Lady Paton

[2012] CSIH 22



delivered by LADY PATON

in causa







Act: Party

Alt: A. McKenzie; Simpson & Marwick

13 March 2012

[1] At this procedural hearing, the defenders and the respondents contend that the pursuer and reclaimer has failed to comply with Rule of Court 38.15 in that he has not abided by the timetable and lodged grounds of appeal (which should have been lodged by 20 December 2011) or a note of argument (which should have been lodged by 14 February 2012). The pursuer and reclaimer, for his part, maintains that he lodged the necessary documents by the due dates. However, counsel for the defenders explained that it is their contention that the pursuer's grounds of appeal do not comply with Rule 38.18, which provides:

"(1) grounds of appeal shall consist of brief, specific numbered propositions stating the grounds on which it is proposed to submit that the reclaiming motion should be granted."

Counsel for the defenders also pointed out that the note of argument is simply a precognition or statement from the pursuer, and fails to comply with practice note No. 3 of 2011, page C2083 of volume 2 of the Parliament House Book. In particular, the note of argument fails to comply with paragraphs 83, 84 and 86, and also paragraphs 31 and 32 at page C2075.

[2] As is noted in a footnote in volume 2 of the Parliament House Book at pages C291-C292, this court has the power in terms of Rule 38.15 to refuse a reclaiming motion for failure to comply with the timetable, and that includes failing to lodge a document which complies with Rule of Court 38.18. It also includes (on the defenders' contention) failing to lodge a note of argument which complies with practice note No. 3. Counsel for the defenders accordingly moved the court to exercise that power, and to refuse the reclaiming motion for failure to comply with the timetable.

[3] Before dealing with the defenders' motion, I wish to record that the pursuer represented himself both at the procedure roll hearing before Lord Matthews, and at the procedural hearing before me today. In answer to specific questions from the bench, the pursuer made it clear that he is not going to instruct a lawyer to deal with his reclaiming motion. He explained that he had sacked his original solicitors and his QC. Thereafter he had found two other solicitors, but not a further QC. The fact that he has been unable to find a QC to act on his behalf has raised suspicions in his mind about the system.

[4] Against that background, it is perhaps useful to note the procedural history of the case to date. The action called in January 2007. It was sisted in February 2007. Thereafter the sist was recalled, there was a specification of documents, and the Record closed. In July 2007 the action was re-sisted to enable the pursuer to instruct an accountant. In May 2009, the pursuer's solicitors withdrew from acting. Various administrative procedural hearings took place, and in November 2009 the case was restored to the adjustment roll. On 16 December 2009 the case was appointed to the procedure roll. Notes of argument were ordered. On 27 January 2010 the defenders lodged a note of argument. The pursuer lodged no note of argument. The first diet of procedure roll on 17 March 2010 was discharged by temporary judge MacAulay in order to allow the pursuer the opportunity to seek legal representation. A further procedure roll on 14 July 2010 was discharged by temporary judge Reid QC, and time was allowed to the pursuer to amend his pleadings if so advised. The pursuer was warned that he was at serious risk that his action might be dismissed if he was unable to address the points raised in the defenders' note of argument. The pursuer at that stage was still seeking legal representation. On 9 November 2010, the pursuer's minute of amendment was received late. Thereafter it was answered and the minute of amendment and answers adjusted. On 17 December 2010 the pleadings were amended in terms of the adjusted minute of amendment and answers. On 6 May 2011 a procedure roll debate took place. The pursuer represented himself and Mr Mackenzie, Advocate, represented the defenders.

[5] Bearing in mind this history and the pursuer's assurances today that he does not intend to instruct a lawyer, I have to accept that the pursuer will continue to act as a party litigant in the preparation and presentation of his reclaiming motion. On present information, there is no possibility that a lawyer may be instructed to assist the pursuer with the difficult and sometimes subtle points of law and procedure involved in a reclaiming motion.

[6] That said, I now turn to deal with the defenders' motion. The opinion of Lord Matthews dated 21 October 2011 sets out the background to this case in paragraphs [1] - [8]. The Lord Ordinary then rehearses the submissions made at the debate. In the final section headed "Discussion", the Lord Ordinary reaches the following conclusions.

"[35] ...I can detect in the pleadings no relevant link between Mr Massot's failure to identify a suitable funding agency, given the site of the pursuer's premises, his acting when he should not have done, and the loss which the pursuer, or his business, is said to have sustained.

[36] Between a perusal of the pleadings such as they are and his oral argument, it may be that the pursuer's real complaint is as to the delay between his first obtaining assistance from Mr Massot and Mr Massot advising him that he could not assist because he was in the wrong catchment area. However, nowhere does he say so in terms, nor is it averred how that delay led him to suffer any loss.... [The pursuer has to] aver that, had a suitable financial institution been approached, he would have obtained funding, but nowhere does he do so. Neither is it clear ...whether the loan was to be to the pursuer personally or to the business. The letter from Mr Perry recognises that the defenders should have identified the problem with the catchment area at an earlier stage, but even taking that into account, it seems to me that the averments on causation are so deficient as to be irrelevant.

[37] In relation to the averments of loss, even taking into account the reference to "£103,0896", whatever that is supposed to mean, there is simply no attempt by the pursuer to quantify the loss. The figure of £250,000 appears to have been plucked out of thin air and the defenders are given no fair notice of the case they are expected to meet.

[38] I agree with [counsel for the defenders'] submissions about the lack of specification in relation to the overdraft, the personal guarantees, the business debts and the loss of income. The averments are so unspecific as to be irrelevant and even if I were wrong on the question of causation, it seems to me that the court would be quite unable to find the defenders liable to make payment to the pursuer in any sum at all."

[7] The grounds of appeal lodged by the pursuer do not say why the Lord Ordinary erred in reaching these conclusions. The grounds give further narrative background explaining, for example, that the pursuer's solicitors Livingstone Brown and his QC did not put a strong enough case before the courts; that a proof would show the wrong inflicted by Mr Massot and Small Business Gateway, and the resulting damage; that additional figures specified in the grounds of appeal should be taken into account; that there was a signed contract of a duty of care; that loan forms were signed; that SBG was engaged in a cover-up; that SBG could have checked the postcodes; that the pursuer was liable to honour personal guarantees; that the pursuer managed to find another solicitor but not another QC. The grounds also give more details of the pursuer's dealings with Mr George Smith, Mr Massot and the accountant from Campbell Dallas; the advice to do business with Lidster Medusa in Nottingham; the opening day on 12 March 2002 (including who attended and who did not attend); the letter from Glasgow District Council saying that the pursuer was in the wrong catchment area; a rejection by the pursuer of any attempt to persuade him to "drop his case"; remarks made to him by a defence representative; and the general disappointment which the pursuer felt about the system which he once believed to be the best in the world.

[8] I should add that no motion to amend the pleadings was made at any stage today.

[9] A reclaiming motion will be granted if the Inner House is persuaded that the Lord Ordinary has erred. As indicated above, Rule 38.18(1) provides:

"Grounds of appeal shall consist of brief specific numbered propositions

stating the grounds on which it is proposed to submit that the reclaiming motion should be granted."

Thus the grounds of appeal must address the core issue namely, "In what respect has the Lord Ordinary erred?"

[10] However, while these grounds of appeal give the further details mentioned above, and explain that a strong sense of injustice drives the pursuer to seek redress, they do not explain in what particular respects the Lord Ordinary has gone wrong. At this stage, it is useful to refer to Ferguson v Whitbread & Co plc 1996 SLT 659, where it was said by Lord President Hope at page 659L in relation to certain grounds of appeal in that case:

"No attempt has been made to specify the grounds on which the sheriff and the sheriff principal were in error in pronouncing the interlocutors against which the pursuer seeks to appeal. In McAdam v Shell (UK) Ltd 1991 SC 360, 1991 SLT 881, the ground of appeal was that the Lord Ordinary 'erred in law' in finding that the pursuer was liable to the defenders in expenses on the sheriff court ordinary scale and refusing to find him liable in expenses on the Court of Session scale. The Lord President said at 1991 SC, page 364; 1991 SLT page 883 that this ground was meaningless without an explanation of the error of law which was said to have occurred. In Clark v Chief Constable, Lothian and Borders Police 1993 GWD 11-759... it was observed that a ground of appeal that a judge 'erred in fact and law' in awarding past wage loss was quite insufficient to afford proper notice of what was to be contended. As these cases indicate, the preparation of the grounds of appeal, which require to be lodged as a step in process, should never be regarded as a mere formality. The purpose of the rule, which is a simple example of case management, is to give notice to the parties and to the court of the points which are to be argued. Specification of the grounds enables the parties to direct their argument, and their preparation for it, to the points which are truly at issue. It also enables the court at the hearing on the By Order roll under Rule 6.3(10) to assess the time which is likely to be required for the hearing of the appeal. In the present case, the grounds of appeal which were lodged on the pursuer's behalf are wholly inadequate for these purposes."

[11] These observations are entirely apposite in the present case. The result is that the grounds of appeal do not satisfy Rule 38.18, nor does the note of argument comply with the practice note No. 3 of 2011. The overall result is that the pursuer has in effect failed to comply with the timetable in terms of Rule 38.15. In these circumstances, and bearing in mind the background to this case, I shall exercise the power contained in Rule of Court 38.15 and refuse the reclaiming motion. As a result, the interlocutor of the Lord Ordinary dismissing the action is adhered to.