Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK

Judgement

of

Sheriff Philip Mann

In causa

Richard Anderson as Executor Dative of the late Major W A Anderson, the Sea Chest, East Voe, Scalloway, Shetland ZE1 0US

Pursuer

against

Nicholson Bros, Brindister, Gulberwick, Shetland ZE2 0EX

First Named Defenders

and

Shetland Islands Council, The Town Hall, Lerwick, Shetland ZE1

Second Named Defenders

Act: Party

Alt: Hughes, Advocate, for First defenders

Gale, QC, for Second Defenders

Lerwick 14 April 2014

The sheriff, having resumed consideration of the cause, repels the pursuer's motions 7/2 and 7/5 of process, the first defender's motion 7/4 of process and the second defender's motion 7/3 of process; thereafter, the pursuer being in default in respect that he has not lodged a certified record and not having shown, or sought to show, cause why time for lodging the same should be prorogated, ex proprio motu by default dismisses the cause; Finds no expenses due to or by any party in respect of the hearing of the motions 7/2, 7/3 and 7/4 of process on 3 and 4 February 2014; reserves the question of expenses in respect of the hearing of the motion 7/5 of process on 18 March 2014 and the question of expenses of the cause generally, including the question whether the cause is suitable for sanction for the employment of counsel; Appoints parties to be heard on the reserved matters on 29 April 2014 at 10:00am within the Sheriff Court, King Erik Street, Lerwick.

Sheriff Philip Mann

Note

1. Introduction

1.1 This action started life as a small claim in January 2007. Broadly, it concerns damage to a property known as "The Sea Chest", East Voe, Scalloway, Shetland (hereinafter referred to as "the property"). Mr Anderson, as executor of his father, claims that damage has been, and is being, caused to the property by water draining from the public roadway through the property. He claims that this is exacerbated by the drainage arrangements installed for a number of new houses which have been constructed on a hill on the opposite side of the roadway from the property. He claims that part of the problem is that the water discharging from the property has caused erosion to land lying between the property and the sea, which in turn has led to a loss of support for the property.

1.2 This action follows upon an earlier small claim action involving the same parties and broadly the same problem and in which, following a proof, my predecessor in this court, Sheriff Napier, assoilzied the first defenders here and found the second defenders here liable in damages to the pursuer in the sum of £700.

1.3 As originally pled, this action seeks payment of a sum of £750 being the cost of emergency repairs to the property. This is claimed on the basis that the first defenders as the recipients of outline planning permission for the new houses failed to make adequate provision for any effects on the area of the change of use from agricultural to housing; that the second defenders as planning authority failed to procure from the developer of the housing a system of sustainable water drainage for surface water which they could then adopt and take over; and that the first and second defenders as owners of the land between the property and the sea are responsible for ensuring that their land does not erode to the detriment of the property. The action also originally involved Scottish Water as third defenders but they were assoilzied at an earlier hearing on the unopposed motion of the pursuer.

1.4 On 27 March 2007 the sheriff, on the motion of all three defenders, directed that the claim be treated as an ordinary cause in terms of section 37(2C) of the Sheriff Court (Scotland) Act 1971 and rule 15.2 of the Small Claims Rules 2002. By the same interlocutor the sheriff sisted the cause pending the determination of proceedings for judicial review which had been commenced by Mr Anderson's mother in the Court of Session on the day before the small claim summons had been lodged.

1.5 The proceedings for judicial review were duly disposed of and on 20 August 2013 I heard argument on the pursuer's motion to recall the sist and appoint further procedure. The motion was opposed by the first and second defenders on the basis that, by then, further proceedings involving the same dispute had been initiated by Mrs Anderson in the Court of Session. That action was laid against the second defenders but not against the first defenders. I recalled the sist and appointed further procedure in the action as an ordinary cause. No leave to appeal that decision was sought. The interlocutor of 20 August 2013 was supplemented by an interlocutor of 17 September 2013 which records, inter alia, that the first and second defenders were allowed to drop a motion made at the bar on 20 August 2013 to have the pursuer find caution for expenses.

1.6 The options hearing in this cause was assigned for 26 November 2013. In advance of that hearing the pursuer had lodged a record, number 14 of process, which included new craves in respect of which no minute of amendment had ever been lodged. The sheriff who was then presiding ordained the pursuer to lodge a new record omitting the new craves and then fixed a debate for 4 February 2014 on the preliminary pleas 1, 4 and 5 for the first defender and 1 and 4 (the interlocutor says 1 to 4 but I surmise that that is an error) for the second defender. Pleas 1 and 4 for both defenders related to relevancy and specification and title to sue, respectively. Plea 5 for the first defenders related to competency.

1.7 The pursuer duly lodged a new record which is number 19 of process. Neither this record nor the original record number 14 of process was certified by the pursuer as required by ordinary cause rule 9.11(2). This is important both because it put the pursuer in default and also because the first and second defenders claim, and it is accepted by the pursuer, that there are averments in the record number 19 of process which were never intimated to them during the adjustment period.

1.8 On 16 January 2014, the pursuer lodged a motion seeking leave to allow him to sue, additionally, as executor of his mother, who had by then died, and seeking to lodge a minute of amendment to amend the pleadings. This motion, which became 7/2 of process, was opposed by the first and second defenders.

1.9 On 27 January 2014 the second defenders lodged a motion inviting the court, in the exercise of its inherent jurisdiction, to dismiss the cause on the basis that the action as disclosed in the pleadings is an abuse of process and that the conduct of the pursuer as an individual in the action amounts to an abuse of process; and in the event of dismissal to find the pursuer as an individual personally liable to them in the expenses of the cause to date. This motion, which became 7/3 of process, was opposed by the pursuer.

1.10 On the same date the first defenders lodged a motion in the same terms. This motion, which became 7/4 of process, was opposed by the pursuer.

1.11 A hearing on all three motions was fixed for 3 February 2014, the day before the scheduled debate. I heard submissions on all three motions on 3 and 4 February 2014. The pursuer appeared as a party litigant. The first defenders were represented by Mrs Hughes, advocate. The second defenders were represented by Mr Gale QC. I found it necessary to make avizandum on all three motions and as a consequence and with the concurrence of parties I discharged the diet of debate.

1.12 Whilst I was still making avizandum the pursuer lodged a motion, number 7/5 of process, seeking leave to lodge a further minute of amendment. This was opposed by both defenders and I heard argument thereon on 18 March 2014. The pursuer still had not lodged a certified record. On that occasion Mr Anderson again appeared as a party litigant. Both defenders were represented by Mr Risk as local agent. I made avizandum.

1.13 This note deals with all motions 7/2 to 7/5 of process, inclusive.

2. The Hearing on the Motions Numbers 7/2, 7/3 and 7/4 of process.

2.1 At the outset of the hearing I pointed out to the pursuer that he was in default in terms of rule 16.2(1)(a) by having failed to lodge a certified record in terms of rule 9.11(2). His response was to indicate that by lodging the record number 19 of process he had done what he had been ordained to do in terms of the sheriff's interlocutor at the options hearing. Neither of the defenders sought to rely on the pursuer's default, preferring instead (I surmise for tactical reasons) to argue their respective motions to have the cause dismissed as an abuse of process. In the course of the discussion, however, they did point out that there were certain averments in the record number 19 of process which had not been intimated to them during the adjustment period. Accordingly, quite apart from the fact that it was not certified, the record was not accurate. The pursuer did not seek a prorogation of time within which to lodge a certified record but given that the defenders did not wish to make an issue of it at that point I allowed the hearing on the various motions to go ahead. I will come back to the issue of the pursuer's default.

2.2 In summary, the pursuer urged me to allow his motion 7/2 of process on the basis that his mother's estate was now in right of the property and that the minute of amendment sought to focus the real issue between the parties. Both defenders maintained that amendment should not be allowed because it radically altered the basis of the pursuer's case. It sought to increase the sum sued for to £75,000 from £750 and also sought to introduce craves for orders ad factum praestandum. Furthermore, both counsel maintained that to allow amendment of the pleadings would be tantamount to allowing the pursuer to abuse the process of this court, standing the ongoing Court of Session action now at the instance of Mr Anderson as executor of his mother.

2.3 In support of his motion number 7/3 of process Mr Gale referred to the case of Tonner v Reiach and Hall 2008 S.C. 1 for the proposition that the court has an inherent power to bring an action to an end. In that case the power was exercised in order to put an end to an action on the basis of inordinate and inexcusable delay. The inherent power of the court was not confined to situations where there has been delay. In Davies v Scottish Commission for the Regulation of Care [2013] UKSC 12 Lord Hope held that it would be an abuse of process if a new body which had served statutory notices against a children's nursery sought to rely on statutory notices served on the nursery by a predecessor body some years earlier. Mr Gale then referred to the Privy Council case of Crawford Adjusters (Cayman) Limited v Sagicor General Insurance (Cayman) Limited [2013] UKPC 17 in which it was held that the tort of abuse of process could be pursued where there was a collateral purpose, such as malice, in prosecuting an action even where the action is properly brought or where it is resolved in favour of the person bringing it.

2.4 In this case Mr Gale submitted that the whole cause should be dismissed as an abuse of process. The matters being litigated in what he called the "pre-amendment world" and being sought to be litigated in what he called the "post-amendment world" were essentially the same matters as are being litigated currently between Mr Anderson, as executor of his mother, and the second defenders in the Court of Session. Properly understood, both litigations involved the same broad matrix of fact, the same legal issues and the same parties. It amounted to an abuse of process for Mr Anderson to subject the second defenders to the same litigation in two separate courts. This was implicit from what Lord Hope said in the Supreme Court judgement in the case of Anderson v Shetland Islands Council [2012] UKSC 7, which concerned the judicial review proceedings referred to above. Lord Hope said:

"these proceedings can arguably be said to be an abuse of process. Mrs Anderson is at the same time pursuing an action on the grounds of nuisance in the same court which, if soundly based, will give her a remedy in damages which is the same as that which she is seeking in these proceedings. The respondents ought not to be burdened with having to respond to two sets of proceedings at her instance in which she is seeking the same remedy."

2.5 Furthermore, said Mr Gale, Mr Anderson's conduct of the litigation in this court was so inept and had resulted in the cause being so badly off the rails that that too amounted to an abuse of process. This was especially so when one had regard to the fact that Mr Anderson's conduct of this litigation echoed his conduct, on behalf of his mother, of the various litigations concerning the property and involving the second defenders in the Court of Session and in the Supreme Court. That conduct had been severely criticised in the reported decisions arising out of those litigations.

2.6 Mr Gale accepted the view which was expressed in several cases that a finding of abuse of process is a draconian step not to be taken lightly. Nonetheless, he maintained that it was an appropriate finding in this case. The existence of the inherent power of the court to take action in respect of an abuse of process was acknowledged by Lord Hope in the Davies case as also by Lord Justice Clerk Gill (as he then was) in the case of Moore v Scottish Daily Record and Sunday Mail Limited [2008] CSIH 66.

2.7 Mrs Hughes allied herself with much of what Mr Gale had to say but the grounds for the first defenders' motion number 7/4 of process, of necessity, were different. Since the first defenders were not convened in the current Court of Session action Mrs Hughes could not assert, as was asserted by the second defenders, that they were being subjected to the same litigation in two separate courts. Rather, her point was that the pursuer's case against the first defenders, whether one looked at the case as it stood or as it was proposed to be amended, could be seen to be so hopelessly irrelevant and without merit that it was an abuse of process for the pursuer to maintain the action against them. Mrs Hughes echoed Mr Gale's submissions about Mr Anderson's conduct of the action. She had a further point to make about Mr Anderson's motives in convening the first defenders. Mr Anderson was acting out of spite in relation to the first defenders. They had been assoilzied by Sheriff Napier after proof in the earlier small claim action. Yet, Mr Anderson had written a letter to the first defenders, number 6/1/4 of process for the first defender, in which he had said that if they were not prepared to meet his demands they could "come along for the ride" in the next round of litigation. This was the kind of ulterior motive that was considered to be an abuse of process in the Crawford Adjusters case.

2.8 Mr Anderson maintained that the cause of this action was quite different from the cause of the current action in the Court of Session, albeit that there were distinct similarities. What was being litigated here was another aspect of the same problem that gave rise to the Court of Session action. There was no absolute rule that everything had to be litigated in the same action. The parties in the two courts were different. At least as originally pled, this action was at the instance of his father's executor whereas the Court of Session action was, now, at the instance of his mother's executor. In so far as the first defenders were concerned, they were not parties to the Court of Session action. Accordingly, this action could not be said to be an abuse of process.

3. Discussion and Decision in Relation to the Motions Numbers 7/2, 7/3 and 7/4 of process.

3.1 I have summarised the careful and considered submissions of counsel in short compass. I do not intend any disrespect to them and trust that I have, nonetheless, captured the essence of what they had to say.

3.2 It is clear that both Lord Hope and Lord Gill, among others, consider that a court has an inherent power to deal with an abuse of process. In Davies, Lord Hope said:

"It is well established in Scots law that the court can exercise its inherent jurisdiction in the case of an abuse of process by way of a procedural sanction such as dismissal without express parliamentary authority."

Lord Hope referred to the Tonner case as authority for this, although on my reading of that case the court preferred not to deal with the problem of delay as an abuse of process but rather as a separate and distinct issue. Lord Hope also referred to the case of Moore in which Lord Gill said at paragraph 13:

"The court has an undoubted inherent jurisdiction to take action where there has been a contempt of court or an abuse of process;"

Accordingly, I now consider whether or not an abuse of process exists in this case and, if so, how to deal with it.

3.3 This action was born before the current litigation in the Court of Session. There was a judicial review process ongoing in the Court of Session at that time. That notwithstanding, this action when it was lodged and as originally pled does not seem to me to have been an abuse of the process of this court. This action is at the instance of Mr Anderson as his father's executor. It originally sought payment in respect of emergency repairs to the property. The judicial review proceedings were at the instance of Mrs Anderson. They attacked the decisions of the defenders there (the second defenders here) as local planning authority. Near the end of the hearing on these motions I indicated to Mr Gale that I was troubled by that fact and that it might be the case that if there was an abuse of process then, at least in so far as it concerned this action as originally pled, it lay in the Court of Session. Mr Gale responded by pointing out that although this action was commenced before the current litigation in the Court of Session it had been sisted, albeit to await the outcome of other proceedings. In the meantime, the Court of Session action was commenced and progressed. He maintained that to pursue this action now in these circumstances amounted to an abuse of process.

3.4 It is of critical importance to recognise that the pursuer in this action and the pursuer in the currently ongoing Court of Session action are different. Here Mr Anderson is pursuer as executor of his father. In the Court of Session he is pursuer as executor of his mother. Mr Gale has had insufficient regard to that fact. Both counsel maintained that Mr Anderson was dominus litis, but that was in relation to the issue of expenses. I did not understand Mr Gale to have developed an argument that because Mr Anderson was dominus litis he could be seen to be the real pursuer in both actions and that, therefore, the pursuer was the same in each action. Such an argument would involve an assertion that Mr Anderson was dominus litis in the Court of Session action. That is not a finding that I can make and I am not aware that Mr Anderson has been found to be dominus litis in that action. In any event, for reasons that I express later, I do not accept that Mr Anderson is dominus litis in this action.

3.5 But if the first part of Mr Anderson's motion 7/2 of process to allow him to sue additionally in his capacity as his mother's executor were to be allowed then there would be a common pursuer and at least one common defender in both actions. I am satisfied that the cause of action for Mrs Anderson's estate in both actions would essentially be the same. I am satisfied, on the basis of what Lord Hope said in Anderson in the Supreme Court, that it would amount to an abuse of process to allow Mrs Anderson's executor to maintain both actions and thus to subject the second defenders to the same litigation in two different courts with all of the attendant expense and inconvenience. This is so even though Lord Hope spoke arguably and though he spoke of two actions in the same court. Quite apart from that, or perhaps even as an aspect of abuse of process, two separate actions in two separate courts founded on the same cause of action and involving the same matrix of facts and the same parties could easily lead to absurd results. There could be different findings of fact on the same evidence involving different assessments of credibility and reliability of witnesses. One could easily imagine the difficulty that that could cause for an appeal court. Also there would be substantial difficulties in dealing with the question of res iudicata. Of course, none of this applies to the first defenders but it would be absurd to allow this part of the motion against them alone. For the foregoing reasons I refuse this part of Mr Anderson's motion 7/2 of process.

3.6 The question, then, is whether I should allow the second part of Mr Anderson's motion number 7/2 of process to allow his minute of amendment, given that the action would continue at the instance of a different pursuer from that in the Court of Session action. If that were to be allowed there would be two litigations ongoing involving the same matrix of facts. I do not accept that that amounts to an abuse of process if there are separate pursuers seeking to vindicate separate interests. I am of the view that in such a situation were I to allow the minute of amendment to be received, it would be appropriate then to sist this action to await the outcome of the Court of Session Action. This is what Mr Anderson ultimately moved, although this was opposed by both defenders.

3.7 However, it was abundantly clear to me during the hearing that the only person currently having an interest, and probably title, to sue for the remedies sought in the minute of amendment is Mrs Anderson's executor. That being the case, it would be wrong to allow the minute of amendment in this action at the instance of Mr Anderson's executor.

3.8 But if I am wrong to disallow the minute of amendment to be received on the foregoing ground there is a more fundamental reason to disallow it. That is that there is no certified record in process and an acceptance that the record that does exist is inaccurate. If I do not know with certainty what the current pleadings are I do not know what it is that is being amended. I do not see, then, how I can properly assess the appropriateness of allowing a minute of amendment. That is reason enough, in my view, to disallow that part of Mr Anderson's motion. Accordingly, the motion 7/2 of process is refused in its entirety.

3.9 I turn now to the second defender's motion 7/3 of process. Having disallowed the motion 7/2 of process I am now dealing with this action on the basis of the pleadings as they existed as at the date of the options hearing. Of course, I do not know what those pleadings are because of the absence of a certified record. But I do not think that that matters for present purposes. If there is an abuse of process on the basis that the second defenders are exposed to the same litigation in two separate courts then that abuse must have existed at the date of raising of the currently ongoing Court of Session action which post-dates the raising of this action. One only needs to look at answer 1 for the first defenders (the second defenders here) in the record in the Court of Session action (number 6/2/5 for the second defender in this process) to see that they are "unaware of any pending proceedings concerning the present cause of action". That seems to me to be a correct analysis of the situation because the pursuers are different in each action, each vindicating different interests. Accordingly, there can be no abuse of process. This is fortified by the fact that when the pursuer's motion to recall the sist in this action came before me on 20 August 2013 the second defenders did not submit that there was any such abuse of process. They confined themselves to arguing that there were two actions ongoing involving the same matrix of facts. I remember granting the motion to recall the sist on the basis that the parties were different in each action. For the foregoing reasons I refuse the first part of motion 7/3 of process. If it is not a correct analysis of the situation then the second defenders' answer in the Court of Session action, fortified by the stance adopted by them at the recall of sist hearing, could be seen as a waiver of any right to plead abuse of process in this action.

3.10 As to the first part of the first defender's motion 7/4 of process there can be no abuse of process on the basis that they are subjected to the same litigation in two separate courts. Mrs Hughes did not argue that. Instead, she argued that the case against the first defenders was so hopelessly irrelevant as to amount to an abuse of process. In my view, the fact that an action may be hopelessly irrelevant does not, alone, amount to an abuse of process. The first defender's remedy is to argue the question of relevancy at debate. I am not prepared to hold that the pursuer's case against the first defenders is irrelevant in the absence of debate. But, Mrs Hughes had another string to her bow. She argued that the pursuer has an ulterior motive, namely spite, in maintaining the action against her clients. This was demonstrated by the fact that the earlier small claim action ended with a decree of absolvitor in favour of her clients and by the terms of the letter 6/1/4 of process for the first defenders. Mrs Hughes accepted that the power to bring an action to an end on the grounds of abuse of process is draconian. I agree. I also agree that it should be used sparingly. I am not prepared to view the terms of the letter, 6/1/4 of process for the first defenders, as demonstrating an improper motive on the part of the pursuer. It is the kind of thing that parties say to one other in a charged atmosphere when court action is in contemplation. And if the absolvitor gives rise to a plea of res iudicata then that is the route that the first defender should take. I therefore refuse the first part of the motion 7/4 of process.

3.11 The second part of each of the motions 7/3 and 7/4 of process were argued by Mr Gale and Mrs Hughes on the same grounds. This was that Mr Anderson had shown such complete disregard for the rules of court and had driven the cause so far off the rails that his conduct amounted to an abuse of process. Again, I bear in mind that the power to stop an action on the basis of abuse of process is draconian and should be exercised sparingly. Procedurally, the action is not mature. The present state of the pleadings stems from Mr Anderson's attempt to amend by an illegitimate means during the adjustment period and his failure to lodge a certified record. I am not prepared to go so far as to say that that amounts to an abuse of process. The proceedings are not so far off the rails that they could not easily be restored to the right track.

3.12 It was painfully obvious at the hearing, as it has been to me throughout my involvement with this particular litigation, that the dispute has become highly personal. This has involved a very personal attack on Mr Anderson as regards his ability as a lawyer, as regards his motives for bringing the action and as regards what was effectively described as his reprehensible conduct in other litigations. I am not prepared to decide the issues before me on the basis of what others may have made of Mr Anderson or his conduct. I much prefer to proceed on the basis of what I can see and assess for myself. It seems tolerably clear to me that the property has been and is being damaged by an unnatural flow of surface water drainage. Mr Anderson, as executor of his father, is entitled to be concerned about that and to seek a remedy for any loss suffered by his father's estate against those whom he believes to be responsible. It may turn out, once the facts are established, that Mr Anderson's father's estate has not suffered any loss for which the defenders are responsible but that does not mean that Mr Anderson's insistence in this action is an abuse of process.

3.13 Mr Anderson's approach to this litigation may be unorthodox but there is another way to deal with that without resort to the draconian concept of abuse of process. I return to this later. Accordingly I refuse the second part of each of the motions 7/3 and 7/4 of process.

4. The Hearing on the Motion 7/5 of Process

4.1 By motion 7/5 of process Mr Anderson sought leave to tender a further minute of amendment. He seemed to think that there was no relevance to the fact that I was still at avizandum on the motions 7/2, 7/3 and 7/4 of process. He seemed to be unable to grasp that I might have difficulty in determining the appropriateness of allowing a further minute of amendment when the current state of the pleadings could not be known until I had decided what to do in relation to those motions. He seemed to be unable to grasp that in any event there was a difficulty arising from the absence of a certified record. He did not seek to prorogate the time for lodging the certified record nor seek to show cause therefor. He did not seek to withdraw his motion made at the bar during the hearing on numbers 7/2, 7/3 and 7/4 of process to sist the action. I have no difficulty in refusing the motion 7/5 of process in the foregoing state of affairs.

5. The Pursuer's Default

5.1 In paragraph 2.1 above I pointed out that the pursuer is currently in default, having failed to lodge a certified record. Neither of the defenders sought to rely on this default. One might think that that should be an end to that particular matter since, generally, it might appear to be unfair for the court to make an issue of something that is not put in issue by the parties. But that would be to disregard ordinary cause rule 16.3 which permits the court to prorogate the time for lodging a part of process on cause shown. It is not for the court to look for cause and to employ the rule ex proprio motu. It is for the party in default to show cause and to move the court to employ the rule. The court would only be looking to take heed of the stance of the defenders in the event that the pursuer sought to invoke the rule.

5.2 Mr Anderson made no motion to prorogate time for lodging the certified record even when he cannot have failed to notice at the outset of the hearing on motions 7/2, 7/3 and 7/4 of process that I considered him to be in default. He has not thought it prudent to lodge a certified record, even without having the time prorogated, even when he wished to crave the indulgence of the court to receive a further minute of amendment in terms of his motion 7/5 of process. He has not thought it necessary to seek to prorogate time, or to show cause therefor, even when it was pointed out at the hearing on the motion 7/5 of process that the court was still taking notice of the absence of a certified record. I am satisfied that, for whatever reason, Mr Anderson has no appreciation of the rules of court or any inclination to follow them.

5.3 I regard the lodging of a certified record as being of fundamental importance to the proper progress of an ordinary cause. Without it there is no proper basis for debate or proof. The importance of a certified record is emphasised in this case by the fact that all parties acknowledge that the record that has been lodged is inaccurate. I am not disposed to grant any indulgence to Mr Anderson in these circumstances. He is not the average party litigant. He is a qualified practicing member of the faculty of advocates. Any court is entitled to expect and to demand far better of him. The pursuer being in default and not having sought to invoke rule 16.3 I have resolved to dismiss the action in terms of rule 16.2(2)(c).

6. Expenses

6.1 I am obliged by rule 16.2(2)(c) to dismiss the cause with expenses. However, it would not be appropriate to award the whole expenses of the cause against the pursuer. The hearing on the motions 7/2, 7/3 and 7/4 of process occupied two days. The substantive parts of each of the motions have been refused. Therefore, there has been mixed success. Parties did make submissions on expenses, although Mr Gale wished to come back on the question of sanction for counsel. I have decided that there should be no award of expenses due to or by any of the parties in respect of the hearing on these motions. Accordingly, the question of sanction for counsel does not arise in relation thereto.

6.2 The award of expenses in terms of rule 16.2(2)(c) will be for the expenses of the cause except as otherwise dealt with. I will need to hear parties in relation to the expenses for the hearing on the motion 7/5 of process, although I would find it extremely difficult to do anything other than to find the pursuer liable to the defenders. I do not know the extent to which the defenders employed counsel apart from the motions 7/2, 7/3 and 7/4 of process but I take it that the defenders may wish to address me on the question of sanction for the case generally. I have therefore put the case out for a hearing on these questions.

6.3 The only remaining question that I can rule on at this juncture is whether or not Mr Anderson should be found personally liable for expenses. Counsel maintained that he should be held liable on the basis that he is dominus litis. In the course of submissions counsel referred to Lady Smith's judgement in the case of Anderson v Shetland Islands Council and Scottish Water [2011] CSOH 187 and her reference in paragraph 27 to what Lord Rutherford said in the case of Mathieson v Thomson (1853) 16D 19 at page 23 and her reference in paragraph 28 to what Lord Justice Clerk Alness said in the case of Cairns v McGregor 1931 S.C. 84 at page 89. Counsel submitted that these cases demonstrated that if a party had an interest in the subject matter of the cause and, through that interest, direction of the cause then he was dominus litis. In this case it was abundantly clear that Mr Anderson was directing the cause. He also had an interest as a beneficiary in his mother's estate. Accordingly, he was dominus litis.

6.4 However, Lady Smith also referred to the cases of Eastford Ltd v Thomas Gillespie [2011] CSIH 12 and McCuaig v McCuaig 1909 SC 355 and on the basis of those cases found that the pursuer was not dominus litis. On a proper construction of those cases a party must have the whole interest in the subject matter of the cause before he can be found to be dominus litis. In Eastford Ltd two out of four directors of the company were controlling and directing the litigation. Although it was recognised that the case also involved the speciality of company law that directors always have control of litigation involving the company it was, nevertheless, said at page 511:

"In these circumstances ........ there is no justification in principle or practice for rendering them directly liable in expenses to an opposing party."

6.5 In this case Mr Anderson sues in his capacity as executor of his father. As I understand it the whole of the father's estate has fallen to Mr Anderson's mother. Mr Anderson advised me at the hearing on motions 7/2, 7/3 and 7/4 of process that he is not the only beneficiary of his mother's estate. He has a brother who is also a beneficiary. I did not understand either of the defenders to dispute that assertion. I find it difficult to see how Mr Anderson could be dominus litis in regard to this action in those circumstances.

6.6 In Eastford Ltd it was also said at page 511:

"In such circumstances it is unnecessary to declare the directors to be domini litis because the court is able to recognise the separate legal personality of the company, while at the same time in appropriate cases affording protection to opposing parties by requiring the company to find caution for expenses."

As I have already noted at paragraph 1.6, both defenders had motions to have the pursuer find caution for expenses. Without seeking to indicate what I might have made of it if I had heard full submissions, that seems to me to have been the appropriate way to proceed in this case. Of course, I have also noted that both defenders dropped their motions.

6.7 For the foregoing reasons I am not prepared to find Mr Anderson personally liable for expenses on the basis that he is dominus litis.

6.8 Nor is there any justification for finding Mr Anderson personally liable for expenses on account of his conduct of the litigation. Stripping away the issue of abuse of process, I do not see that Mr Anderson's conduct of the case has caused any great expense to the defenders. It is also worth noting, I think, that the action became an ordinary cause at the insistence of the defenders.