| SHERIFFDOM OF LOTHIAN & BORDERS Case Number: A3321/08 |
| | Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN In the cause DR PRIM BALBIR SINGH Pursuer & Appellant; against BRIAN NAPIER QC Defender & Respondent: _______________________ |
Act: Party
Alt: Dunlop, Advocate, instructed by HBM Sayers, Solicitors
EDINBURGH, 29 July 2011
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 24 June 2010; finds the pursuer and appellant liable to the defender and respondent in the expenses occasioned by the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon; certifies the cause as suitable for the employment of junior counsel for the purposes of the appeal.
(signed) Mhairi M Stephen
NOTE/
NOTE:
This is an appeal against the sheriff's interlocutor of 24 June 2010 dismissing the action following debate on the defender's preliminary pleas.
The action by the pursuer and appellant Dr Singh against the defender and respondent relates to an appeal which the appellant had taken to the Court of Session from a decision of the Employment Appeal Tribunal. The defender is senior counsel practising inter alia in employment law. The pursuer and appellant avers that he consulted with the defender in connection with the proceedings. The pursuer's first crave is for declarator that the defender is in breach of the Race Relations Act 1976 as amended. The pursuer's second crave is for decree against the defender for payment to the pursuer of the sum of "£11,000 or such sum as this honourable court may determine" together with interest at the rate of 8% from 30 December 2008 till payment. The third crave is for expenses.
The pursuer's first crave is supported by averments in the second and third articles of Condescendence. Further, the pursuer seeks to incorporate into his pleadings a document entitled "A Summary History" together with a further document "A Critical Appraisal of the Defender's Calls". The Summary History is a lengthy document dated 30 December 2008. It contains an overview and a narrative in 48 paragraphs together with concluding motions.
The Critical Appraisal is a document lodged in this court on 12 May 2009, responding to the defender's answers to the action and also has certain documents attached.
The appellant seeks to incorporate the document "A Summary History" into his pleadings brevitatis causa. The document is indeed a narration of the appellant's employment dispute with related applications to the Employment Appeal Tribunal and subsequent appeal to the Inner House of the Court of Session. It also narrates professional dealings with the defender Brian Napier, QC in respect of these proceedings. It narrates two separate periods when the defender and respondent was engaged to represent the appellant's interests in the employment dispute namely, June 2004 and sometime in 2007/2008. In the third article of Condescendence the pursuer and appellant indicates that on 1 August 2008 he served on the defender a questionnaire in terms of section 65 of the Race Relations Act 1976; and that he was unhappy with the response by the defender who replied by letter dated 1 September 2008. The appellant sought further information from the defender and respondent and that information not being forthcoming the appellant calls the defender and respondent to be examined before a sheriff at a time and place to be arranged. This averment is supported by a plea in law to the effect that "the pursuer is entitled to have the defender publicly examined by the sheriff".
The defender and respondent in his answers calls upon the appellant to specify the provision which the defender is alleged to have breached and the basis upon which it is averred the defender is in breach of the Race Relations Act 1976 as amended. A call is also made on the appellant to specify the basis on which he seeks to have the declarator sought in Crave 1. The defender and respondent states that the public examination sought by the appellant is a remedy which this court cannot competently grant and that the defender and respondent responded to the RR65 Questionnaire in so far as was reasonable and in so far as he was able based upon information available to him.
The second crave is for payment of the sum of £11,000 or such sum as this honourable court may determine together with interest. The averments in support of that claim can be found in articles 1 and 4 of Condescendence for the pursuer. The averments relate to the defender having agreed to work on a pro bono basis in June 2004. There follows an averment that the basis of instruction of the defender had not been amended or altered and that subsequently when the pursuer became a party litigant he discovered that significant amounts of money had been paid by him to the defender by way of fees and that the defender had thereby been unjustly enriched at the pursuer's expense. The pleadings suggest that £11,000 is a reasonable estimate of the payments made to the defender on behalf of the pursuer and reparation for his loss and damages "occasioned by the defender's double dealing".
The defender disputes that he agreed to work on a pro bono basis and gives specification of the work undertaken in 2004 and 2007 and the fee charged for drafting the grounds of appeal in 2007. He makes calls on the pursuer to specify the basis for and the quantum of his claim for unjust enrichment.
The pursuer's crave for payment is supported by pleas in law 2, 3 and 4. Plea-in-law 2 appears to be a plea for repetition of money. The third plea-in-law refers to unjust enrichment and the fourth plea-in-law relates to quantum.
SUBMISSIONS FOR APPELLANT
The appellant, Dr Singh, essentially made two separate submissions. Firstly that the sheriff should have allowed a preliminary proof due to there being a factual dispute on record. The defender and respondent in his answers states that he "did not agree to work on a pro bono basis". The appellant submitted to me that this was simply a lie and that proof was required in order to determine the factual position. The appellant prayed in aid the evidence to be found in his own statement; the submission made by a former solicitor Laurence Davies that the defender and respondent would take on the appellant's case on a pro bono basis; the document attached to the appellant's "Critical Appraisal of the Defender's Calls" being a fax to the defender and respondent of 15 June 2004 and in particular the paragraph in italics on the second page of that letter.
The excerpt referred to as is follows: "In January of this year Richard Lawanson wrote to the Tribunal in the following terms:-
"A further additional reason for our request for a postponement is that we have been able to secure the services of Queen's Counsel (specialising in employment law) to represent the applicant at the hearing on a pro bono basis. However, details of his availability could not be given earlier as his willingness to act on Dr Singh's behalf was not then known".
I was then referred to the appellant's narrative dated 7 January 2010, (paragraph 5) which referred again to excerpts from the same letter from Mr Lawanson to the Employment Tribunal in January 2004.
It was the appellant's submission that this fundamental dispute meant that proof on these issues was necessary and ought to have been allowed by the sheriff following debate.
There followed a submission relating to the defender and respondent referring to his expertise and experience in employment law. It was the appellant's view that the defender was in a fiduciary position vis-à vis the appellant.
According to the appellant the issues relating to the Race Relations Act 1976 which required proof and which could be construed as acts of racial discrimination amounted to the following instances:-
(1) That Mr Napier advised the pursuer to accept a derisory settlement failing which he (Mr Napier) would withdraw from acting which he ultimately did.
(2) When the defender, Mr Napier, subsequently represented the appellant in the appeal to the Inner House he lodged abbreviated grounds of appeal which he would not have done but for considerations of the appellant's race and ethnicity. This, according to the appellant is borne out by the court ultimately adding an extra ground of appeal (bias) when the case called before the Inner House.
(3) The defender and respondent colluded with Mr Truscott, QC (acting for the appellant's former employers) to reduce the duration of the appeal. I was advised that the Inner House had expressed surprise at the short period allocated to the appeal given the number of days which had been required before the Employment Tribunal.
Taken together it was the appellant's contention that these instances were proof of racial discrimination on the part of the defender and respondent and that the appellant was entitled to the remedy which he sought, namely public examination of the defender and respondent by a sheriff and Declarator.
In other words the sheriff erred in reaching the view he did and that the appellant had also been denied entitlement to a preliminary proof to establish whether the defender and respondent had agreed to represent him on a pro bono basis. Further, the sheriff erred in failing to allow the remedy sought in respect of public examination of the defender before a sheriff. Had he been allowed to have the defender and respondent publicly examined he would be in a position to supply the specification which would support his case under the Race Relations Act 1976.
The appellant's second submission on appeal related to pleadings. He submitted that the nature of Scottish civil pleadings placed the pursuer in a disadvantageous position compared to the defender. The sheriff had placed too much emphasis on the restrictive, peculiar and unfair practice of Scottish civil pleadings.
Scottish civil pleadings are a syllogism. The articles of Condescendence are the major premise with the pleas-in-law being the minor premise. These lead to a crave or conclusion flowing from the major and minor premises.
The defender's argument is set out in a matching syllogism of two premises. The major premise is in answer to the pursuer's condescendence; the minor premise is a plea or pleas-in-law (the legal argument upon the answers). The defender's enthymematical or hidden conclusion deductively flows from the major and minor premises. The two syllogisms run in tandem with the condescendence and answers logically linked by their truth function. The pleadings gain the nature of double entry book keeping by which the logical form is capable of rigorous balance. Valid deductive reasoning rules out even the possibility of all truth premises and a false conclusion.
The appellant submitted that Stair in his Institutions of the Law of Scotland (Book IV) acknowledged and recognised this when he said "Probation by notoriety of the verity of fact is, when the judge of proper knowledge knows, that the point to be proven is commonly known or acknowledged to be true".
Hence if there is a factual contradiction in the pursuer's and defender's pleadings then there must be a proof or preliminary proof on the facts prior to a legal determination.
The appellant concluded by alleging that the sheriff was biased against him being a non-lawyer. By not putting the matter out to proof, as he ought to have done, to determine which syllogism is true the sheriff erred in finding against the appellant. The sheriff chose the defender's syllogism without test because of the natural inclination of the judge to be aligned to a lawyer who would of course, understand the abstruse nature of syllogistic logic rather than with a party litigant ignorant of the law. Thus he argued the sheriff was biased against him and placed him at a disadvantage compared with the defender.
Accordingly, I was urged to find that the sheriff had erred in law and instead I should allow a preliminary proof on the pursuer's averments.
SUBMISSIONS FOR THE RESPONDENT
Mr Dunlop for the respondent posited the true question for the appeal judge, that is, whether the Sheriff erred in finding the case was not properly formulated by the pursuer/appellant.
The appellant's basic submission that all factual disputes must result in proof is fundamentally flawed. Whereas there was no disagreement that facts can only be resolved at proof, it was patently absurd to suggest that all factual disputes must result in proof.
For the purpose of the appeal the respondent's counsel was prepared to take the appellant's pleadings at their highest and refer to the documents which the appellant seeks to incorporate into the record brevitatis causa namely the Narrative of Dr Singh dated 7 January 2010 and the Critical Appraisal of the Defender's Calls. The sheriff had expressed a view about the incorporation of these documents and the respondent agreed with the views expressed by the sheriff at paragraph 13 of his judgment but nevertheless for the purpose of the present appeal the respondent was content to look at the appellant's pleadings in their fullest form.
Crave 1. This crave simply seeks declarator that the defender is in breach of the Race Relations Act 1976 as amended. There is no specification of that breach. It is necessary to specify and give notice of the acts which are said to found the discrimination. A bare declarator is meaningless.
Furthermore there is a complete disconnect between the crave and plea-in-law which seeks to have the defender publicly examined by the sheriff. The appellant has failed to state which provision of the Race Relations Act would allow such an examination to take place. There is no provision in the Race Relations Act which would allow for public examination.
Looking at the extended pleadings there appears to be three complaints which can be identified in the document headed Narration. The paragraph headed Overview refers to the defender and another Queen's Counsel.
The parts of the narration which could be construed as providing the basis for the allegations of discrimination are:-
(1) In paragraph 10 "On Tuesday 15 June 2004 I was dismissed by John Clark (Director of the Roslin Institute) on behalf of the BBSRC who were my employer. I believe that Mr Napier knew from his discussion with Mr O'Neill that my employer was going to unlawfully dismiss me on 15 June 2004. And he used this knowledge to attempt to frighten me into derisory settlement. I believe this to be an act of race discrimination and contrary to The Guide";
(2) In paragraph 22 that the lodging by the defender of abbreviated grounds of appeal constituted an act of race discrimination;
(3) In paragraph 26 that the defender had colluded with Ian Truscott, QC to shorten or truncate the duration of the appeal and that constituted an act of discrimination against the appellant on the basis of his ethnic origins.
The respondent's analysis of these three alleged instances of discrimination is as follows:-
(1) This constitutes a wholly bald speculative assertion of racism without any foundation;
(2) How can it be discriminatory to put in abbreviated grounds of appeal when the Rule of Court 41.19(e) requires the grounds of appeal to be stated in brief numbered propositions? Compliance with this requirement cannot possibly raise a presumption of racial discrimination without that being specified in terms of the Race Relations Act 1976, that is by applying the comparative test set out in section 1(1)(a);
(3) The narrative of proceedings before the Inner House set out in the appellant's narrative page 26 does not raise any presumption or inference of racial bias and again there is no basis upon which the test set out in section 1 of the Race Relations Act 1976 can be met.
Mr Dunlop referred to the 1976 Act. He referred to the definition of discrimination set out in section 1(1)(a) of the 1976 Act that does indeed refer to a comparative test.
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons.
The pursuer's pleadings fail to address the issue of comparison. Section 3 of the act gives further definition or meaning to the words "racial grounds" or "racial group" and also gives guidance as to the basis upon which the comparative exercise should be made. The act did not provide the remedies sought by the appellant:- namely (1) declarator and (2) a public examination by a sheriff. There are no averments of unlawful discrimination which would satisfy the requirements of the Race Relations Act 1976 and the comparative exercise that the legislation requires. The appellant had not put forward any substantial argument that the sheriff had misdirected himself in law. Mr Dunlop adopted the reasoning of the sheriff who had self-evidently reached the correct view as to the law and the deficiencies in the appellant's pleadings.
The second crave of the initial writ appears to be supported by pleas-in-law 2, 3 and 4. The full basis for the appellant's second crave against the defender appears to be that he agreed to act on a pro bono basis and to support that the appellant refers to the faxed letter sent on 15 June 2004 relating to a hearing in 2004. It is then averred that the defender withdrew from acting there being no specific averment on record that the defender rendered a fee or was paid for any work undertaken in 2004. It appears that the appellant seeks to merge the consultation with the defender in June 2004 which resulted in the defender withdrawing from acting for the appellant with a subsequent instruction given to the defender in 2007 to draft grounds of appeal. The crave is for a specific sum of money which the pursuer does not offer to quantify. There is no specification of the payments made on behalf of the pursuer to the defender and further in support of his claim for repetition of money there are no averments relating to how the error arose thus entitling him to repetition of the sums allegedly paid. Likewise the defender cannot be enriched beyond the sums which he has been paid and which are not specified on record.
I was urged to dismiss the appeal. The appeal is misconceived. The sheriff's analysis of pleadings was sound and his application of the law is correct.
APPELLANT'S REPLY
The appellant replied to the respondent's arguments. He maintained that he is entitled at common law to have the respondent publicly examined by a sheriff. This is necessary in order to provide the basis for the comparative exercise required in terms of the 1976 Act. He would unfairly be denied this information necessary to found his case without such an examination. The respondent's reply to the section 65 questionnaire was evasive.
The appellant sought to rely on section 20 of the 1976 Act. Section 20(2)(g) proscribes the respondent's behaviour and therefore would form the basis of his case for Declarator. If specification of the contravention is required section 20 provides that and he would rely upon section 20(2)(g). Further, without a public examination, the appellant cannot know whether the respondent has breached or contravened section 20.
With specific reference to the second ground of alleged discrimination "the abbreviated grounds of appeal" - the appellant suggested that the omission of the ground of appeal based on bias was in itself eloquent of discrimination and proceeded to make the extraordinary assertion in bald terms that the defender would have included that ground had he (the appellant) been white and British.
I was also referred to sections 30 and 33 of the 1970 Act.
decision
The Race Relations Act 1976 (as amended) defines in section 1 "Racial Discrimination". This occurs where a person on racial grounds treats another less favourably than he treats other persons in any circumstances relevant for the purposes of any provision of the act.
In the present proceedings the appellant seeks to persuade the court to infer racial discrimination from certain acts or circumstances involving the defender. The first is his advice given in 2004 relating to settlement followed by the defender's withdrawal from acting on behalf of the appellant; the second is his drafting of abbreviated grounds of appeal in compliance with the rules of court and the third being his assessment of the duration of the appeal made after consultation with senior counsel for the appellant's former employers. Further, the pursuer complains that the defender's failure to respond to a questionnaire served under s.65 of the Race Relations Act in such terms as the appellant considers to be proper and fulsome entitles him to the remedy of public examination of the defender before a sheriff.
Dealing with the first of these propositions I consider that the sheriff properly construed the 1976 Act and correctly came to the conclusion that the remedy which the pursuer seeks in his first plea-in-law is not one which the court can competently grant. One would look in vain throughout the Race Relations Act 1976 (as amended) to find any provision which entitled a party to have another person publicly examined before the sheriff. The concept of public examination is one which is familiar in insolvency law but there is no equivalent provision in the Race Relations Act which the appellant could refer me to or which is referred to in his pleadings.
The sheriff correctly observes that the principal objective of section 65 of the 1976 Act is evidential. Section 65 makes provision for a person who considers that he may have been discriminated against to proceed by way of questionnaire served on the proposed respondent. Both the questions and the responses in the questionnaire are admissible in evidence in subsequent proceedings and indeed an adverse inference may be drawn if there is a failure to reply or otherwise to give an evasive or equivocal response. That is the only consequence of a failure to respond or an inadequate response. The appellant seeks to use the provisions in s.65 to provide what is lacking in his case against the respondent namely, specification of the basis to his assertion that the respondent contravened s.20 of the Act. There is no provision which would support the remedy sought in the appellant's plea in law namely public examination before a sheriff. The appellant's common law remedy is proof providing he pleads a relevant case against the respondent supporting his craves.
Likewise the pursuer in his first crave seeks a bare declarator that there has been a breach of the Race Relations Act 1976 by the defender/respondent. There is a complete disassociation between the crave and the plea-in-law which purports to support that crave. Furthermore, the 1976 Act is clear in its terms. There must be a specific act of discrimination which is struck at by the act. The act introduces the concept of comparison. The pursuer in a discrimination case must show that a person of a different racial group was or would have been more favourably treated by the respondent in circumstances that are properly comparable. A comparator whether actual or hypothetical ought to be identified. The appellant fails to do so and fails to identify what matters are proscribed by the Act. Clearly the onus is on the pursuer and appellant to aver relevant facts which would support the allegation that he was treated less favourably. The pursuer and appellant in this case seeks to ask the court to draw inferences "from thin air" as disapproved by Lord Rodger in Shamoon. The court cannot make an inference of discrimination without there being specific averments relating to the comparative exercise set out in the Act.
The appellant's reference to sections 20, 30 and 33 of the 1976 Act add nothing by way of specification. These sections are not referred to in the pleadings, however, the appellant sought to add flesh to the averments in support of Crave 1 by reference to these provisions. Reference to these sections fails to provide the specification which is fundamentally lacking with regard to his discrimination case. Section 20 gives an instance or instances of what is proscribed by the Act with regard to the provision of goods, facilities or services. The appellant's averments do not provide a factual basis for a contravention of that section nor is such a contravention pled nor could it be on the pleadings before the court. Section 30 strikes at those giving instructions to others to commit unlawful acts in terms of the legislation. Proceedings alleging contravention of section 30(1) may be brought only by the Commission for Equality and Human Rights. Section 33 makes it unlawful to knowingly aid another person to do an act made unlawful by the 1976 Act.
Taking the appellant's case at its highest (that is including the documents which he seeks to incorporate into his pleadings) I cannot decern a relevant case which supports a contravention of the 1976 Act. The sheriff, in my view, has correctly identified that the remedy which the appellant seeks in his first plea in law is not one which can be competently granted by this or any court. Secondly, that his averments are entirely deficient in identifying any act of discrimination and fail to identify any matters that are proscribed by the statute. Accordingly the sheriff was correct in coming to the view that the case which the appellant pleads in support of the first crave is fundamentally irrelevant. Further, the 1976 Act (as amended) does not provide for a Declarator at large.
The sheriff deals with the pursuer's second crave at paragraph 15 of his opinion. At appeal the appellant failed to put forward any argument which would support the proposition that the sheriff had misdirected himself in law. Instead the appellant addressed what he considered the syllogism of pleadings concluding in effect that the sheriff had been biased against him as a party litigant and furthermore the sheriff ought not to have preferred the defender's syllogism without allowing a proof or preliminary proof on the factual contradiction.
The appellant's contention that any factual dispute must result in a proof or preliminary proof is patently absurd and wrong. The sheriff correctly identifies the deficiencies in the appellant's averments which support the second crave. The averments set out in the first and fourth Condescendence together with the appellant's document "A Critical Appraisal of the Defender's Calls" and read together the averments singularly fail to specify any fees rendered and paid to the defender by or on behalf of the appellant during the period he avers the defender agreed to accept instructions on a pro bono basis. It is for the pursuer to plead a case which is both specific and relevant. He fails to specify the error which might allow him to seek the