursuer. The initial application had not been intimated to the defender's solicitor. It had been granted nonetheless and intimation of this had then been made to the defender's solicitor. He had proceeded to lodge objections to this but the Scottish Legal Aid Board had nonetheless confirmed that the legal aid certificate should remain in force.

[30 ] Counsel also explained how it was that HLP had come to withdraw from acting for the pursuer. She stated that the defender had intimated adjustments to his answers on 22 December 2004 and then his rule 22 note on 24 December 2004. This was against the background of the options hearing having been assigned for 7 January 2005, and in view of the intervening holiday period it was not surprising that at the options hearing itself the pursuer's solicitor should have moved for it to be continued. The pursuer's adjustments were subsequently intimated to the defender's solicitor on 3 February 2005 and the continued options hearing took place the following day. By that stage it had been accepted on behalf of the pursuer that there was no valid tenancy of the croft under the Crofters (Scotland) Act 1993. Instead the pursuer's position was as set out in the final paragraph of article 2 of the condescendence which I have narrated in paragraph [24] above. This, said counsel, was a perfectly intelligible position in light of the documents which had been exhibited to HLP and lodged in the pursuer's first and second inventories of productions. By that stage HLP had been experiencing difficulty in obtaining instructions from the pursuer, and at the continued options hearing on 4 February 2004 he told them that he was intending to leave Caithness to go to England and had no intention of returning. On this basis, and since HLP were not confident that he was being entirely candid with them, they advised him that pragmatically there was little point in proceeding with the action. The pursuer accepted this advice and accordingly the defender's solicitor was informed that he wished settlement of the action. In light of this the sheriff continued the case to 4 March 2005 for the lodging of a joint minute. But some time before 4 March 2005 the pursuer then told HLP that he would not be leaving Caithness after all and that he wished to continue with the action. Given that they had already been discussing with the defender's solicitor settlement of the action and payment of the expenses thereof to date, HLP felt themselves to be in an impossible position, and once again were concerned about how candid the pursuer was being with them given his apparent change of tack. It was in these circumstances that they had decided to withdraw from acting for him. The Scottish Legal Aid Board had been informed of this and the legal aid certificate had subsequently been transferred to the firm of solicitors in Edinburgh who had taken over acting for the pursuer

[31 ] Against the background of what I have said so far it seems to me that it ought to have come as no great surprise that the sheriff should have decided to refuse the motion to find HLP personally liable in the expenses of the action for the period between 3 September 2004 and 4 March 2005. In paragraph [41] of his note he rightly observed that the power to award expenses against a solicitor personally should be exercised with care and discretion and only in clear cases, and then in paragraph [42] he wrote:

[42 ] In the present case it was accepted that defences were not lodged until 25 October and that by early January the pursuer's solicitor is trying to effect a settlement. She only received the file from the previous solicitors at the beginning of October and although she went over its contents with her client, it was difficult to get further instructions from him regarding the defences. While she may have been wrong in law regarding a right under the Crofting Acts, that did not mean that her whole writ was unsupportable and it is difficult to see how her conduct could in any way be construed as an abuse of process.

[32 ] It appears that at some stage after 4 March 2005 the pursuer was sequestrated. In his note the sheriff went on to consider the significance of the pursuer's subsequent bankruptcy and the question whether or not HLP could be found jointly and severally liable along with the pursuer for the expenses of the action. He rejected the defender's submission that this could be done and concluded in paragraph [49] of his note as follows:

[49 ] However, the principal reason for my refusal of the motion against the pursuer's solicitor is failure of the defender to show that the actings of HLP were such as could be construed as abuse of process. Just because they may have been wrong in law regarding the question of crofting tenancy, that does not mean that the rest of the writ was unsupportable and I do not see anything before me which would warrant the court being so critical of their actings as to consider any finding of expenses against them.

[33 ] In his note of appeal the defender stated five separate grounds of appeal, and in opening the appeal his solicitor addressed me at some length in support of each of these.

[34 ] The first ground of appeal reads as follows:

(a) The Sheriff erred in law in finding that the test to be applied for an abuse of process was the standard of Dereliction of duty or serious misconduct as set out in Orchard v South Eastern Electricity Board 1987 QB565. The said authority is from an extraneous jurisdiction and is at best only persuasive. The Defender's agent maintained that the correct test to be applied was whether there had been 'an application of mind', by HLP, as set out in the Scottish Case of Stewart v Stewart 1984 Sheriff Court 58 and that the acting's of the (Pursuer's) Solicitors were in breach of their duty to the court not to raise an insupportable action as set out in Blyth V Watson 1987 SLT Reports 616.

[35 ] The defender's solicitor submitted that the sheriff had erred in law in applying the criteria set out in Orchard v South Eastern Electricity Board [1987] 1 QB 565 and that the correct test to be applied in a situation such as this was whether or not the agents had applied their minds to the action. Reference was made to the decision of Sheriff Ireland QC (as he then was) in Stewart v Stewart 1984 SLT (Sh Ct) 58 and it was submitted that, according to Sheriff Ireland, the only criterion required to constitute an abuse of process was a failure on the part of an agent to apply his mind, and that in the present case HLP had failed to apply their minds by initiating and continuing an action which was flawed in fact and in law. It was not suggested that an agent should be found liable simply because his client lost the action, but it was submitted that before initiating and continuing an action an agent should apply his mind to the potential or continuing action and should determine whether or not the action was correctly based in law and in fact. If the agent then decided that the action was not so based, then he should not continue it or else should amend as necessary. In the present case, once HLP had applied their minds to the action and had realised that it was flawed in most parts, they should have withdrawn it or amended to remove the flaws. The fact that the pursuer had been granted legal aid did not absolve HLP from the responsibility to apply their minds, and they had a duty not to pursue an action which was insupportable. Reference was made here to the decision of Lord Morison in Blyth v Watson 1987 SLT 616.

[36 ] In my opinion the short answer to the first part of this ground of appeal, as counsel for HLP pointed out, is that the sheriff did not rely on the decision in Orchard v South Eastern Electricity Board as authority for the proposition that the test to be applied for an abuse of process was the standard of dereliction of duty or serious misconduct as set out in that case. The sheriff referred to it in paragraph [41] of his note where he wrote, inter alia:

The power to award expenses against a solicitor personally should be exercised with care and discretion and only in clear cases (see Orchard v South Eastern Electricity Board .... where it was held that such an award should only be made where it was clear that the solicitor was guilty of a serious dereliction of duty or serious misconduct).

It is clear from this passage that the sheriff was relying upon the decision in Orchard simply as authority for the proposition that the power to award expenses against a solicitor personally should be exercised with care and discretion and only in clear cases, and I do not think that anyone could take issue with this. In the passage in brackets the sheriff was narrating what he understood to have been decided in Orchard, but I do not read what he said there as meaning that an award of expenses should only be made against a solicitor where it was clear that he or she had been guilty of a serious dereliction of duty or serious misconduct. On the contrary, it is clear from what the sheriff said in paragraphs [42] and [49] of his note that the test applied by him was whether or not there had been an abuse of process on the part of HLP. This in my opinion is the correct test to be applied in a case of this kind - see the judgement of Sheriff Ireland in Stewart beginning at the foot of page 60 and going over onto page 61, and also the opinion of Lord Maclean in Reid v Edinburgh Acoustics Limited (No. 2) 1995 SLT 982 at page 984I. It is true that at one point in his judgement (at page 61) Sheriff Ireland stated that the solicitor in the case before him "ought to have applied his mind to the question whether" the defence which had been put forward "could be at least plausibly argued, even if he could not be certain that it would succeed". But Sheriff Ireland made this comment in the context of his consideration of the question whether or not there had been an abuse of process on the part of the solicitor concerned (or, as he put it at the foot of page 60, whether the solicitor had improperly used the procedure of the court to delay the achievement of a result to which a litigant was entitled). It is in my opinion quite wrong to take from this particular passage in the judgement of Sheriff Ireland the proposition, as the defender's solicitor sought to do, that the only test to be applied in a case of this kind was whether or not there had been an application of mind on the part of the solicitor. An abuse of process by a solicitor may take a variety of forms, as the cases illustrate, and I do not think that it is helpful in the abstract to attempt to formulate more precisely the circumstances in which there may, or may not, be found to have been an abuse of process by a solicitor. For the present I will merely say that in my opinion the conduct of HLP in this case did not come anywhere near constituting an abuse of process such as would have entitled the sheriff to find them personally liable in expenses.

[37 ] The second ground of appeal reads as follows:

(b) The Sheriff erred in law in finding that the Pursuer had license to occupy the property and the property could have been sublet with the Consent of the Crofters Commission; reference is made to point Twenty six at the foot of page Seven of the said Judgement. The Sheriff appears to have made a finding in fact before the Proof and where no evidence has been produced to support such a finding. No Productions were lodged that would show the Pursuer had a valid licence to occupy the property (Knockally Croft, Dunbeath, Sutherland). There was no valid tenancy agreement in place, or written consent to sublet from the Secretary of State or the Crofters Commission, in respect of the property and therefore it could not be sublet as required by Section 23(3) of Crofters Act 1993 which further states that any letting of the croft otherwise than with such consent shall be null and void.

[38 ] In support of this ground of appeal the defender's solicitor referred to paragraph [26] of the sheriff's note where he wrote, inter alia: "There was a license to occupy the property and the property could have been sub-let with the consent of the Crofters Commission". It was submitted that the fact that the pursuer did not have a right to occupy the property had constituted a fundamental flaw in his case. This had been pointed out at all three interim hearings before the sheriff. No productions had been lodged to show that he had even a licence to occupy the property, and in light of section 23(3) of the Crofters (Scotland) Act 1993 the pursuer could not become the tenant of it since the necessary consent had not been given by either the Crofters Commission or the Secretary of State. Any informal agreement that there had been between the defender's father and Mrs Pemberton and/or the pursuer had come to an end in October 2003, and by August 2004 it was clear that they had no right to occupy the croft. It had been pointed out at the outset of the action that the Form AT5 which had been produced was not apt to create a tenancy over a croft, and no evidence had been produced to demonstrate that payments of rent had been made into a separate account as advised by Mrs Pemberton's solicitor in Inverness. There were, said the defender's solicitor, no averments or pleas-in-law to support the averment which had been added for the pursuer by adjustment to the effect that he was fully entitled to the protection of the court whilst the contractual matters were decided by the court.

[39 ] In my opinion, and again as rightly pointed out by counsel for HLP, the answer to this ground of appeal is that the sheriff did not make a finding that the pursuer was a tenant of the property or otherwise had a licence to occupy it. It is perfectly clear from his note that at paragraph [26] the sheriff was in the course of recording the submissions which had been made to him by Miss MacLennan of HLP and that it was she, and not the sheriff, who had advanced the proposition that there had been a licence to occupy the property and that it could have been sub-let with the consent of the Crofters Commission.

[40 ] At this point I should perhaps observe that it does seem to me to be unfortunate that the defender's solicitor should have concentrated so much on the question whether or not the pursuer was, or could become, a tenant of the croft. For it seems to me that this question is really beside the point. As counsel for HLP explained, there clearly must have been some sort of an agreement between the pursuer and his sister Mrs Pemberton on the one hand and the defender's father on the other as a result of which the pursuer had had the use of the croft for some years. He raised the action, not in order to secure a declarator of his right to the occupation or use of the croft, but rather in order to obtain an interdict to protect himself against the activities of a third party, namely the defender, which were being pursued at his own hand and without the authority of the court. There was, as counsel pointed out, a very real difference between, on the one hand, the pursuer's rights as against the owner of the croft under the Crofting Acts and, on the other hand, his right to obtain protection against the actions of a third party such as the defender. It was true that in his affidavit the defender's father had denied signing the various documents upon which the pursuer had founded and which had been produced in his inventories of productions. But, again, as counsel pointed out, it was not for HLP to reach a decision on where the truth lay in this respect. At the end of the day, and had the action proceeded, this would have been a matter for the court to determine.

[41 ] The third ground of appeal reads as follows:

(c) The Sheriff erred in law in finding that the Defender was only seeking expenses against HLP because he felt he might not recover his costs against the Pursuer. It is and has always been the consistent position of the Defender that HLP have never properly applied their minds to this action and as a result the action has continued much longer and more fully that was necessary with the result that the Defender incurred a lot of unnecessary costs. The Defender in his defences, Plea in Law Six, set out that the action was unsound and had no basis in fact and law. The Defender in his Rule 22 Note, at point Six, set out that the Pursuer's agents had failed in their duty as officers of Court, had abused the legal process and should be found jointly and severally liable for the expenses of the action.

[42 ] The defender's solicitor referred here to what the sheriff had stated at paragraph [44] of his note where he wrote:

It appeared to me that the defender was only asking for expenses against the pursuer's solicitors because he felt that he might not recover his costs from the pursuer.

The defender's solicitor reiterated that it had always been the defender's position that HLP had not applied their minds to the merits of the action. He explained that at all three interim hearings he had drawn the attention of HLP to the terms of section 23(3) of the 1993 Act and the fact that the pursuer could not therefore be a tenant of the croft. It had been made clear in both the defences and the defender's rule 22 note that the pursuer had no tenancy of the croft so that HLP must have been aware from the outset that the action was flawed. It had been the defender's position from the beginning that HLP were abusing the process, and not only after the pursuer had been sequestrated, and the sheriff had erred in law in supposing otherwise.

[43 ] In my opinion there is no substance in this particular ground of appeal. It seems to me that it was entirely legitimate for the sheriff to comment, as he did, that it appeared to him that the defender was only asking for expenses against HLP because he felt that he might not recover these from the pursuer - see the decision of the House of Lords in Medcalf v Mardell [2002] 3 WLR 172. Thus on page 193 (at paragraph 58) Lord Hobhouse of Woodborough observed that the power to initiate wasted costs procedures "should not be motivated simply by resentment at an inability to obtain an effective order for costs against an assisted or impecunious litigant". At the same time it does not appear to me from what he said at paragraph [44] that the sheriff's impression of the defender's motivation in seeking expenses against HLP personally weighed much, if at all, in his decision to refuse the motion. On the contrary, it appears to me to be perfectly clear that the principal reason why he refused the motion was that he was not persuaded that the conduct of HLP could be construed as an abuse of process - see paragraphs [42] and [49] of his note.

[44] The fourth ground of appeal is based upon what the sheriff said at paragraphs [45], [46] and [47] of his note, and it will be convenient to set these out first. The sheriff wrote:

[45 ] That leads me to another flaw in the defender's argument - namely that the motion is for a joint and several liability.

[46 ] I do not consider that that proposition is sustainable. The argument against the pursuer's solicitor is that their conduct was such as to amount to abuse of process and I fail to see how the pursuer could in any event be answerable for his solicitor's actions.

[47 ] I do not consider that the motion for joint and several liability can stand and I would reject the (defender's) motion against the (pursuer's) agent on that basis.

The fourth ground of appeal begins with an assertion that the sheriff misdirected himself in law by ruling that a motion for joint and several liability could not stand and rejecting the defender's motion on that basis. There is then a lengthy narrative, the broad thrust of which, once again, is that in light of section 23(3) of the 1993 Act the pursuer was not, and could not become, a tenant of the croft. This particular ground of appeal ends with the following:

The Pursuer's agent should have made her client aware of this and should have not have proceeded with the action, on the basis that the Pursuer had a right to occupy the croft, unless her client could produce a valid tenancy and a letter form either the Crofters Commission or the Secretary of State consenting to a tenancy being granted. It would appear that the agent did not do so and later both the Pursuer and the agent chose to pursue the flawed action.

The Sheriff's judgement makes it clear that the Pursuer is liable to the Defender in the expenses of the action. However we would submit that the action was raised and pursued on the basis of the legal advice given to the Pursuer by his agent and therefore the agent should be equally liable, with their client during the period when they were the principal agent, for the expenses of the action especially as the flaws in the action were brought to the agents attention at all three interim hearings, in the Defences and in the Defenders Rule 22 Note. Therefore it is submitted that joint and several liability for the Pursuer and his agent, for the said period is sustainable.

[45 ] In support of this ground of appeal the defender's solicitor submitted that, if HLP had been guilty of an abuse of process and if the pursuer were to be found liable for the expenses of the action for the same period, then it was not such a great leap to find them jointly and severally liable for the expenses of the action during that period only. It was submitted that the pursuer was entitled to rely on the advice which had been given to him by HLP. It could not be known for certain what this advice was and who had been the driving force behind the initiation and continuation of the action. But, if HLP had been at fault, then making an award of expenses against them and the pursuer on the basis of a joint and several liability was sustainable. The defender's solicitor acknowledged that he had not been able to find any authority where a solicitor had been found jointly and severally liable along with his client for the expenses of an action. But, since the action had been flawed from the outset, and since HLP should have made the pursuer aware of this, they should be found jointly and severally liable for the expenses along with the pursuer for the period from 3 September 2004 to 4 March 2005.

[46 ] Counsel for HLP submitted, rightly in my opinion, that the sheriff had not misdirected himself in law in this respect. Counsel confirmed that she too had been unable to find any authority to support the proposition that a solicitor might be found jointly and severally liable along with his client for the expenses of an action. I think that it would be going too far to say that this could never happen, for example if it were to be demonstrated that the solicitor and his client had colluded with each other to pursue an action that both knew to be manifestly unfounded. But there can be no suggestion of this in the present case. Even if it be the case that HLP had been guilty of an abuse of process, there would have been no basis for asserting that the pursuer himself should have been in any way answerable for this. In any event the argument does not get off the ground since there has been no abuse of process on the part of HLP.

[47 ] The fifth and final ground of appeal is in the following terms:

(e) The Sheriff erred in law in finding that Blyth v Watson 1987 SLT Reports 616 and Stewart v Stewart 1984 SLT Court 58 were extreme examples of cases that had gone all the way to Proof to show that there was an abuse of process and as such could not be considered. The Sheriff appears to be of the view that the action has to go almost to a Proof hearing before an abuse of process can be considered. It is submitted that in this action the written pleadings such as defences, adjustments and Rule 22 Notes were are all but completed by the Continued Options Hearing and all that was left was the party's preparations for Proof, which required little or no court involvement. It is further submitted that the abuse of process had already occurred and therefore the said cases of Blyth v Watson and Stewart v Stewart are relevant and fall to be considered.

[48 ] The defender's solicitor submitted that it could not be right that a proof had to have taken place before a finding could be made that there had been an abuse of process on the part of a solicitor. If it were otherwise, there would be a huge drain on public resources and the resources of opposing parties. In the present case, so the defender's solicitor said, there had been an abuse of process on the part of HLP from the stage of the interim hearings onwards as they could not have failed to have been aware of the fact that the pursuer did not have a tenancy of the croft under the Crofting Acts. It was not until the continued options hearing that it had been made known to the court that the pursuer was willing to settle the action. Given the admissions that had been made in the adjustments that had been intimated on 3 February 2005, it had to be asked why HLP could not have put forward these adjustments before the original options hearing or else indicated at that stage that settlement was being considered. By the time of the options hearing HLP must have known about the flaws in the action and that it was insupportable, and yet they had continued with it.

[49 ] Once again, it does not appear to me that this ground of appeal accurately reflects what the sheriff actually said in his note. Thus in paragraphs [39] and [40], and in the opening section of paragraph [41] he wrote:

[39 ] (The defender's solicitor) indicated that the authorities lodged with the court, while supportive of his position, did not go as far as he was asking. With that proposition I concur. One difficulty of course in dealing with expenses is that each case must be dealt with on its own. All the cases referred to had either gone to proof or had been dealt with just before the proof diet or debate while in the present case the pursuer's agents had spoken to the defender's agents at the options hearing regarding settlement and had advised their client accordingly. When an agreement they thought they had brokered was gone back on by their client they properly resigned agency. Blyth v Watson ..... was a case where matters proceeded to a procedural roll hearing before the pursuers conceded that the claim had been settled before the action had been raised and that the settlement had been effected by the same solicitors who had signeted the summons. Such are the extreme circumstances of that case I do not consider it in any way aids (the defender's solicitor's) proposition.

[41 ] Neither of these cases in any way reflects what has happened in this present case ....

[50 ] In my opinion the sheriff was quite correct to distinguish the circumstances of the present case from the circumstances in Blyth v Watson and Stewart v Stewart. But, in distinguishing these two cases, he does not say, as is asserted in this ground of appeal, that an action has to go almost to a proof hearing before an abuse of process can be found to have occurred. In short, I detect no error of law on the part of the sheriff in the manner in which he approached and considered these two cases.

[51 ] On the whole matter I am not persuaded that the sheriff's decision to refuse the motion to find HLP personally liable in expenses can be faulted. In any event, if I had had to consider the motion myself, I think that I should have had very little hesitation in refusing it.

[52 ] It was not in dispute that the expenses of the appeal should follow success and I have therefore found the defender liable to HLP in these expenses.

[53 ] Counsel submitted that I should sanction her employment by HLP to conduct the appeal hearing on their behalf. She referred to Macphail's Sheriff Court Practice (3rd Edn) at paragraph 12.25 and pointed out that the motion that HLP should be found personally liable in expenses involved an imputation against their professional reputation as officers of the court in that it was being suggested that they had been guilty of an abuse of process. This was a serious matter, in particular given that it had been taken to appeal to myself. Moreover it was appropriate where the professional conduct of solicitors was at stake that they should arrange for someone else to appear on their behalf in proceedings in court.

[54 ] The defender's solicitor submitted that I should refuse to sanction the employment of counsel. He did not deny the importance of the matter but submitted that the value of what was at stake was greater to the defender than to HLP. He suggested too that Miss MacLennan of HLP was an experienced court practitioner who would have been more than capable of handling the appeal herself.

[55 ] Plainly, it was a very serious matter for HLP, having successfully resisted the defender's motion before the sheriff, to find themselves confronted by an appeal against this decision, especially when what was at stake was their own professional reputation as officers of the court. In such a situation, in which they were so personally involved, it was I think entirely appropriate that they should have instructed counsel to appear on their behalf. I have therefore granted their motion to sanction the employment of junior counsel.

[56 ] For the sake of completeness, I should record that in addition to the authorities which I have already mentioned I was also referred to G v G [1985] 1 WLR 647, Britton v Central Regional Council 1986 SLT 207, Aird v School Board of Tarbert 1907 SC 22, Kennedy v Kennedy 1992 SLT (Sh Ct) 39, Symphony Group plc v Hodgson [1994] QB179, Ridehalgh v Horsefield [1994] Ch 205 and Begg on Law Agents (2^nd Edn) at page 280.