Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS   Case Number: SC764/08
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   In the cause   Lindsays, WS Pursuers and Respondents;   against   GRAHAM SENIOR-MILNE Defender and Appellant;     _______________________

 

 

 

Act: party appellant

Alt: Shearer for the respondents

 

 

 

 

EDINBURGH, 24 August 2011

The Sheriff Principal, having heard the appellant in person and the solicitor for the respondents and having resumed consideration of the cause, answers the first, second, third, fourth and fifth questions posed in the stated case in the negative; declines to answer the sixth question as unnecessary and refuses the appeal, adheres to the sheriff's interlocutors of 22 September 2009 and 3 September 2010 complained of; finds the defender and appellant liable to the pursuers and respondents in the expenses of the appeal; remits the Pursuers and Respondents' account of expenses to the Auditor of Court to tax and to report thereon.

(signed) Mhairi M Stephen

 

NOTE:

In this summary cause action the pursuers and respondents seek recovery of professional fees and outlays. The appellant admits that the pursuers provided legal services at his request and that he is liable to make payment of professional fees in respect of unsuccessful offers for property made by the pursuers on his behalf and on his instruction. These fees are conservatively estimated to be £250 of the sum sued for. The balance is the remainder of the pursuers' fee note (£1,000) and the outlay to Sir Crispin Agnew of Lochnaw QC for opinions prepared by him (£3,525). The appellant Mr Senior-Milne disputes that the balance is due and payable on account of negligence on the part of the pursuers and senior counsel.

 

The proof began on 7 April 2009 and proceeded over four separate days concluding on 1 September 2009. At the commencement of the proof the defender and now appellant was ordained to lead at proof. The appellant was ordained to lead as he did not dispute that the pursuers had provided professional services to him however the issue related to the standard of those professional services and those of senior counsel instructed by the pursuers to provide an opinion.

 

The sheriff issued his judgment on 22 September 2009. I do not propose to go into detail with regard to the merits of the action as the nature of the dispute and background is set out fully in the sheriff's judgment. Suffice to say that the appellant consulted the pursuers on Scottish Feudal Baronial Law and a pending petition to the Lord Lyon for matriculation of arms

 

PRELIMINARY MATTERS

At the outset the appellant indicated that he had two preliminary points to make before proceeding to his grounds of appeal.

 

Firstly, he wished to ascertain his right to appeal further to the Court of Session. I indicated that it was premature to discuss future potential appeal issues before the appeal by stated case from the decision of the sheriff had been heard and decided upon.

 

The second preliminary point related to the sheriff's failure to draft a stated case as required by the summary cause rules within 28 days of the lodging of the note of appeal. The appropriate rule of court is Summary Cause Rule 25.1(3):-

"The sheriff must, within 28 days of the lodging of the note of appeal, issue a draft stated case containing-

(a) Findings in fact and law or, where appropriate, a narrative of the proceedings before him;

(b) appropriate questions of law; and

(c) a note stating the reasons for his decision in law, and the sheriff clerk must send a copy of the draft stated case to the parties."

 

The appellant insists that it is abundantly clear that the sheriff did not draft the stated case within 28 days and complains that he has been denied any appropriate sanction arising from the sheriff's failure to abide by the mandatory rule of court. I was referred to the case of Secretary of State for Home Department v Ravichandran [1999] EWCA civ 146.5. I was also referred to correspondence between the appellant and this court relating to this breach of the court rules by the sheriff; that it was simply unacceptable that the person who might deal with the complaint would be the sheriff himself and that the matter had not been referred to the Sheriff Principal.

 

The appellant maintained that the effect of the sheriff's failure to comply with a mandatory requirement of the rules should be the striking out of the action as a fundamental nullity.

 

It is important to note that the sheriff disputes that the draft stated case was late. He refers to the drafting of the stated case in the note appended to the stated case. However for the purpose of determining this matter I propose to accept the hypothesis of the draft issued 18 days late without prejudice to the Sheriff's understanding of the timescale.

 

I took the view that the court's inherent power to regulate its own procedure together with consideration of fairness and proportionality meant that it would be quite wrong to suggest that the interests of justice would be served by the dismissal of the action in its entirety. The pursuers had raised proceedings and had been successful before the sheriff and any failure on the part of the sheriff to draft the stated case timeously should not impact unfairly on the parties. There was no suggestion of prejudice to the appellant. On the contrary there would be significant prejudice to the pursuers.

 

The summary cause rules do not provide for any sanction in the event of the sheriff failing to meet the time requirement of Rule 25.1.

 

If the draft stated case was issued 18 days late it may be appropriate to set the delay in context.

 

There are grounds for suggesting that any delay prejudices the pursuers as the successful party rather than the appellant. The sheriff's judgment was issued on 22 September 2009 after four separate days of proof beginning on 7 April 2009 and concluding on 1 September 2009. The hearing on expenses fixed for 11 December 2009 was discharged on the appellant's motion and fixed for 12 February 2010 when the appellant appeared and sought to have the sheriff recuse himself at that late stage in the proceedings having given no prior notice to the pursuers. The matter was then remitted to the Sheriff Principal for directions and the Sheriff Principal gave directions by Notes dated 4 and 31 March 2010. Successive hearings on expenses were discharged mainly at the appellant's request except the hearing of 16 April 2011 was discharged at the pursuers' request. Ultimately the question of expenses was dealt with on 3 September 2010 at which hearing the appellant brought an incidental application challenging the court's jurisdiction for the first time. That hearing on expenses proceeded with the result being an award of expenses in favour of the pursuers. The appellant's note of appeal is dated 12 September 2010 and date stamped 13 September 2010. The sheriff's draft stated case was issued to parties on 29 October 2010. Sundry procedure relating to adjustments took place thereafter culminating in the sheriff finalising his stated case on 15 February 2011. The appeal on the stated case was fixed for Thursday 28 July 2011.

 

It is of course only proper that the sheriff ought to have had regard to the court rules and ought to have drafted the stated case timeously in terms of the rule. However, it has to be acknowledged that there may be a myriad of reasons why it is not always possible to comply with what is a mandatory requirement. Indeed the sheriff may be the subject of complaint to the Sheriff Principal if there was to be delay in the issue of the draft stated case. Complaints have been made regarding such delay in the past. However, the issue is what the consequences of such delay may be. Delay should be avoided or minimised as justice delayed is undesirable. However in dealing with the consequences of the sheriff's lateness in providing his draft stated case it is necessary to have regard to the entire procedural history and look at the delay against that background. Nearly a year elapsed between the sheriff's judgment and the hearing on expenses. Much of that delay was caused by the appellant seeking adjournment of hearings on expenses or directions. The delay caused by the sheriff issuing his draft stated case late is minimal by comparison.

 

The appellant's argument, of course, refers to the mandatory nature of the rule. This is a summary cause action and that is the reason why any appeal is subject to specific time limits. Nevertheless it is important to recognise that the procedural rules exist in order to secure the just resolution of the parties' dispute in accordance with their substantive rights. The rules have to be applied with a degree of fairness and proportionality. Further the summary cause rules provide no sanction for this situation.

 

As I have mentioned there would be clear prejudice to the successful pursuers if the action were to be dismissed. There was a corresponding lack of real evidence pointing to prejudice to the appellant accepting entirely that undue delay should be avoided and matters concluded expeditiously.

 

Accordingly having regard to whole circumstances; the lack of prejudice and the length of the delay (18 days) it was entirely inappropriate to do other than proceed with the appeal as the stated case had been drafted, adjusted and finalised and was now before the court for the purposes of hearing the appeal. Accordingly, I rejected the submission made by the appellant that the whole proceedings should be struck down on account of the sheriff's failure to adhere to the strict timetable set down in the summary cause rules. To dismiss the action would be entirely disproportionate; would penalise the pursuers unfairly and would be patently wrong. Such a sanction would defeat the ends of justice.

 

The preliminary matters having been disposed of the appellant proceeded with his submissions supporting his grounds of appeal. Mr Senior-Milne pointed out that he proposed to proceed with his submissions based on the grounds of appeal and also the supplementary e-mails which he had submitted to the court and copied to his opponent.

 

1. JURISDICTION

The issue of jurisdiction is the principal and prime ground of appeal. The matter is regulated by the Civil Jurisdiction and Judgments Act 1982 in particular Schedule 4.

 

I was referred to paragraph 7, (which relates to jurisdiction over consumer contracts) which in turn refers to that rule and Rules 8 and 9. Rule 8 states "Proceedings may be brought against a consumer by the other party to the contract only "in the part of the United Kingdom in which the consumer is domiciled".

 

The action proceeded wrongly in this court as the pursuers sought to base jurisdiction on the place of performance of the obligation to pay. The pursuers being a firm of solicitors demonstrably should have been aware of the terms of Schedule 4 to the 1982 Act.

 

Accordingly the pursuers and in particular Mr Shearer who represented the pursuers knew that Edinburgh Sheriff Court had no jurisdiction and accordingly had lied to the court.

 

In furtherance of that lie or fraud the appellant had been deceived into entering appearance. The actings of the pursuers constituted fraud and a criminal act.

 

I was referred to R v Horseferry Road Magistrates Court exp. Bennett (No 1) [1993] UK HL 10 and the dicta of Lord Bridge of Harwich - "There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view."

 

Accordingly, it was the appellant's submission that to hold that the defender/appellant had entered appearance thus curing the lack of jurisdiction would be turning a blind eye to executive lawlessness or in this case the fraud of the pursuers.

 

The appellant went on to narrate the principles laid down in the American case of United States v Toscanino (1974) 500F. 2d 267, 268 where the defendant, an Italian citizen who had been convicted in the New York District Court of a drugs conspiracy alleged that the court had "acquired jurisdiction over him unlawfully through the conduct of American Agents who had kidnapped him in Uruguay...tortured him and abducted him to the United States for the purpose of prosecuting him" there. The court held "that the Federal District Court's criminal process would be abused or degraded if it was executed against defendant Italian citizen, who alleged he was brought into the United States from Uruguay after being kidnapped, and such abuse could not be tolerated without debasing the processes of justice so that the defendant was entitled to a hearing of his allegations...Government should be denied the right to exploit its own illegal conduct, and when an accused is kidnapped and forcibly brought before its jurisdiction, the court's acquisition of power over his person and the fruits of the Government exploitation of his own misconduct".

 

The appellant drew parallels with the present case and submitted that the court cannot acquire jurisdiction through an unlawful act. That unlawful act was perpetrated by the pursuers and would therefore be homologated by the court if I found that this court had jurisdiction based upon the defender entering appearance. Thus the court cannot acquire jurisdiction through its own unlawful act.

 

Paragraph 14 of Schedule 4 to the 1982 Act states that "Where a court of a part of the United Kingdom seems to have a claim which is principally concerned with a matter over which the court of another part of the United Kingdom has exclusive jurisdiction by virtue of Rule 11, it shall declare of its own motion that it has no jurisdiction".

 

Accordingly, the court cannot acquire jurisdiction through an illegal act and in any event it was incumbent on the sheriff to ensure that the issue of jurisdiction was considered by the court. That indeed is a requirement of the Summary Cause Rule 8.3 and the court must ascertain whether it has jurisdiction and if there is none the matter should have ceased then. According to the appellant neither Sheriff Mackinnon nor any other sheriff dealing with the case fulfilled their duties under the 1982 Act and the summary cause rules. The first thing that the sheriff should have done was to ascertain whether the court had jurisdiction. Sheriff Mackinnon knew he ought to have done this and did not. He therefore failed in his duties to the process and the appellant. This was another intentional unlawful act which constitutes a criminal offence.

 

The appellant summed up his propositions by stating that a court cannot acquire jurisdiction in the circumstances of the present case firstly, because the court has failed to fulfil its duty to have regard to a clear defect of jurisdiction and thus the sheriff at the first hearing and at successive hearings ought to have dismissed the action; secondly, that the court cannot acquire jurisdiction as a result of unlawful acts on the part of either/or Mr Shearer and the sheriff who dealt with the first hearing; and thirdly had the pursuers and the court properly fulfilled their function towards him as a party litigant they would have had regard to the issue of jurisdiction and explained to him the lack of jurisdiction allowing him the opportunity at the appropriate time to challenge jurisdiction. Their failure to do so meant that it was left to the appellant to seek advice from the Citizens Advice Bureau and challenge jurisdiction at a later stage.

 

The duty of the court is to do justice to both parties. An independent unprejudiced observer would consider that there was a risk of injustice. A firm of solicitors suing a self represented party raises immediately the risk of inequality of arms. The court has a duty to ensure that there was no risk of prejudice or bias to the unrepresented party.

 

 

2 EXPENSES

The appellant's argument on the question of expenses rested less on the award of expenses but instead that the pursuers had breached the provision of Summary Cause Rule 23.3(8) which states:-

"party awarded expenses must -

(a) lodge his account of expenses in court at least seven days prior to the date of any hearing fixed under paragraph 7; and

(b) at the same time forward a copy of that account to every other party.

 

The pursuers had failed lodge and intimate an account of expenses prior to the hearing on expenses which was originally fixed for December 2009 and thereafter continued. The failure on the part of the pursuers to comply with Rule 23.3(8) in the opinion of the appellant should result in disentitling the pursuers to any expenses.

 

3 BURDEN OF PROOF

The sheriff erred in ordaining that the appellant should lead at proof. The pursuers, in particular Mr Shearer as an officer of court, were under an obligation to ensure that proceedings were conducted fairly and the sheriff came under a duty to do likewise. It was wrong for the court to order that he led a proof. As a litigant in person unfamiliar with Scottish law he was placed at a considerable disadvantage.

 

The decision of the court to grant the pursuers' motion to ordain the defender/appellant to lead at proof constituted two further failures by the pursuers and the court. The court failed to weigh up the requirement of the pursuers to assess the professional work carried out by the pursuers. The pursuers' case was taken at face value, they were not required to justify their fee or account.

 

The appellant referred to Levicom International Holdings bd & Anor v Linklaters (a firm) [2009] EW8C 812 (comm.). That case established that the solicitors work must be assessed against the instructions provided by the client.

 

The appellant submitted that the sheriff failed to systematically assess whether the pursuers had actually done the work which they had been instructed to do. The sheriff failed to explain the consequence of him being required to lead at proof. He was not made aware that this was in effect a reversal of the burden of proof and accordingly the appellant's failure to object to the request arose from the sheriff's failure to explain properly the consequences and therefore the prejudice to the appellant.

 

The appellant also criticised the pursuers for making the request that he lead at proof and that such a request was unfair and contrary to the Solicitors Standards of Conduct Practice Rules which reinforce the proposition that solicitors appearing against a person who is self-represented must not take unfair advantage of that person.

 

Accordingly the sheriff's decision to ordain the appellant to lead at proof was unfair and therefore that decision is unsafe. The appellant's agreement to lead at proof was improperly obtained given that the consequences of the reversal of the burden of proof were not explained to him and that there was therefore no true consensus on that matter.

 

The sheriff had a duty to do justice between the parties. He failed to do so. By ordaining the appellant to lead, whether with the appellant's agreement or not, he caused the appellant to be prejudiced.

 

4. standard of proof/professional negligence

The appellant's submission on this matter was firstly, that the sheriff unfairly proceeded with the proof over a number of days without advising him that he would require expert testimony before he could hope to succeed in his defence to the action on the basis that the pursuers and senior counsel had failed to act to the standard expected of a legal adviser exercising ordinary skill. Secondly, the appellant argued that the sheriff was wrong to find that negligence could not be established without there being expert evidence relating to the actings of the solicitors and senior counsel. Instead he suggested that it would be appropriate to proceed on the basis of the test of a reasonable man given that the errors in the opinion prepared by Sir Crispin Agnew of Lochnaw QC on the instructions of the pursuers were basic and obvious errors. This was simply a matter of fact and these errors were so basic that the sheriff was entitled to find that these errors clearly amounted to negligence given that no reasonable advocate/senior counsel would have made that fundamental error. It is no part of the ordinary or normal practice of an advocate to make errors of the sort made in the opinion. This was so obvious that the requirement for expert evidence to prove negligence is quite unnecessary.

 

Returning to the first part of the submission the appellant considered that the sheriff ought to have advised him of the requirement for expert evidence. The sheriff was aware from the outset that he had no witnesses to lead and therefore that he was bound to fail. Further, that the sheriff colluded with Mr Shearer solicitor for the pursuers and unnecessarily prolonged the proof to take in four days of evidence and argument which was completely unnecessary as he, the appellant, was bound to lose without expert opinion on the standard of professional service provided by the pursuers and senior counsel. This amounted to outrageous conduct on the part of the sheriff and fraud on the part of the pursuers' solicitor who was simply clocking up fees and which was followed by a motion for an increase in fees by 100% on the basis of his skill and expertise. Further, given the appellant's medical history of cardiac problems he should not have been put through the unnecessary stress of four days of hearing. He referred to section 4 of the Fraud Act 2006. The appellant also referred to the well known test set out in the case of Hunter v Hanley "arising from a deviation from normal practice". The sheriff attempted to apply the Hunter and Hanley test which is three fold, however, he ought to have observed and understood that the appellant was not attempting to prove a failure to follow normal practice as basis errors of fact are not normal practice and that this was an act of ordinary negligence on the part of senior counsel.

 

The appellant referred to ordinary negligence and professional negligence and compared the situation with the analogy of a surgeon failing to wash his hands before an operation and the resulting death of the patient from an infection. That failure on the part of the surgeon is ordinary negligence in the course of carrying out professional duties. There is a distinction to be made.

 

The appellant also referred to the case of The Lord Advocate v Andrew MacNamara (2009) CSIH 45 at page 54: "As we have explained, these proceedings were based on allegations of professional negligence which were unsupported by the opinion of anyone qualified to express an opinion on that issue. It is not suggested that they were instituted in the expectation that such support could be obtained; nor does there appear to have been any intent to obtain such support. In those circumstances we consider that we are entitled to conclude that proceedings were instituted without any reasonable ground and were vexatious."

 

The appellant cited that authority to underline the need for the judge, in this case the sheriff, to terminate proceedings immediately when it was apparent that the party alleging negligence did not intend calling an expert witness to support the allegations.

 

5. EVIDENCE ON OATH

The final point made by the appellant related to the failure on the part of the sheriff to administer the oath. The appellant in the course of his submission conceded that it was likely that the oath had been administered by the sheriff initially but the oath was not administered again when both the pursuers' solicitor Mr Shearer and the appellant himself resumed their evidence at the continued proof.

 

Although a professional person may know that he or she remained on oath he was not aware that he remained under oath as the oath was not administered again. This all relates to a state of mind and if you do not consider that you are on oath that might be an issue with regard to the evidence given.

 

RESPONDENT'S SUBMISSIONS

Mr Shearer for the respondents dealt first of all with the final point made by the appellant namely, the conduct of the proof and whether the parties had been placed on oath. The appellant appeared to be departing somewhat from his original position that neither of the parties had been placed on oath. It was the respondent's submission that the oath was administered albeit that the proof had proceeded partly by way of evidence given from the witness box but mainly by way of debate before the sheriff. The sheriff deals with the matter of the oath in his Note attached to the stated case on the final page.

 

Mr Shearer then proceeded to deal with the questions posed by the sheriff in the stated case in numerical order.

 

1. Jursidiction - Did the sheriff err in declining to hold the court did not have jurisdiction?

Mr Shearer explained that no issue had been taken by the appellant with regard to jurisdiction until the case called for the continued hearing on expenses in September 2010. Clearly, this followed the issue of the sheriff's judgment finding in favour of the pursuers. Accordingly, any challenge to the jurisdiction of the court came too late in terms of Schedule 4 paragraph 13 of the Civil Jurisdiction Judgments Act 1982. The appellant entered appearance and on his doing so without raising the issue of jurisdiction this court has jurisdiction. The sheriff deals with the issue of jurisdiction on page 13 of the stated case and his reasoning on the matter of jurisdiction is correct. The sheriff had considered the provisions of the 1982 Act Schedules 4 and 8 and come to the correct conclusion on jurisdiction.

 

Mr Shearer noted that the authorities referred to by the appellant had no bearing on the present case or the issue of jurisdiction in this case. The appellant was capable of obtaining advice. He eventually took advice from the Citizen's Advice Bureau but only after the judgment had been issued. As the appellant had returned the response form striking out any matter relating to jurisdiction there was no requirement of the sheriff at the first calling of the case to enquire regarding jurisdiction. Rule 8.1 of the Summary Cause Rules deals with the matter of jurisdiction. Rule 8.1 states:

8.1- (1) If a defender intends -

(a) to challenge the jurisdiction of the court or the competency of the action;

(b) to defend the action (whether as regards the amount claimed or otherwise); or

(c) state a counterclaim,

he must complete and lodge with the sheriff clerk on or before the return day the form of response contained in the defender's copy summons including a statement of his response which gives fair notice to the pursuer.

 

Thus it was submitted that the appellant entered appearance firstly by returning the response form with the issue of jurisdiction struck out and at that stage he had already submitted to the jurisdiction of the court. Furthermore he appeared at the first calling in person and having raised no issue relating to jurisdiction must have entered appearance.

 

The appellant does not dispute that there was a contract for services between the pursuers and him. The legal services related to making offers for heritable property in Scotland and also with regard to an issue relating to Scottish Feudal Baronial law. Clearly given the subject matter of the legal services the appropriate forum was the Scottish Court.

 

Mr Shearer pointed out that there was no requirement for a sheriff at the first hearing of the case to enquire regarding jurisdiction. There was no compulsion on the Appellant to strike out that part of the response form which would entitle him to challenge the court's jurisdiction far less attend court. He had entered appearance when he made the first statement to the court in his response form.

 

I was referred to Clydesdale Bank plc v Thomas Ions 1993 SCLR 964 (Sh Ct) and Cairney v Bulloch 1994 SLT (Sh Ct) 37.

 

In the Clydesdale Bank case Sheriff Robertson stated:

"I was satisfied after hearing the submissions that the phrase 'enter an appearance' in Article 18 could not be construed as being restricted to a situation where a defender enters an action with a view to defending it. Page 3 of the application for a time to pay direction and the section completed by the defender (Part B) includes the statements: "(1) The applicant is the defender in the action brought by the above named pursuer. (2) The defender admits the claim and applies to the court for a time to pay direction". These statements are followed by the defender's offer and financial details.

 

I consider that it is clear that by completing Part B and returning the application to the court the defender must be held to have 'entered an appearance' within the meaning of Article 18 and that this court has jurisdiction".

 

The case of Cairney v Bulloch considered the meaning and application of Rule 18(1) of the Ordinary Cause Rules (prior to 1993) and the issue was whether there had been "an appearance" for the purpose of determining whether a defect in the service of the initial writ might be remedied. The Sheriff Principal in that case held that "appearance" in Rule 18 meant the lodging of a notice of intention to defend and that the defender had effectively ignored the citation by not entering such a notice and could not be held to have accepted it by attending a hearing concerned with the question of its validity".

 

Further returning to the obligations laid upon the sheriff by Summary Cause Rule 8.3 it was submitted on behalf of the respondents that the sheriff at the first hearing had complied with these requirements and had done all that he had to do at the first hearing. Jurisdiction was not an issue at that hearing. The sheriff ordered a supplementary note of defence from the defender who was present at the first hearing and who appeared in order to deal with his defence to the merits. I was referred to the terms of Rule of Court 8.3.

 

In terms of Summary Cause Rule 8.3(1) if at the hearing the sheriff is satisfied that the action is incompetent or if there is a patent defect of jurisdiction he must grant decree of dismissal in favour of the defender.

 

The rule goes on to state what the sheriff shall do at the hearing namely:- ascertain the factual basis of the action and any defence and also the legal basis upon which the action or defence proceeds. The sheriff also requires to seek to negotiate and secure settlement of the action between the parties. If that is not possible then sub-section 3 proceeds to list the further duties of the sheriff at the first hearing.

 

Furthermore, even if there had been any procedural irregularity it is for the court to do what is just. Striking out the case or dismissing the action would not do justice between the parties. It would be quite wrong to deal with the issue of jurisdiction at this late stage by dismissing the action given that there had been no challenge to the court's jurisdiction until the hearing on expenses which took place almost a year after the sheriff issued his judgment in favour of the pursuers.

 

2. Expenses - Did the sheriff err in awarding expenses in favour of the respondents?

The appellant's submission discloses a misapprehension of the provisions of the Summary Cause Rules in relation to the award of expenses and assessment of taxation of expenses. Chapter 23 of the Summary Cause Rules regulates expenses.

 

The hearing on 3 September 2010 was a hearing assigned by the sheriff when he issued his judgment. Many continuations of that hearing took place. The sheriff had reserved all questions of expenses and accordingly the hearing was for the purpose of dealing with the expenses and in particular deciding in whose favour an award of expenses should be made. No expenses have been awarded in the sheriff's interlocutor of 22 September 2010 and the sheriff appointed that a hearing take place to deal with that matter. Accordingly it was not a hearing for an assessment of expenses in the sense in which that term is used the Summary Cause Rule 23.3(7). A hearing under that provision is one fixed in order to assess or determine the amount or actual fee to be paid by the party against whom the award had been made to the party in whose favour an award of expenses had been made. It would be patently absurd to require parties to lodge accounts of their expenses before any question of expenses or award of expenses had been made which seems to be the appellant's argument.

 

3 Did the sheriff err in ordaining the appellant to lead in the proof?

 

Mr Shearer adopted the reasoning of the sheriff in the stated case. The requirement that the appellant should lead at the proof was a matter of convenience particularly as the respondents had not been given fair notice of what the appellant's defence to the action was to be. The appellant did not challenge that a contract existed and that he had instructed the pursuers to do legal work for him both with regard to property matters and also the matter of Scottish Feudal Baronial law. Accordingly it was for the appellant to state the basis upon which he challenged the quality of the services provided there being no dispute that services had been provided. Having the appellant leading the proof was not a reversal of the onus of proof but a consequence of the lack of pleading or notice. Having the appellant lead at proof was a matter of convenience. This was a discretionary matter for the sheriff and indeed, the appellant concurred with the proposal. The matter is dealt with in Macphail at 8.6.4.

 

In that section there is an excerpt from Lord President Cooper's dicta in McFarlane v McFarlane 1947 SLT (Notes) 34: "A direction that a specified party shall lead in a proof never imports an anticipatory decision by the court as to where the ultimate onus of proof lies. It may, and often does, import the view of the court, formed upon a consideration of the averments, as to where the initial onus lies; but sometimes it imports no more than this, that considerations of convenience point to the desirability of the specified party leading his evidence first."

 

4. Did the sheriff err in allowing the proof to be proceed, without taking steps to terminate the case on the first day of evidence?

 

According to the Respondents this question should also be answered in the negative. The only point made by the appellant in his submissions was that in effect there had been a conspiracy between the pursuers/respondents and the sheriff to keep the proof running. Firstly for the sheriff's own interest in the subject matter and secondly for the purpose of the pursuers seeking to increase their recoverable fees.

 

The short answer to that is that it would have been quite wrong for the sheriff to have held that the proof could not proceed. Had he done so he was almost bound to have found in favour of the pursuers and respondents as their claim was at least to an extent admitted by the appellant. This would clearly not assist the appellant who would have had a compelling ground of appeal had the sheriff refused the appellant his proof.

 

On the issue of fees I was reminded that this is a summary cause action and the parties are restricted to summary cause expenses. Therefore it was not in the Pursuers interests to prolong the proof.

 

The submissions of the appellant were patently fanciful and ridiculous.

 

5. Did the sheriff err in declining to hold the respondents and senior counsel acted in breach of a common law duty of care?

 

This relates essentially to the merits of the case. It is settled law that the court required to apply the test articulated in Hunter v Hanley 1955 SC 200. Again this is set out in the stated case and in the sheriff's judgment and the reasoning of the sheriff is respectfully correct and his decision is sound.

 

It was necessary for the appellant to show that the advice was given negligently and this could only be determined in the context of what a solicitor of ordinary skill acting with ordinary care would have done or advised. The appellant led no evidence to support his case in that respect. Likewise no evidence was led relating to the standard expected of senior counsel and whether senior counsel in this case failed to act with the care required and to the appropriate standard.

 

The sheriff deals with the merits in paragraph 24 onwards in his written judgment dated 22 September 2009. He concludes at paragraph 42 in the following manner: "On the whole matter it appeared to me that the defence was without merit and accordingly the pursuers were entitled to succeed on the matter of liability. For completeness, I was not persuaded that even if the defender had succeeded in establishing negligence there was any quantifiable loss. As the pursuers' agent observed in his written submissions the defender had a decision recognising him as Baron of Mordington. So far as the regality was concerned, I was not persuaded that the evidence pointed to any demonstrable loss."

 

Mr Shearer for the respondents urged me to adopt the sheriff's reasoning on this matter and answer this question in the negative also.

 

 

 

DECISION

Essentially this is a relatively straightforward action by a firm of solicitors suing for their professional fees and outlays (being payment of fees to senior counsel) incurred at the request of and on the instruction of the defender. The pursuers provided legal services to the defender between September 2003 and March 2005.

 

The defender Graham Senior-Milne admits that the pursuers provided legal services at his request and that they submitted an invoice for £4,862.41 for these services.

 

The services related to (1) offers made by the pursuers on behalf of the defender for certain heritable properties and (2) the sale of Edrington House, Nether Mordington, Berwickshire and the consequences of that sale.

 

The background to this matter is that the defender wished to retain any feudal dignity associated with Edrington House following its sale. He believes the property was the caput of the Barony of Nether Mordington and had already petitioned the Lord Lyon for matriculation of arms and for recognition as Baron of Nether Mordington.

 

The defender engaged the services of Mr Shearer of the pursuers as a solicitor experienced in Scottish Feudal Baronial law. The defender also wished to obtain the opinion of senior counsel and Mr Shearer instructed Sir Crispin Agnew of Lochnaw QC with papers to provide such an opinion.

 

Senior counsel's opinion was obtained which inter alia stated that he (senior counsel) did not have a full progress of title before him and with that caveat concluded "I am of the view that Mr Milne does not have a conveyance of a Barony arising out of a former regality. However, this is an uncertain area of law, because it deals with feudal concepts and conveyances, for which there is little modern precedent. A final conclusion can only be determined by putting the matter either to the Lord Lyon or to the Court of Session and leaving it to judicial determination".

 

Correspondence between the parties and senior counsel ensued and a second opinion was prepared by senior counsel in January 2004which stated that the law in relation to regality is not clear but observed that there was "more than enough in the papers to argue before an appropriate court that Mr Milne had the right to a regality".

 

Subsequently the defender amended his existing application to the Lord Lyon to seek recognition as Baron of Mordington rather than Nether Mordington. The Lord Lyon subsequently officially recognised his entitlement to that feudal dignity.

 

The defender refuses to pay the fees to junior counsel and indeed now refuses to pay the fees to the pursuers in respect of their own modified fee note.

 

The defender in his proposed defence/counter claim states his willingness to pay for certain of the work carried out by the pursuers namely submitting offers for properties. However, the defender refuses to make payment of fees in respect of senior counsel and the pursuers in so far as they relate to the matter of the Barony title as he considers firstly, that senior counsel's opinion contained an error and secondly, that the pursuers and senior counsel advised that there was no Barony of Mordington when indeed the Lord Lyon has now recognised his entitlement and thirdly that the Pursuers carried out unnecessary work or failed to carry out the Defender's specific instructions.

 

Not only did the defender state a defence to the effect that the pursuers were negligent with regard to the work they carried out with regard to the Barony title, but that he also suffered loss arising from that negligence as a result of which the defender sought to counterclaim from the pursuers an unspecified amount for delay, expense and distress.

 

This is the background to the appeal. As previously noted the sheriff heard the proof over four days and he has given a detailed judgment dated 22 September 2009.

 

Against that background I propose to deal with the questions posed in the stated case.

 

The final (Sixth) question posed, however, does not appear to raise any issue or question of law given the terms of the sheriff's note. Indeed standing the terms of the sheriff's recollection and note it is difficult to understand why the question was posed in the terms it is. I understand that the issue of the oath was raised by the appellant subsequent to the stated case being drafted.

 

The sheriff's note is clear that the appellant was sworn. Mr Shearer is clear that that oath was administered. The appellant now appears to accept that he may have been sworn at the beginning but could not recall having the oath administered again or being reminded that he remained on oath when the case called for the continued proof.

 

The appellant's submission in this issue raises a rather interesting proposition relating to his own evidence at proof. He appeared to be suggesting that having been put on oath at the outset he was not reminded that he remained on oath when proceedings resumed for the second day of proof. That being the case it may have affected the evidence he gave as being on oath may affect one's state of mind relating to the evidence.

 

Obviously the appellant's submission could only have a bearing on his own evidence and he declined to elaborate on what standard he then might have applied to his oral testimony had he believed that he was no longer subject to the sanction whatever that may be in the ultimate day of judgment.

 

The sheriff's note records the recollection of parties now as to the administering of the oath by the sheriff at the commencement of evidence. Accordingly, the question posed as No 6 is not one which requires to be answered.

 

1. Jurisdiction

The first question in law relates to jurisdiction.

 

The subject matter of the contractual relationship between the parties is the provision of legal services in Scotland in particular heritable property in Scotland and Scottish Feudal Baronial law.

 

It is entirely appropriate to observe that the Scottish Courts would be the best place to adjudicate on any dispute involving the provision and standard of legal services in Scotland especially with regard to the rather esoteric aspects of Baronial title.

 

The pursuers raised proceedings in this court by which time the appellant resided in England. Accordingly, due to the provisions of Schedule 8 of the Civil Jurisdiction and Judgments Act 1918 the appellant was then entitled to challenge the jurisdiction of this court irrespective of how suitable and appropriate it would be for the matter to be heard in a Scottish Court.

 

However, simply put the appellant did not challenge the jurisdiction of this court and submitted to its jurisdiction by appearing and stating a defence on the merits. He did so by striking through the option in the response form which specifically reads "I intend to challenge the jurisdiction of the court". Accordingly, he positively rejected that option electing instead to dispute the amount claimed from him by the pursuers and signify his intention to appear giving a note of his defence.

 

The appellant did appear and that appearance lead to further hearings and ultimately to proof over many months in 2009. No challenge to the court's jurisdiction was made until almost a year after the sheriff's judgment which finds against the appellant.

 

Schedule 4 of the Civil Jurisdiction and Judgments Act 1982 is the applicable law in respect of jurisdiction within the United Kingdom. There are perfectly proper, fair and effective reasons for allow prorogation of jurisdiction. That is well established and paragraph 3 articulates that in the following terms:-

 

13(1) Apart from jurisdiction derived from other provisions of this Schedule, a court of a part of the United Kingdom before which a defender enters an appearance shall have jurisdiction."

 

It is unnecessary to look at the authorities on the question of "entering an appearance". The appellant clearly submitted to the jurisdiction of this court by his appearance; his stating a defence on the merits; his request that this court consider his counterclaim and, in particular, his participation in proof to judgment. It is only after judgment that the issue of jurisdiction arises which by any measure is far too late.

 

The appellant in florid language criticised the pursuers and the court with regard to the conduct of these proceedings. However, the appellant became a party to these proceedings and the summary cause rules apply equally to him. Rule 8.1 had already been referred to and from which it is abundantly clear that if a defender intends to challenge the jurisdiction of the court or the competency of the action, or defend the action or state a counterclaim this must be done by completing and lodging the response form

 

Of course, the appellant's position is that he was misled or tricked by the pursuers. Furthermore, he made extravagant and unfounded claims that the pursuers and in particular Mr Shearer engaged in criminal conduct. He likewise criticised the sheriff who conducted the proof and the sheriffs who conducted earlier hearings. The authorities referred to by the appellant were quite irrelevant to the issue before the court and indeed his ad hominem remarks were designed to offend and were offensive.

 

The appellant also argues that the court failed in its duties to him as a party litigant. The court's duty is to secure the just resolution of the parties' dispute in accordance with their substantive rights. An individual has a right to represent himself in court. Clearly, that does normally impose an additional burden upon the court but one which the court discharges by way of explanation. It is not, however, for the court to make the case for or against any party to the proceedings and if an individual chooses to represent himself he has to accept that there are advantages and disadvantages in so doing. The party litigant has to consider the terms of the rules of court and they apply to party litigants in the same way as they do to legally represented parties. The appellant's argument that the court has failed to apply the rules properly and deal with the party litigant fairly is accusatory and without foundation. It could reasonably be said that the appellant's decision to challenge the jurisdiction of this court following the sheriff's judgment against him was opportunistic.

 

There was no patent defect in jurisdiction. Further the subject matter was entirely suited to the Scottish Courts jurisdiction. There was no need or requirement for the sheriff at the first or any subsequent hearing to have regard to any patent defect in jurisdiction or jurisdiction at all given the appellant's wish to defend the matter on the merits and not to challenge jurisdiction.

 

Accordingly the first question posed in the stated case falls to be answered in the negative. The sheriff's reasoning on the issue of jurisdiction is correct. The essence of the provisions of the 1982 Act (Schedule 4) means that a defender who enters an appearance without contesting the jurisdiction of that court confers that court's jurisdiction on the cause even where jurisdiction may exist in another part of the United Kingdom. The defender and appellant has submitted to this court's jurisdiction. The rule is settled and clear. If the defender does not wish to submit to this court's jurisdiction it is necessary that he challenges jurisdiction when he appears or enters an appearance. It is not competent for the defender to challenge the jurisdiction at the later stage.

 

2. Expenses - Did the sheriff err in awarding expenses in favour of the Respondents?

The appellant's submission on this matter appears to derive from a misunderstanding of the summary cause rules relating to expenses (Rule 23.3(8)).

 

The obligation to lodge and intimate an account of expenses in terms of Rule 23.3(8) only arises following upon the sheriff making an award of expenses in favour of one party or the other- in other words after the issue of liability for expenses has been decided upon and before an assessment of the amount of these expenses has been carried out. Such a diet of assessment is the "hearing fixed under paragraph (7)" in Summary Cause Rule 23.3(8).

 

In this case the sheriff did not make any decision on who should be awarded expenses until the continued expenses hearing on 3 September 2010 and then awarded expenses to the successful party ie the pursuers.

 

Furthermore, the method of quantifying the successful party's expenses was by remitting the pursuers' account to the Auditor of Court to tax rather than have an assessment by the sheriff clerk. The rule referred to by the appellant relates to assessment by the sheriff clerk. It should be observed that the sheriff at the hearing on 3 September 2010 dealt with liability for expenses by making an award of expenses to the pursuers to be paid by the defender and appellant. However, the sheriff refused the pursuers' motion for an uplift or increase in these expenses. The pursuers had sought this increase in respect of the skill of the solicitor involved and the complexity of the subject matter.

 

It is most likely that the appellant's misinterpretation of the summary cause rules arises from his lack of familiarity with the rules of court as a party litigant. Clearly, it would not make any sense to require a party to an action to prepare, lodge and intimate an account of expenses before the question of liability for these expenses had been determined and an award made by the court.

 

The second question will therefore be answered in the negative.

 

 

3. Proof - Did the sheriff err in ordaining the appellant to lead in the proof?

The appellant's defence was restricted to the defence intimated with his form of response. The appellant admits the contract between the parties whereby the pursuers would provide legal services to him. The appellant accepts that these services were provided by the pursuers and that they rendered an invoice for £4,862.41 being the sum claimed excluding interest. It is implied in such a contract that the client has an obligation to pay any fee for legal services provided as agreed or as taxed. The appellant further admits liability to pay part of the sum claimed.

 

The appellant's defence relates to the standard of care and negligence on the part of the pursuers but fails to address the specification of what constitutes that negligence as a matter of fact and does not address the legal test of professional negligence. Accordingly, neither the pursuers nor the court have any notice of the defender and appellant's case and therefore have no notice of the case they have to meet.

 

The defender was ordained to lodge a supplementary note of his defence specifying these matters but failed to do so in formal terms. Some specification is given in a communication with the sheriff clerk in March 2009.

 

Accordingly, and understandably, the pursuers lodged a motion "or incidental application" asking the court to ordain the defender to lead at the proof. The defender and appellant was present and agreed that he would lead and set out his position first of all. The court likewise agreed that it was proper that the defender led in order that the pursuers and the court could hear what the Defender's case was relating to negligence.

 

That decision did not alter the onus of proof of the pursuers' case. In any event, the pursuers' case was substantially proved by admission the only issuing being whether the defender was entitled to decline to pay part of the pursuers' invoice on account of inadequate professional service or negligence the details of which were known only to the appellant at that stage.

 

Had the sheriff not ordained that the appellant lead then the pursuer would have had to meet by anticipation the appellant's case on negligence there being no pleadings or notice of such a case. Where a party alleges professional negligence it is necessary that that party addresses by fact and law the basis for the negligence and the legal test by reference to what a solicitor of ordinary skill acting with ordinary care would have advised.

 

There was no prejudice whatsoever to the appellant in having to lead. He was not prejudiced by not hearing the pursuers' case developed in evidence first of all. The pursuers' case was a simple one and as I have said substantially admitted. On the other hand, the pursuers may well have complained of prejudice by having to present their case without knowing the allegations of negligence which they had to meet. Furthermore, there would have been more time required for proof had the pursuers led as the pursuers would have had to require to seek to reply to the defender's case following the defender's proof. Indeed the pursuers may have required an adjournment to seek to rebut the defender's evidence had he led evidence from a skilled witness giving opinion evidence on the issue of the standard of professional care.

 

The matter of which party should lead is one for the exercise of discretion on the part of the sheriff. Convenience and fairness are important considerations. The sheriff was entitled to consider these matters not only from the parties' stand point but also that of the court. The sheriff was entitled to reach the view he did as it would have been more convenient for the court to hear the facts relating to negligence first of all and then the pursuers' case in rebuttal.

 

The appellant's submission that this decision is unfair to him as a party litigant has no merit. First, the appellant acknowledged the purpose of ordaining him to present his case first and agreed to this and most importantly it placed no additional burden or onus on the appellant nor did it reduce or relieve the pursuers of any burden or duty. The decision to ordain the appellant to lead was fair, logical and entirely understandable given the parties pleadings.

 

The third question will be answered in the negative.

 

4. Proof - Did the sheriff err in allowing proof to proceed without taking steps to terminate the case on the first day of evidence?

This question raises no issue of law and it is a curious point stemming from the appellant's assertions that the sheriff must have known the outcome of the proof before it began given that the appellant had no witness to give expert opinion on the matter of professional negligence.

 

Essentially, the appellant is suggesting that the sheriff should have simply repelled the defence and granted decree for the sum craved. That would have been wholly wrong and would have afforded a ground of appeal denying the appellant an opportunity to put his case to the court and indeed to his opponents. It is not for the sheriff to advise the appellant or indeed to know the evidence he proposes to give or lead from witnesses.

 

Furthermore, it is the appellant's contention that the issue of negligence ought to have been dealt with on the basis of ordinary negligence rather than professional negligence and that he was entitled to put forward an argument on the basis of negligence on the part of the pursuers and senior counsel without requiring expert opinion.

 

The sheriff's observations in his note attached to the stated case are entirely appropriate. The answer to this question must be no.

 

5. Negligence - Did the sheriff err in declining to hold the respondents and senior counsel acted in breach of a common law duty of care?

The sheriff deals with the appellant's case on negligence in some detail in his judgment of 22 September 2009 and also in the stated case which followed.

 

The appellant alleges that the pursuers and senior counsel were negligent and that negligence has caused him loss. Further, he maintains that the pursuers are not entitled to recover from him the fees rendered for the legal services which he considers where negligently provided.

 

The test which requires to be satisfied if negligence on the part of a solicitor is to be established is a negative test. That is the test articulated in Hunter v Hanley 1955 SC 200. No other solicitor (or counsel) acting with ordinary skill would have acted in the matter which is the subject of the complaint had he been acting with ordinary care.

 

Accordingly, it is not the test of a reasonable man it is the test of a solicitor acting with ordinary skill. However, given the rather specialised or esoteric subject matter namely Scottish Feudal Baronial law the standard should be of the solicitor in the field of feudal law acting with ordinary skill and care.

 

The solicitor's failure to achieve the purpose or outcome desired by the client; losing a litigation; failing to recover sufficient damages do not per se constitute negligence. Likewise, errors in interpreting the law do not constitute negligence unless the test is met and therefore no ordinary solicitor using ordinary care would have made that error.

 

Furthermore, legal advice or opinions call for the exercise of judgment and with the benefit of hindsight it might be shown that the opinion or judgment turned out badly. That in itself does not indicate negligence.

 

The appellant averts to the error in senior counsel's opinion and his guarded view of the prospects of establishing the Barony title. The outcome for the appellant in the Lyon Court was recognition of him as the Baron of Mordington. The outcome does not vindicate his assertion of negligence on the part of senior counsel and the pursuers.

 

In order to establish negligence on the part of the pursuers it is necessary that the test I have referred to is met. The test of course is that no ordinary solicitor practising in this area using ordinary skill would have acted as the pursuers did and given the advice they did.

 

There was no evidence to support that proposition other than the evidence of the appellant himself.

 

The appellant's second argument in negligence is that the standard should be that of a reasonable man or as he puts it "ordinary negligence". If an error is made, as Sir Crispin Agnew made in his opinion, it must be seen as an act of negligence just as the doctor who operates having failed to wash his hands and death or injury due to infection follows. The flaw in this argument however, is the absence of any nexus between the error and a result or loss. The appellant does not suggest what mischief or detriment was caused by the mistake or error.

 

Negligence would only be established on the part of doctor if it were shown that the failure on the part of the doctor to attend properly to matters of hygiene led to the patient becoming infected when there are a number of competing factors which could have caused infection in a patient. That nexus or causation would require expert testimony to establish.

 

The absence of evidence from a solicitor or counsel as to how a solicitor or counsel using ordinary skill and care might have acted and advised is critical and accordingly the sheriff was correct to hold that the defence of negligence cannot succeed in this case.

 

Such a defence will succeed only if it is established that a solicitor or counsel has failed to exhibit the level of skill which would normally be exhibited by another solicitor exercising ordinary care. (Rennie - solicitors negligence 2.07).

 

The appellant's attempt to elevate the duty of the solicitor into a different category so as to withdraw it from the principles set out in Hunter v Hanley and universally adopted in matters of professional negligence is unsound and must fail.

 

The sheriff had insufficient evidence to find that there had been any negligence on the part of the pursuers. He was entitled to find that there had been no breach of the duty of care owed by the respondents to the appellant.

 

Accordingly the fifth question will be answered in the negative.

 

Finally, applying the normal, proper and conventional approach to expenses it follows that the successful party is entitled to recover their judicial expenses. I will make an award of expenses in favour of the pursuers and respondents. Thus the defender and appellant will be liable to the pursuers and respondents in the expenses of the appeal all as same may be taxed by the Auditor of Court.