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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mahechani v. Scottish Ambulance Service [2004] ScotCS 254 (25 November 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/254.html Cite as: [2004] ScotCS 254 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Hamilton Lord Reed Lord Weir
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XA94/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL From the Sheriffdom of Lothian and Borders at Edinburgh by SHAKESPEARE MAHECHANI Pursuer and Appellant; against SCOTTISH AMBULANCE SERVICE Defenders and Respondents; _______ |
Act: Party (Pursuer and Appellant)
Alt: Smith, Q.C., R.F. Macdonald, Solicitor (Defenders and Respondents)
25 November 2004
[1] In about March 2001 the appellant raised an action in the sheriff court at Edinburgh in which he sought damages against the respondents on the ground that they had, in breach of their statutory obligations under the Race Relations Act 1976, unlawfully discriminated against him in the provision of certain services. After a proof before answer the sheriff, by interlocutor dated 31 July 2002, assoilzied the defenders. By interlocutor dated 21 August 2002 the sheriff disposed of expenses. [2] Against these interlocutors the appellant lodged a note of appeal to the sheriff principal in which the following grounds of appeal were set out:-"1. The proceedings and the judgement arising thereof were overtly biased in favour of the defenders with the result that my right to a fair and impartial hearing as advocated by Article 6 of the Human Rights Act 1998, was infringed.
2. The proceedings and judgment failed to cognizance (sic) of the fact that this was a case involving racial discrimination and there is compelling evidence to suggest that Sheriff Farrell went to great lengths to treat my case as anything other than the racial discrimination case that it was so that he could rationalise the application of the facts as he preferred them.
3. The judgement, regrettably, relied entirely on the rather nebulous concept of 'the shift in the evidential burden', a premise which clearly runs contrary to that advocated by recognised authorities in racial discrimination cases.
4. Some of the language, observations, omissions and conclusions in the judgement were of a prejudicial and unprofessional nature and could only have been intended to lend credibility, at my expense, to his decision."
"On behalf of the Defenders to ordain the Pursuer to find caution for Two Thousand Fife (sic) Hundred Pounds (£2,500) as expenses within 28 days in respect that the Note of Appeal lodged by the Pursuer and Appellant dated 3 September 2003 (sic) lack any suitable grounds for appeal insofar as they are wholly inspecific (sic) and irrelevant and the Pursuer and Appellant's likely inability to pay expenses, it would be unfair to oblige the Defenders and Respondents to continue the litigation with no prospect of recovering expenses in the event of success."
That motion first came before the sheriff principal on 17 December 2002, when the appellant appeared in person and the respondents were represented by counsel. The appellant moved the sheriff principal to continue consideration of the motion in order to enable him to instruct legal representation. The respondents did not oppose that, and the sheriff principal continued the respondents' motion until 14 January 2003. On the latter date the appellant was represented by a solicitor but, on that solicitor's unopposed motion, the sheriff principal further continued consideration of the respondents' motion until 11 February 2003 to await the outcome of the appellant's application for legal aid.
[4] On 11 February 2003, prior to the continued motion being heard, a faxed message from the appellant's solicitor was received at the office of the sheriff principal. It referred to the action and to the continued motion and stated:-"We refer to the above matter and to the continued motion due to be heard on 11 February at 10.30am. Mr Mahechani is withdrawing his opposition to the defenders' motion and will not be in attendance at court today. We have given similar intimation to the Central Legal Office [the defenders' solicitors] simultaneously."
As anticipated in that fax, no appearance was made by or on behalf of the appellant on 11 February. The respondents were represented by counsel who advised the sheriff principal that the respondents had not received any intimation of an application for legal aid by the appellant. The sheriff principal took the view that, as the making of an order for caution was a matter for the discretion of the court, he should hear counsel for the respondents in support of their motion, notwithstanding that it was no longer opposed. Counsel addressed the sheriff principal at length on the grounds of the motion, with reference to authority. The sheriff principal, having been satisfied that it was appropriate in all the circumstances that an order be made, ordained the appellant to find caution for the expenses of the appeal restricted to the amount of £1,250, caution in that sum to be found by 11 March 2003.
[5] Caution was not in the event found by the appellant within the time specified. The respondents then lodged a motion, under rule 27.9 of the Sheriff Court Ordinary Cause Rules, for the appeal to be dismissed. That motion called before the sheriff principal on 18 March 2003, when there was no appearance by or on behalf of the appellant. The respondents' solicitor moved the sheriff principal to dismiss the appeal, but he was reluctant to do so without giving to the appellant an opportunity to be heard on that matter. He pronounced an interlocutor in the following terms:-"The Sheriff Principal, having heard the agent for the defenders and respondents on the defenders and respondents' motion, made at the Bar, for the pursuer and appellant's appeal to be dismissed, caution not having been consigned in terms of the interlocutor of 11 February 2003, continued consideration of the same until 8 April 2003 at 10.30am within the Sheriff Principal's Appeal Court ...., appoints the defenders and respondents to intimate a copy of this interlocutor and Form G10 to the pursuer and appellant by any legal mode under certification that if the pursuer and appellant fails to be present or represented at said diet the appeal may be dealt with in his absence."
" ... a copy of the Court Order dated 18 March 2003 together with Form G10. You will note that the Court has assigned a hearing to take place on 11 April at 10.30am within the Sheriff Principal's Appeal Court ...
You are required to attend at that time or be represented to advise the Court of your intentions in relation to the Appeal. In the event that you do not appear or are represented I will be moving to have the Appeal dismissed and for a finding of expenses against you."
Among the papers lodged by the appellant in the course of the appeal to this court were the Court Order of 18 March 2003 and the Form G10, both purportedly sent to the appellant with the letter of 24 March. The Form G10 (designed for use when intimation is to be made to a party whose solicitor has withdrawn), narrated:-
"A Motion was made in your absence by the Defenders and Respondents to have your Appeal dismissed, caution not having been consigned in terms of the interlocutor of 11 February 2003. Said Motion has been continued until 8 April 2003 at 10.30am.
As a result the sheriff has ordered that you appear or be represented on 8 April 2003 at 10.30am within the Sheriff Court at the address noted below.
... A copy of the order is attached.
When you appear you will be asked by the sheriff to state whether you intend to proceed with your appeal."
The court order purportedly enclosed was in the terms of the interlocutor of 18 March 2003 set forth above.
[7] Before us the appellant accepted that he had received the letter of 24 March. He maintained, however, that he had not at that stage seen the interlocutor of 18 March, said to have been enclosed. [8] On 8 April 2003 the appellant attended without legal representation before the sheriff principal. In his Note the sheriff principal gives the following narrative of what then occurred:-"[12] ... [The solicitor for the defenders] renewed the defenders' motion for dismissal of the appeal on the ground that the pursuer had been in default by failing to find caution. The motion was made in terms of rule 27.9 of the Ordinary Cause Rules 1993. The pursuer told me that he was now unrepresented because 14 days ago his solicitor who had been acting for him had told him that he was not going to assist him any further. He referred to the letter he had received from the defenders' solicitors, and stated that he intended to proceed with his appeal. I advised him of the true purpose of the hearing, and asked him if he had anything to say about his failure to find caution. He said that the motion for caution should not have been granted. That is not, of course, consistent with the statement in his then solicitor's letter of 11 February that he was withdrawing his opposition to the motion. He also told me that his solicitor had told him that he need not appear at the hearing of the motion. He also said that there was no way he was going to find caution. I explained that arguments in favour of the motion had been presented on 11 February and any arguments against it should have been presented at the same time; and that at this stage I could only consider any explanation for his failure to comply with the order. He said that he could not find the money; but, as I explained, the order was for caution, not for consignation of a sum of money with a court. I also told him that if he had any complaint against his former solicitor, that was a matter which he could pursue elsewhere but which could not be taken into account now.
[13] I explained the relevant rules to the pursuer more than once, and allowed him to state his position, which he also did more than once. In the end, however, I was not satisfied that there was any sufficient reason for his failure to comply with the order. I therefore dismissed the appeal..."On that date the sheriff principal pronounced an interlocutor to that effect.
[9] Against that interlocutor the appellant marked an appeal to the Court of Session. In response to a request by the appellant, the sheriff principal in May 2003 furnished his Note referred to above. In the course of these proceedings the appellant initially lodged a document entitled "GROUNDS FOR APPEALING SHERIFF FARRELL'S JUDGMENT DATED 31 JULY 2002", in which he made certain criticisms of the sheriff. No challenge was at that stage indicated to any interlocutor of the sheriff principal. The respondents having thereafter enrolled a further motion for caution, this court on 19 July 2004, in respect of an undertaking given by the appellant at the Bar "that he would lodge new grounds of appeal directed to the interlocutor of the sheriff principal dated 8 April 2003", allowed the respondents to drop their motion for caution. In furtherance of that undertaking the appellant lodged new grounds of appeal. [10] These grounds, and the oral submissions in support of them made by the appellant when he appeared in person before us, were primarily directed to the conduct of the hearing before the sheriff principal on 8 April 2003. However, they also challenged the prior interlocutor of 11 February 2003, the appellant maintaining that the sheriff principal had erred in making the order for caution. [11] It is appropriate to deal first with that latter challenge. In support of it the appellant made a passing reference to the observations by Lord Fraser of Tullybelton in Stevenson v Midlothian District Council 1983 S.C. (H.L.) 50 at p. 58 that it"would clearly be wrong that a litigant with a stateable case should in effect be excluded from the court by an order for caution with which he could not comply."
His Lordship went on to observe that the case before him was devoid of merits and that accordingly that point lost most of its importance. In the present case the sheriff principal heard argument in support of a motion for caution, directed no doubt among other things to the nature of the grounds of appeal presented against the sheriff's interlocutor. He also received intimation from the appellant's solicitor that the appellant no longer objected to the motion. It was not suggested before us that that intimation was made otherwise than on the appellant's instructions. Nothing has been said to us which would warrant a conclusion that the sheriff principal was, in the circumstances before him, in error in exercising his discretion to the effect of ordering caution to be found in the restricted sum. Accordingly, no basis has been demonstrated for interfering with that interlocutor. We should add that Mr Smith, counsel for the respondents, under reference to the observations of Lord Adam in Whyte v Whyte (1895) 23 R. 320 at p. 321, submitted that the interlocutor of 11 February 2003, albeit not bearing to be of consent, should, having regard to the intimation, be treated as such and that it was accordingly not appealable. We find it unnecessary to express any view on that submission.
[12] The appellant maintained before us that, in light of the letter of 24 March 2003 from the respondents' agents, he had attended before the court on 8 April for the purpose of his advising it as to his intentions in relation to his appeal against the sheriff's interlocutor, including seeking a date for the hearing of that appeal. He had not understood that attendance by him was for the purpose of dealing with his failure to find caution. It was, he submitted, "inconsistent and erroneous for the Sheriff Principal to order me to appear before him to justify my appeal while simultaneously insisting on a caution which had the effect of negating the very Appeal whose justification he had ordered me to state". In the event, the sheriff principal had refused, he argued, to listen to what he had had to say. The sheriff principal's conduct on that occasion pointed towards bias on his part against the appellant and in favour of the respondents; this was supported by the sheriff principal's earlier act in making the order for caution and later, in his Note, in narrating the written motion for caution lodged by the respondents, not in the exact terms used by them, but with typographical improvements. It was also evidenced by his denial of the appellant's appeal against the sheriff's determination. [13] In our view the criticisms advanced of the sheriff principal are without merit. He plainly had regard to the appellant's interests when, intimation having been given on the appellant's behalf that he was no longer opposing the motion for caution, the sheriff principal nonetheless insisted on the respondents justifying their motion and, in the event, granted it only in restricted terms. Thereafter, he again had regard to the appellant's interests when he declined to grant the respondents' motion for dismissal of the appeal when that motion was first made on 18 March 2003; he continued it to allow a personal appearance to be made by the appellant. It is unfortunate if the letter from the respondents' agents misled the appellant as to the true purpose of his attendance on 8 April. But in circumstances where the appellant knew that an order for caution had been made and that he had not met it, it must have been obvious that the consequences of that state of affairs would require to be addressed, at least as an aspect of any further procedure in his appeal. Once the respondents had lodged a motion for dismissal of the appeal on the ground that the caution ordered had not been found, the sheriff principal was bound to deal with that motion. There was no inconsistency in his affording to the appellant a further opportunity to address him before disposing of that motion. While immediate dismissal of his appeal was not inevitable, it was plainly for the appellant to satisfy the sheriff principal that there were compelling reasons why some other course should, exceptionally, be adopted. It is clear that the issue of caution was raised at the hearing on 8 April and that the appellant then made it plain to the sheriff principal that he either could not or would not find the security which had been fixed. The appellant did not suggest to us that he had put to the sheriff principal any alternative proposal, by extension of time or otherwise, to meet the requirement for security which, without objection from him, had been made by the sheriff principal in February. Nor was any material put before us to suggest that, even if the appellant had had a fuller opportunity to address the sheriff principal, he would have been able to advance any ground upon which the sheriff principal could properly have made any order different from that which he in fact made. [14] In his written grounds of appeal the appellant contended that his human rights had been infringed by the sheriff principal's conduct in the respects narrated above; he repeated those contentions in oral argument. But we are quite satisfied that, viewing these contentions, as we must, from the viewpoint of an informed and objective observer, there is no substance in any of them. In these circumstances this appeal must be refused.
