Jonathan Mitchell QC

In the last year, following Lord Penrose’s Review of the Inner House in 2006¹, the Inner House has become increasingly intolerant of time-wasting appeals. As was said in one case (Billig, below), “The court has, particularly in recent times, frequently had cause to upbraid parties and their advisers for failure properly to take into account the waste of public resources caused by late settlements and related matters. In the nature of things, [such] strictures of the court … rarely find their way into written judgments”. Since early 2007, however, the Inner House has issued a number of opinions which name and shame those responsible; it has, increasingly frequently, awarded expenses on the agent and client scale; in one case, it fined an appellant who abandoned an appeal very late; in another, it extracted an undertaking never again to appeal without taking counsel’s opinion at the earliest opportunity. Only two of these cases have been reported.

Repeatedly, the court has stressed a (previously unnoticed) professional duty on both solicitors and advocates “to take reasonable care to avoid situations where court time will be wasted“, which is obviously capable of colliding with the duty to the client. It is unclear whether there is any trend to improvement. The introduction of a general requirement for leave to appeal, which the Civil Court Review is considering, and the time-limiting of speeches, will be discussed in future posts.

This is a anthology of quotations from some of these opinions.

Fernandez v Fernandez [2007] CSIH 6, 2007 SCLR 244
An extraordinary case in which Scottish and English solicitors² conspired to pervert the cause of justice by seeking to mislead the court. Superficially not part of this series, this case however illustrates how the court expects truth and candour from agents. In refusing the reclaiming motion, the court concluded:

“It must be hoped that the machinations of the reclaimer and his legal advisers in this case were indeed exceptional. It would be difficult to conceive of a more deliberate manipulation of the ordinary procedures of the court in support of a determined intention to default than has occurred in this case.”

Expenses were awarded on the agent and client, client paying scale.

McDonald-Grant v Sutherland & Co [2007] CSIH 54
An all-too-typical case in which a three-day reclaiming motion was put out for early disposal on a week’s notice; it was abandoned two days before the date of the hearing. The court was highly critical, commenting (in an opinion which the court is now specifically drawing to the attention of at least some appellants)

“…those who are professionally involved in litigation in this court have an indisputable obligation to take reasonable care to avoid situations where court time will be wasted. Pursuant to that obligation, we consider that, in the present case, as soon as it had become clear to the defenders’ advisers that there was doubt as to whether the reclaiming motion would proceed, that state of affairs should have been communicated to the Keeper of the Rolls. Only by keeping the Keeper of the Rolls informed about developing circumstances, which may result in a diet not being required, can situations such as the present one be avoided. It ought to be clearly understood that, when early disposal of a reclaiming motion is ordered, the Keeper of the Rolls may intimate a diet at very short notice. If he is not warned about circumstances which may render it doubtful whether the reclaiming motion is to proceed or not, it may be that he will allocate an early diet and then receive information that the reclaiming motion is not to proceed only so late that other business cannot be allocated to that diet, as has happened here. On the other hand, if an early warning is given of circumstances which may result in the reclaiming motion not proceeding, the Keeper of the Rolls can defer allocation of an early diet until it is clear that such a diet is in fact required. It should be remembered that, where dates for an early diet are allocated to one set of litigants, but not used by them, other litigants, are deprived of the opportunity to be heard on those dates. Only by acceptance of the obligation to keep the Keeper of the Rolls informed of relevant developments can the system of early disposal be operated effectively, without waste and in a way that is fair to litigants in general.”

Billig and Another v Council of the Law Society of Scotland [2007] CSIH 86 2008 SLT 227
Another case in which an appeal was abandoned only shortly before a four-day hearing, after repeated changes of mind as to whether to proceed. The court ordered the appellants to pay the Scottish Courts Service the court fees chargeable for the four wasted days (£1332) and the appellants had the nerve to challenge the competency of this order. In upholding the order, the court said

“The inherent jurisdiction of this court to exercise real control and direction of its procedures and time-table requires to be capable of being updated from time to time, in its application to situations which are identified as productive of disruption of the orderly dispatch of the court’s work-load. The making of the order in the present case is an example of the court exercising its jurisdiction in such a situation. The measures which are available to the court to prevent or discourage abuses of its procedures will vary with circumstances. Where the abuse is likely to result in a waste of public resources, the appropriate measure may be to mulct the abuser in a way which goes some way to compensating the public purse. As is well known, the statutory court fees are currently fixed at levels which fall well short of the expenditure incurred by the public purse in providing the necessary judicial and other resources. However, they may provide a touchstone, albeit an imperfect one, against which an appropriate compensatory requirement may be tested. It is immaterial that the body in whose favour the compensatory requirement is made is not a party to the proceedings; a decerniture in favour of the body with administrative responsibility for the courts appears to be an appropriate mechanism for recovery.”

Belhaven Brewery v Highland Assessor 2008 CSIH 3

One of a series of valuation cases in which a surveyor brought meritless appeals in which, it seems, counsel’s opinion was only sought very late. This one was only abandoned on the morning of the hearing.

“Counsel for the appellant gave an undertaking that Mr Henry would never again take an appeal to this court without taking legal advice at the earliest opportunity. He accepted that Mr Henry should be found personally liable to the assessor in expenses on a solicitor and client basis. Mr Henry’s conduct in this and other cases has constituted an abuse of process. His undertaking will spare this court the waste of administrative and judicial time and resources that occurs in situations like this. It is an undertaking in foro. If Mr Henry were to be in breach of it, he would be in contempt of court (Graham v Robert Younger Ltd, 1955 SC 28). I would add that in any case in which a rating surveyor may instruct solicitors to lodge an appeal to this court, those solicitors are not relieved of their own duty to consider whether the appeal may properly be brought.”

Henry v Rentokil 2008 CSIH 24
Another hopeless appeal (otherwise no relation to the previous example) which should never have been brought. Set down for four days, it finished on the morning of the second day.

“Two and a half days of Court time were wasted and other litigants were deprived of the opportunity of an earlier hearing of their case. The explanation - or excuse - offered [by the appellant’s solicitor-advocate] was that instructions as to the arguments to be advanced were awaited from the appellants’ insurers. Lawyers who conduct litigation before the courts of Scotland owe a duty to the Court as well as the client. The decision whether an appeal may properly be pursued, the preparation of Grounds of Appeal and the furnishing of estimates of the time required are tasks that engage the professional responsibility of the lawyers concerned. Proper and timeous discharge of that professional responsibility is not conditional on instructions from clients or insurers. It is greatly to be regretted that this was not kept in view by those acting for the appellants in the present appeal.”

1. This report is not published, but is referred to at numerous points in the Civil Courts Review Consultation Paper. Among its finding were that almost half of all summar roll hearings were discharged. [back]
2. It is unfortunate that the English solicitors, Farrar & Co, are consistently mis-named as ‘Farr & Co’ in the opinion. [back]

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