EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Marnoch	[2012] CSIH 57 XA53/11 OPINION OF THE COURT delivered by LADY PATON in causa ARTHUR McMANUS GEMMELL Pursuer and Appellant; against MARLEYBONE, WARWICK AND BALFOUR GROUP PLC AND OTHERS Defenders and Respondents: _______

Pursuer and appellant: Party

First, second, eighth and tenth defenders and respondents: G M Maciver;

Semple Fraser LLP

Third defenders and respondents: Ower; Balfour + Mason LLP

Fourth defenders and respondents: Macpherson, solicitor Advocate; Simpson & Marwick

Ninth defenders and respondents: Sheridan, solicitor Advocate; Anderson Fyfe

29 June 2012

Introduction

[1] The pursuer owns heritable property at 47 Oswald Street, Glasgow. In about 2000, a developer began carrying out work on an adjacent property. The pursuer maintains that the developer and inter alios architects, quantity surveyors, engineers, builders, and solicitors carried out work in a negligent and wrongful manner, causing him and his property loss and damage. He raised an action in Glasgow Sheriff Court against several defenders, seeking interdict, specific implement, and damages. He drafted the pleadings, and has represented himself throughout the proceedings.

[2] A legal debate took place on 1 and 2 June 2009 before Sheriff Deutsch. By that stage, the fifth, sixth, and seventh defenders were no longer parties to the action. The remaining defenders challenged inter alia the competency of raising multiple claims in one action. On 2 June 2009, the second day of the debate, the pursuer lodged a Minute of Abandonment. In terms of Rule 23.1(1)(b) of the Sheriff Court Ordinary Cause Rules 1993, he moved the court to dismiss the action so far as directed against the remaining defenders. As the defenders' expenses required to be paid as a prerequisite of any decree of dismissal, the sheriff ordered the first, second, third, fourth, eighth, ninth and tenth defenders to lodge their accounts of expenses. The third, fourth and ninth defenders duly did so. The first, second, eighth, and tenth defenders did not.

[3] The available accounts of expenses were taxed by the auditor. The pursuer lodged a Note of Objections to the auditor's report. The matter came before Sheriff Deutsch. By interlocutor dated 6 May 2010 the sheriff repelled the pursuer's objections and approved the auditor's report. The pursuer appealed to the Sheriff Principal. On 16 September 2010, the appeal was refused.

[4] Subsequently, in November 2010 (some 18 months after the lodging of the Minute of Abandonment) the pursuer enrolled a motion seeking to withdraw his Minute of Abandonment and asking the court to fix further procedure in the case. On 9 November 2010 Sheriff Deutsch permitted the pursuer to withdraw his Minute of Abandonment, but thereafter granted the third, fourth and ninth defenders' formal written motions for absolvitor. He also granted motions for absolvitor made at the bar on behalf of the first, second, eighth and tenth defenders. The sheriff provided a Note explaining his reasoning as follows:

"I proceeded on the basis of what is said in Macphail, Sheriff Court Practice, third edition at paragraph 14.26. I allowed the motion to withdraw the minute of abandonment. In Lee v Pollock's Trustees (1906) 8F 857, which is cited by Macphail, Lord President Dunedin set out the effect of such a withdrawal thus:

'When we look at what a minute of abandonment is - as correctly stated by Lord President Inglis in Ross v McKenzie - it seems to me that the pursuer has an absolute right to withdraw it if he likes. But what is the result? The result is that the case is in the position it was in before the minute of abandonment was lodged, with this difference, that the pursuer has put himself in the position of having caused delay in the proceedings. The defender may enrol and ask for absolvitor, and that motion would be granted unless the pursuer is able to shew that his proceedings have been in bona fide.'

I took it from this that the onus was on the pursuer to demonstrate good faith. He had lodged his minute of abandonment in the course of a debate. At the time I inferred that he had done so because he accepted the cogency of the arguments ranged against him. I believe he understood that on his present pleadings he would not be able to proceed to proof. Following upon the minute of abandonment certain of the defenders had lodged accounts of expenses which had been taxed. Objection had been taken to the auditor's report. There had been a hearing on objections following upon which I had ruled. My ruling had been appealed. There had been considerable delay. He was now seeking to go to proof on pleadings which he knew were challenged by the defenders.

One can figure legitimate reasons why a person might withdraw a minute of abandonment. New information may have come to hand which might make it possible to amend or which might increase the prospects of success at proof. A decision in another case might have resulted in the law having become more favourable to the pursuer's position etc.

The pursuer was unable to provide any clear explanation for his change of position or point to any altered circumstances. He merely asserted that he had always acted in good faith. Confronted with the pursuer's volte-face and absent any material inferring that he had been acting honestly and not, as appeared to be the case, vexatiously, I concluded that he had failed to discharge the onus upon him to demonstrate good faith. Accordingly I granted the above-mentioned defenders' motions for absolvitor and also granted a verbal motion for absolvitor made on behalf of the first, second, eighth and tenth named defenders."

[5] The pursuer appealed to the Sheriff Principal against Sheriff Deutsch's interlocutor granting absolvitor. By an interlocutor dated 31 March 2011, the Sheriff Principal refused his appeal. In a Note dated 13 April 2011, the Sheriff Principal recorded the history of the case. He then noted the pursuer's submissions in the appeal. The pursuer described the attacks perpetrated upon him and his property by the defenders, categorising them as deliberate and criminal. Further he submitted that Glasgow City Council had misused their compulsory purchase powers. Planning permission had been granted in an unusual and dishonest manner. Interdict should have been granted, for twelve reasons. Glasgow Sheriff Court had denied the pursuer legal advice and representation, and had refused to allow him to put authorities before the court. Unspecified documents had gone missing. The sheriff court had not awarded him expenses even when he was successful. The sheriff court had wrongly refused to allow him to go to proof, and to lodge further productions and late adjustments. The defenders were acting as a group in a conspiracy to prevent his case going to proof. The Sheriff Principal ultimately concluded:

"[13] I have no difficulty in refusing the appeal. The pursuer and appellant's submissions did not touch upon the interlocutor immediately under appeal. He did not submit that the sheriff had been wrong to grant decree of absolvitor. He did not submit that he was in good faith or that the sheriff had erred in law. I did not consider that there was any basis in his complaint that interim interdict had not been granted since the interlocutor records that interim orders had ultimately not been sought. Since no interlocutor excludes any of the pursuer and appellant's averments from probation I had some difficulty in following the submission that the court had erred in refusing probation to certain averments. There is no interlocutor refusing a motion to lodge an inventory of productions, although late. I can only assume that this was a reference to other proceedings which had been brought by the pursuer and appellant. The refusal of a motion to allow something to be done, albeit late, is a matter for the discretion of the sheriff at first instance. It is not enough to say that one party should be shown some latitude in this regard just because another party to the litigation has been allowed to do something out of time. In any event, the grounds of appeal are silent on this issue. In short I considered that the pursuer and appellant's submissions had no basis whatsoever. I therefore refused the appeal."

[6] The pursuer appealed to the Court of Session. The appeal came before the Inner House on 22 May 2012. The pursuer represented himself, as he had done throughout the action. Mr G M Maciver, Advocate, represented the first, second, eighth, and tenth defenders. Miss Ower, Advocate, represented the third defenders. Mr Macpherson, solicitor Advocate, represented the fourth defenders. Mr Sheridan, Solicitor advocate, represented the ninth defenders.

Whether error in law to grant absolvitor

[7] The nature of the issue: The pursuer lodged both Grounds of Appeal and a Note of Argument. Counsel for the defenders were agreed that the main issue in the appeal was focused in paragraph 2 of the pursuer's Note of Argument as follows:

"The sheriff erred in law in granting decree of absolvitor in favour of all defenders in respect of all craves. The decree granted could not competently be granted. The sheriff did not have the power to grant the decree which he granted at the stage of proceedings at which decree was granted nor for the reasons stated by the sheriff. There has been no proof and no findings in fact. The diet of debate which commenced on 1 June 2009 and continued on 2 June 2009 has not been concluded. On granting the pursuer's motion to withdraw his Minute of Abandonment, the sheriff ought to have fixed a fresh date for the diet of debate to be concluded, and an interlocutor in appropriate terms dealing with the pleas in law which were the subject of the debate should then have be pronounced. Only then could the action be competently be disposed of. Having withdrawn his Minute of Abandonment in respect of the action as a whole, the pursuer ought to have been given the opportunity to consider whether to discontinue the action in so far as directed against any of the defenders or in respect of any of the remedies sought, but continuing to pursue the action against the remaining defenders in respect of the remaining craves. There ought to have been an opportunity on the conclusion of the debate for the pursuer to consider his pleadings and, if appropriate, to seek to amend. Even if the sheriff had allowed the diet of debate to be concluded, and in doing so he had repelled the pursuer's pleas in law, and if none of the opportunities mentioned had been taken up by the pursuer, the appropriate decree would have been dismissal, not absolvitor. The reasons given by the sheriff for granting decree in favour of the defenders, namely that he did not consider the pursuer to have acted in good faith, is not a proper or sufficient reason for granting such decree. There were no grounds for holding such opinion, and the sheriff formed the opinion without full or proper enquiry and without giving the pursuer the opportunity to answer the allegation against him."

[8] The pursuer's submissions: The pursuer maintained that he had good reason for withdrawing his Minute of Abandonment. The failure by the first, second, eighth and tenth defenders to lodge their accounts of expenses meant that he had been unable to obtain dismissal of the action in terms of Rule 23.1. Had these defenders lodged accounts of expenses (as had the third, fourth and ninth defenders), he would have been able to pay the expenses and achieve dismissal of the incompetent compendium action, whereupon he would have raised separate actions against each defender, a procedure which would have been competent. The sheriff was therefore wrong to infer that he had not acted in good faith, and had erred in granting absolvitor. The sheriff principal had erred in adhering to the sheriff's interlocutor. The pursuer had further criticisms of the procedure which had taken place in the Sheriff Court. In particular, there had been bias in favour of the defenders and against the pursuer. During his submissions before us, the pursuer gave an example of bias as the sheriff becoming noticeably irritated when the pursuer attempted to lodge a Devolution Issue Minute (when he had made about ten to twelve previous unsuccessful attempts to lodge such a minute). The pursuer confirmed that the focus of the Devolution Issue Minute was equality of arms by having legal representation. He further confirmed that he understood that he could not expect the sheriff to grant him Legal Aid, or to provide him with a lawyer. He added that he had (at one stage) had the necessary funds to instruct a lawyer, but no lawyer would accept his instructions.

[9] Submissions for the first, second, eighth and tenth defenders: Counsel submitted that the sheriff had correctly identified the relevant law, and, on the material before him, had been entitled to form the view that the pursuer did not have good reason for withdrawing his Minute of Abandonment. The sheriff was then entitled to follow the guidance given by Lord President Dunedin in Lee v Pollock's Trs (1906) 8F 857, and to grant the defenders absolvitor. In relation to the other matters raised in the Grounds of Appeal and Note of Argument, counsel submitted that they were either irrelevant to the present appeal against Sheriff Deutsch's interlocutor of absolvitor dated 9 November 2010, or (in relation to bias) insufficiently specific. The appeal should be refused.

[10] Submissions for the third defenders: Counsel adopted all of the submissions for the first, second, eighth and tenth defenders. Reference was made to paragraph 14.26 of Macphail, Sheriff Court Practice (3^rd ed). The appeal should be refused.

[11] Submissions for the fourth defenders: Counsel adopted all of the foregoing defenders' submissions. The appeal should be refused.

[12] Submissions for the ninth defenders: Counsel adopted all of the foregoing defenders' submissions. He further contended that, in terms of the Sheriff Court Ordinary Cause Rules (Rule 23), a pursuer seeking dismissal upon abandonment had to pay the defender's expenses within 28 days of taxation: otherwise the court would grant absolvitor. In the present case, the taxation procedure came to an end on 16 September 2010, when the Sheriff Principal refused the pursuer's appeal against the sheriff's approval of the auditor's report. By 9 November 2010, when the sheriff granted decree of absolvitor, more than 28 days had passed. Accordingly the ninth defenders (and indeed the third and fourth defenders) were entitled to absolvitor on that ground also. The appeal should be refused.

[13] Reply by the pursuer: The pursuer reminded the court that he was a party litigant, without the benefit of legal advice. He had not been aware that there was a procedure whereby he could force a defender to lodge an account of expenses. His intention had been to pay the defenders' expenses, to instigate new proceedings against the separate individuals, and to conjoin the actions. The pursuer maintained (contrary to the sheriff's Note) that he had made this reason known to the sheriff. Finally the pursuer expressed concern that the absolvitor might have the inappropriate effect of preventing him from suing the defenders in respect of any future wrongful actings affecting him and his property.

Discussion

[14] We accept that the main issue in this appeal is set out in Ground of Appeal 2.10, read with paragraph 2 of the pursuer's Note of Argument. Of the other grounds of appeal (mentioned briefly in paragraphs [20] et seq below), only one has any relevance in a challenge to the interlocutors of the sheriff and Sheriff Principal dated 9 November 2010 and 31 March 2011. That ground is an allegation of "noticeable bias" against the pursuer: Ground of Appeal 2.9 and paragraph 6 of the Note of Argument.

[15] We deal first with the main issue focused in Ground of Appeal 2.10 and paragraph 2 of the pursuer's Note of Argument.

[16] In our opinion, the sheriff followed the guidance given by Lord President Dunedin in Lee v Pollock's Trs (1906) 8F 857. While it may be doubtful whether Lord President Dunedin's dictum (that there is an "absolute right" to withdraw a Minute of Abandonment) is applicable even in circumstances suggestive of waiver or personal bar, the sheriff in the present case did permit the pursuer to withdraw his Minute of Abandonment. Then, in accordance with Lord President Dunedin's opinion, he asked himself whether the pursuer had discharged the onus of showing good faith. On the information before him, he was entitled to form the view that the pursuer did not have a valid reason for withdrawing his Minute of Abandonment, and that he had not therefore discharged that onus. For our part, we are willing to accept that the pursuer may not have been in mala fides as such: but if he did not properly understand the law, and if he has failed to demonstrate a valid reason for withdrawing his Minute of Abandonment, the sheriff was, in our view, entitled to reach the conclusion he did.

[17] Before us, the pursuer maintained that the reason behind his withdrawal of his Minute of Abandonment was that the first, second, eighth and tenth defenders had not lodged accounts of expenses. But in our opinion the proper approach to be adopted in such circumstances was to have invited the sheriff to ordain those defenders to lodge their accounts of expenses within a specified period. On no view did any failure to lodge accounts of expenses justify the withdrawal of a Minute of Abandonment lodged some 18 months earlier for quite different reasons. Incidentally (although this is not relevant to our judgment) we note that the reason advanced before us was not recorded by the sheriff in his Note, nor is there any reference to such a reason in the Sheriff Principal's Note. That does not however affect our opinion that the reason advanced before us by the pursuer was not a good reason. In order to do justice between parties, and also in the wider public interest, the court must ensure that litigation is conducted in a fair and orderly manner, and brought to a conclusion without undue delay. Prima facie, therefore, the lodging of a Minute of Abandonment with all its consequences, followed some 18 months later by a withdrawal of that Minute, came close to an abuse of process. Accordingly, as was emphasised in Lee v Pollock's Trs, the onus fell upon the pursuer to demonstrate an arguably valid reason for his actions. He has, in our view, failed to discharge that onus.

[18] We should add that the third, fourth and ninth defenders are, in any event, entitled to absolvitor in terms of Rule 23 of the Sheriff Court Ordinary Cause Rules. The taxation procedure ended on 16 September 2010 when the Sheriff Principal refused the appellant's appeal against Sheriff Deutsch's approval of the auditor's report. To qualify for a decree of dismissal rather than a decree of absolvitor, the pursuer required to pay those defenders' expenses within 28 days of 16 September 2010. He did not do so. Thus in terms of Rule 23.1(2), these defenders are, for that reason also, entitled to absolvitor.

[19] One matter raised by the pursuer was the permanent nature of absolvitor in the context of interdict. He expressed anxiety that the decree of absolvitor granted by the sheriff might be used in the future to prevent any similar actions which he might raise in order to interdict anyone from damaging his property. In view of the breadth and generality of the craves for interdict in the present action, there may be some reason in his concern, although any future plea of res judicata would normally be expected to relate only to matters of which express complaint is made in these proceedings.

The remaining Grounds of Appeal

[20] We now turn to deal with the other matters raised by the appellant in his Grounds of Appeal. The appellant complained that bias in favour of the defenders (and against him) was shown on many occasions in Glasgow Sheriff Court: Ground of Appeal 2.9 and paragraph 6 of the Note of Argument.

[21] Bias has been defined by Lord Hope at paragraph [103] of Porter v Magill [2002] 2 AC 357, [2002] 2 WLR 37 as follows:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

There is also guidance in the cases of Davidson v The Scottish Ministers 2003 SC 103, 2005 SC (HL) 7, and Hoekstra v HM Advocate 2000 JC 391.

[22] When such an allegation is made, it is very important that detailed specification of the alleged bias complained of is given. This is wholly absent in the present case. One instance of behaviour cited by the pursuer in the course of the appeal hearing was the sheriff's apparent irritation in relation to the pursuer's repeated attempts to lodge a Devolution Issue Minute apparently calling upon the sheriff to provide the pursuer with legal representation. We can well understand that such endeavours would attract the sheriff's disapproval. That said, we have carefully reviewed the papers and information made available to us in this appeal. We have found nothing to support an allegation of bias as defined in the authorities above referred to.

[23] As for other Grounds of Appeal not already dealt with, we touch on these briefly for the sake of completeness. Ground 1: in our view, the pursuer has always had full access to the courts, and no breach of Article 6 of the ECHR has been demonstrated. Ground 2.1 and 2.2: the sheriff was entitled to invite certain defenders to attend at an interim interdict hearing triggered by the caveats of other defenders. Ground 2.3 and 2.4: no hearing on the questions of specific implement and interdict have yet been assigned because of the procedural steps taken to date and the procedural stage reached. Ground 2.5 and 2.7: any question of expenses is a matter for the sheriff's discretion. Ground 2.6: the sheriff is similarly entitled to exercise his discretion by refusing to receive a Devolution Minute. Ground 2.8: Sheriff Deutsch's interlocutor was the subject of appeal. Ground 2.11: bankruptcy proceedings are entirely independent of the present proceedings. Thus we find no relevance and no merit in any of these Grounds of Appeal.

Decision

[24] We refuse the appeal and adhere to the interlocutors of the sheriff and Sheriff Principal dated 9 November 2010 and 31 March 2011 respectively, noting that the absolvitor granted by the sheriff would not normally, in the context of interdict, be expected to extend beyond matters of which express complaint is made in the pursuer's current pleadings.