Scottish Sheriff Court Decisions

(1) The history of this case, which on the face of it involves the sum of £9.38 is to a material extent set out in a note to an interlocutor pronounced by Sheriff Principal Sir Stephen Young on 13 May 2005. I summarise it again as by background to the appeal hearing which took place before me in Portree on 7 October 2005. The pursuer presented a small claims summons seeking decree for payment against the defenders of the sum of £49.58, representing the value of 37 Skye Bridge Toll vouchers surrendered by him in the period 1 January to 1 October 2004. He avers that on each occasion the person demanding the toll was an employee of the defenders and had been "unable to produce any indication of evidence of his or her company's authority to charge tolls at the bridge". At the outset of the statement of claim it is stated that "the defender is not a concessionaire in possession of lawful authority to charge and collect tolls".

(2) The case called for a hearing in accordance with Rule 9.1(2) of the Small Claims Rules 1992 on 6 December 2004. It was dealt with by Sheriff Pollock. An incidental application had been lodged by the defenders craving the court to direct that the cause should be treated as an ordinary cause in terms of section 37(2)(b) of the Sheriff Courts (Scotland) Act 1971. After hearing parties the sheriff granted the motion. His interlocutor commences with the words: "The sheriff having chosen not to make any declaration of a potential conflict of interest and in the absence of any formal motion by the pursuer proposing a declinature of jurisdiction on his part...". It goes on to set out that, in granting the application, the sheriff was of the opinion that difficult questions of law and a question of fact of exceptional complexity are involved in the case.

(3) That interlocutor was not the subject of an appeal, nor of any motion for leave to appeal. An initial writ was lodged by the pursuer at which stage the sum sued for dropped to £9.38 representing only 7 toll vouchers. The case called for an options hearing on 28 February 2005 again before Sheriff Pollock. The events of that date are narrated in paragraph six of Sheriff Principal Young's note. In short the pursuer contended that Sheriff Pollock had failed to declare a "potential for partiality" at the hearing on 6 December 2004. This "potential" arose, it was said in the first place because of the Sheriff's membership of the Speculative Society of Edinburgh "also enjoyed by Sir Ian Noble, first Chairman of the Skye Bridge Company, Lord James Douglas Hamilton, the Transport Minister responsible for providing a lawful toll regime, Sir Angus Grossart, of Merchant Bankers Noble Grossart who receive public payment to give protective financial advice on the scheme and Niall Campbell a senior Civil Servant connected with the political securing of the A87 road tolling project". In the second place mention was made of Sheriff Pollock's former position as a Conservative and Unionist Member of Parliament prior to 1987 which linked him to Lord James Douglas Hamilton "as a fellow Tory MP during the Thatcher era".

(4) Having heard parties Sheriff Pollock pronounced an interlocutor remitting the matter to the Sheriff Principal for review. In consequence the case came before Sheriff Principal Young on 14 April 2005. On that occasion the pursuer advanced two lines of argument. He maintained that the remit by Sheriff Pollock to the Sheriff Principal was incompetent in the light of the Sheriff's failure to disclose his membership of the Speculative Society. Further he submitted that Sheriff Principal Young should also decline jurisdiction in the matter upon the basis that he was a member of the Speculative Society. Reference was again made to the other identified members of the Society, their connection with the Skye Bridge, and the "potential for partiality". The pursuer's ultimate motion to the Sheriff Principal was to decline any further jurisdiction other than to set aside Sheriff Pollock's decision to remit the matter to the ordinary roll; to order a refund of the sum of £43 paid by the pursuer at the time of lodging the initial writ; and further "to refer the question of the potential for perceived compromise to the Court of Session" where it might be considered by a panel of Judges without the presence of a member of the Speculative Society.

(5) Thereafter the Sheriff Principal made avizandum. He issued an interlocutor and note on 13 May 2005. In his note he reviewed a certain number of authorities, in particular the case of Robbie the Pict v HM Advocate 2003 JC78, a case involving the present pursuer arising out of a conviction at Dingwall Sheriff Court for failing to pay tolls on the Skye Bridge. It was necessary for the Court to deal with certain objections made to the composition of the Bench convened to hear a subsequent petition to nobile officium. The Sheriff Principal noted that in the first Opinion delivered by the Court on 10 December 2002 it was observed (paragraph 16) that: "A judge who considers that there is a sound objection to his participation in a case has a duty to recuse himself at once. If he is in doubt, he should disclose his difficulty to the parties. But if he considers that there is no sound objection to his participation, it is his plain duty to proceed with the case".

(6) The Sheriff Principal further noted that the court had required to deal with objections to two of its number, namely Lord Kirkwood and Lord Osborne. The objection to Lord Kirkwood was that he had presided over a court which had refused appeals against similar convictions by others in July 2001. That objection was rejected. The second objection was to the presence of Lord Osborne on the basis that he was a member of the Speculative Society. The court took the view that this objection involved "an assessment of the impact if any of membership of a private society on the integrity of the judicial process". It went on to say that the question involved "contentious questions of fact none of which are within judicial knowledge and the making of a judgment on the significance of such facts as are established". The case was accordingly continued to a reconstituted bench which did not include a member of the Speculative Society. Having been presented with a copy of the rules of the Society and an affidavit by its current Librarian describing its constitution and activities the court reached certain factual conclusions relating to the activities of the Society. It proceeded to reach a decision in the following terms recorded at page 88 in the Report in Justiciary Cases;

(7) Having considered that authority the Sheriff Principal considered the pursuer's objections to his involvement in the case on the basis that he was a member of the Speculative Society. His initial impression was that little or nothing had been said in the present case which had not been before the Court in Robbie the Pict v HM Advocate. He considered that the merits or lack of them of the ground of objection had been fully investigated and considered by the Court in that case and rejected in the terms set out in paragraph 26 above quoted. The Sheriff Principal went on to say, however, that he thought that there may be an important distinction between the present case and Robbie the Pict v HM Advocate. He noted that the Court had observed that the central argument in that case was that the nature of the Society "itself compromises the integrity of its judicial members" and it was this argument that the Court proceeded to address. The Sheriff Principal said: "By contrast if I understand correctly what the pursuer is now saying (and I have to say that the point is not entirely clear) his objection to myself is not merely that I am a member of the Society but that Sir Ian Noble, Lord James Douglas-Hamilton, Sir Angus Grosset and Mr Niall Campbell...are also members so that a reasonable suspicion of bias arises". Taking the view that the pursuer was now advancing a different argument the Sheriff Principal considered that it was appropriate to recuse himself so that the objection to Sheriff Pollock might be considered by another judge who is not a member of the Society.

(8) At an earlier stage of his note the Sheriff Principal had given consideration to the basis upon which the matter had been remitted to him by Sheriff Pollock. He noted that the sheriff had resorted to that course because of a passage in the second edition of Macphail, Sheriff Court Practice at paragraph 21-29 which appeared to support it. The statement therein was itself supported by a reference to the case of Henderson's Trustees v Dunfermline District Committee of Fife 1896 12 Sh.Ct rep 58. Sheriff Principal Young observed that there was no discussion in that case as to the competency or propriety of the issue of declinature being determined by the sheriff rather than by another sheriff substitute. He went on to say that "at all events it seems to me that nowadays, if a motion is made to the effect that a particular sheriff should decline jurisdiction and if that sheriff considers that he or she cannot properly deal with the matter, then arrangements should be made for the motion to be determined by another sheriff in the first instance rather than the Sheriff Principal". Against that background the Sheriff Principal decided that it was not appropriate even if it was competent to remit the case to the Court of Session and that the proper course was to remit the cause to another sheriff who was not a member of the Speculative Society to hear and determine the pursuer's motion that Sheriff Pollock should decline jurisdiction. An interlocutor to that effect was pronounced.

(9) That interlocutor was not the subject of any appeal or motion for leave to appeal.

(10) The case came before Sheriff Stewart at Portree on 21 June 2005. According to a note produced by the sheriff the pursuer tabled at the bar a document entitled "Preliminary Point of Law - Competency of these proceedings 21 June 2005". Sheriff Stewart records that it became clear from what the pursuer said that his request was that he should recuse himself "on the basis that as a sheriff of equal standing as Sheriff Pollock I would not be in a position "to discipline" him in relation to his interlocutor of 6 December 2004". The sheriff sets out that it was clear that the pursuer's main complaint was that the case had been remitted to the Ordinary Roll. He maintained that the point at issue was very simple, and that he had been "hijacked" in respect that certain stages of the ordinary process attracted a payment of court fees which were beyond his means. It was also clear to the sheriff that the pursuer was now maintaining that both Sheriff Pollock and Sheriff Principal Young had failed to recognise and deal with the true issue which was the remit to the Ordinary Roll. The pursuer's position accordingly was that Sheriff Stewart should recuse himself and remit the matter to another Sheriff Principal. Taking the view that he had no power to do so Sheriff Stewart pronounced an interlocutor the procedural effect of which was to allow a continued Options Hearing.

(12) The pursuer lodged a note of appeal. The opening paragraphs are in the following terms: "Note of appeal on points of law. Respectfully shows that the decision delivered by Sheriff Kenneth Stewart (following instructions from the recused Sheriff Principal Sir Stephen Young) refusing to enable any hearing of the pursuer's actual and proper motion to competency (originally against Sheriff Alexander Pollock) in the Sheriff Court of Portree...was itself incompetent in law, principally for the following reasons:

(13) As I am not a member of the Speculative Society arrangements were made for this matter to be dealt with by me. In advance of the hearing before me I intimated to parties in a note dated 22 September 2005 that I had reservations as to the competency of the appeal. Sheriff Stewart's interlocutor was clearly not a final interlocutor; it did not fall within any of the categories of interlocutor which may be appealed without leave in terms of section 27 of the Sheriff Courts (Scotland) Act 1907; and leave to appeal had not been granted.

(14) This issue was addressed by the pursuer at the outset of the hearing. He produced a written submission - for which I am grateful - which contains a number of "caveats" and some preliminary observations. The thrust of the argument on the competency of the appeal is, as I understand it, as follows. This is a "human rights challenge" not simply to an interlocutor but to a "judicial presence". Thus the pursuer states that "...the presence of Sheriff Stewart has not been appealed on the basis of any action by the sheriff but solely on the basis that he does not hold sufficient judicial rank to be able to make proper reparation, namely setting aside the interlocutor of Sheriff Pollock ruling that the claim for less than £10 be upgraded to one of ordinary cause".

(15) I pause to observe that this contention appears on one view to amount to a challenge of Sheriff Principal Young's decision to remit the cause to Sheriff Stewart. Sheriff Stewart's "presence" came about because of the Sheriff Principal's interlocutor. As I have pointed out, that interlocutor was not the subject of any motion for leave to appeal.

(16) Be that as it may the argument in relation to competency was developed by the pursuer with reference to the Human Rights Act 1998, and in so doing he appeared to open up issues of a much wider nature than those confined to the limited power of Sheriff Stewart. His starting point is that he is entitled in pursuit of this case to a fair and public hearing by an independent and impartial tribunal established by law (Article 6(1) of ECHR). He drew attention to section 6(1) of the 1998 Act, namely to the provision that it is "unlawful for a public authority to act in a way which is incompatible a with convention right". Founding on section 7 of the Act, which provides that the person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may rely on the Convention right or rights concerned in any legal proceedings, he sets out that "as victim of an unlawful decision to hijack or elevate his small claim action against his will to one or ordinary cause and perhaps extraordinary and unmanageable expense" he wishes to "rely on the convention right".

(17) That argument might be seen as essentially a contention that the decision to remit the cause to the ordinary roll was in itself incompatible with article 6 and thus unlawful, but it is not clear that this has ever been argued in this case and it did not appear to be the main argument submitted to me. The main argument emerges from the pursuer's written submission under the heading "Summary of Human Rights Argument Contained in the Appeal". Read short it is directed to Sheriff Pollock's alleged failure to recognised the public perception for potential conflict of interest to the point of partiality "towards fellow members of the secret sodality called the Speculative Society of Edinburgh". It is said that Sheriff Pollock failed to provide "a public tribunal which is sufficiently independent and impartial in the public mind to deliver a fair hearing" and in consequence acted unlawfully. The pursuer maintains that he is a victim of that "unlawfulness" and invites this court "to make reparation in that Sheriff Pollock's interlocutor must be set aside".

(18) In support of these submissions the pursuer founded on the case of Remli v France 1996 22 EHRR 253 where in paragraph 48 it is stated that "the Convention imposes an obligation on every national court to check whether, as constituted, it is "an impartial tribunal" within the meaning of that provision where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit". He also made reference to the case of Simmental 1978 ECHR 629 and to Giovanni Carra & Ors case C258/98 decided by the European Court of Justice. He further referred to an answer to a Scottish Parliamentary question given by the Justice Minister on 30 October 2000 in which it was said that the Human Rights Act "establishes a scheme under which convention rights can be raised before domestic courts and remedies given".

(19) It appeared to me to be appropriate to hear what the pursuer had to say on the merits of the appeal reserving all questions as to its competency. I was of that view firstly because his submissions on competency appeared to embrace fundamental issues which might require to be addressed or at least touched on in considering the competency issue. Secondly, I considered that it might be of assistance for the future progress of the case if I were to express a view on certain aspects of it, including that of the involvement of any judicial figure who might happen to be a member of the Speculative Society. Thirdly, having travelled to Portree it appeared to me to make practical sense to hear all that might have to be said in relation to the appeal.

(20) The pursuer's submissions in respect of the merits are in any event succinctly set out in his note of appeal and do not required to be rehearsed. He sets out the history of the case and his position in relation to various aspects of it. In particular he sets out that his motion to the Sheriff Principal was to decline any further jurisdiction other than to accept that the decision to have the matter "elevated to ordinary cause" must be set aside and to order the clerk of court to refund the sum of £43 to the pursuer. That is again his request in this appeal subject to the addition of a request to return the fee of £60 "demanded for submission of this attempt to rectify a miscarriage of justice". He states, and I shall deal with this matter later, that the Small Claim "will require only the simple examination of one line of one document, a matter of two minutes of court time. This should be conducted by a judge who is not a member of the Speculative Society of Edinburgh".

(21) It is only, I consider, necessary to highlight three features of the response on behalf of the defenders. In the first place it was maintained that the appeal was taken against an interlocutor which was not a final judgment and in consequence it was clearly incompetent. Attention was drawn to Lloyd v Thomson 2001 SLT (ShCt) 127 a case in which an appeal was taken against an interlocutor approving of an Auditor's report. The appeal was rejected as incompetent. Sheriff Principal Nicholson QC observed (at page 133I) that: "In the course of the hearing...the pursuer sought to invoke the "fair hearing" provisions in article 6 of the European Convention on Human Rights as entitling her to a hearing on the merits of the present appeal. I do not consider that there is anything in that article which is to be taken as overriding normal rules as to competency or relevancy and I therefore reject that argument". It was submitted that the same course should be followed.

(22) In the second place it was submitted that nothing had been said that indicated that either of the Sheriffs or the Sheriff Principal earlier involved in this case had a disqualifying interest as properly understood. Reference was made to the Pinochet case (R v Bowstreet Metropolitan Stipenduary Magistrates and Others ex parte Pinochet Ugarte (No 2) 1999 1ALLER 577. The case raised the question of the involvement of Lord Hoffman in an appeal related to the former Head of State of Chile when his Lordship was a Director of a charity closely allied to Amnesty International. At page 586 of the report Lord Browne-Wilkinson set out two applications of the principle that a man "may not be judge in his own cause". The first was where he had a financial or proprietary interest in its outcome. There was no suggestion of that in relation to the position of any of the shrieval figures in the present case. The second type of situation was where a judge did not have a financial interest in the outcome of a case "but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party". The test in relation to that, it was submitted, was to be found in Davidson petitioner 2004 SLT 895 in the speech of Lord Hope of Craighead at paragraph 47 where he referred to "an inclination or predisposition to decide the issue only one way whatever the strength of the contrary argument". He added "a doubt as to whether this is the case is enough, so long as it can be justified objectively". If there was any such doubt in the present circumstances it was hard to see how it could be "justified objectively".

(23) In the third place it was pointed out that as recorded in Sheriff Pollock's interlocutor and note at the first hearing the pursuer did not object to the presence of Sheriff Pollock. All that he did was make an "enquiry". Sheriff Pollock had in mind the case of Robbie the Pict v HM Advocate and the import of it in relation to membership of the Speculative Society on the part of a judge. Nothing was said to him which affected the position following that case. The pursuer was given a fair hearing and did not appeal. What he did was to seek to disrupt the process thereafter by taking objection to Sheriff Pollock and putting him in a position where he could not continue to deal with the case.

(24) The view that this appeal is incompetent is a compelling one. The terms of section 27 of the 1907 Act are clear. In terms of section 3 of the Human Rights Act (headed "Interpretation of Legislation") primary legislation must be read and given effect in a way which is compatible with convention rights. It is expressly provided in sub-section 2(b) that the section "does not affect the validity, continuing operation or enforcement of any incompatible legislation". What this means is that if there is ambiguity in the meaning of a statute the court must choose the interpretation which is compatible with convention rights. If there is no such ambiguity the court must apply the statute even if the terms are not so compatible. The application of the plain terms of primary legislation is not, as the pursuer suggests, to resort to a "procedural anachronism" in the face of "overriding provision" of the Human Rights Act. The Act itself acknowledges the principle of Parliamentary sovereignty over convention rights.

(25) Any question of the incompatibility of the provisions of section 27 with a right of access to justice (to use a generalised expression for the rights conferred by article 6) was not addressed in this appeal. That is perhaps not surprising because it is difficult to see how the pursuer could suggest that section 27 in any sense restricts his right to justice when he has never sought leave to appeal. Strictly speaking it is not necessary for me to express any view on whether the provisions of section 27 are compatible with convention rights, and it may be open to argument in particular circumstances that the operation of these provisions may be unduly restrictive. But in general terms it does not seem to me that a system which balances the rights of both parties in having litigations brought to a conclusion without the punctuation of a series of appeals could fall to be regarded as disproportionate. I agree with the view expressed by Sheriff Principal Nicholson in Lloyd v Thomson that the normal rules as to competency are unaffected by the provisions of article 6 of the Convention.

(26) The only issue which can arise in connection with the competency of the appeal is whether there is anything in the pursuer's ingenious contention that this is not an appeal against an interlocutor but against "the judicial presence" of Sheriff Stewart. I reject that contention without great difficulty for two reasons. In the first place it is to my mind self-apparent that the orders of appellate courts are directed at orders of lower courts. There is no authority, or principle, which would justify widening that concept. The logical extension of the pursuer's argument is that one could examine the presence of the allegedly "biased" judge and his decision as distinct matters. That is fundamentally wrong. If a judge is perceived to have had a disqualifying bias his decision falls to be set aside whether good, bad, or like the curate's egg, good and bad in parts. Moreover when one comes to examine the pursuer's request in this appeal it is clear that it is directed against an interlocutor. He specifically requests that "the ruling of Sheriff Pollock is set aside". Whilst it would be competent for me to take that course upon the view that an appeal opens up all earlier interlocutors to review, the provisions of section 27 apply to Sheriff Pollock's interlocutor as they do to the interlocutor pronounced by Sheriff Stewart.

(27) That brings me to the question of the merits of Sheriff Pollock's decision although again it is not a matter on which strictly speaking I am required to express any view. A number of points can however be made. In the first place Sheriff Pollock's precise reasons for taking the view that the case justified a direction that it be treated as an ordinary cause are not available to me for the simple reason that he has never been asked to provide them. This situation comes about because his first interlocutor was not the subject of an appeal at the time and in any event the principal attack on his involvement has always been directed to his membership of the Speculative Society and other associations. As the power conferred by section 37(2)(b) of the 1971 Act is clearly discretionary I could not embark on an exercise of examining whether the Sheriff had erred in the exercise of his discretion without having the necessary material on which to proceed.

(28) The pursuer's position on the facts of this case as it has emerged appears to be that the "assignation statement" or tolling license upon which the defenders' purported to operate was not signed by or on behalf of the Secretary of State or Scottish Ministers. It is for that reason he contends that a small claim hearing "will require only the simple examination of one line of one page or one document, a matter of two minutes of court time". But that is not the basis on which he chose to proceed. The original statement of claim contained nine grounds. In none of these was it specified that the case was simply founded on an unsigned assignation statement. There are allegations apparently of fraud in respect that "charges for inflation have been applied twice in search of unjust profit" and that "public contributions have not been deducted from this toll licence to be recovered from the public tolls". There are averments of tolls being collected in excess of the "agreed version" of the licence, averments that the defenders are engaged in unlawful activity as they are registered as a dormant company, and averments that the defenders are not VAT registered when they should be. If the case is as simple as the pursuer maintains he had, at the stage at which it was before Sheriff Pollock, done a remarkable job in obscuring that simplicity. Although in the initial writ these grounds are to a certain extent modified nevertheless seven rather complex grounds remain. If the pursuer wished at any stage to reduce the case to the one simple element which he contends is at issue it would be open to him to do so by amendment. In that event it is possible that even in ordinary cause procedure the matter could be disposed of very readily. That however is a matter for the pursuer; it is not for the court to dictate the shape of his pleadings. The fundamental point remains however that when Sheriff Pollock dealt with the motion to remit the cause appeared to be anything but straightforward.

(29) In dealing with the matter of the remit I should add for the sake of completeness that it has not been argued - despite a reference to "hijacking" and to "enforced and wrongful upgrading of the cause" - that the decision to remit in itself interfered with the pursuer's right of access to justice. It is difficult to see how that could be argued. Ordinary cause procedure does not present any inherent obstacle and any difficulty which might arise stems not from the procedure but from the requirement to pay court dues. Any question of whether the level of charges was beyond the means of the pursuer would require an investigation of his circumstances and would have to take into account that exemptions from such charges can be available to certain individuals of limited means.

(30) As it is not necessary to do so, I express no view on the propriety of the actings of the sheriffs at earlier stages of this case. I have a measure of understanding, although little sympathy, with the position which the pursuer adopted in relation to Sheriff Stewart when the matter came before him. Given that by that stage the pursuer's clear position was that he wished Sheriff Pollock's interlocutor set aside, it was not an unreasonable view that as this was beyond the competence of Sheriff Stewart there was little purpose in the hearing. Matters had however got to that position because of the pursuer's own insistence on focusing his objection to the involvement of Sheriff Pollock (and indeed to Sheriff Principal Young) on their membership of the Speculative Society. The purpose of the remit to Sheriff Stewart was simply to determine the validity of the pursuer's own motion that Sheriff Pollock should decline jurisdiction.

(31) Lest the matter should arise again, it might be worth giving an indication of my view on the objection to Sheriff Principal Young in so far as it relates to membership of the Speculative Society. The pursuer's argument I perceive to be this. The requirements of article 6(1) of the Convention have introduced a new dimension to the concept of impartiality. An interest in the outcome, pecuniary or otherwise, was always sufficient to disqualify a judge from presiding over a case even if that interest was remote. But a judge must now be completely free of any hint of suspicion that he might have an inclination to dispose of a case in a particular direction. To use the words of Lord Hope in Davidson petitioner: "A doubt as to whether this is the case is enough, so long as it can be justified objectively". For such objective justification the pursuer would, I think, rely on the air of secrecy which according to him surrounds the activities of the Spec, and to the fact that a number of cases involving the Skye Bridge tolls (now 21 as I understand him) which had all from his perspective been unsuccessful involved judicial members of that body.

(32) That argument is not to my mind in any sense an advancement of the position which the pursuer took in Robbie the Pict v HM Advocate. According to paragraph 13 in the second part of the Opinion of the Court the pursuer "expressly disclaimed any suggestion of actual bias on the part of any judge whose a member of the Speculative Society. His argument was that the nature of the Society and its tradition of secrecy raised a reasonable apprehension of bias in the mind of the onlooker". The court went on to reject the pursuer's objection and I agree with Sheriff Principal Young that in the light of that decision an objection based solely upon membership of the Society falls to be rejected without further discussion. Like Sheriff Principal Young I have difficulty in understanding the pursuer's attempt to suggest that the decision of the Division should not be regarded as authoritative on the basis that is was only procedural.

(33) The question of significance is whether there is a material difference between the objection advanced by the pursuer now and that advanced by him in the earlier case. Sheriff Principal Young drew attention to paragraph 25 of the Opinion of the Court where it is stated that the pursuer did not renew a submission that "a reasonable suspicion of bias arose from the fact that the Chairman of the Skye Bridge Company and the former Scottish Office Minister who promoted the Skye Bridge legislation were members of the society". The Sheriff Principal perceived a possibility of that submission being advanced now and it was on that basis that he thought it appropriate to recuse himself.

(34) I explored this matter in the course of submissions with both the pursuer and Mr Anderson, the solicitor for the defenders. None of us considered that there was a material difference in the pursuer's position. The pursuer himself appeared content to maintain that for some procedural reason the decision of the Division was not authoritative, and that the only change in position related to the existence now of 21 cases in which judicial members of the Society had been involved. My own view - which I understood Mr Anderson to agree with - was that the original argument was to the effect that the secret nature of the Society created an aura of suspicion that members of it would be bound by some form of code which required them to support the actings of each other whatever the rectitude of that position. It does not seem to me that the fact that certain other members are now specifically identified advances that position to any material extent. The argument remains founded merely on association through membership of the Society. Nothing is suggested as to what particular interest in the outcome of this case may be generated by that association. The Division specifically rejected the suggestion that any reasonable onlooker could suspect that the "loyalties and friendships that typify any Society of this kind should in this case override the obligations of the judicial oath". In my view there is no reason why Sheriff Principal Young should not consider that this should still apply.

(35) In the whole circumstances I am satisfied that the appeal falls to be dismissed as incompetent and the case remitted to the Sheriff to proceed as accords. I should only add that I appreciate the courteous and good humoured manner in which the pursuer presented his submissions. Although I know little about the Speculative Society it did occur to me that with his capacity for congenial debate the pursuer might, in other circumstances, have been a useful member of it.