|
EXTRA DIVISION,
INNER HOUSE, COURT OF SESSION
|
Lady Paton
Lord Mackay of
Drumadoon
Lord Marnoch
|
[2013]
CSIH 50
P746/10
OPINION OF
THE COURT
delivered by
LADY PATON
in the petition
of
THE RIGHT
HONOURABLE ELISH ANGIOLINI QC, Her Majesty's Advocate
Petitioner;
against
JAMES DUFF
Respondent:
for
an order
under the Vexatious Actions (Scotland) Act 1898
_______________
|
Act: Balfour; Scottish
Government Legal Directorate - Petitioner
Alt: Party - Respondent
12 June 2013
Introduction
[1] The
respondent raised numerous court actions against inter alios the Lord
Advocate, the Chief Constable of Dumfries and Galloway Constabulary, a local authority
(Dumfries and Galloway Council), and the former trustee in his sequestration.
As a result of the number and nature of those actions, the Lord Advocate raised
the present petition (P746/10) seeking to have the respondent declared a
vexatious litigant. A hearing took place on 28 November 2012. The
respondent represented himself, as he has done in many of his litigations.
The respondent's submissions and
counsel's reply
[2] At the
outset, the respondent made the following submissions:
- The respondent
had previously moved the court to ordain the petitioner to state precisely
what was "vexatious" about the actions. The petitioner had not done so.
- There was a
conflict of interests as the petitioner was the Lord Advocate who would
obviously support a chief constable, yet one of the respondent's main
complaints was that the Chief Constable of Dumfries and Galloway
Constabulary and his officers had fabricated police reports.
- There was a
conflict of interests as counsel appearing for the petitioner (Mr Balfour)
had represented the Dumfries police and Dumfries and Galloway Council.
- It was
appropriate to sist the present petition (P746/10) to await the outcome of
the respondent's appeal against the decision of the Inner House dated
18 May 2012 to the European Court of Human Rights in Strasbourg (see
case number 12 below, Duff v Shearer (B56/11, XA48/11)).
- The respondent stated
that Brendan Kearney, the former head of legal services of Dumfries and
Galloway Council, had been disciplined and sacked in May 2012. According
to the respondent, it was Mr Kearney who had suggested that the
respondent should be declared a vexatious litigant.
- There was a
conspiracy dating back to the 1980s to have the respondent declared a
vexatious litigant (see, for example, a police report dated 18 June
1986).
[3] Counsel
for the petitioner responded as follows:
- The written
argument for the petitioner set out why it was contended that the
litigations were vexatious.
- This court could
properly decide whether the petitioner was a vexatious litigant by
applying the statutory test to the objective information placed before the
court.
- Counsel stated
that he had not in fact represented either the Dumfries police or Dumfries
and Galloway Council.
- The appeal which
had gone to Strasbourg was only one of many cases. It might take some
time before the outcome was known.
- Counsel had no
knowledge of the allegations concerning Mr Kearney.
- Any question of
a conspiracy was for this court to assess.
[4] Having
taken time for consideration, this court concluded that there was nothing in
the six points raised by the respondent which prevented the court from
considering the merits of the petition P746/10 and answers, largely on the
basis of the written pleadings, notes of argument, and productions. Parties
were so advised.
[5] The
respondent then reminded the court that he was seeking to have case
number 1 below (Duff v Forbes) re-opened. A motion was to
come before Lord Glennie in December 2012 (as to which, see
paragraphs [10] to [12] below).
The respondent's sequestrations
[6] The
respondent was sequestrated on 27 May 1976. On 10 March 1993,
Lord Morison granted the trustee his discharge. In his judgment,
Lord Morison observed (at page 7) that averments in the respondent's
minute of amendment criticising the trustee's conduct of the sequestration were
-
" ... utterly lacking in any
specification. It is impossible to tell in what respect or respects the
respondent wishes to allege [that the trustee] failed to perform his duties in
a proper and diligent manner."
[7] In 2007
the respondent was again sequestrated: see paragraph [18] below.
The respondent's court actions
[8] What
follows is a chronological summary of most of the actions raised by the
respondent. Sources include (i) the petition as amended on 25 July 2012
number 20 of process; (ii) the respondent's adjusted answers dated 15 November
2010 number 8 of process, his 3-page fax dated 26 January 2012, and a
minute of amendment for the respondent dated 30 August 2012 number 22
of process; (iii) productions for the petitioner, namely files containing
court papers (tabs 6/1 to 6/28); (iv) a fourth inventory for the petitioner
containing two initial writs 6/29 and 6/30; (v) written submissions for the
petitioner; (vi) oral submissions presented by counsel for the petitioner and
by the respondent at the hearing on 28 November 2012; (vii) a manuscript
letter from the respondent to the Court of Session dated 29 November
2012; (viii) information concerning the current position in each action which,
at the request of this court, was retrieved from the relevant court processes
by the Deputy Principal Clerk of Session (DPCS); and (ix) further information
from the Keeper of the Rolls concerning the current position in the petition to
the nobile officium.
[9] The
summary is restricted to actions initiated by the respondent. As noted by
Sheriff Principal C G McKay at paragraph 17 in his opinion in Duff v
Forbes (case number 7 below):
"
... Mr Duff explained that the grievances for which he was seeking redress
were that he ought not to have been sequestrated in the first place since the
debts for which he was made bankrupt were not personal to him but debts of his
limited company and secondly that in the course of the sequestration a valuable
asset, land belonging to him, had been sold by the trustee to a company of
which one of the directors, if not the only director, was a commissioner in his
sequestration ..."
The
actions are as follows:
1. Duff v Forbes (the
trustee in sequestration): the Court of Session
[10] In November
1979 the trustee in sequestration made certain adjudications on the creditors'
claims. The respondent appealed those adjudications. On 17 March 1983
Lord Kincraig refused his appeal. The respondent reclaimed, but withdrew
his reclaiming motion. In 1986 the respondent presented a petition to the nobile
officium seeking an accounting of the trustee's intromissions, in which the
prayer was amended to read "to declare the sequestration of James Duff granted
on 27 May 1976 to be at an end". The petition was sisted, with motions to
recall the sist being refused in 1987. Also in 1987, the respondent petitioned
the Court of Session in terms of section 82 of the Bankruptcy (Scotland)
Act 1913, again seeking an accounting of the trustee's intromissions. The
petition was sisted in 1987. On 10 March 1993, when granting the trustee
his discharge, Lord Morison noted in his opinion (page 4) that the
section 82 petition sisted in 1987 contained "no live issue". In 1994,
the sist in the petition to nobile officium was recalled and a question
of expenses dealt with. In 1995 the respondent raised a petition seeking to
have Lord Kincraig's decision quashed. The petition was dismissed.
[11] In 2012 the
respondent sought to resurrect the section 82 petition which had been
sisted some 25 years previously in 1987. The petition was formerly
numbered P2/5/87 and is now numbered P153/01. As is recorded in a Note by
Lord Menzies dated 13 November 2012 (issued when the court was
dealing with the appeal in another process XA72/12, case number 8 Duff v
Forbes below):
"[2] Until this month, the last
interlocutor in the section 82 petition was pronounced in 1993, some
19 years ago. The petition relates to Mr Duff's sequestration in
1976. We were told by Mr Jones [solicitor advocate] for the defender and
respondent that the trustee in sequestration was granted discharge by this
court in about March 1993 at a hearing in which Mr Duff was represented by
counsel..."
[12] In the 1987
petition, the respondent refers in paragraph 1 to the award of sequestration
against him on 27 May 1976, the election of the trustee, the trustee's
adjudication of claims in November 1979, the respondent's appeal against those
adjudications and the refusal of his appeal on 17 March 1983. In
paragraphs 2 and 3, the respondent avers that the debts were owed by a
limited company J & J Duff (Lochmaben) Ltd, and not by him personally. The
respondent further avers that his appeal was refused "by reason of [his]
inability to prove the company and not him was indebted to [the creditor]." In
paragraph 4 of the 1987 petition, the respondent refers to section 82
of the Bankruptcy (Scotland) Act 1913 and seeks an accounting from the trustee
of his intromissions and management of the bankruptcy estate. In the prayer of
the petition, the respondent craves the court to ordain the trustee in
bankruptcy to account for his intromissions and management. In his recent
adjustments to the 1987 petition, the respondent has added averments inter
alia that:
"...The decision of Lord Kincraig dated
17 March 1983 should be treated as void, because a party with no legal
right to enter into a process cannot defend the cause. Lord Kincraig acted ultra
vires by allowing the [trustee] and his agents to defend the appeal which
was clearly an abuse of process. Reference is made to Skinner's Trustee
v Keith 4 March 1987. The [trustee's] discharge should be treated
as void due to the fact that it was obtained by deception. The [trustee] and
his agents deliberately withheld from the court that three court actions were
still pending when the [trustee] had lodged his application in October 1991.
Reference is made to Swanson v Wight 1836 SC 652."
Further adjustments
made by the respondent emphasise that the indebtedness was that of the limited
company, and not of the respondent. Two pleas-in-law have also been added by
adjustment, as follows:
"1. The decision of
Lord Kincraig being obtained by an abuse of process, the decision should
be treated as void.
2. The respondent's discharge being
obtained by deception, that decision should be treated as void."
At a hearing on
20 December 2012, Lord Glennie issued the following interlocutor:
"The Lord Ordinary having heard the
party and solicitor advocate...allows [certain productions and adjustments;
orders Notes of Argument]; and allows a procedure roll hearing on the petition
and answers as adjusted, and restricted to the competency and relevancy
issues..."
The procedure roll
debate on issues of competency and relevancy was fixed for 6 June 2013.
[13] In March
2013, the respondent sought to reactivate the petition to the nobile
officium, some nineteen years after the sist was recalled in 1994. He
enrolled a motion. On 24 April 2013, the case was to be put out By Order
for the respondent to address the court on further procedure. That hearing was
discharged. A fresh date was fixed for 21 May 2013. On that date, the
court heard submissions and refused the prayer of the petition.
1A. Duff v
L Barclay & Company (1994: A158/94): the Court of Session
[14] In 1994 the
respondent raised an action in the Court of Session seeking reduction of a
decree for payment against him obtained by L Barclay & Company. The
following information was provided by the DPCS. On 25 November 1994 the
respondent was ordained to find caution and to lodge a bond within
14 days. On 6 December 1994 the time within which to lodge caution
was prorogated to 16 December 1994. On 14 December 1994 the
respondent's motion for leave to reclaim was refused. The action was sisted. On
22 October 1996 (almost two years later) the sist was recalled and the
respondent of new ordained to find caution within four weeks. On
19 October 2012 (some 16 years later) the respondent's motion for
leave to reclaim against the interlocutor of 22 October 1996 was refused.
2. Duff v
Robertson, Wilkes and Merrick Homes Limited (1995): the Court of Session
[15] On
2 February 1995, the respondent raised an action in the Court of Session seeking
delivery of half the share capital of Merrick Homes Limited and interdict. The
following further information was provided by the DPCS. On 24 January
1995 interim interdict was granted against the defenders prohibiting them from
alienating any land to which the third defenders might be entitled at, or in
the vicinity of, Mill Loch, Lochmaben and Vendace Avenue, Lochmaben. On
13 August 1996 the interim interdict was recalled. On 28 August 1996
defences for the third defenders were allowed to be received late. There has
been no further procedure.
3. Duff v
Merrick Homes Limited (2002: A1074/02): the Court of Session
[16] In about
2002 the respondent raised an action in the Court of Session seeking inter
alia reduction of missives and of a decree dated 31 January 1996. In
an opinion dated 18 March 2003, Temporary Judge Gordon Reid QC noted that
there were wholly inspecific allegations (mainly directed against the former
trustee in bankruptcy) of collusion, pressure and threats, corruption,
blackmail, fraudulent scheme, a plot, gross fraud, fraudulent
misrepresentation, underhand deals, fraud practised on the court, pressure
threat and blackmail, corrupt administration and gross fraud, fraudulent
activities, fraudulent statements, corrupt administration of the respondent's
estates and other similar allegations. The judge dismissed the action as
irrelevant and lacking in specification. The respondent prepared grounds of
appeal alleging inter alia prejudice and bias on the part of the judge.
The following further information was provided by the DPCS. On 8 April
2003 the respondent marked a reclaiming motion. On 25 November 2003 the
case was appointed to the Summar Roll. On 7 January 2004 the Summar Roll
fixed for that date was discharged, and the respondent was ordered to lodge an
appendix by 25 February 2004. On 23 April 2004 the case came before
the Inner House on the Summar Roll. The reclaiming motion was refused, and the
interlocutor of 18 March 2003 adhered to.
4. Duff v
Colin Boyd QC (2006: A3553/06): Dumfries Sheriff Court and the Court of
Session
[17] In 2006 the
respondent raised an action of lawburrows in Dumfries Sheriff Court against
Colin Boyd QC as Lord Advocate. The respondent averred that there was a
criminal conspiracy between Dumfries police and members of the legal profession
in Dumfries to make him bankrupt in order to steal his properties. Police
reports had been faked, evidence distorted, and reports falsified. The
defender was averred to have incited the procurator fiscal at Dumfries to
pervert the course of justice by saying that there was no evidence to support
the respondent's complaints against the Dumfries police and other individuals.
The defender had perverted the course of justice and acted oppressively by
aiding and abetting others to fake reports and spread lies about the
respondent, so that he could not get justice or recover his property or
damages. The defender was averred to be continuing his vendetta against the
respondent to stop him obtaining justice. On 14 September 2006 the action
was dismissed as incompetent. On 26 January 2007 an appeal to Sheriff
Principal E F Bowen QC was refused. On 8 May 2007 an appeal to the Court
of Session was dismissed as incompetent. The respondent was found liable in
expenses. To date, no expenses have been paid.
5. Duff v
Strang (2006: B347/06, XJ845/07): Dumfries Sheriff Court and the High Court
of Justiciary
[18] On 29 November
2006 the respondent raised an action of lawburrows in Dumfries Sheriff Court against
the Chief Constable of Dumfries and Galloway Constabulary (David Strang). The
respondent averred that he had been made bankrupt illegally in 1976. He
referred to fabricated police reports and evidence, police officers perverting
the course of justice and defrauding the respondent, a cover-up about the theft
of his car, and a vendetta against him to stop him obtaining justice. On
2 March 2007 Sheriff Smith dismissed the action as incompetent and
irrelevant. The respondent appealed to the High Court of Justiciary by Stated
Case. The Stated Case was dismissed as incompetent and (obiter)
irrelevant: 2008 JC 251. Expenses were awarded against the respondent. These
remained unpaid, and as a result the respondent was again sequestrated.
6. Duff v
Shearer (2008: A342/08, XA167/09): Dumfries Sheriff Court and the Court of
Session
[19] On 1 September
2008 the respondent raised an action in Dumfries Sheriff Court against the
Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer). He
sought damages of £20 million and interdict. He averred that he had been
made bankrupt illegally in 1976; solicitors had conspired to defraud him of
his money and lands; police officers had faked reports and perverted the
course of justice. He later added adjustments referring to his trustee in sequestration
as a "well known fraudster" who had conspired with Dumfries police to bring
fabricated charges against the respondent and his ex-wife. The respondent also
averred that the Chief Constable's legal team had deceived the court, lied,
misled judges in the Court of Session and conspired with clerks of court. On
6 February 2009 Sheriff Johnston refused the respondent's motion to have
the Chief Constable's solicitor found guilty of contempt of court for trying to
mislead the court. On 5 June 2009 Sheriff Jamieson dismissed the action
as irrelevant and lacking in specification. The respondent appealed to the
sheriff principal alleging bias on the part of the sheriff and false
information provided by the lawyer acting for the Chief Constable. On 2 October
2009 Sheriff Principal B A Lockhart refused the appeal. The respondent
appealed to the Court of Session. He was required to lodge grounds of appeal
within 28 days of 13 November 2009. The petitioner avers that he
failed to do so. However the respondent avers that "grounds of appeal [were]
lodged and [are] still pending" (see the respondent's adjusted answers number 8
of process, foot of page 12). By contrast, a Note delivered by Lord Menzies
dated 13 November 2012 (XA167/09) states:
"[1] In the action, appeal number
XA167/09, the last interlocutor of this court was pronounced on 13 November
2009, exactly three years ago today. In terms of that interlocutor Mr Duff
was ordained to lodge grounds of appeal within 28 days. Nothing has
happened since. No grounds of appeal have been tendered. Mr Duff has
given no satisfactory explanation for the failure to progress this appeal by
the lodging of grounds of appeal. He attributed his failure to do so to a mix
up.
[2] An appellant has a duty to make
progress in an appeal and the court will not permit appeals in which no
progress is being made to drag on indefinitely. After the lapse of a period of
three years we are in no doubt that this appeal should be refused ..."
The following further
information was provided by the DPCS. The court then dismissed the appeal in
respect that the respondent had failed to obtemper the interlocutor of
13 November 2009.
7. Duff v
Forbes (2008: A82/08): Dumfries Sheriff Court and the Court of Session
[20] On 6 November
2008 the respondent raised an action in Dumfries Sheriff Court against his
former trustee in sequestration. He sought damages of £10 million and
interdict. He made averments of a conspiracy involving the former trustee,
blackmail and pressure, and incorrect entries in the sederunt book. In a later
note, he alleged that the defender's solicitors were deliberately misleading
the court, and trying to pervert the course of justice. On 15 July 2009
Sheriff Robb assoilzied the defender from the claim of damages, and dismissed
the action so far as seeking interdict. The respondent appealed to the sheriff
principal, alleging that the sheriff had acted ultra vires and in a
biased way; that he had shouted and was aggressive; and that his conduct made
it clear that he would not give a party litigant a fair hearing. On 11 November
2009 Sheriff Principal C G McKay refused the appeal. The criticisms of the
sheriff were held to be wholly unfounded. The respondent appealed to the Court
of Session, but then abandoned his appeal. Expenses were awarded against the
respondent but have not been paid.
8. Duff v Forbes
(2010: A23/10, XA72/12): Dumfries Sheriff Court and the Court of Session
[21] On 2 February
2010 the respondent raised an action in Dumfries Sheriff Court against his
former trustee in sequestration. He sought damages of £15 million and
interdict. The basis of the action was similar to that in case number 7
above. Sheriff Jamieson repelled the defender's plea of res judicata in
respect of the damages claim. The defender's appeal to the sheriff principal
(Temporary Sheriff Principal C N Stoddart) was successful and the defender was
assoilzied from the crave for damages. Expenses were awarded against the
respondent. Following a hearing on 26 March 2012, Sheriff Jamieson
dismissed the remaining part of the action, observing:
"[60] Mr Duff has considerable
experience of litigation as a party litigant and ought now to be aware that, at
a debate, the court is invited to consider if his pleadings are legally
relevant and sufficiently pled to merit the case proceeding to proof; and that
an action will be dismissed at debate if 'it must necessarily fail even if all
the pursuer's averments are proved': Jamieson v Jamieson 1952 SC
(HL) 44 at 50, per Lord Normand. In my opinion the Jamieson test is
clearly made out in this case ..."
[22] Expenses
were awarded against the respondent. The petitioner avers that respondent is
believed to have marked an appeal to the Court of Session, but it is not known
what further proceedings (if any) have taken place. The respondent states that
"the Court of Session has given the timetable for the appeal procedure": see
his minute of amendment number 22 of process, page 4. The following further
information was provided by the DPCS. On 27 April 2012 an appeal was
registered in the Court of Session (XA72/12). On 24 May 2012 the
respondent's motion to sist the appeal was refused, and he was ordered to lodge
a process and an appeal print within six weeks. On 16 October 2012 at a
procedural hearing the court ordained the respondent to lodge caution of
£10,000 within 28 days, and found him liable in the expenses of the
opposed motion. The procedural hearing was continued to 20 November
2012. On 13 November 2012, the respondent's motion to sist the appeal was
refused, and the date of the procedural hearing confirmed. On 20 November
2012, the respondent did not appear, but the court received a letter from him
dated 14 November 2012. The court considered that letter, and ultimately
refused the appeal in respect of the respondent's failures to appear or to find
caution.
9. Duff v
Shearer (April 2010: B131/10): Dumfries Sheriff Court
[23] On 22 April
2010 the respondent raised an action of lawburrows in Dumfries Sheriff Court against
the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer).
The basis of the action was similar to that in case number 5 above. On 5 August
2010, following upon a debate, Sheriff Jamieson dismissed the action as
irrelevant. The petitioner avers that the respondent did not appeal. However
the respondent states that the sheriff clerk's office was responsible for not
having the action sent to the Court of Session: see his minute of amendment
number 22 of process, page 4. The following further information was
provided by the DPCS. Dumfries Sheriff Court confirmed that no appeal was
marked and that the respondent has been advised accordingly.
10. Duff v
Shearer (September 2010: A234/10, XA154/10): Dumfries Sheriff Court and the Court
of Session
[24] On 8 September
2010 the respondent raised a further action in Dumfries Sheriff Court against
the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer)
seeking rectification of police reports; an apology; damages of £10 million;
and interdict. The circumstances relied upon were similar to those relied upon
in case number 6 above. The legal basis of the claim was that police
officers had "defamed and discriminated" the respondent. The respondent was
ordered to find caution. He did not do so. The respondent states that the
cause is back at Dumfries Sheriff Court, and has been sisted. He states
further that he will be asking for a review of the £2,000 caution which he
describes as "an injustice when the [respondent] has a stateable case": see
his minute of amendment number 22 of process, page 5. The following
further information was provided by the DPCS. An appeal to the Court of
Session was registered on 3 December 2010. On 14 December 2010 the
appeal was sisted until 1 February 2011. On 2 June 2012 at a
procedural hearing, the respondent's note of argument and appendix were allowed
to be received late, and the clerk of court requested a note from the sheriff
at Dumfries relating to an interlocutor of 28 October 2010. The appeal
was appointed to the Summar Roll for a hearing on 20 October 2011. On
20 October 2011 the respondent's appeal was allowed to the extent of
recalling that part of the sheriff's interlocutor of 28 October 2010
reading:
"Deletes as scandalous and irrelevant
the pursuer's averments in article 2 of the condescendence except for the
words 'These statements are untrue, false, calumnious', and all his averments
in article 3 of the condescendence. Deletes for the same reason his third
plea-in-law. Dismisses craves 1 and 3 of his initial writ. Quoad
ultra, and subject to the requirements of the pursuer to consign £2,000
with the sheriff clerk, allows the action to proceed."
The respondent's
appeal to the Court of Session was otherwise refused. The respondent was found
liable in expenses, restricted to 50 per cent. On 16 February 2012
the cause was remitted to Dumfries Sheriff Court to proceed as accords. On
22 November 2012 the case was dismissed at Dumfries Sheriff Court. No
appeal was marked.
11. Duff v
Dumfries and Galloway Council (November 2010: A312/10, XA71/12): Dumfries
Sheriff Court and the Court of Session
[25] On 17 November
2010 the respondent raised an action in Dumfries Sheriff Court against Dumfries
and Galloway Council seeking compensation of £324,000 and interdict in relation
to a drainage and lighting system constructed by the respondent in the 1970s.
The respondent averred that the Council had faked a map about the drainage
system, and had misled Scottish Water. On 19 July, 18 August and
7 December 2011 Sheriff Jamieson dismissed various parts of the
action as irrelevant and lacking in specification. The respondent is
understood to have marked an appeal to the sheriff principal, but the
petitioner avers that it is not known what further proceedings (if any) have
taken place. The respondent for his part states that the appeal is sisted
pending a full hearing at Dumfries Sheriff Court on evidence, and that the
respondent is waiting for a date from the sheriff court: see his minute of
amendment number 22 of process, page 5. The following further information
was provided by the DPCS. On 27 April 2012, an appeal was registered in
the Court of Session (XA71/12). On 24 May 2012 the appeal was sisted for
three months pending a full hearing in Dumfries Sheriff Court on evidence
relevant to the appeal. On 25 September 2012, at a By Order hearing in
the Court of Session, the respondent was ordained to lodge an appeal print
within 7 days, and thereafter the Keeper of the Rolls was to issue a
timetable. On 13 November 2012 the court refused a motion to dismiss the
appeal, and ordained the respondent to find caution of £2,000. On
8 January 2013 a three-judge procedural hearing took place. The
respondent did not appear. He had intimated by a faxed letter dated
14 November 2012 that he would not be finding caution, nor would he be
appearing at the procedural hearing. The court dismissed the appeal in respect
that the respondent had failed to obtemper the interlocutor of 13 November
2012.
12. Duff v
Shearer (February 2011: B56/11, XA48/11): Dumfries Sheriff Court and the
Court of Session
[26] On 15 February
2011 the respondent raised an action of lawburrows in Dumfries Sheriff Court against
the Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer).
The basis of the action was similar to that in case number 9 above.
Following a debate on 31 March 2011, Sheriff Jamieson dismissed the
action as irrelevant. The respondent appealed to the Court of Session on the
basis that the sheriff was not entitled to determine the matter without hearing
evidence. On 18 May 2012 the appeal was refused for the reasons given by
the Inner House in their judgment of that date (reported 2012 SLT 975). The
respondent states in his minute of amendment number 22 of process
pages 5 and 6:
" ...[the case] was appealed to the
Supreme Court in London ... the respondent was told 'your application to have
waived the requirements that two counsel certify that it is reasonable to
pursue the appeal has been considered by the panel of three justices concluded [sic]
that it is not a case in which dispensation of the requirements should be
granted. The points mentioned in the grounds of appeal are not arguable. The
decision as to which of the judges should give the opinion in the Inner House
was a matter of procedure, which is not open for review in this court' ..."
[27] The
respondent advised this court that he has appealed the case to the European
Court of Human Rights in Strasbourg: see paragraph [2] above.
13. Duff v
Shearer (September 2011: B345/11, XA139/11): Dumfries Sheriff Court and the
Court of Session
[28] On 30 September
2011 the respondent raised an action in Dumfries Sheriff Court against the
Chief Constable of Dumfries and Galloway Constabulary (Patrick Shearer). He
sought suspension of a charge for payment served on him in respect of the
non-payment of the expenses awarded in case number 9 above. On
13 October 2011 Sheriff Jamieson dismissed the action as
incompetent. The respondent appealed to the sheriff principal. On 24 November
2011 Sheriff Principal B A Lockhart refused the appeal and awarded expenses
against the respondent. In his minute of amendment number 22 of process
at page 6, the respondent states that he "has a cause sisted at the Court
of Session". The following further information was provided by the DPCS. On
19 December 2011 the respondent's appeal was registered in the Court of
Session (XA139/11). On 21 December 2011 the appeal was sisted for two
months pending the Summar Roll hearing in appeal XA48/11 (paragraph [26]
above). On 27 July 2012 there was no appearance on behalf of the
defender, and the appeal was sisted until 24 August 2012. On
25 September 2012 the respondent was ordered to lodge an appeal print
within seven days, and the Keeper was thereafter to issue a timetable. On
13 November 2012 the court refused a motion to dismiss the appeal, and
ordered the respondent to find caution of £2,000. On 8 January 2013 a
three-judge procedural hearing took place. The respondent did not appear. He
had intimated by a faxed letter dated 14 November 2012 that he would not
be finding caution, nor would he be appearing at the procedural hearing. The
court dismissed the appeal in respect that the respondent had failed to
obtemper the interlocutor of 13 November 2012.
14. Duff v
The Council of the Law Society (July 2012)
[29] A fourth inventory of productions for the petitioner contained an
initial writ lodged on 4 July 2012 in which the respondent seeks
compensation of £30 million from the Council of the Law Society, and
interdict. The respondent refers to complaints which he made about certain
solicitors, and avers that the Law Society failed to take appropriate action.
On 8 August 2012, Sheriff McColl refused to warrant the writ.
15. Duff v
The Scottish Ministers (November 2012)
[30] The fourth
inventory also contained an initial writ in which the respondent seeks
compensation of £30 million from the Scottish Ministers. The respondent refers
to his illegal sequestration and abuses of process, to his complaints to the
Scottish executive, and to the latter's failure to respond. By letter to the
respondent dated 13 November 2012 it is explained that Sheriff McColl
refused to warrant the writ or to be addressed on it.
The respondent's adjusted answers,
fax, minute of amendment, and manuscript letter
[31] As noted in
paragraph [8] above, the respondent lodged in the current process (P746/10)
adjusted answers number 8 of process, a 3-page fax dated 26 January
2012, and a minute of amendment number 22 of process. He also sent the
Court of Session a manuscript letter dated 29 November 2012.
[32] In these
documents, the respondent denies raising vexatious proceedings. He explains
that he had reasonable grounds for raising the actions, and also documentary
evidence to support them. His cases were dismissed as a result of a conspiracy
between the Lord Advocate, the Dumfries police, solicitors, and court
officials (pages 14 and 15 of the adjusted answers number 8 of
process). The present petition was false. It had been raised for only one
reason, namely to stop the respondent getting access to justice (page 19).
Public money had been wasted protecting local solicitors and corrupt police
officers (page 20). Fake police reports had been circulated to the Law
Society, the Crown Office, and the devolved administration of the Scottish
executive, so that no investigations would be carried out (page 20).
[33] The
respondent also reiterated inter alia that his sequestration in 1976 was
illegal. Any trading (and debts) had been the company's, not the
respondent's. His trustee in sequestration had mismanaged his affairs. The
respondent had been defrauded of his estate. The respondent made criticisms of
the lawyers involved. He stated that judges had been misled, and had also
erred. He gave considerable detail in relation to certain litigations.
[34] In his
manuscript letter dated 29 November 2012 the respondent pointed out that
his cases had come before many sheriffs and judges who had not categorised them
as "vexatious". He referred to the hearing in Duff v Dumfries and
Galloway Council (XA71/12) on 13 November 2012 before three judges
chaired by Lord Menzies. Despite the submissions made by counsel for the
Council, the court had ruled that the action should not be dismissed as an
abuse of process. (Lord Menzies' Note dated 13 November 2012
confirms that the court was not satisfied in the circumstances that "the high
test for abuse of process has been met"; however the court ordered the
respondent to find caution as "[the respondent's] case ... if stateable at all,
cannot be described as strong", adding "He has failed to obtemper decrees for
payment in other causes which may indicate that he is unable to meet current
obligations. Indeed he has recently been sequestrated."
Discussion
The Vexatious Actions
(Scotland) Act 1898
[35] Section 1
of the Vexatious Actions (Scotland) Act 1898 provides:
"Power of Court of Session to
prohibit institution of action without leave
It shall be lawful for the Lord
Advocate to apply to either Division of the Inner House of the Court of Session
for an order under this Act, and if he satisfies the Court that any person has
habitually and persistently instituted vexatious legal proceedings without any
reasonable ground for instituting such proceedings, whether in the Court of
Session or in any inferior court, and whether against the same person or
against different persons, the Court may order that no legal proceedings shall
be instituted by that person in the Court of Session or any other court unless
he obtains the leave of a judge sitting in the Outer House on the Bills in the
Court of Session, having satisfied the judge that such legal proceeding is not
vexatious, and that there is prima facie ground for such proceeding ..."
[36] As noted in
Lord Advocate v McNamara 2009 SC 598 paragraphs [35] et seq,
the petitioner has to establish the following matters:
(1) Proceedings
instituted habitually and persistently
[37] In Attorney
General v Barker [2000] 2 FLR 1, at paragraph 22, it was said
that:
" ... [the] essential vice of habitual
and persistent litigation is keeping on and on litigating when earlier
litigation has been unsuccessful and when on any rational and objective
assessment the time has come to stop."
(2) Proceedings
instituted without any reasonable ground
[38] As was
explained in Lord Advocate v McNamara cit sup:
"[36] ... The court can find that
proceedings were instituted without any reasonable ground on the basis of
opinions expressed by the judges in the cases in question which warrant that
conclusion. Even in the absence of such expressions of opinion, that
conclusion may be warranted by the surrounding circumstances ..."
(3) The whole
circumstances of the litigations
[39] In Lord
Advocate v McNamara cit sup, it was noted in paragraph [40]
that:
" ... the court has a discretion to make
an order under [section 1 of the 1898 Act], but is not obliged to do so.
Whether, where the conditions are met, the court will exercise its discretion
to make an order will depend on the court's assessment of whether it is
appropriate to do so in the interests of justice. In exercising its
discretion, the court is entitled to have regard to any matter which is
relevant to that assessment, including the conduct of the litigant in other
proceedings besides those which form the basis of the court's jurisdiction to
make the order. The prima facie right of all citizens to invoke the
jurisdiction of the civil courts, and the availability of other powers to deal
with abuses of process, will be relevant considerations. So too will be the
need to protect members of the public, and the resources of the court itself,
against further abuses of process. The extent to which vexatious litigation
drains the resources of the court, in particular, is a matter of considerable
concern. In that regard, the court in HM Advocate v Frost (paragraph
44) expressed its agreement with what had been said by Staughton J in Attorney
General v Jones (page 865), where he explained why there must come a
time when it is right for a court to exercise its power to make a civil
proceedings order against a vexatious litigant. He said that there were at
least two reasons:
'First, the opponents who are harassed
by the worry and expense of vexatious litigation are entitled to protection;
secondly the resources of the judicial system are barely sufficient to afford
justice without unreasonable delay to those who do have genuine grievances, and
should not be squandered on those who do not.'
As has been said in other cases, it is
necessary to look at the whole picture, having regard to the cumulative effect
of the litigant's activities, both on the other persons involved in the
proceedings and on the administration of justice generally. It also has to be
borne in mind that an order under the section operates not as a bar to the
bringing of further proceedings, but as a filter."
The respondent's
litigations
Habitually and
persistently
[40] We refer to
the nature and number of actions raised by the respondent during the period 2002
to date as outlined in paragraphs [10] to [30] above. In several instances,
where an action was dismissed or an appeal refused, the respondent raised a
similar action against the same defender. We are satisfied that the respondent
has raised actions in a habitual and persistent manner from 2002 to date.
Without reasonable
grounds
[41] On the
information available to us, none of the actions raised by the respondent has
resulted in the respondent being granted the remedies he sought. The opinions
of the courts involved have been almost universally unfavourable to him. In Duff
v Merrick Homes Limited (2002, A1074/02 case number 3 above) the
temporary judge observed:
" [4] ... [Mr Duff] was unable to
identify the parts in the pleadings which contained the essentials of his case
whatever that case might be ...
[10] In my opinion, Mr Duff's
pleadings are ... generally incomprehensible. It is impossible to identify the
crucial facts upon which the remedies he seeks are based. The real substance
of the facts making up the case against Merrick cannot be identified. Where
Mr Duff's pleadings mention [collusion, pressure and threats, corruption,
blackmail, fraudulent scheme, a plot by the trustee and third parties, gross fraud,
fraudulent misrepresentation, underhand deals, fraud practised on the court,
pressure threat and blackmail, corrupt administration and gross fraud,
fraudulent activities, fraudulent statements] ...and other allegations in a
similar vein, no or no adequate specification whatsoever is given ..."
[42] In Duff v
Colin Boyd QC (2006, A3553/06 case number 4 above) the sheriff principal
commented:
"3. ... What [Mr Duff] has argued
is that this is not an action brought against the Lord Advocate but against
Mr Boyd personally. He has gone so far as to suggest that the defender's
representation by solicitors and counsel instructed by the Scottish Executive
constitutes an abuse of public funds.
4. The proposition that this is not a
case directed against the Lord Advocate is in my view untenable ..."
[43] In Duff v
Strang (2006, B347/06, XJ845/07 case number 5 above) the sheriff noted the
respondent's contentions that he was illegally made bankrupt in 1976, that
police officers had fabricated reports and perverted the course of justice,
that they were involved in defrauding the respondent out of his lands, house
and money by conspiring with a former solicitor, that there had been a cover-up
and a continuing vendetta, and said inter alia:
" ... (page 5) [Mr Duff] advanced no
argument in respect of the fundamental points made in respect of the competency
and relevancy of the action ... (page 6) it becomes plain that [Mr Duff's]
averments are not ones which could ever found a competent application for the
remedy of lawburrows. And even if proved by evidence the action would
necessarily fail. As such it is neither competent nor relevant ..."
[44] In Duff v
Shearer (2008, A342/08, XA167/09 case number 6 above) the sheriff
recorded the averment that the respondent was illegally made bankrupt in 1976,
together with averments of a conspiracy to defraud him of his money and lands,
faked police reports, perverting the course of justice, fabricated charges,
deceiving the court, and a conspiracy of solicitors and clerks of court, and concluded:
"[82] The result is, both in relation
to the damages claim and the crave for interdict, [Mr Duff] has not set out a
relevant case, or made sufficient averments, so as to be entitled [to] the
remedies which he craves against the defender. His claims for damages and
interdict, as laid, are in my view fundamentally misconceived and thus
fundamentally irrelevant ..."
[45] The sheriff
principal noted at paragraph 23 of his judgment dated 2 October 2009:
" ... The action ... remains fundamentally
irrelevant".
[46] In Duff v
Forbes (2008, A82/08 case number 7 above) the sheriff commented inter
alia:
" 53 ... The failures in the pleadings
after a previous opportunity to amend remain vast. The claim spans over thirty
years. Allegations of fraud, blackmail and conspiracy are scattered throughout
the pleadings but the majority are without any specification. The pleadings
lack coherence ... "
[47] The sheriff
principal observed:
"[19] The [respondent's] averments are
... wholly unfocused when looked at to determine how they relate to the sum
pursued or the wrongful act or acts ...
[26] ... Mr Duff has wholly
misapprehended the purpose of a debate and seems to think all he has to do is
make a series of allegations to entitle him to a proof. Perhaps not
surprisingly he does not seem to understand the concept of relevancy and that a
relevant case has to be made out before a proof will be allowed unless there
are some facts that need to be established before the issue of relevancy can be
determined ..."
[48] In Duff v
Forbes (2010, A23/10, XA72/12 case number 8 above) following a hearing on
26 March 2012, the sheriff said:
"In my opinion, Mr Duff's
pleadings in this case were woefully inadequate. They did not support his
crave for interdict. His pleadings were diffuse and amounted to complaints
against a number of individuals and organisations, all completed, and some
considerable time ago. They failed to identify any legal wrong or reasonable
apprehension any such wrong was being, or would be, committed by the defender
..."
[49] In Duff v
Shearer (April 2010, B131/10 case number 9 above) the sheriff noted at
paragraph [64]:
" ... [Mr Duff's] averments in this
case fall far short of what is necessary to plead a relevant case of lawburrows
based on harm from defamation and accordingly I am persuaded ... that the
pursuer's application for lawburrows is irrelevant for that reason ..."
[50] In Duff v
Dumfries and Galloway Council (2010, A 312/10, XA71/12 case number 11
above), the sheriff said:
"... I have considered [Mr Duff's]
claim as carefully as I am able but I cannot discern any rational basis in law
for it ... Mr Duff claims the right to compensation; it is for him to show
it exists and to aver the legal basis for it so the defenders have a fair
opportunity to investigate and respond to such a claim ... Since he has plainly
failed to do this, it follows his averments are irrelevant, failing which
lacking in specification."
[51] In Duff v
Shearer (February 2011, B56/11, XA48/11 case number 12 above) the sheriff
observed:
"[128] Mr Duff clearly feels
aggrieved by what he perceives to be an injustice that materially affected the
course of his and his family's whole life since 1976. But his action for
lawburrows on the basis of the defender not investigating his complaints and
allegedly faking reports is fundamentally misconceived ...
[131] ... [Mr Duff] has not pled a
relevant case for lawburrows ..."
[52] The Inner
House refused the respondent's appeal, and the Supreme Court concluded that:
" ... The points mentioned in the
[respondent's] grounds of appeal are not arguable."
[53] In Duff v
Shearer (September 2011, B345/11, XA139/11 case number 13 above) the
sheriff dismissed the action as incompetent, commenting:
"Mr Duff was truly seeking to
bring under review my decree finding him liable in expenses in the second
lawburrows action ..."
[54] The sheriff
principal for his part concluded:
"I have no hesitation in reaching the
conclusion that his appeal should be refused."
[55] We have
carefully considered the respondent's oral submissions and his writings,
including his written pleadings, fax, and manuscript letter. Nevertheless
bearing in mind the consistent lack of success on the respondent's part, and
the virtual unanimity of view shared by the sheriffs, sheriffs principal, Court
of Session judges, and Supreme Court justices who have dealt with the
respondent's cases, we are satisfied that the actions raised by the respondent
were raised without reasonable grounds.
The whole
circumstances of the actions
[56] As was
observed in paragraph [36] of Lord Advocate v McNamara 2009 SC 598:
" ... the court can find that
proceedings were instituted without any reasonable ground on the basis of
opinions expressed by the judges in the cases in question which warrant that
conclusion. Even in the absence of such expressions of opinion, that
conclusion may be warranted by the surrounding circumstances ..."
[57] In this
petition, the respondent is noted as having raised actions against inter
alios the Lord Advocate, the Chief Constable of Dumfries and Galloway Constabulary,
a former trustee in sequestration, and a local authority (Dumfries and Galloway
Council). In these actions the respondent has made repeated allegations of
corruption, fraud, blackmail, pressure, collusion, fabricated police reports,
police officers perverting the course of justice, a cover-up, a vendetta
against him, and conspiracies. The actions and ensuing appeals have been
dismissed and awards of expenses made against the respondent. The respondent's
reaction has been to fail to pay any expenses; to leave some actions in a
procedural limbo; and in several instances to reactivate old proceedings or to
raise another action against the same defender in broadly similar terms as a
previously unsuccessful action. Considerable time, funds, and resources have
been devoted to dealing with the respondent's wholly unsuccessful actions. In
our opinion, the circumstances of the litigations confirm and support the
petitioner's contention that the respondent is indeed a vexatious litigant.
Decision
[58] For the
reasons given above, we are satisfied that the conditions which the Lord
Advocate requires to establish in terms of section 1 of the Vexatious
Actions (Scotland) Act 1898 have been established. The ultimate disposal is
one for our discretion. Exercising that discretion, we shall in all the
circumstances grant the prayer of the petition. The order which we pronounce
does not prevent access to the courts (paragraph [9] of Lord Advocate v
McNamara 2009 SC 598) but imposes a sifting mechanism which in the
respondent's case is, in our view, entirely justified.
