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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President
Lord Nimmo Smith
Lord Clarke
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[2007] CSIH 86
P1788/04
OPINION OF THE COURT
delivered by THE LORD PRESIDENT
in
RECLAIMING MOTION
by
JOHN BILLIG and ANOTHER
Petitioners and Reclaimers;
against
THE COUNCIL OF THE LAW
SOCIETY OF SCOTLAND
Respondents:
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Party participating at this hearing:
Ferguson, Q.C.;
Simpson & Marwick (Petitioners and Reclaimers)
Non participating party:
Agents; Brodies (Respondents)
19 October 2007
[1] In December
2004 the petitioners and reclaimers (an individual and a company controlled by
him) presented a petition to the court in which they sought declarator that a
decision of the Council of the Law Society of Scotland dated 30 April 2004
(refusing to make to the reclaimers grants out of the Scottish Solicitors'
Guarantee Fund) was ultra vires of
the Council. They sought reduction of
that decision and certain pecuniary remedies.
The Council lodged answers. On 20 September
2006 the
Lord Ordinary (Temporary Judge J.G. Reid, Q.C.), after hearing argument over
four days at a First Hearing, dismissed the petition. The reclaimers marked a reclaiming
motion. According to the narrative given
to the court by junior counsel for the reclaimers on 2 October 2007, senior and
junior counsel at about the time the reclaiming motion was marked furnished a
joint note in which they advised that the prospects of success in the
reclaiming motion were "not high", although it was not thought that the
argument was unstatable. On 8
December 2006,
the cause having been appointed on the reclaimers' motion to the Summar Roll, a
diet was fixed for 2 October 2007 and the three succeeding days. In April 2007 the reclaimers' Edinburgh agents received intimation (from
their clients or from their English solicitors) that the reclaiming motion was
not to be insisted in. They so advised
the respondents. No intimation was given
to the court of that decision. The reclaimers,
notwithstanding their intimated decision not to proceed with the reclaiming
motion, made certain proposals to the respondents. These proposals were rejected by them. On 4 August 2007 the reclaimers' English solicitors
wrote (to the respondents' solicitors) saying that they were, after all, giving
serious consideration to proceeding with the reclaiming motion. They were to consult with English counsel, with
particular reference to a Human Rights challenge. On 29 August 2007 the case called By Order before the
vacation judge in order that the court might be advised as to whether the
reclaiming motion was to proceed at the appointed diet. The reclaimers' counsel advised the court
that the reclaimers were ready to proceed and that the four days fixed for the
hearing would be required. The
respondents' counsel advised the court that they intended (presumably in light
of the reclaimers' previously intimated decision) to move the court to refuse
the reclaiming motion. The vacation
judge continued the By Order hearing to 20 September, when an Extra Division
was scheduled to sit. On 9 September
the reclaimers had a conference with English counsel. On 12 September intimation was given to their
Edinburgh agents that the reclaiming motion
was definitely going to proceed. New
Scottish counsel were instructed. At the
continued By Order hearing on 20 September counsel for the reclaimers advised
the court that the reclaimers had had "a change of heart" and wished to proceed
with the reclaiming motion. No appendix
having been timeously lodged, the respondents moved the court to refuse the
reclaiming motion in terms of Rule of Court 38.19(4). The reclaimers' counsel sought and obtained
leave to lodge an appendix late. The
court observed at that time that the conduct of the reclaimers was
unsatisfactory "and came close to an abuse of process". Expenses of that appearance were awarded to
the respondents. On 25 September the reclaimers
had a consultation with Scottish senior counsel. He, it seems, advised that "the grounds of
appeal were unstatable and that the reclaiming motion could and should not
proceed". On 26 September (the Wednesday
immediately prior to 2 October) the court officials were advised that the
reclaiming motion was now not to proceed.
[2] The court directed
that the case should call on Tuesday 2 October before the First Division (which
had been appointed to hear the reclaiming motion) in order that it might be
advised why such late intimation was given of cancellation of a four-day diet
which had been fixed for more than nine months.
The above narrative was given. It
was not suggested that the reclaimers' conduct of the reclaiming motion was
excusable. Expenses were awarded to the
respondents. When the court raised with
the reclaimers' counsel the possibility of the court marking its
dissatisfaction by requiring the reclaimers to pay to the Scottish Court Service the equivalent of the court
fees chargeable to them for the four reserved days, it was not suggested that
such a course of action was incompetent.
The court made an order accordingly.
The total amount decerned for was £1,332.
[3] In the event
the First Division did not sit during the remainder of Tuesday 2 October nor,
except for incidental business, on Wednesday 3 October. It took from another Division a two-day case
for the Thursday and Friday. That other
Division was able to sit on a case which, arranged at short notice, lasted for
one day. That Division did not sit on
Friday 5 October.
[4] The reclaimers
have now enrolled a motion to "correct or alter" under Rule of Court 4.16(7) the
court's interlocutor of 2 October 2007 in respect of the sum of
£1,332. Mr. Ferguson, who appeared
on this occasion for the reclaimers, accepted that, in ordinary course, Rule of
Court 4.16(7) could not be invoked unless what was being done was "to bring an
interlocutor into line with the court's original intention" (Laing v Scottish Arts Council 2001 SC 493, at page 498G-H). It was not suggested that the court's
original intention had been otherwise than to require the reclaimers to pay the
sum specified. However, said Mr.
Ferguson, that restriction on Rule of Court 4.16(7) proceeded on the assumption
that the original interlocutor was competent.
Here, what had been done was incompetent. The power to levy fees was solely
statutory. Reference was made to the
Court of Session etc. Fees Order 1997 (S.I. 1997 No. 688). Fees were payable under paragraph C17 of the
Schedule to the Order by each party "appearing at the hearing" on the Summar
Roll (at the rate of £33 for every 30 minutes or part thereof). Here there had been no hearing. In any event, the hearing had not lasted for
four days. It was not open to the court
to require a party to make payment to an entity (the Scottish Court Service) which was not a party to
the proceedings. The interlocutor which
had been pronounced was not only incompetent but was also inappropriate. It would tend to force parties with weak
arguments to present rather than to abandon them; the Scottish Court Service would be "unjustifiably
enriched". The order of 2 October, in so
far as complained of, should be varied accordingly.
[5] It is
unnecessary for us to decide whether under Rule of Court 4.16(7) (or under any
other power) the judge who signed an interlocutor of a Division of the Inner
House (or the court) can alter that interlocutor on the basis that what was
done, while intentional, was incompetent.
We were referred to no authority on this matter and we reserve our
opinion on it. A decision on that aspect
is unnecessary since we are satisfied that the interlocutor pronounced was both
competent and wholly appropriate.
[6] This court,
and in particular the Divisions of the Inner House, have been beset for some
time now with late settlements, including late abandonments and late
withdrawals of answers or other responses.
Diets which have been reserved for many months are in the event not
used, cancellation commonly being made at very short notice. With a view to mitigating that problem Rule
of Court 6.3(5) and (6) provides:
"(5) Not
less than five weeks before the hearing of the cause on the Summar Roll, the
Keeper of the Rolls shall put the cause out on the By Order Roll before a
Division of the Inner House.
(6) At
a hearing on the By Order Roll under paragraph (5), the parties
shall -
(a) advise
the court whether or not the hearing on the Summar Roll is to
proceed; and
(b) where
it is to do so, provide the court with a re-assessment of its likely
duration."
Where intimation is then given that the hearing is not going
to proceed (or that there are discussions in train which make it unlikely that
it will proceed), the court can make arrangements with a view to allocating
other business to the days in question.
In circumstances where there is a prospect of resolution of the case,
the court reasonably expects, where diets have been fixed many months in
advance, that the critical decision as to whether the arranged hearing is
required will have been taken well in advance of the cause appearing on the By
Order Roll. Where such decisions are not
timeously taken, the court timetable is gravely disrupted. Public resources, in the form of judicial
time and the time of support services, are wasted. Other parties, who have causes truly
requiring a judicial decision, have the determination of their causes
unnecessarily delayed.
[7] The court has
an obligation under Article 6(1) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms to ensure that parties have a hearing
"within a reasonable time". That
includes a hearing in appellate business.
Unless the court can, and does, take steps to discharge that obligation,
it will justifiably be criticised by parties, the determination of whose civil
rights and obligation is unreasonably delayed.
The court has, particularly in recent times, frequently had cause to
upbraid parties and their advisers for failure properly to take into account
the waste of public resources caused by late settlements and related
matters. In the nature of things, strictures
of the court when such events occur rarely find their way into written
judgments. However, in McDonald-Grant v Sutherland and Others 2007 CSIH 54 (30 May 2007) the concerns of the court at the
waste of court time were clearly expressed (see, in particular, paras. [9] -
[10]).
[8] No Rules of
Court deal expressly with this situation.
In modern conditions, however, with the very great pressures and demands
that there are on court time and judicial resources, it seems clear to us that
to allow litigants like the reclaimers to act with impunity and without
sanction, in advising the court, at such short notice, and with no just excuse,
that a four-day hearing will not proceed, would involve an acceptance by this
court that it had no effective control over the administration of its business.
[9] The inherent
jurisdiction of this court to exercise real control and direction of its
procedures and time-table requires to be capable of being updated from time to
time, in its application to situations which are identified as productive of
disruption of the orderly dispatch of the court's work-load. The making of the order in the present case
is an example of the court exercising its jurisdiction in such a situation.
[10] The measures
which are available to the court to prevent or discourage abuses of its
procedures will vary with circumstances.
Where the abuse is likely to result in a waste of public resources, the
appropriate measure may be to mulct the abuser in a way which goes some way to
compensating the public purse. As is
well known, the statutory court fees are currently fixed at levels which fall
well short of the expenditure incurred by the public purse in providing the
necessary judicial and other resources.
However, they may provide a touchstone, albeit an imperfect one, against
which an appropriate compensatory requirement may be tested. It is immaterial that the body in whose
favour the compensatory requirement is made is not a party to the
proceedings; a decerniture in favour of
the body with administrative responsibility for the courts appears to be an
appropriate mechanism for recovery.
[11] By
re-arranging at the last minute the business for the week commencing
1 October the Inner House was able productively to use, on substantive
business, one day of the four days lost by the late abandonment of this
reclaiming motion. But that circumstance
does not, in our opinion, justify modifying the amount in which the reclaimers
should appropriately be mulcted. Their
action caused a four-day diet to be lost.
The fact that, by the efforts of its officials, the court happened to be
able to find business for one of those days does not lessen the seriousness of
the reclaimers' default. In these
circumstances the court thought it fit to require the reclaimers to pay to the
Scottish Court Service a sum representing the fees that would have been payable
had the reclaiming motion run for the time which had been, on the reclaimers'
application, set aside for hearing that motion.
