EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Mackay of Drumadoon Lady Dorrian Lord Wheatley	[2013] CSIH 48 A205/04 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in the cause MRS JOAN PENTLAND-CLARK Pursuer and Reclaimer; against PATRICK COLLINGE GRAVATT WILSON and others Defenders and Respondents: _______________

Pursuer and Reclaimer: Party

First, second and third defenders and respondents: Clark QC, Barne; Balfour & Manson LLP

4 June 2013

Introduction

[1] This is a reclaiming motion at the instance of the pursuer and reclaimer in an action of count reckoning, payment and reduction which she raised in the Court of Session during 2004 (A205/04). The action is one of a number of actions in which the pursuer has been a party since the death of her former husband, James Clark, who died on 5 December 1985 ("the deceased"). These actions have been raised on account of the non-payment out of the deceased's estate of monthly maintenance payments to which the pursuer became entitled in 1977, when she divorced her former husband. The pursuer maintains that the arrears of monthly payments now exceed £150,000.

[2] It is convenient to refer to this action as the "private action". The private action, in which the pursuer sues in her own right, has been pursued against a number of defenders, including Patrick Wilson, Charles Pagan WS and Susan Venters, the first, second and third defenders. The first and second defenders were executors administrating the estate of the deceased until they were removed from office by an interlocutor pronounced in the Court of Session on 27 May 1999. At the same time a judicial factor was appointed to the deceased's estate. The first defender had been assumed as an executor by Deed of Assumption dated 13 December 1985 and the second defender by Deed of Assumption dated 13 and 21 June 1991. The third defender was a partner in the former firm of Messrs. J & G Wilson, Solicitors. The late John Simpson Wilson ("John Wilson"), a former partner in the same firm of solicitors, had been an executor on the estate of the deceased from 1985 until his own death on 27 May 1991.

[3] The background to and history of the dispute between the pursuer and the executors of the deceased's estate are set out in detail in a number of opinions relating to the private action, including Opinions of the Court delivered by Lady Paton on 11 June 2009 ([2009] CSIH 48) and 16 February 2010. The private action was dismissed insofar as directed against all six defenders on 11 June 2009 and on 16 February 2010 the pursuer was found liable to all six of the defenders in the expenses of this action, insofar as those expenses had not already been dealt with.

The awards of expenses in favour of the first, second and third defenders remain unpaid. Those defenders are the respondents to this reclaiming motion.

[4] In another action arising out of the non-payment of the maintenance payments due to the pursuer (A1767/03), the pursuer, as judicial factor on the executry estate of the deceased, now sues the former executors. That action was raised by the judicial factor who was appointed in 1999, following a petition at the instance of the pursuer seeking the sequestration of the executry estate of the deceased. The original judicial factor died in 2006 and on 13 March 2007 the pursuer was appointed by the court to replace him as judicial factor. Since then the pursuer has appeared in that action as a party litigant. That action is conveniently referred to as the "judicial factor's action" (A1767/03).

[5] The history of the judicial factor's action is set out in a number of opinions issued since the action was raised including the Opinion of Morag Wise, QC, sitting as a temporary judge, dated 19 November 2009 ([2009] CSOH 153) and the Opinion of the Court delivered by Lord Carloway dated 27 March 2012 ([2012] CSIH 29). In the judicial factor's action a proof has been allowed in respect of certain of the remedies sought by the pursuer. A diet of proof has not yet been fixed. Since the pursuer was appointed judicial factor and, as such, became the pursuer in that action, a number of awards of expenses have been made against her in her capacity as judicial factor.

Hearings before Lord Tyre and Lady Smith in the present action

[6] On 19 March 2012 the pursuer enrolled a motion in the private action in which she sought inter alia an order remitting the private action ob contingentiam upon the judicial factor's action (A1767/03). At a hearing on 21 March 2012 the Lord Ordinary, Lord Tyre, refused the motion seeking to remit the private action as craved. His reasons for refusing the motion were subsequently set out in an opinion dated 12 October 2012 ([2012] CSOH 160). They included that he was not satisfied that there was any contingency between the two actions, the private action (A205/04) and the judicial factor's action (A1767/03). As Lord Tyre noted in his opinion in the private action all the substantial issues had been dealt with by a final judgment. The only live issue that remained related to the amount recoverable in respect of the fees charged by a solicitor advocate, who had been instructed to appear for one of the defenders. Lord Tyre took the view there was no contingency between that issue and those issues which arise and remain outstanding in the judicial factor's action (A1767/03). Lord Tyre expressed concern as to the competency of seeking to review in one action (A1767/03) an award of expenses previously made and not appealed in another action (A205/04). He considered it would not be in the interests of justice to prolong the life of the private action (A205/04) for that purpose. He also took account of the fact that there was no exact identity of parties and that the grounds of actions in the two actions were different, although arising out of the same original circumstances. Lord Tyre also placed considerable weight on the fact that on 16 February 2010 the Inner House in A205/04 had rejected a submission that the determination of the expenses in the private action (A205/04) should await the outcome of the judicial factor's action (A1767/03) (see para [3] of the Opinion of Lady Paton).

[7] On 25 May 2012 the pursuer enrolled a motion in the private action that sought inter alia an order that the private action be sisted on the dependence of the outcome of the application which the pursuer had made to the Supreme Court of the United Kingdom on 8 May 2012 in a Notice of Appeal in the judicial factor's action. By means of that application the pursuer sought that the private action (A205/04) be remitted ob contingentiam and conjoined with the judicial factor's action (A1767/03).

[8] The motion enrolled on 25 May 2012 was opposed on behalf of the first, second, third and fourth defenders. The motion was heard by Lady Smith on 29 May 2012, who considered the written reasons the pursuer had submitted in support of the motion together with the oral submissions of the pursuer and counsel for the defenders. The motion was refused that day. As explained in a written opinion which she subsequently issued, Lady Smith took the view that the pursuer had not demonstrated circumstances which could justify the private action being sisted. In particular Lady Smith was not satisfied that there were any reasonable prospects of the private action being conjoined with the judicial factor's action by the Supreme Court. Lady Smith noted that the outstanding issue between the parties in the private action was not whether or not the first, second and third defenders were entitled to expenses, but what sums were payable by the pursuer in respect of the awards in their favour. Lady Smith indicated that she could not understand how or on what basis the pursuer considered that the entitlement of the defenders to expenses in the private action could be opened up again, were the private action to be conjoined with an appeal to the Supreme Court in the judicial factor's action.

[9] On 5 July 2012 a panel of three Justices of the Supreme Court, Lords Kerr, Dyson and Carnwath, refused the pursuer's application to have waived the requirement of the Supreme Court that two counsel certify that it was reasonable for the pursuer to pursue the appeal she had lodged with the Supreme Court. As a consequence of that decision the pursuer was unable to proceed with the proposed appeal.

Submissions by the pursuer.

[10] In this reclaiming motion the pursuer lodged Grounds of Appeal and a Note of Argument. Ground 1 contended that on 29 May 2012 Lady Smith had erred in the exercise of her discretion in refusing to sist the private action pending the outcome of the pursuer's application to the Supreme Court in the judicial factor's action. In terms of Ground 4 of her application to the Supreme Court the pursuer had sought to have the private action (A205/4) conjoined with the judicial factor's action (A1767/03), together with relief from those orders.

[11] Ground 2 contended that on 21 March 2012 Lord Tyre had erred in refusing to remit the private action (A205/4) ob contingentiam upon the dependence of the judicial factor's action (A1767/03).

[12] Ground 3 contended that because the defenders in the private action were threatening to enforce their awards of expenses against the pursuer, there was a risk that they might seek to remove the pursuer from being in a position to pursue the judicial factor's action. For that reason the court, in exercise of its nobile officium, should sist the private action on the dependence of the outcome of the judicial factor's action.

[13] Ground 4 contended that the pursuer's Convention rights in article 6 in of the European Convention on Human Rights ("ECHR") had been violated by "denial of 'access to justice' and 'a right to a fair hearing' due to the denial of 'equality of arms' through a denial of 'professional representation' arising out of the conflict of interest inherent in the mutuality of the monopoly provision of the Master Policy Professional Indemnity Insurance Scheme established by the Law Society of Scotland (and approved by the Lord President of the Court of Session) being compulsory for all 10,000 + practicing solicitors in Scotland".

[14] The pursuer informed us that following the refusal of her application to the Supreme Court, to dispense with the requirement that her Notice of Appeal be signed by two counsel, she had been unable to proceed with an appeal to the Supreme Court. She had, however, submitted an application directly to the ECtHR. The ECtHR had confirmed receiving the application on 21 August 2012. A copy of the pursuer's application, which was extensive, has not been lodged in process in this action, nor was it made available during the hearing of the reclaiming motion. However the pursuer outlined in her Note of Argument the basis of her application to the ECtHR seeking a declarator that her Convention rights had been infringed.

[15] The pursuer explained that she did not recognise that the Court of Session had the lawful authority or power to make any further decisions with regard to her 'commonwealth' until the ECtHR had adjudicated upon the Court of Session's compliance with human rights law or otherwise. In the event that she was successful in her application to have the proceedings in the present action (A205/04) and the judicial factor's action (A1767/03) declared incompatible with her human rights, it would follow that all of the decisions of judges of the Court of Session in both actions had been unjudicial (sic) and unlawful and accordingly would fall and become the subject of immediate reduction.

[16] The pursuer explained that there had been no equality of arms. She had been unable to engage professional assistance to represent her in the actions in which she was involved. This was because solicitors would not act for her on account of the fact that, as previously mentioned, all solicitors in Scotland require to have their professional indemnity insurance covered by the one master policy issued by one insurance company. Those insurers were already involved as insurers of the former executors of the estate of the deceased and in covering the legal expenses of a number of the defenders in the actions in which the pursuer was a party. That was why the pursuer had been unable to obtain the services of solicitors to represent her.

[17] The pursuer explained that on the basis of those contentions she was seeking a declarator from the ECtHR that she had been denied fairness by the Court of Session and had frequently suffered infringement of her Convention rights in terms of article 6 to a fair hearing before an impartial tribunal. Against that background, the pursuer now sought to have the private action (A205/04) sisted. As mentioned above, this was to prevent the awards of expenses made against her in the private action being relied on as a basis for sequestrating her. In the event that happened, she would no longer be able to act as judicial factor on the estate of the deceased. If this action, the private action, was sisted that would prevent her from sustaining further loss until the outcome of her application to the ECtHR was known. The pursuer also indicated that if necessary she would seek the sist of the judicial factor's action (A1767/03).

[18] During the course of her submissions the pursuer recognised that she could not dispute that a sist would cause some prejudice to the defenders. However she submitted that the granting of a sist would restrict the damage she was suffering on account of the lack of equality of arms. It would also remove the risk of any further rulings being made against her by members of the court who may be biased against her. Moreover any prejudice suffered by the defenders fell to be considered against the fact that over many years she had not received the maintenance payments to which she had been entitled.

[19] The pursuer recognised that the first hurdle she would require to overcome in connection with her application to the ECtHR would be to have her application declared admissible. She also recognised that even if she overcame that hurdle the ECtHR had no power to overturn the decisions of the Court of Session. That was why she was only seeking declarators that her Convention rights had been infringed by this court. She was not seeking an award of compensation. She explained that should her application to the ECtHR be successful she would use the declarators in her favour as a basis for seeking reduction of the various decisions which had passed against her in the Court of Session.

[20] Returning to the practical issues which arose in respect of the decisions that were the subject of the present reclaiming motion the pursuer explained that in respect of the motion refused by Lord Tyre, she did not now seek a remit of the private action (A205/04) ob contingentiam upon the judicial factor's action (A1767/03) or conjunction of the two actions.

[21] In respect of the motion refused by Lady Smith, the pursuer recognised that the purpose of the motion had now been overtaken by events. That was because her application to the Supreme Court to proceed with an appeal without the signatures of two counsel had been unsuccessful.

[22] In these circumstances the pursuer explained she did no longer sought from this court the conjunction of the private action and the judicial factor's action. The motion she now made was that the private action should be sisted pending the outcome of her application to the ECtHR. She indicated it was possible she would enrol a similar motion in the judicial factor's action.

Submissions on behalf of the defenders

[23] Senior counsel for the defenders moved the court to refuse the motion to sist the private action. He argued that the granting of a sist, pending proceedings before the ECtHR, would cause serious prejudice to the defenders. Serious allegations made by the pursuers had been hanging over the defenders for a period in excess of nine years. A number of those allegations had been dealt with in the private action. The defenders were entitled to have that action brought to a conclusion.

[24] Senior counsel suggested that there was no way of forecasting how long proceedings before the ECtHR could last. Were the private action to be sisted, pending the outcome of the proceedings before the ECtHR, it was perfectly possible that the defenders would be unable to enforce the awards of expenses in their favour for a number of years.

[25] Senior counsel noted that a similar motion, seeking to defer the determination of the expenses of the private action, until the conclusion of the judicial factor's action, had been considered by the Extra Division chaired by Lady Paton in February 2010 and had been refused (see Opinion of Lady Paton dated 16 February 2010).

[26] Senior counsel indicated that the expenses in the private action had increased as the case against the defenders had been expanded upon. Even although all three of the defenders were covered by professional indemnity insurers, the expenses awarded against the pursuer should be paid.

[27] In any event it was obvious that the pursuer faced a number of hurdles in her application to the ECtHR. In the first instance her application required to be declared admissible by the court. This would require the pursuer to demonstrate that she had exhausted all her domestic remedies (see The Law of Human Rights; Edited by Clayton and Tomlinson paras 23.59 - 23.61). It was by no means clear that the pursuer had done so. All that appeared to have been included in her application to the ECtHR were allegations of a very general and wide ranging nature about the attitude of the court to the pursuer and the denial of independent representation. Those allegations were now being founded upon as a basis for sisting the pursuer's action.

[28] Senior counsel for the respondents submitted that having regard to the wide ranging nature of the assertions the pursuer was now making before the ECtHR these should have been initially raised in the Court of Session and the court invited to address the issues involved. If the pursuer wished to found on specific allegations as to how her Convention rights had been infringed when particular rulings had been made against her, it would have been necessary for the pursuer to set out these allegations in written pleadings in which she could have focussed the issues she sought to raise for determination by the court.

[29] It was stressed that the pursuer was adopting a very broad approach. Effectively she was contending that no party litigant, appearing against a legally represented opponent, was able to obtain justice from the court. Her complaint about the denial of independent representation on account of the existence of a master policy covering the professional indemnity insurance of solicitors in private practice in Scotland was difficult to give credence to.

[30] Senior counsel for the defenders submitted that the pursuer's allegations of partiality on the part of the judges in favour of professional pleaders and a bias against the pursuer herself were unsubstantiated and indeed controverted by the evidence. On at least five occasions the court had found in favour of the pursuer in actions that arose out of the non-payment of maintenance payments out of the estate of the deceased. For example in the judicial factor's action the pursuer had succeeded in resisting a challenge by the defenders to have the whole case dismissed. Temporary Judge Wise had allowed elements of the judicial factor's action to proceed to proof (see [2009] CSOH 153). Secondly the pursuer had successfully resisted a reclaiming motion against Temporary Judge Wise's interlocutor in her favour [2012 CSIH29). Thirdly on 13 March 2007 the pursuer had been appointed judicial factor on the estate of her late husband, replacing the original judicial factor who died during 2006. She had done so in the face of opposition to her appointment on the part of the defenders in the judicial factor's action and had subsequently been sisted as the pursuer in the action. Fourthly the pursuer had successfully sought the judicial review of the taxation by the Auditor of the Court of Session of accounts of expenses against her. Fifthly she had persuaded Lord Doherty on 26 October 2010 and Lord Stewart on 21 January 2011 to allow further amendment of her pleadings in the judicial factor's action. On each occasion the amendment had taken place in terms of a minute of amendment she had lodged and she had thereby expanded the basis of her claim against the defenders in that action.

[31] Senior counsel for the defenders submitted that a more appropriate way of looking at decisions which had gone against the pursuer was to take the view that there had been a lack of merit in her side of the issues involved. By way of example, that was well illustrated by the decision of the Extra Division on 11 June 2009 in the private action ([2009] CSIH 48), to which reference has already been made.

[32] Senior counsel also made submissions on the issue of the possible bankruptcy of the pursuer, which she herself had raised. He pointed out that in the judicial factor's action the defenders hold a number of awards of expenses against the pursuer. He submitted that in the event that the pursuer was declared bankrupt, any judicial factor appointed to her estate would be in a position to take an objective view of the actions she was still pursuing against the defenders.

Discussion

[33] We have given very careful consideration to the notes of argument which were lodged on behalf of the pursuer and the respondents, the first, second and third defenders. In considering those notes of argument and the oral submissions presented to us, we have also had regard to the contents of the opinions previously issued in the private action and the judicial factor's action, to which we have referred. Having done so, we are quite satisfied that we should not sist the private action.

[34] In giving our reasons for that decision it is appropriate for us to stress that we are dealing with a reclaiming motion against the decisions of Lady Smith dated 29 May 2012 and Lord Tyre dated 21 March 2012. For the reasons we have referred to in paragraphs [21] and [22], events have moved on since those hearings took place. The only issue now before this court is whether the private action should be sisted, pending the outcome of the pursuers' application to the ECtHR. It is not for this Extra Division to reconsider and amend the rulings which other Divisions of the court have previously made.

[35] The pursuer now argues that the court should sist the private action to allow the judicial factor's action to proceed. She no longer contends that the private action and the judicial factor's action should be conjoined. An important background to the motion for the sist is that the pursuer has had a number of awards of expenses made against her in the private action, awards of expenses which remain unsettled. The possibility of her being declared bankrupt at the instigation of one or more of the defenders who hold(s) an award of expenses against the pursuer cannot be excluded.

[36] The Grounds of Appeal lodged on behalf of the pursuer have been summarised earlier in this opinion. Although they refer to the fact that the pursuer had sought to raise proceedings in the Supreme Court with a view to seeking a reference to the ECtHR, they make only limited reference to what the pursuer now alleges, which is that in this action and the judicial factor's action the pursuer's Convention rights under article 6 have been violated, on account of a denial of equality of arms arising on account of the unavailability of independent professional representation. In her Note of Argument the pursuer sets out a number of other criticisms of the court, some of which are presented in a very general basis.

[37] None of these issues have been raised in the written pleadings in the actions which are before the court and no specific remedies based on a judicial determination of the allegations have as yet been sought. It is not for this court to revisit issues as to whether a Lord Ordinary or judges sitting in the Inner House have erred in the decisions they have reached, apart from the decisions of Lady Smith and Lord Tyre that are under review in this reclaiming motion.

[38] As far as the hearing on 29 May 2012 is concerned, the pursuer seeks to criticise Lady Smith for not having accepted pro veritate from the pursuer that she had lodged with the Supreme Court a Notice of Appeal in the judicial factor's action (A1767/03). As Lady Smith makes clear in her opinion, counsel for the defenders informed Lady Smith that "no appeal to the Supreme Court had been lodged in this action." He is also recorded as having advised Lady Smith that the pursuer had not secured the signatures of two counsel in support of such an appeal or a ruling by the Supreme Court dispensing with the requirement for such signatures. Against that background he is recorded as having submitted that there was not, at that time, any realistic prospect of there being any litigation in the Supreme Court. It appears that some days before the hearing of the motion on 29 May 2012, the respondents' solicitors had been provided with a copy of the Notice of Appeal, which the pursuer had lodged with the Supreme Court on 8 May 2012. Indeed a copy of that Notice of Appeal had been lodged in process in the judicial factor's action. Had the pursuer placed a copy of that Notice of Appeal before the court, or had counsel for the respondents been instructed to do so, Lady Smith would have been provided with a fuller description of the position. However, we are not persuaded that even if that had occurred Lady Smith would have reached a different conclusion

[39] As far as the question of legal representation is concerned, it is important to bear in mind that the court, itself, is unable to do anything to arrange legal representation for a party litigant such as the pursuer. The members of the court are fully aware of the costs that can be involved in funding legal representation. As far as the Master Policy issue is concerned, all that the court can observe, as a matter within the experience of its members, is that over the years there have been a number of litigations in the Court of Session in which firms of solicitors have acted for pursuers seeking damages from others firms of solicitors, for loss caused by professional negligence on the part of such defenders. We are unaware of any such cases in which the existence of the Master Policy, to which the pursuer has referred, rendered it impossible for the pursuer to instruct a solicitor and counsel.

[40] The court also recognises that there have been a number of occasions in the dispute between the pursuer and the executors of her late husband's estate in which findings have been made in favour of the pursuer.

[41] Turning to the proceedings before the ECtHR on which the pursuer has embarked, the court is well aware that such proceedings are liable to be lengthy and complicated. They are not, of course, directed against the defenders in her litigations in the Court of Session. The pursuer's application has still to pass the admissibility hurdle. There is nothing before this court that would enable the court to express a view as to the prospects of success for the pursuer's application to the ECtHR. Indeed it would not be appropriate for this court to do so.

[42] Despite the wide ranging submissions which were made to us, the position is clear. All the issues that arose from the written pleadings in the private action (A205/04) have already been resolved by this court. All that remains outstanding is a dispute as to the quantification of the defenders' expenses and the settlement of the expenses awarded to them. The pursuer no longer seeks that this court should conjoin the private action (A205/04) with the judicial factor's action (A1767/03). In the whole circumstances, we are not persuaded that it would be an appropriate exercise of our discretion for this court to sist the private action (A205/04), pending the outcome of the proceedings that the pursuer has sought to raise in the ECtHR. In these circumstances the reclaiming motion in respect of the interlocutors of Lady Smith and Lord Tyre is refused.