JAMES BELL v. DOUGLAS BROWN JACKSON
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Penrose Lord Bonomy Lord Carloway | XA3/01 OPINION OF THE COURT delivered by LORD PENROSE in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow by JAMES BELL, Pursuer and Appellant; against DOUGLAS BROWN JACKSON Defender and Respondent: _______ |
Act: Party (not present) (Pursuer and Appellant)
Alt: McSporran; Morison Bishop (Defender and Respondent)
21 June 2001
[1]In this appeal Mr Bell seeks the recall of an interlocutor of the Sheriff at Glasgow, Sheriff Taylor, in which the Sheriff sustained the first plea in law for the defender, Mr Jackson, and dismissed Mr Bell's action. The action is one of a long series of litigations arising, in general terms, from concerns expressed by Mr Bell about his sequestration, the appointment of Mr Jackson as permanent trustee, and the management of the estate. In the present case, at Mr Bell's invitation, and in view of his infirmity, this Court allowed both parties to proceed by way of written submissions, and declined to hear oral submissions on the merits of the appeal by the respondent to ensure that parties were treated equally. Mr Bell has provided written submissions. Counsel for the respondent prepared and lodged a note of argument.
[2]In the present action Mr Bell craves payment of damages of £211,350 comprising three distinct elements:
- damages for defamation £100,000;
- damages for loss of heritable property £90,000; and
- litigation expenses £11,350.
The averments reformulate contentions that have appeared in one form or another in some of the earlier actions between the parties.
[3]The averments relating to defamation are set out in articles 4 to 6 of the condescendence. They relate to the terms of a motion enrolled on behalf of Mr Jackson in Glasgow Sheriff Court action A3329/99 on 14 July 1999. The motion was for caution for expenses. The grounds advanced were:
"(a)that the Pursuer is by his own admission a bankrupt;
(b)that the pursuer has failed to pay expenses awarded by the court of
session; and
(c)that the action is irrelevant."
It is for the Court to determine as a matter of relevancy whether the words complained of are capable of bearing the defamatory meaning founded on by the appellant: Russell v Stubbs Ltd 1913 S.C. (H.L.) 14 at pages 20 and 24, Stair Memorial Encyclopaedia vol 15 para 488. In his pleadings Mr Bell does not rely on any meaning other than that which the words themselves bear in ordinary usage. In his grounds of appeal Mr Bell quoted passages from Scottish Special Housing Association v Maxwell 1960 S.C. 391 at pages 394 and 395 to the effect that it was inappropriate to make findings in fact at the end of a debate, where no facts had been found. That is undoubtedly the case. But we do not consider that the Sheriff has erred in his approach to this issue. Nor need we be inhibited from looking at the record of proceedings in the numerous cases which have arisen in considering the averments made in the current action.
[4]It is beyond dispute that Mr Bell's averments in action A3329/99 were irrelevant at and after 14 July 1999. Debate took place on the defender's plea to the relevancy of those averments, and on 5 November 1999 the Sheriff , on that occasion Sheriff McGowan, dismissed the action as irrelevant and found Mr Bell liable in expenses. Mr Bell appealed to the Court of Session. On 31 May 2000 an Extra Division held that the action was irrelevant, and confirmed the Sheriff's interlocutor. In his averments in article 6 in the present action Mr Bell accepts these facts. He proceeds to make averments to the effect, inter alia, that dismissal leaves it open to him to bring another action, and that the "alleged shortcomings" in the previous action have been rectified in the present. Even if that view were correct on a sound interpretation of the averments in the present case, it would not affect the question whether the averments in action A3329/99 were irrelevant at the material time. This head of the present case is demonstrably lacking in relevancy, and indeed in any reality, having regard to the procedural history of action A3329/99.
[5]The second ground founded on in the motion was Mr Bell's failure to pay an award of expense made against him. In his averments in this case, Mr Bell contends, inter alia, that the award of expenses made against him was as a trustee and not as an individual. The argument is developed into an attack on the validity of the appointment of Mr Jackson. But those averments are clearly irrelevant to a consideration of the basis of the motion as enrolled which merely stated that Mr Bell "failed to pay" expenses awarded against him. The interpretation of an interlocutor of the Court is a matter for the Court. The issue of Mr Bell's liability for the expenses in question arose in Bell v McMillan and Jackson 1999 S.L.T. 947. Lord Osborne quoted the interlocutors of the Sheriff and of an Extra Division on appeal dealing with expenses in an action originating in Kilmarnock Sheriff Court arising out of the curatory of Mr Bell's late son in which Mr Bell was a defender. In our opinion it is plain that Mr Bell's liability was as an individual. That was the view of the Lord Ordinary. A reclaiming motion was refused by the Second Division on 7 January 1999. In his averments in this case Mr Bell asserts that he owes no man anything. But there is no suggestion that he has made payment in whole or in part of the expenses awarded against him. Whatever might be the substantial merits of his argument that the interlocutors founded on are, or were, open to attack as improperly directed against him as an individual, as at 14 July 1999 there were interlocutors finding him personally liable in expenses, and he had made no payment in respect of them. The ground for the motion was plainly accurate at that time. The averments now made cannot be relevant to the position in July 1999 in face of the terms of the interlocutors.
[6]The remaining clause in the motion to which Mr Bell takes objection is that which states that he "is by his own admission bankrupt". The averments comprise two separate elements, the allegation that Mr Bell is in fact bankrupt, and the allegation that he is so "by his own admission". That Mr Bell is bankrupt appears from his averments: sequestration was awarded on 28 January 1998. The expression "bankrupt" is an accurate description of a person whose estates have been sequestrated under the provisions of the Bankruptcy legislation. Mr Bell has consistently challenged the regularity of the proceedings resulting in his sequestration, and he has contended that he is not, and objects to being described as, a "bankrupt". However, for present purposes the issue, in terms of this element of the statement, is whether he was properly described in the motion as bankrupt. In our opinion he was and could only properly be said to be bankrupt, accepting as he did that an award of sequestration had been made prior to the enrolling of the motion in question and not recalled.
[7]The argument before the sheriff and in the written submissions before the Court proceeded on what appeared to be a much more technical basis involving challenge of the regularity of the procedures in the sequestration. But it has to be observed at this stage that having regard to the Court's record of the proceedings in which Mr Bell has been involved, and the state of fact at 14 July 1999 as reflected in the pleadings, there is no relevant material of any substance whatsoever to suggest that the motion was enrolled on grounds which were false in respect of the allegation that Mr Bell was bankrupt, much less defamatory of Mr Bell.
[8]Before the Sheriff Mr Marshall for the defender argued that the statements were not in any event prima facie defamatory. There was no suggestion that Mr Bell's credit-worthiness was in any way undermined by the motion describing him as bankrupt. Further the enrolment of a motion in the course of a litigation was an occasion attracting qualified privilege.
[9]The first question which arises on this branch of the argument is whether, in general, the description of a person as "bankrupt", without further averments, can instruct a relevant claim for damages. In his written submissions Mr Bell contends that in this action he claims litigation expenses and loss of title to his heritable property, in response to the respondent's argument which succeeded before the Sheriff that it was not prima facie defamatory to say of someone that he was bankrupt. However it has to be said that this contention is wholly devoid of substance. Mr Bell has no doubt combined in one action three heads of claim, two of which have a patrimonial character. But there is no relevant link averred between the patrimonial claims and the alleged defamatory statement. The averments in article 7 of Mr Bell's condescendence advanced in support of the claim relating to the loss of heritable property narrate complaints about the procedures that concluded with the registration of notice of title to the property. On Mr Bell's own averments that happened on 9 July 1999, five days before the contentious motion was enrolled. If there was a loss resulting from these procedures it had nothing to do with the alleged defamatory statements made in support of the motion.
[10]The only averments relating to the expenses claim are found in article 2 where it is narrated: "(c) litigation expenses founded on the current amount of Caution since 28th Jan. 1998 £11350". Mr Bell was found liable in the expenses of action A3329/99 on dismissal on 5 November 1999. The expenditure incurred in that action therefore arose as a direct consequence of the decision that the pleadings were irrelevant. There is nothing in the present pleadings to link the incurring of legal expense of any amount with the enrolling of the motion of 14 July 1999. Apart from other problems, the claim appears to relate to expenses incurred from the date of sequestration and therefore appears to comprise elements incurred before and after the motion complained of.
[11]So far as the claim for damages for defamation is concerned, therefore, one is concerned only with the head of claim (a) for £100,000 for loss of "a good name (which is rather to be chosen than great riches)". Before the Sheriff Mr Marshall for the respondent argued that the averments of defamation were irrelevant under reference to the Stair Memorial Encyclopaedia vol 15 para 493 in the absence of relevant averments of damage to credit-worthiness. Reference was also made to Erskine's Institutes IV 4 81 and A.B. v C.D. 1904 7 F 22. The Sheriff accepted those submissions and in our opinion, and for the reasons given by the Sheriff, he was correct to do so. Had there been any reason to doubt the correctness of that view, we would in any event have considered that the occasion attracted qualified privilege. There are no averments of malice. Mr Bell's written submissions contend that no such specific averments are required to be made "in terms of Sec 14 of the Defamation Act 1952". We find that reference unintelligible. It is for the pursuer to aver facts and circumstances which he is prepared to prove from which malice can be inferred: Scott v Turnbull (1884) 11 R 1131 at page 1134.
[12]There remains the part of the statement that Mr Bell "is by his own admission" a bankrupt. As already mentioned the fact of sequestration was acknowledged in Mr Bell's pleadings. That is the relevant context in which to examine this element of the alleged defamatory statement. It is quite clear that Mr Bell has persistently resisted the suggestion that he was or is bankrupt. He has coupled his vigorous defence of his position by reference to the views and disciplinary practices of a religious group with which he has been associated since 1936. The impression one has from reading Mr Bell's material as a whole, and the judicial opinions expressed in respect of it, is that to admit to having been or being a bankrupt would in some sense aggravate the deleterious effect of a finding of bankruptcy. However, it is nothing to the point for Mr Bell to aver that an allegation is disparaging in the section of society to which he belongs if it is not also disparaging in the view of society as a whole: Stair Memorial Encyclopaedia vol 15 para 487. One is left with the question whether it is or could be defamatory to say of a bankrupt that he acknowledged the fact by his own admission. In Sexton v Ritchie & Co (1890) 17 T 680 at 696 said: "..if the words of the writing complained of are unambiguous and harmless in themselves, and if no extrinsic facts are set forth tending to impress a defamatory meaning on the writing that is in question, then the defender is entitled to have the action dismissed..." In our view that describes precisely the situation in this case. The Sheriff was right to hold this head of claim irrelevant. It cannot be defamatory of a person to say that he admits the objective truth of his actual current legal status, whether or not he challenges the basis on which that status was arrived at.
[13]The second head of claim in this action is Mr Bell's oft-repeated claim that he has been deprived of his heritable property by the respondent. It is important to bear in mind that this is a claim directed towards his trustee in sequestration, and that Mr Bell contends that the property is his. So long as Mr Bell remains an undischarged bankrupt he does not have a right to property comprised in his estate at the date of his sequestration in a question with the permanent trustee. There are no relevant averments to support this claim.
[14]The expenses claim is quite unintelligible in its existing form.
[15]In his grounds of appeal, Mr Bell alleges discrimination against him as a party litigant "in terms of Sec. 19 (1) of the Disability & Discrimination Act 1995 and which is incompatible with Sch 1 Article 6 of the Human Rights Act 1998... by (a) refusing the same latitude to a party litigant as was allowed a Solicitor/Advocate who inter alia criticised every Article of the Condescendence at a Hearing presumably to debate the Preliminary Pleas insisted in. (b) by refusing to consider the Appellant's Preliminary Pleas in law No. 8 & No 9 having already predetermined the result. See Note P8. (c) when leave was requested to follow the example of the method of presentation adopted by the Solicitor/Advocate, said permission was refused."
[16]The alleged contravention of Article 6 (1) of the Convention is a complaint without substance. Whatever the position before the Sheriff, the appeal to this Court afforded the appellant ample opportunity to seek redress for any imbalance of treatment which may have occurred: Bryan v U.K. 21 E.H.R.R. 342. So far as concerns the Disability Discrimination Act, we do not understand on what basis the appellant alleges that he is a disabled person. Section 19 (1) of the Act, where applicable, provides for an independent remedy in the Sheriff Court. We understand from the respondent that the basis of this contention may be that the Sheriff, having considered that Mr Bell's averments were irrelevant, did not proceed to analyse the defenders' averments and comment on Mr Bell's pleas in law. We cannot see why the Sheriff should have added to the volume of inconsequential comment on points Mr Bell insists on raising which are either unnecessary for the disposal of the instant issue or inappropriately raised in a given action.
[17]In this case, in his written submissions, Mr Bell deals at some length with proceedings in Kilmarnock Sheriff Court case H158/00, and challenges the correctness in law of the Sheriff Principal's decision on 9 November 2000 to adhere to the interlocutor of the Sheriff. The action was at the instance of the present respondent for recovery of possession of the heritable property referred to in this action. This is not an appeal against the Sheriff Principal's decision and it would be quite inappropriate to proceed as if it were. Mr Bell's submissions relating to the Sheriff Principal's decision are irrelevant to the disposal of this appeal, and we decline to comment on them.
[18]Mr Bell contends that "the leaven of implaccability (sic) which has infected the Court of Session since 1994 should be cast out;" and that "the Appeal Judges should foster the concept of Justice mixed with mercy which is 'twice blessed'". It is plain that Mr Bell entertains a sense of injustice. But a fair perusal of the numerous opinions issued in cases to which he has been party would indicate that he has enjoyed a generosity of treatment, and on occasion advice, from Scottish judges, far beyond what he might reasonably have been entitled to. Standing his sequestration, which was not recalled when he sought that remedy, the consequences of which he persistently complains are a matter of administration of the Bankruptcy Act. The respondent is obliged to follow the scheme of the Act. The estate must be realised and applied in terms of the Act.
[19]In the circumstances the appeal as a whole falls to be dismissed. We have taken that step accordingly, affirmed the interlocutor of the sheriff, and found Mr Bell liable in expenses.