AB AGAINST THE ADVOCATE GENERAL FOR SCOTLAND
SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
[2017] SC LIV 13
B179/16
NOTE
by
SHERIFF DOUGLAS A KINLOCH, Advocate
Sheriff of Lothian and Borders at Livingston
in causa
AB
Pursuer and Appellant
against
THE ADVOCATE GENERAL FOR SCOTLAND
Defender and Respondent
Act: Thompson, Solicitor, Thomson Family Law Solicitors, Glasgow
Alt: Massaro, Advocate; DWF LLP, Solicitors, Glasgow
[1] The pursuer appeals against the revocation of his Group 2 (Lorry or Bus) driving licence by the DVLA. Since the action was raised the DVLA have reinstated his licence. Does he still have an interest to pursue the appeal? The background to the revocation was as follows.
Background
[2] The pursuer was involved in a road traffic accident on 18 April 2016 when the vehicle which he was driving ended up in a field in West Lothian. He claims that another vehicle had collided with him but had driven away. He claims that he was unable to phone the police because the battery in his mobile phone was flat, and so he left the scene of the accident. He claims that he tried to flag down other vehicles without success, and then decided to walk to the home of a relative, namely his aunt. He claims that he recalls being thirsty, and it is agreed that following the accident he suffered from anxiety and as a result he drank “substantial quantities of water”. During the course of the day he collapsed and had a seizure. He was taken to hospital and detained as an inpatient for about six days.
[3] According to the pleadings, the DVLA were notified by the police on 27 April 2016 that the pursuer’s vehicle had been found unattended in a field, and that he had been admitted to St John’s Hospital in Livingston after experiencing a seizure. The DVLA then wrote to the pursuer on 30 April 2016 advising him that they had received information that he had “suffered an isolated seizure”, and that his driving licence would be revoked. They advised him that they would only be able to consider a reapplication for a Group 2 (lorry or bus) driving licence when he had been free from seizures for five years. The decision by the DVLA to revoke his licence was based on certain protocols which have been put in place to ensure that a standard practice is followed by the DVLA in assessing fitness to drive.
[4] After the pursuer’s driving licence had been revoked, the pursuer’s GP wrote to the DVLA advising them that the pursuer’s seizure had been medically diagnosed as a condition called hyponatremia (an abnormally low level of sodium in the blood) which had been caused by a condition called polydipsia (an excessive thirst). In other words, that the seizure had been caused by the amount of water which he had consumed. The medical opinion given to the DVLA was also that the thirst was caused by “an acute anxiety attack”. The GP gave the opinion that there was no likelihood of a further seizure.
[5] It is agreed in a Joint Minute that as a result of the medical information produced to the DVLA by the pursuer, the DVLA accepted that the pursuer had not in fact suffered from an unprovoked seizure, but had suffered a single provoked seizure. Notwithstanding this, I was told that the DVLA did not reinstate the pursuer’s driving licence, taking the view that he was suffering from a persistent severe anxiety state, and that a further provoked seizure might be likely. Eventually, as I understood it, however, the DVLA was persuaded that the appellant did not suffer from a chronic and persistent anxiety state, and he was invited to reapply for his licence. He did so, and his Group 1 and Group 2 licences were reinstated by September 2016.
The law
[6] Section 93 of the Road Traffic Act 1988 contains provisions as to the revocation of driving licences. Subsection 1 of that section provides that:
“If the Secretary of State is at any time satisfied on inquiry – (a) that a licence holder is suffering from a relevant disability … the Secretary of State may serve notice in writing on the licence holder revoking the licence.”
Section 100 of the Act provides that:
“A person who is aggrieved by the Secretary of State’s … revocation of a licence … may … appeal … to the sheriff within whose jurisdiction he resides. On any such appeal the court or sheriff may make such order as it or he thinks fit and the order shall be binding on the Secretary of State.”
Basis of appeal
[7] The basis for the pursuer’s appeal, in summary, is that as the DVLA have accepted that his seizure is now to be seen correctly as a provoked seizure, the revocation of his licence on the basis that he had experienced an unprovoked seizure was wrong and should be recalled.
Procedural history
[8] It is appropriate to mention the procedural history of this case. A proof was originally fixed to take place at Livingston Sheriff Court on 11 November 2016, but that proof was discharged and a new proof assigned for 3 February 2017. On 12 January 2017 the DVLA lodged a Minute of Amendment and on 18 January 2017 the Record was amended in terms of the Minute of Amendment and the Answers thereto, and the case continued to the proof.
[9] The case called before me for the first time on 3 February 2017, the date allocated for the proof. The pursuer was represented by Mr Thompson, Solicitor, Thomson Family Law Solicitors, Glasgow. The DVLA was represented by Mr Massaro, Advocate, as instructed by DWF LLP, Solicitors, Glasgow. On reading the Closed Record prior to the proof commencing I noted the following averments made on behalf of the DVLA:
“The Appellant was invited to submit a licence application once the required period of stability had been attained by the Appellant. The Appellant was successful in his licence application. The Appellant is now the holder of an ordinary (Group 1) and vocational (Group 2) licence. This Appeal is not necessary.”
[10] On being asked by me Counsel for the respondent confirmed that the DVLA was maintaining the position that the action was no longer necessary.
[11] The averment that the action was not necessary raised in my mind the question whether the appeal still had any practical purpose, and this question seemed all the more real when the appellant’s craves were considered. Crave 1 for the pursuer was: “To recall the decision dated 30 April 2016 made by the respondents to revoke the Appellant’s Group 1 and Group 2 Driving Licence”, but of course his licence was no longer revoked, and it was difficult to see how a non existent revocation could now be recalled. Crave 2 for the pursuer was: “To find the Appellant is entitled to a Group 2 driving licence and to ordain the respondents to grant him the Group 2 driving licence”, but this seemed even more meaningless as he had already been granted a licence.
[12] I therefore sought clarification from the pursuer’s solicitor as to why the pursuer wished to continue with his appeal.
[13] The pursuer’s position as explained by his solicitor was that his licence had been wrongfully revoked, and he was entitled to have that wrongful revocation recalled. The existence on his driving licence records of a revocation was something that he might have to declare in any future application for insurance, and it might affect his insurance premiums. The pursuer’s solicitor submitted that the pursuer therefore still had an interest to pursue the appeal even though his licence had been reinstated. Moreover, the pursuer had attended court in the expectation that a proof would take place, as provided for in the relevant interlocutor. He had three witnesses in attendance, two of whom were doctors. There was no plea in law for the defenders to the effect that the pursuer had no interest to sue and no Rule 22 note had been lodged. The pursuer’s solicitor argued that it was not competent for me to do anything but to proceed to hear the proof and hear the evidence of the pursuer’s witnesses.
[14] It seemed to me that a very real question arose as to whether the granting of the craves sought by the pursuer, even if possible, would achieve any practical purpose. It seemed to me that the DVLA’s averment that the appeal was “not necessary” had to be seen an averment to the effect that the pursuer no longer had any interest to pursue the action. Although the pursuer’s solicitor suggested to me that the proof would be a short one, it did not seem to me that that would necessarily be so, as the proof might require to explore the circumstances of the road traffic accident and its aftermath, the reasons why he drank substantial quantities of water, whether his panic attack was properly to be seen as an anxiety state, and whether the revocation of the licence was justified on the information available to the DVLA at the time. It therefore seemed to me to be quite possible that the proof might last a number of days, all at public expense, with witnesses who were doctors and who would be taken away from their other, important, duties.
[15] It seemed to me that the question of the pursuer’s interest to pursue the action was a matter which therefore ought, if at all possible, to be dealt with as a preliminary issue and resolved on the basis of submissions alone. Regarding the argument put forward by the pursuer’s solicitor that it was not competent for me to do that, although various interlocutors had referred to a proof being assigned, and although I could not alter interlocutors previously pronounced, it seemed to me that these interlocutors did not prevent the course of action which seemed to me to be appropriate. I reached that view for the following reasons.
[16] First, the appeal was brought by way of a summary application, and the court has a greater flexibility in determining summary applications than in actions of a different nature. In Macphail on Sheriff Court Practice (at 26.01) it is said, for instance, that summary applications are to be disposed of “as expeditiously as the administration of justice will allow, without delay and with as little form as possible … and dealing with procedure so as to meet the justice of the case”. Also, section 50 of the Sheriff Courts (Scotland) Act 1907 provides that in a summary application the Sheriff “shall appoint the application to be heard at a diet to be fixed by him … and … shall summarily dispose of the matter”. It seemed to me that, arguably, it was open to me simply to determine that the most appropriate way for the hearing to proceed was not by way of hearing evidence but by hearing submissions.
[17] Secondly, it seemed to me that matters had altered since the interlocutor fixing a proof had been pronounced. The appeal had been brought at a time when the appellant’s licence was revoked, but since that time the appellant’s licence had been reinstated, and averments to this effect, together with the averment that the action was not necessary, had been added by the DVLA during the amendment procedure which took place shortly before the proof. While it would have been better, it seemed to me, if a plea in law of “no title to sue” had also been added, the change in the pleadings since the proof was fixed in my view allowed me to look of new at the action to see what the appropriate procedure now was.
[18] I would mention that confirmation that I had power to do this is, to my mind, to be obtained from a case to which I was later referred by counsel for the DVLA. It is the case of Bendex v James Donaldson & Sons Limited 1990 SC 259. In that case a proof had been allowed in a damages case. After the proof was allowed an amendment procedure took place in terms of which the defenders pled that the action was time barred and the Lord Ordinary discharged the diet of proof and fixed a preliminary proof on the issue of time bar. The pursuer reclaimed against the discharge of the proof arguing that it was not permissible for one Lord Ordinary to alter an interlocutor pronounced by another Lord Ordinary. In holding that it was competent for the proof at large to be discharged and a preliminary proof fixed, the Inner House approved of comments made by Lord Avonside in the case of Higgins v Burton 1968 SLT (Notes) 14 where he said as follows:
“I appreciate that in the ordinary circumstances an interlocutor such as I pronounced is final, but I am not prepared to put up with the situation in which a defender, having attained his ends by certain pleadings, later departs from them, and still insists on a mode of inquiry which is now, in my opinion, quite inappropriate.”
The Inner House in the Bendex case went on to say that:
“It seems to us therefore to be entirely consistent with the scope of the power that the Lord Ordinary should be entitled to make a fresh order as to the mode of inquiry should this be appropriate in the light of the amendment. This is so even if this means recalling an order previously made. We see no conflict between this approach to the matter and the general principle that a Lord Ordinary is not entitled to alter the substance of a prior interlocutor. The position is simply that a Lord Ordinary, in considering whether or not to allow an amendment of the character which was proposed in this case, must have in mind that a consequence of allowing the amendment will be that the mode of inquiry which was originally allowed may no longer be appropriate and will have to be reconsidered.”
[19] In any event it seemed to me that it was pars judicis for me to raise the question of the pursuer’s interest to sue. That this is so was confirmed, it seemed to me, in Macphail on Sheriff Court Practice, 3rd Ed., at para. 2.09 where it is said as follows:
“Under the inherent jurisdiction of the court to preserve the due administration of justice the sheriff is empowered to take notice of certain matters whether or not they have been urged upon him by any of the parties to the action. It is thought that such matters include any aspect of the litigation which may cause prejudice to a specific public interest, such as the public interest in the regular conduct of litigation …”
It is also said in Macphail at 2.13 as follows:
“While the court must exercise its jurisdiction in all matters competently before it, in defended actions it will usually exercise it in the decision of live, practical questions only and will decline, although perhaps less readily than formally, to entertain questions which are hypothetical or premature, or which have been superseded by events, unless some useful purpose will be served such as the clarification of the law for the future.” (My emphasis)
[20] It therefore seemed to me that it was competent for me to order that a debate effectively take place. On giving my decision that I wished to hear submissions on the question of interest to sue, the witnesses were released, and I granted the parties’ joint motion to adjourn the case to 7 February 2017 to allow them to prepare their submissions on the question of interest to sue, that date having become available that morning due to another proof being discharged. I was aware that there is considerable case law dealing with the question of interest to sue (as set out in Macphail at para. 4.33 onwards) to which I drew the parties’ attention, and I indicated that I wished to be addressed on the question of interest to sue under reference to these cases.
Approach of court in s100 appeal
[21] It is worth mentioning that there was some discussion before me when the case called for debate as to whether a court in a section 100 appeal has any power to consider a change of circumstances since the revocation was made in determining the appeal. If not, the appeal might be doomed to fail as the only question would be whether the decision was correctly made on the basis of the information known at the time the decision was made. It can be seen that section 100 simply provides that a person who is aggrieved by the decision to revoke may appeal to the sheriff, and on any appeal the court may make such order as it thinks fit. In the end, it seemed to be common ground that the question was not whether the decision was correctly taken on the basis of the information known to the DVLA at the time of the decision, but whether the decision could be seen to be justified on the basis of all the information available to the court at the time of the appeal, including any change in circumstances since the original decision. I found the parties’ agreed view of matters to be persuasive, and took the view that if the appeal proceeded I would be able to look at the circumstances as they stood at the time the case called before me.
Interest to sue
[22] In his submissions on behalf of the pursuer regarding interest to sue, Mr Thompson stated that the pursuer would no longer seek to have any order granted in terms of crave 2,that is to ordain the DVLA to grant the pursuer a driving licence. That position seemed to me to be inevitable, as there would be an absurdity in ordaining the DVLA do to something which they had already done.
[23] Otherwise, the submissions on behalf of the pursuer were to the effect that it had to be within judicial knowledge that medical revocations of a driving licence would affect insurance premiums. It was further submitted that a ruling that the pursuer had no interest to sue could have “far reaching consequences nationally”, as it could not be right that that the DVLA were entitled to revoke a licence on a basis which was wrong, and thereafter simply renew the licence. The possible effect on his insurance premiums was a sufficiently important reason for the action to proceed, and to deny him a proof would be to deny him a fair hearing, in breach of his human rights under Article 6 of the Convention. If I were against him, then the pursuer should be allowed further time to amend his pleadings to respond to the DVLA’s averment that the action was not necessary.
[24] In his submissions on behalf of the DVLA, Mr Thompson reminded me that the question of whether the pursuer had an interest to pursue the action had to be considered in the context that this was a statutory appeal, rather than any other type of action. So, although section 100 allowed a person who was “aggrieved” by a decision to revoke a driving licence to appeal, that did not mean that anyone who simply felt that a decision had been made on a wrong basis was entitled to pursue an appeal. In support of this he referred me to the case of Lardner v Renfrew District Council 1997 SC 104, where the court, headed by the Lord President (Rodger), approved of Lord Denning’s view that a person aggrieved includes “a person who has a genuine grievance because an order has been made which prejudicially affects his interests”. The court stated that:
“On the other hand, there is the difference between feeling aggrieved and being aggrieved: for the latter expression to be appropriate, some external basis for feeling ‘upset’ is required – some denial of or affront to his expectations or rights.”
Therefore, Counsel submitted, it was not enough for the pursuer to be allowed to continue with the action simply because he felt that the decision was wrong. To be an aggrieved person with an interest to continue an appeal there had to be a decision which was prejudicial to his rights.
[25] Counsel also submitted that the fact that the pursuer was now seeking only an order under crave 1, that is an order to recall the decision to revoke, was something which in itself suggested that the pursuer did not have a sufficient interest to proceed with the appeal. He submitted that a crave seeking to have a decision recalled was to be seen for all intents and purposes as being the same as a crave seeking to have a decision reduced. He submitted that in relation to a bare crave for reduction a pursuer had to demonstrate that he had a sufficient interest to allow the court to grant a reduction without an ancillary remedy. The pursuer seeking a bare reduction had to demonstrate that there was a practical consequence in reduction only being granted. In support of this he referred me to the case of Cameron v Lightheart 1995 SC 341 where Lord McCluskey in the Inner House said as follows:
“I now turn to consider the second ground of appeal, raising the issue of whether or not the granting of the reductions concluded for would serve any intelligible purpose. I find it easier to approach this issue by first summarising the argument for the respondents. The argument, which the Lord Ordinary accepted, was that a pursuer who seeks a bare reduction without any other operative conclusions must aver facts and circumstances to entitle her to that remedy. She has to show that the granting of the reductions would serve some intelligible purpose … The strength of the submission on behalf of the defenders against the whole background appears to me to lie in the failure of the pursuer to aver what will or may be achieved in practical terms if the two dispositions are to be reduced. If the pursuer avers no practical terms why should she be entitled to a bare reduction? … In other words, reduction would have been an academic exercise with no practical consequences.”
Similarly, Lord Sutherland said as follows:
“In any action of reduction the pursuer to succeed must qualify title and interest … If there is no intelligible purpose served by a bare reduction, then the pursuer will not have the necessary interest to justify reduction and decree will be refused … In considering this issue, it has to be said at the outset that the pursuer’s pleadings are silent as to why she seeks reduction … I do not consider that the possibility of the pursuer having difficulty in making some recovery from the first defender in an action of accounting has any bearing upon the issue before us … In the circumstances it appears to me that it is necessary for the pursuer to aver that there would be financial consequences to her as an individual if reduction was not allowed.”
[26] Counsel for the pursuer also referred me to the case of Marco’s Leisure Limited v West Lothian District Licensing Board 1994 SLT 129. In that case West Lothian Council refused to give permission for a performance by a male dance group. The pursuers’ brought an action of judicial review challenging the refusal of permission, but by the time the action came before the court the date scheduled for the performance had passed and the performances did not take place. West Lothian Council argued that the petition was incompetent in respect that the matter which it sought to address was no longer a live issue. Counsel for the petitioners argued that the matter was not hypothetical because there might be other performances of the dance group arranged for the future. The Lord Ordinary dismissed the petition on the basis that it had no averments whatsoever regarding any further performances, and even if other performances were envisaged, the appropriate course was to apply again for necessary permission. The matter sought to be addressed was therefore not a live issue.
[27] Counsel contrasted this case with another action for judicial review, namely Conway v Secretary of State for Scotland 1996 SLT 689. In that case a prisoner sought judicial review of a decision to subject him to various disciplinary punishments, including being confined to his cell. By the time the petition came before the court all the punishments had been implemented and spent, save for a possible loss of remission and loss of payment of lost wages. The Lord Ordinary took the view that a person had sufficient interest to pursue such an action so long as there was “a practical consequence which will either reflect in their patrimonial rights, or indeed their human rights if those two differ”. The action was allowed to proceed as the Lord Ordinary was of the view that the pursuer could point to practical consequences of succeeding with his action, namely that it would affect the question of any remission of his sentence and of his loss of wages.
[28] Counsel for the DVLA argued that in all these circumstances the pursuer had not averred any practical consequences of a successful outcome to his appeal, whereby he sought only a bare order for the recall of a decision which had already been superseded. He had not shown that he had a sufficient interest to pursue the appeal, and it was appropriate for it to be dismissed forthwith.
Decision
[29] At the time that the pursuer lodged his appeal in May 2016 his driving licence had been revoked. Clearly, at that time he had an interest to pursue the action. However, his licence has now been reinstated, but despite averments to that effect by the DVLA the pursuer’s pleadings contain no averments whatsoever as to why he considers it necessary for the appeal to proceed. The lack of averments on his part as to why he continues to seek what to my mind is in effect a reduction of the DVLA’s decision to revoke his licence counts strongly against his argument that he still has a sufficient interest in law to maintain the appeal. The simple fact that he feels that the basis for the initial decision proved to be wrong, is clearly not enough, in my view, to justify the decision to revoke his licence being “recalled”, when his licence is no longer in fact revoked. To recall a decision which is no longer in operation would be largely meaningless.
[30] Even if I were to go beyond the pleadings, the only reason suggested as to why the action could have any practical purpose is that it is said that at present on any application for renewal of insurance he might have to declare the fact that his licence had been revoked, and this might affect his insurance premiums. That reason is remote and speculative. It is simply asserted that unless there is an interlocutor of the court recalling the revocation his premiums might be affected. But this to my mind ignores the point that nothing can remove the fact that his licence was in fact revoked. His duty of honesty to the insurance company would mean that, if asked, he would have to declare that his licence had been revoked regardless of whether or not the revocation was subsequently recalled by order of the court. The only honest answer could be that his licence was revoked, but the revocation was subsequently recalled by order of the court. But that is little, if any, different from the answer that he would be able to give at present, which is that his licence was revoked but the revocation was subsequently removed by the agreement of the DVLA.
[31] The fact that the initial decision to revoke was wrong has been entirely superseded by the subsequent restoration of his driving licence. It surely cannot be right that judicial and court time, and the time of professional people, namely two doctors, can be used to answer an academic question, where a favourable outcome for the pursuer could only have a speculative benefit to him. Moreover, the pursuer has legal aid to pursue this appeal, and the defenders are a publicly funded body, and the costs which would have been incurred in allowing the proof to run is a very important factor in justifying a critical look at the pursuer’s assertion that he has a sufficient reason for maintaining this appeal. The following dictum of Lord Justice Clerk Thomson in Macnaughton v Macnaughton’s Trustees 1953 Session Cases at 392 appears to me to be very apt:
“Our Courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions and that they have no concern with hypothetical, premature or academic questions … The Courts are neither a debating club nor an advisory bureau.”
[32] I have therefore reached the view that the pursuer has not demonstrated sufficient interest to pursue the appeal. In coming to that conclusion I found the arguments put forward on behalf of the DVLA, as set out above, to be persuasive. I need not rehearse these again.
[33] I also found very considerable support for my conclusion in a decision which I initially drew to the attention of the parties, namely Agnew v Laughlan 1948 SC 656. While the form of proceedings and the factual circumstances in that case were quite different from the present, in substance it was remarkably similar.
[34] The facts were that two days after the birth of her child a woman was found unconscious on the ground beneath a window from which she had fallen or thrown herself. The next day the sheriff granted an order authorising her detention in an asylum, and did so on the basis of medical certificates that she was of unsound mind. The woman’s husband brought an action seeking reduction of the sheriff’s order and of the medical certificates on the grounds that the order was wrongfully obtained, and that the certificates were inaccurate. The action had no other conclusions than reduction, and the pursuer averred that he had an interest to maintain the action in respect inter alia that he and the child were likely to be prejudiced by the fact that the woman had been detained in an asylum, and that it was necessary to remove the stigma of insanity which had been placed unjustifiably upon the family. The Lord Ordinary held that the pursuer had averred no relevant interest entitling him to sue a bare reduction, in respect that the reduction of spent and inoperative documents would not result in any practical result, that his averments of prejudice were too vague and remote to found any patrimonial interest, and that a stigma upon someone was not an actionable wrong, and the action was dismissed.
[35] There are many points of similarity between the Agnew case and the present. First, the pursuer in Agnew sought a bare reduction of a decision to detain her, and the pursuer in the present case now founds on a sole crave to recall a revocation. Secondly, circumstances had changed substantially since the woman was detained in the asylum, namely that she was no longer detained as she had died there, and in the present action circumstances have also changed since the appeal was lodged. I also find that the reasoning of the Lord Ordinary in the Agnew case applies entirely, and persuasively, to the present case. The following was said by the Lord Ordinary:
“The documents now sought to be reduced are and have long since been wholly spent and inoperative – they do not continue to regulate or govern any existing state of affairs – their reduction at the present time cannot alter the fact that the pursuer’s wife was detained in an asylum from 1 May 1946 until her death three days later … The possible prejudice here averred to the pursuer’s son and indirectly to himself appears to me to be much too vague and remote to found such a patrimonial interest as might give the pursuer a sufficient title to insist on this action of reduction. In any event, the reduction of the documents now impugned cannot undo the fact that Mrs Agnew spent her last days in an asylum, and any prejudice which the pursuer or his son might conceivably suffer because of this fact would not necessarily be removed by now reducing these long since inoperative documents.”
[36] Just as in Agnew, the revocation of the pursuer’s driving licence has long since been inoperative by virtue of the fact that his driving licence has been restored. Any stigma which might attach to him by virtue of his driving licence having been revoked is not sufficient in my view to allow him to maintain this appeal at public expense. The prejudice to him which is said in submissions to result from the revocation is wholly speculative, and in any event even if the appeal were to have been successful it could not remove the fact that the licence was in fact revoked.
[37] The pursuer’s solicitor asked me to allow him to amend if I were of the view that at present he has not averred a sufficient interest to proceed with the appeal. I refused that motion on the basis that the only reason put forward in submissions on his behalf as to why a successful outcome of the appeal might assist him was so speculative as not to amount to a reason which could provide him with a sufficient interest to pursue the action. No reason was put forward which, to my mind, could conceivably give him an interest to pursue the present appeal.
[38] I should mention that I allowed the DVLA to add in by way of amendment made at the bar a plea of no title to sue, but I did so merely in order to uphold that preliminary plea, and to dismiss the appeal, which was the outcome reached.
[39] For these reasons I accordingly dismissed the action on the basis that the pursuer had not demonstrated any interest to pursue the appeal. It was agreed that there ought to be no expenses due to or by either party.