PETITION BY THE LORD ADVOCATE FOR AN ORDER IN TERMS OF SECTION 100 OF THE COURTS REFORM (SCOTLAND) ACT 2014 AGAINST MOHAMMED ASLAM [2019] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION BY THE LORD ADVOCATE FOR AN ORDER IN TERMS OF SECTION 100 OF THE COURTS REFORM (SCOTLAND) ACT 2014 AGAINST MOHAMMED ASLAM [2019] ScotCS CSIH_17 (22 March 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_17.html Cite as: [2019] ScotCS CSIH_17

An order in terms of section 100 of the Courts Reform (Scotland) Act 2014

[1] Section 100 of the Courts Reform (Scotland) Act 2014 provides that, on the

application of the Lord Advocate, the Inner House may make a vexatious litigant order. In

terms of section 100(2) such an order may have either or both of the following effects:

“(a) the vexatious litigant may institute civil proceedings only with the

(b) the vexatious litigant may take a specified step in specified ongoing civil

[2] In this petition the Lord Advocate seeks a vexatious litigant order against the

respondent by which he would be prevented from (i) raising proceedings in the Court of

Session, Sheriff Court, or any other inferior court, without first obtaining permission to do so

from a judge of the Court of Session, in terms of section 101 of the Act; and (ii) appealing

any future decision, judgment or interlocutor in certain specified proceedings without such

[3] In 2008 the respondent was sequestrated, apparently for failing to pay council tax. It

is clearly the respondent’s belief that the charge upon which his sequestration proceeded

was wrongfully obtained. As counsel for the Lord Advocate submitted, this matter has been

the trigger for a decade of litigation, largely on the theme that the sequestration was

unlawful or improper. The petition contains a long list of proceedings either initiated by the

respondent, or in which he has asked the court to make certain orders, and which are said to

(i) Initial writ at the instance of the respondent seeking suspension of the charge;

(ii) Summary application at the instance of the respondent under the Administration of

Justice (Scotland) Act 1972, for recovery of documents relating to his sequestration;

(iii) Action at the instance of the respondent for damages from Glasgow City Council for

unlawful diligence; action dismissed as incompetent 2 November 2009; with the comment

that even had the remedy sought been competent, the pleadings were hopelessly irrelevant.

The sheriff in his judgment stated that he took the opportunity at some length to explain to

the respondent the difficulty in the action, and to point out the processes which might be

open to him to seek to set aside the sequestration, including reference to an action of

(iv) The decision referred to in para (iii) was appealed to the Sheriff Principal who

“The decree which awarded sequestration of the pursuer’s estate remains valid and

must be treated as such by a Sheriff or Sheriff Principal, unless recalled in terms of

the statute or reduced or otherwise set aside by the Court of Session. The Sheriff

Court could not therefore make an award of damages said to flow from the award of

sequestration if the award of sequestration remains in force.” [Para 5]

The appeal was refused (11 May 2010), as was a further appeal to the Court of Session.

(v) A further summary application at the instance of the respondent for recovery of

documents, this time raised against his trustee in sequestration ; the application was

(vi) Summary application at the instance of the respondent for orders in terms of s 3(7) of

Bankruptcy (Scotland) Act 1985; dismissed as hopelessly irrelevant, 12 October 2012.

(vii) An appeal against the decision referred to at (vi); refused, 25 October 2013.

(viii) Action of reduction of the decree of sequestration, raised May 2011 in the Court of

Session at the instance of the respondent; procedure roll diet April 2012 discharged at the

instance of the respondent for legal aid application; a week prior to a further procedure roll

diet, January 2013, counsel moved a minute of amendment changing the action to one of

damages, namely in the same format as had been dismissed in the Sheriff Court in

November 2009; a further procedure roll diet was fixed, and the respondent ordered to find

caution of £17,000, which he did; a further amendment at the next procedure roll hearing

(June 2013) changed the basis of the action to one based on breach of undertaking. The

respondent’s agents withdrew from acting in December 2013. A proof before answer was

fixed for January 2015, but on 4 November 2014 the court made a further order for caution of

£20,000. That order was reclaimed unsuccessfully, causing the proof to be discharged. A

further attempt to amend was refused. A further order for caution in the sum of £20,000 was

made on 24 June 2015, on the basis that standing the reclaiming motion the sum consigned

was insufficient. The respondent having refused to obtemper this order, decree of absolvitor

(ix) Reclaiming motion against the decision at (viii); dismissed, it being an

insurmountable obstacle that the original decision to order additional caution had been the

subject of a prior unsuccessful appeal, 11 October 2016. Permission to appeal to the UKSC

was refused by the Court of Session, 23 December 2016, and again by the UKSC 15 February

(x) Action for damages for negligent administration of the sequestration at the instance

of the respondent against his trustee in sequestration, in the sum of £10.5 million. Action

raised January 2012 and sisted until February 2017, when the respondent’s 60 page minute

of amendment was refused. A revised minute of amendment was refused in September

2017, and after debate in October of that year the action was dismissed as irrelevant, 17

(xi) Summary application at the instance of the respondent seeking recall of

sequestration; first order refused 5 December 2017, the application being incompetent

(xii) Associated with the summary application referred to at (xi), was a further

application for disclosure of documents, warrant refused as incompetent, 5 December 2017.

(xiii) Appeal against the decisions at (x) and (xi), dismissed as incompetent, 8 March 2018.

The Sheriff Appeal Court commented that any further application for recall was likely to fail

(xiv) Summary application for recall of sequestration in which again a warrant was

refused for the same reasons as given on 5 December 2017, and upheld by the Sheriff Appeal

(xv) Appeal against the decision at (xiv); refused for want of insistence, 21 June 2018.

(xvi) Action for damages at the instance of the respondent against the Royal Bank of

Scotland, which had called up securities over certain properties owned by the respondent.

In the pleadings he averred collusion between the Bank, the Council and the trustee in

sequestration with the intention of damaging the respondent’s business or committing

fraud. Action dismissed as irrelevant, 17 October 2017. Appeal to the Sheriff Appeal Court

refused 18 January 2018. Permission to appeal to the Court of Session refused 27 June 2018.

[5] In support of the proposition that the respondent has habitually and persistently

instituted vexatious legal proceedings and made vexatious applications to the court without

any reasonable ground for doing so, counsel for the petitioner submitted that there were

certain themes which could be discerned from the various litigations or applications:

1. None of the actions raised, applications made or appeals taken by the respondent has

been successful. They have all had related subject matter but have been refused as

2. Repeated awards of expenses have been made against the respondent, some on the

agent and client scale. No awards of expenses made against the respondent in favour of

3. The respondent has demonstrated a refusal to accept judicial decisions which are

unfavourable to him, by repeatedly attempting to re-litigate matters already judicially

determined. He has wasted the time and resources of the court on claims which are without

4. The actions or applications have involved allegations of an increasingly scandalous

The court should be satisfied that the statutory test has been met, and should exercise its

[6] It was clear that the respondent was intent on addressing matters relating to the

merits of the actions previously litigated, and in laying before the court in full his grievances

against Glasgow City Council and others. We refused to allow him to address various

productions which related to the merits of the various claims made in the litigations which

were the subject of the petition. We declined to view these documents on the basis that they

were not relevant to the issue before us. We indicated that it would be of more benefit to the

respondent to address the decisions in the cases which were listed in the petition and seek to

explain to the court why they should not be viewed as vexatious, and without any

reasonable grounds; and why the court should not exercise its discretion in making the

[7] The basis upon which such an order may be made is set out in section 101(1) of the

Act, namely where the Inner House is satisfied that the person in question

“... has habitually and persistently, without any reasonable ground for doing so—

(b) made vexatious applications to the court in the course of civil proceedings

This test is similar to that which applied under the Vexatious Actions (Scotland) Act 1898,

section 1, where the Inner House could make an order on the application of the Lord

Advocate where the court was satisfied that the person in question

“… has habitually and persistently instituted vexatious legal proceedings without

The primary difference is that the addition of the words in section 101(1)(b) expands the

type of proceedings of which cognisance may be taken in determining an application, and

the restrictions referred to in Lord Advocate v McNamara 2009 SC 598 do not apply. In our

view each and all of the litigations or applications listed at [4] (i) – (xvi) above come within

[8] The characteristics of litigation which could properly be described as ”vexatious”

remain the same as those described in McNamara. Giving the opinion of the court,

Lord Reed (para 3) referred to the observations of Lord Bingham of Cornhill in Attorney

“The hallmark of a vexatious proceeding is in my judgment that it has little or no

basis in law (or at least no discernible basis); that whatever the intention of the

proceeding may be, its effect is to subject the defendant to inconvenience, harassment

and expense out of all proportion to any gain likely to accrue to the claimant; and

that it involves an abuse of the process of the court, meaning by that a use of the

court process for a purpose or in a way which is significantly different from the

[9] The court (para 33) went on to refer to a passage in Lord Advocate v Cooney 1984

SLT 343 where the hallmarks of vexatious litigation were described:

“[T]he nature of the actions the respondent has raised, the persons he has convened

as defenders, his purpose in using or rather abusing the legal processes to carry on a

war of attrition, the hopelessness of his actions yet his persistence in pursuing them

to the limits which the law allows, and the damaging effects of this conduct on his

[10] We emphasise the point also made in McNamara (paras 36-37) that it is not enough

for an individual to be classed as a vexatious litigant that actions which he has instituted, or

applications made, have not succeeded or been abandoned: it is not persistent failure which

is the key, rather that the failure in question has been based on there being no merit even to

commence the litigation or make the application. The critical finding will be that repeated

litigations and applications have failed for reasons of competence, irrelevance and the like.

It is the fact that repeated actions were commenced with there being no reasonable grounds

for doing so which can render them vexatious. As the court noted in McNamara (para 36),

the conclusion that an individual litigated without any reasonable or good ground for doing

so may be founded on the opinions of the judges in the cases in question. An examination of

the proceedings and applications enumerated in the petition shows that in the respondent’s

case such a conclusion is amply warranted. The majority of the proceedings initiated by the

respondent have been dismissed as incompetent. Notwithstanding, he has on several

occasions simply attempted to re-litigate the cause on the same incompetent basis despite

being advised by the court that dismissal would be the result. The observations made by the

judges who have determined the proceedings or applications made by the respondent have

certain common themes running through them. Dismissing the proceedings referred to at

para [4] (iii), Sheriff Baird, describing the pleadings as “florid and verbose” said:

“Article 1 of condescendence sets the tone; it describes the “harmful event” in

consequence of which the Appellant and his family suffered consequences, which list

includes financial hardship, emotional distress, discrimination, embarrassment and

humiliation, and accuses the Respondents of abuse of and exceeding their power,

violation of trust, campaigning, ganging up, victimising, prejudice, discrimination,

blackmail, harassment, damage to the Appellant’s present and future income,

business credit, making false, misleading and fraudulent statements for financial

gain, making false oaths and defective sequestration … Not one word of the

remaining pleadings attempts to justify any of that claim”. [Paras 13 and 14]

[11] In the application referred to at para [4] (vi), Sheriff Swanson (12 October 2012) noted

“[T]he application is hopelessly flawed. It is irrelevant in law in that it fails to

address the correct test against which the trustee’s conduct should be measured …

The application is wholly lacking in specification in relation to the conduct

complained of. The remedies sought in the craves against that background are also

lacking in specification and in any event are not those envisaged by the Act.” [Para

[12] In the application referred to at para [4] (v), the same sheriff conducted an

examination of the pleadings trying to identify matters of relevance:

“What averments are made in this application as to the substance and basis for the

case the pursuer proposes to make? Averments are made that ‘the defender having

acted maliciously, fraudulently and abuse of his position of trust as an administrator

financial benefit for himself and other in a manner contrary to natural justice a fraud

upon the court and fraud on the pursuer and his multimillion pound estate’ …

Further on in the pleadings the potential claims are variously described as ‘wrongful

diligence or fraud on the court’ and ‘a fraud and extortion on his estate, title and

defamation of character assassination’. None of these averments adequately describe

the action proposed. The averments range across wrongful diligence, fraud,

negligence and defamation without any proper specification of any of these

[13] A decision of the First Division in yet another litigation (at para [4] (ix)) referred to

the “protracted and changing procedural meanderings” of the respondent. A description

apt to cover many of the respondent’s dealings with the court is given, again by Sheriff

“[11] Mr Aslam’s submissions were lengthy, rambling and wholly irrelevant to the

point at issue … He was afforded two and a half hours of court time and he used that

time to re-iterate his grievances with Glasgow City Council, the defender, the

defender’s solicitors, the defender’s staff and the sheriff officer who served the

[21] A considerable amount of court time has been taken up with different actions

and challenges, many of which replicate earlier actions which have been dismissed.

The repeated attempts to raise the same issues again and again show both a lack of

understanding of the law and a lack of respect for the court’s decisions.

[23] The pleadings are voluminous, repetitious and rambling and in many

respects completely incomprehensible … I recognise that there are close similarities

between the pleadings which have been lodged by the pursuer over the last nine

[30] [I]n Tods Murray v Arakin [2010] CSOH 90 … Lord Woolman dismissed the

counterclaim noting that the defenders were seeking to use the action to “air

unfounded complaints”. He saw that as a just and proportionate response as to

allow it to continue would place an “undue” burden on the court and the pursuers

who would require to commit “enormous” resources. Whilst he recognised that all

litigation places burden on the parties it is unreasonable to expect parties to shoulder

those if the claim is manifestly without substance. I would adopt those remarks and

use them to describe the pursuer’s case in this action as an abuse of process, being a

case obviously without merit and without support from an expert which is

[43] The pursuer’s pleadings are hopelessly irrelevant and fail completely to set

out a case in negligence … The pleadings contain many scandalous averments

relating to fraudulent practices, bigotry, discrimination, prejudice and malice … The

averments are both scandalous and irrelevant and fall to be deleted.

[44] The pursuer is using this action to “air unfounded complaints” which he has

made in various forms over the last nine years without success … I have no

[14] The respondent’s attitude when decisions have gone against him has frequently been

to resort to abuse of the judicial office holders involved. In his opinion (25 October 2013) in

the appeal at para [4] (vii) the Sheriff Principal recorded (Para 6) that:

“... previous experience of the appellant has shown that he is singularly unable to

refrain from advancing a tirade of abuse directed at the trustee, his solicitor, and also,

I regret to say, the court itself. Ultimately, instead of confronting the Sheriff’s

approach to the relevancy and specification of the application itself, the appellant’s

oral submissions were reduced to allegations of fraud, complicity and criminality on

the part of almost anyone associated with the sequestration proceedings taken

against him. As it happens, such allegations themselves appear to be wholly lacking

[15] In several appeals the sheriffs at first instance are described as acting unfairly,

abusing and misusing their positions and failing to carry out the responsibilities of their

judicial oaths. One sheriff is said to have failed to take account of an authority, for “ulterior

[16] The repeated flouting of court orders, and a failure to recognise the effect of

decisions of the court in respect of the incompetent nature of certain applications, making

repeat attempts of the same kind doomed to failure, are repetitive features of the

respondent’s conduct. The bringing of actions on exactly the same basis as one which has

been dismissed for want of competence is an example. When ordered, in the Court of

Session action which was appealed to the First Division, to find caution, the Lord Ordinary

“made it clear … that he did not have difficulty in putting up the required amount of

caution … His position was simply that he was not willing to find caution.”

[17] In New Zealand, in Attorney General v Collier [2001] NZAR 137, para 32, (referred to

“Vexatious litigation is frequently accompanied by complex pleadings, a widening

circle of defendants as litigation proceeds, frequency of striking out of part or all of

the statements of claim, inability to accept unfavourable decisions, escalating

extravagant or scandalous claims (frequently involving allegations of conspiracy or

fraud) and failure to pursue proceedings once instituted. The authorities cited to us

from other jurisdictions demonstrate the consistency with which characteristics such

These words might have been written to describe the present respondent.

[18] On the basis of the narrative we have given, and in particular the observations made

by the judges in the respective cases, all as quoted above, we have no hesitation in

concluding that the requirements of section 101(1) have been established. The only

remaining question is whether we should exercise our discretion in the interests of justice to

make the order sought. Again, we have no hesitation in doing so. The respondent has had

no success in obtaining any of the remedies sought, in each case because the applications

were irrelevant or incompetent. In several instances this must have been clear to him at the

outset, given that prior applications on the same grounds had been refused as incompetent.

The claims have been directed against an ever increasing circle, and the averments have

become progressively more scandalous. The respondent has refused to accept judicial

decisions which have gone against him, and has failed to pay awards of expenses. He has

point blank refused to lodge caution when ordered to do so. In all the circumstances we are

satisfied that it would be appropriate to grant the order sought by the Lord Advocate.

Scottish Court of Session Decisions