| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
Lord Clarke Lord Hardie Lord Emslie | [2011] CSIH 84 XA99/10 OPINION OF THE COURT delivered by LORD CLARKE in the appeal by DR PRIM BALBIR SINGH Pursuer and Appellant; against PROFESSOR IAN TRUSCOTT Defender and Respondent: _______ |
Pursuer and Appellant: Party
Defender and Respondent: Dunlop, Q.C.; Simpson & Marwick, W.S.
16 December 2011
[1] This is an appeal from an interlocutor of the Sheriff Principal of Lothian and Borders of 9 July 2010, which adhered to an interlocutor of the sheriff of 14 December 2009, whereby the sheriff refused to allow the appellant to lodge a minute of amendment and dismissed the cause, after debate.
[2] The action bears to be founded on the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000. The appellant seeks a declarator in the following terms:
"For declarator that the defender is in breach of the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000".
He goes on to crave payment by the defender to him of £10,000 with interest. The pleas in law for the appellant are in the following terms:
"1. The pursuer is entitled to have the defender publicly examined by the sheriff.
2. The pursuer having sustained loss, injury and damage through the fault of the defender as condescended upon is entitled to reparation from him therefor.
3. The pursuer having sustained loss, injury and damage through the breach of the defender's statutory duty to the pursuer as condescended upon is entitled to reparation from him therefor.
4. The sum sued for being a reasonable estimate of the loss, injury and damage sustained by the pursuer, decree therefore should be pronounced as craved for".
[3] The present action arises out of employment tribunal proceedings (and subsequent appeals) in which the appellant was the applicant and the respondent appeared as the other side's counsel. Before the sheriff, the Sheriff Principal and this court the appellant has, in the present proceedings, represented himself. He is clearly a man of considerable intellect and was well equipped, it seemed to us, to make, with clarity, the submissions he wished to make in writing, and orally, in advancing his appeal. In Article 2 of condescendence in the appellant's Writ he avers, inter alia: "The factual background to the happenings is narrated in the document entitled 'A Summary History' which is herewith produced and herein incorporated brevitatis causa". In Article 3 of condescendence he avers that:
"On August 1 2008 the pursuer served on the defender a Questionnaire under section 65 of the Race Relations Act 1976 (updated to take into account the provisions of the Race Relations (Amendment) Act 2000 which came into force on 2 April 2000) - henceforth referred to 'RR65'. Said RR65 document is herewith produced and herein incorporated brevitatis causa".
The appellant avers that he was unhappy with the response provided by the respondent to that questionnaire and that he called upon the respondent to provide further information. He then avers:
"Such further information has not been forthcoming so the pursuer calls the defender to be examined before a sheriff at a time and a place to be set down by this honourable court".
In Article 4 of condescendence the appellant refers to the RR65 form as "a protected document". He then avers:
"On 18th November 2008 the defender sanctioned the lodgement of the above RR65 Questionnaire in the court process of Dr P Singh v Employment Appeal Tribunal XA136/07, in which the defender acts for the respondent and in which an Inner House Appeal was set down for hearing on Friday 21st November 2008. Such sanction and lodgement is contrary to the honourable court practice and is contrary to the force of the Race Relations Act 1976 and the Race Relations (Amendment) Act 2000. Believed that said lodgement was made by the defender in an effort to discredit the pursuer in the eyes of the Court".
The appellant proceeds then to aver that on 21 November 2008 the respondent informed the Inner House, in relation to the appeal before it from the Employment Appeal Tribunal, at the instance of the appellant, that there was only one ground of appeal, namely, perversity. That, the appellant avers, was a misrepresentation of the full extent of the appellant's grounds of appeal. The appellant then avers that costs were awarded against him on that occasion and that such costs are reasonably estimated to be some £10,000.
[4] In Article 5 of condescendence the appellant avers:
"As a result of the defender using a protected document and misleading the Inner House over the perversity merits of a pursuer's appeal, the pursuer sustained loss".
He then refers to various duties which he says were incumbent upon the defender namely "not to mislead, to speak the whole truth and nothing but the truth and to act in a measured way and without discrimination". As a result of breaches of these obligations he claims he suffered loss.
[5] Lastly, in Article 6 of condescendence the appellant's averments are to the following effect:
"The defender having failed to provide relevant information in terms of the RR 65 the pursuer is entitled to a public examination before a Sheriff. The defender wrongly used a protected document and attempted to mislead the court over the 'perversity issue' - the defender by using a 'protected document' failed in his statutory duty to the pursuer - thus in all the circumstance (sic) it is fair and reasonable for the pursuer to receive damages as is craved for in the instance. The pursuer seeks from the defender the sum of ten thousand pounds (£10,000) or such sum this honourable court may determine as reparation for the pursuer's loss, injury and damage".
[6] At the debate before the sheriff, on 14 December 2009, the appellant made an application to allow him to lodge a Minute of Amendment. In his note, prepared, subsequent to his ex tempore judgment of 14 December 2009, the sheriff states:
"At the start of the hearing on 14 December the pursuer moved me to discharge the diet of debate in order him (sic) to lodge a minute of amendment. I underline that there was no minute of amendment present, either in draft or completed form, and so he was not able to show me how he may amend his pleadings other than to claim, as he did, that he would amend in such a way as to strengthen the pleadings already there. There was no suggestion that these amendments would alter the basis of his case which continued to be his assertion that the defender's action constituted a breach of a duty owed under The Race Relations Act 1976. In deciding this adjournment motion, I had regard to the history of the case and I noted that as long ago as 23 July 2009 Sheriff Reith, at the previous diet of debate, had allowed the debate to be discharged so that the pursuer could consider the defender's note and list of authorities. On that date the new diet of 14 December was assigned and accordingly the pursuer had some five months to consider and to prepare. That period passed with no attempt made by the pursuer to lodge a minute of amendment or even to have one prepared so that it could be available to the court at the diet of debate. It appeared to me that the pursuer simply did not wish this debate to proceed and wished to continue to prolong the whole matter".
The sheriff went on to say that in his view the appellant's writ as it stood was wholly irrelevant and in part, at least, incompetent and that even if the appellant were to be allowed to amend, on the lines which he suggested that he might, there was no hint that what he suggested would begin to cure the fundamental flaws in the appellant's pleadings. The sheriff in due course proceeded to dismiss the action.
[7] In dealing with the appellant's appeal to him the Sheriff Principal, in his judgment, reviewed the appellant's pleadings, including inter alia the document entitled "A Summary History" which the appellant, in Article 2 of condescendence, averred was produced and incorporated brevitatis causa. He noted that at a hearing before the First Division on 2 July 2008, which was a hearing at which the appellant attempted to have the employment appeal sisted, the respondent had indicated to the Court that he had discussed the case with senior counsel, who had formerly acted for the appellant, and that they were both of the view that the appeal would take one day. The Sheriff Principal also noted that an appeal hearing had been set down for 21 November 2008 but was discharged on the appellant's motion.
[8] The Sheriff Principal then proceeded to set out the basis upon which the sheriff decided to refuse the appellant's motion to discharge the diet of debate to enable the appellant to lodge a minute of amendment. Having done so he went on to say at paragraph 7 of his judgment:
"It falls to be observed that the fact that this was the second diet of debate, the first having been discharged to enable the pursuer to amend and no Minute of Amendment being forthcoming, was sufficient basis in itself for the Sheriff to refuse to entertain further amendment procedure".
In so stating matters, the Sheriff Principal was mistaken. The previous diet of debate was discharged not to allow the appellant to amend but, as the interlocutor of 23 July 2009 makes perfectly clear, to allow the appellant time to consider the defender's supplementary note of argument and a list of authorities which he said had been received by him on that day.
[9] Thereafter the Sheriff Principal in his judgment considered the appellant's pleadings, having regard to the provisions of the Race Relations Act and in particular sections 20, 30, 33 and 65. He also addressed the question of absolute privilege which had been touched upon by the sheriff, and opined that the matters apparently complained of by the appellant in his writ were matters in respect of which the respondent was protected by the operation of absolute privilege. The Sheriff Principal concluded that the appellant's pleadings had manifestly fundamental defects which no amendment was likely to cure, and that, in any event, any amendment would now come too late in the proceedings.
[10] In advance of the hearing of the appeal before this court both sides lodged full written submissions. These have been fully taken into account by the court in reaching its decision. Both the appellant and the respondent's counsel also made oral submissions in supplement of the written submissions.
[11] The written submissions of the appellant begin by arguing that the document incorporated "brevitatis causa" in Article 2 of his Writ was "completely ignored by the honourable judge". That assertion is clearly incorrect. The Sheriff Principal, in his judgment, refers to the document in question at paragraphs 2 and 3, and he clearly considers its terms in reaching the conclusions he did.
[12] The appellant then proceeded to submit that his claims were based on the Race Relations Act 1976, as amended, and referred to various provisions of that legislation. In the first place he apparently relied upon breaches of provisions of sections 30 and 33 of the Act with particular regard to the respondent having advised the Inner House that the employment appeal would take one day. Section 30(1) is in the following terms:
"(1) It is unlawful for a person -
(a) who has authority over another person; or
(b) in accordance with those wishes that other person is accustomed to act, to instruct him to do any act which is unlawful by virtue of Part II or III, section 76ZA or, where it renders an act unlawful on grounds of race or ethnic or national origins, section 76, or procure or attempt to procure the doing by him of any such act".
Section 33 of the Act provides as follows:
"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.
(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal.
(3) A person does not under this section knowingly aid another to do an unlawful act if -
(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful; and
(b) it is reasonable for him to rely on the statement.
(4) A person who knowingly or recklessly makes a statement such as is mentioned in subsection (3)(a) which in a material respect is false or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale".
Any alleged breaches of those provisions were not differentiated, in submission, by the appellant in this respect and we did not, in particular, hear how it came about that any alleged agreement between the respondent and the appellant's own former counsel to restrict their time estimate for any hearing before the Inner House of the employment appeal to one day amounted to a breach of either of those provisions. In any event it has to be noted that the appellant was able to persuade the Inner House to extend the estimated duration to four days with a day set aside for pre-hearing reading by the Court.
[13] The second alleged breach of the Race Relations Act was submitted to be a breach of section 20 of that Act. The conduct of the respondent referred to here was, in addition, said to be a breach of the Guide to the Professional Conduct of Advocates. Section 20(1) of the Act is in the following terms:
"(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services -
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of a like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section".
Section 20(2) then sets out examples of facilities and services mentioned in subsection (1). These include in subparagraph (g):
"the services of any profession or trade, any local or other public authority".
Section 20(3) then provides:
"(3) It is unlawful for any person concerned with the provision of goods, facilities or services as mentioned in subsection (1), in relation to such provision, to subject to harassment -
(a) a person who seeks to obtain or use those goods, facilities or services, or
(b) a person to whom he provides those goods, facilities or services".
The conduct complained of, under reference to these provisions by the appellant, was apparently, that the respondent had misled the Inner House in stating to them that there was only one ground of appeal relied upon by the appellant in his employment appeal from the decision of the Employment Appeal Tribunal. It is not clear to this Court how that could ever have amounted to a breach of section 20 of the Act. All that was said in the appellant's submissions in that regard was "he (the respondent) provides services and in this he failed and, I say, in a discriminatory manner, contrary to section 20 of the RRA 1976, as amended". As noted, the conduct in question, it was submitted by the appellant, also amounted to a breach of Guide to Professional Conduct of Advocates especially section 6.8 of that guide because, as an officer of the Court, the respondent "not only has a duty to the Court but a wider duty to the public that includes the pursuer".
[14] A further additional basis of complaint regarding the alleged conduct of the respondent was that upon receipt of the RR65 questionnaire he, the respondent, as the appellant puts it, "became his own client" and in introducing the questionnaire into court proceedings was acting contrary to section 2 of the RRA 1976 (as amended) as well as sections 8.3.11, 8.3.13, and 8.3.14 of the "Guide to Professional Conduct of Advocates". We should note at this stage that this matter was gleaned from the appellant's written submissions, as supplemented by his oral submissions, and does not appear, as such, in his written pleadings. From an examination of the pleadings there is no reference to specific breaches of section 2, 20, 30 and 33 of the 1976 Act or the specific provisions of the Advocates' Code of Conduct, far less specification of what it is said constitutes any breach thereof.
[15] The appellant, in his submission, also claimed that the production by the appellant of the RR65 Questionnaire in the Inner House procedure amounted to an act of racial victimisation under reference to section "3A(I)(a)(b)" of the 1976 Act. The provisions of section 3A(1) are to the following effect:
"(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of -
(a) violating that other person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him".
[16] It became clear in the course of the hearing before us that, at the heart of the appellant's grievances is that, having served an RR65 Questionnaire upon the respondent, he did not get a response from the respondent that he considered at all adequate. He contended in his written submissions that:
"The purpose of RR65 Questionnaire procedure is to ask questions of the alleged discriminator in order to (a) decide whether or not to bring legal proceedings and (b) if proceedings are brought to present his complaint in the most effective way".
He continued:
"I was not happy with the replies of the defender (see RR 65 Questionnaire, the letter of 13 September 2008 from Defender to Pursuer and the letter of 30 September from Pursuer to Defender, included brevitatis causa) and thus began proceedings. It is common law that he be publically (sic) examined".
[17] According to the appellant in his oral submissions it is open to a person who has sent an RR65 Questionnaire which does not, in his view, produce adequate responses, to bring a complaint to that effect before this Court. The appellant indeed equiparated the position, from time to time, in his submissions, to those of a prosecutor bringing a charge against an individual and inviting that charge to be considered by the appropriate Court. The appellant's fundamental contention, therefore, was that his writ, in its existing form contained enough for him to have a proof of some kind or at least an examination, of the respondent before a sheriff so that the respondent could be questioned at such a hearing. The sheriff, and in turn, the Sheriff Principal were accordingly wrong, it was submitted by the appellant, in dismissing his action.
[18] The appellant, under reference to various authorities, submitted that the test for "striking out" a race relations case without hearing evidence, was a high one. (Anyanwu and Another v South Bank Students Union & South Bank University (2001) IRLR 305, Ezsias v North Glamorgan NHS Trust (2007) ICR 1126, R v The Governing Body of JFS (2010) IRLR 136 and Madarassy v Nomura International PLC 2007 EWCA Civ 33).
[19] Both the sheriff and the Sheriff Principal found that, in any event, whatever might be said about the appellant's pleadings, the respondent was protected, in relation to the statements and acts apparently complained of, by absolute privilege since these statements and conduct appeared to have been made or carried out by the respondent, as advocate, in the conduct of litigation. In that respect the written submissions of the appellant were, inter alia, to the following effect:
"Society has moved on since the 19th century. It is time to say that advocates cannot behave as they like in Scottish courts no matter whose side they are on. There is now a criminal, quasi-criminal and civilcases (sic). Race discrimination claims are quasi-criminal because it is known that there is a difficulty in obtaining information from the alleged discriminator (people do not tell the truth), hence the use of the questionnaire procedure. The problem is that these courts are applying an out moded form of civil pleading that is not competent in its present form to deal with quasi-criminal". (Emphasis added).
In making the submissions he did about absolute privilege, the appellant did appear not to grasp the distinction between the law in relation to immunity from suit of advocates, in respect of claims in negligence by their own clients, and the absolute privilege that attaches to words or things done by those engaged in litigation.
[20] The appellant then submitted that both the sheriff's initial refusal to allow him to amend his pleadings, and the Sheriff Principal's endorsement of that, failed. to observe sufficiently the appellant's status as a litigant in person and reference was again made to authorities regarding the striking out of race discrimination cases drawn from England and Wales.
[21] In his written and oral submissions the appellant, furthermore, complained that the sheriff had shown overt bias against him. This was evidenced, it was submitted, by the fact that the sheriff referred to the appellant's writ as "one of the most ill founded writs I have ever seen", yet he, nevertheless, sanctioned counsel by the respondent "to dismantle" it as the appellant put it. We were invited to allow the appeal.
[22] In reply Mr Dunlop, Q.C., for the respondent moved the Court to refuse the appeal.
[23] He commenced by pointing out that, as we already noted, contrary to what was submitted by the appellant, the Sheriff Principal did have regard to the document incorporated into the appellant's averments "brevitatis causa". Senior counsel also advised us that the sheriff had also had regard to it because senior counsel himself had directed his attention to it. From the document incorporated brevitatis causa it was clear, it was submitted, that there were three complaints levelled against the respondent. The first was that he had deliberately misled the Inner House regarding the time estimated as being necessary for the hearing of the appellant's employment appeal; secondly, an alleged failure on the part of the respondent with regard to responding to the RR65 Questionnaire; thirdly, an alleged attempt by the respondent to mislead the Inner House as to what truly were the appellant's grounds of appeal before it. Everything else in the document incorporated into the appellant's pleadings related, it was said, to complaints not against the respondent but against Mr Napier, Q.C., the appellant's former counsel.
[24] As far as matters went with regard to claims of breaches of the 1976 Act by the respondent, there simply were no relevant averments, it was submitted, to support any such breaches having regard to the terms of the particular provisions referred to by the appellant. For example, with regard to section 20 where, it was asked, were the necessary averments to trigger its operation, to the effect that the appellant had been seeking the services of his opponents' counsel namely the respondent? There was a complete lack of averment to support the section 30 case. Section 30(2) in any event provides that, in respect of any such claim, proceedings can only be brought by the Commission for Racial Equality.
[25] The alleged breaches of section 33 seemed to be founded on alleged collusion between Mr Napier, Q.C., and the respondent regarding the time that would be taken in the conduct of the employment appeal before the Inner House but a serious allegation of that sort, it was submitted, could not be legitimately made on the basis of a bald assertion. There simply were no averments or documents relied upon to provide the basis for establishing such collusion far less that it was based on racial motivation.
[26] The appellant was seeking a remedy for breach of statutory duty. Section 57 of the 1976 Act provided the appropriate procedure for bringing such a case, and it desiderated that the requirements of relevancy and specification necessary in an ordinary action be met. These had not been met by the appellant's writ, even as supported by documents referred to or incorporated brevitatis causa. While the appellant had referred to authorities concerned with counsel's immunity from suit for breach of a duty of care, there were no averments, never mind relevant averments, here of the respondent ever having assumed a duty of care to the appellant. The actings and statements of the respondent upon which the appellant appeared to rely were not done, or made, on the appellant's behalf, but on behalf of the respondent's own clients. These actings and statements were in any event, it was submitted, covered by absolute privilege as described in Williamson v Umphray & Robertson (1890) 17 R 905 and in particular by Lord President Inglis at pages 910-911 where his Lordship said:
"The absolute privilege accorded to Judges, counsel, and witnesses by the law and practice of both countries is founded on obvious grounds of public policy. It is essential to the ends of justice that persons in such positions should enjoy freedom of speech without fear of consequences, in discharging their public duties in the course of a judicial inquiry".
His Lordship then went on to explain:
"But the motive of the law is not to protect corrupt or malevolent Judges, malicious advocates, or malignant and lying witnesses, but to prevent persons acting honestly in discharging a public function from being harassed afterwards by actions imputing to them dishonesty and malice, and seeking to make them liable in damages".
In defining and explaining the extent of the privilege, Lord President Inglis relied on English authorities, in particular the case of Munster v Lamb (1883) 11 QBD 588. The continued existence of absolute privilege attaching to those engaged in litigation was specifically referred to by Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 at pages 207-208, and the Court of Appeal in Heath v Commissioner of Police of the Metropolis [2005] ICR 329 reaffirmed its continued existence, particularly in the judgment of Auld LJ which rejected the suggestion that it should be in any material respect diminished. A recent example of its application could be seen in the case of Sprecher Grier Halbertstam LLP, Edward Judge v Martin Walsh [2009] C.P.Rep.16.
[27] Having regard to all the foregoing, senior counsel submitted that the sheriff and the Sheriff Principal were correct in holding that the appellant's action was bound to fail, even after proof. The sheriff, moreover, had been perfectly entitled to be robust in his description as to the inadequacy of the appellant's pleadings and there was no element of bias either on the part of the sheriff or the Sheriff Principal. It was true that the Sheriff Principal had misunderstood the background to the sheriff's refusal to allow the appellant to amend in that he apparently thought that there had been a previous application to do so, but the applicant had had five months from the previously discharged diet of debate to lodge a minute of amendment and had still not done so. Whether to allow amendment or not at that stage was clearly a matter entirely within the discretion of the sheriff. No actual minute of amendment or draft minute of amendment was produced to the sheriff. Nothing was suggested then, or now, as to what would be contained in any amendment which might address the deficiency in the pleadings as they stood and as they now remained. Senior counsel also commended to our attention the reasoning of the Sheriff Principal in his later decision in the case of Dr Prim Balber Singh v Brian Napier, Q.C., 2011 WL 2748111, in which he dismissed an appeal from the sheriff in a similar action at the instance of the appellant against his former counsel Brian Napier Q.C. That decision, we were informed, is currently under appeal to this Court.
Decision
[28] As indicated above, it seemed clear to us that, having considered, fully and carefully, the appellant's pleadings, his written submissions, the documents he relied upon and the oral submissions he made to the Court that, at the heart of his case was a desire, on his part, that the appellant be brought before the Court to answer questions, the outcome of which may provide the appellant with the evidential basis for bringing an action or complaint under the Race Relations Act 1976. The springboard for this, the appellant maintains, was the inadequate response from the respondent to his RR65 Questionnaire. As Sheriff Principal Stephen in Singh v Napier said at page 6 of her judgment:
"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".
Section 57 of the 1976 Act provides:
"(1) A claim by any person ('the claimant') that another person ('the respondent') -
(a) has committed an act against the claimant which is unlawful by virtue of Part III [other than in relation to discrimination on grounds of race, or ethnic or national origins, or harassment, section 26A or 26B]; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act against the claimant
may be made the subject of civil proceedings in like manner as any other claim in tort (or in Scotland) in reparation for breach of statutory duty".
Section 57(2) then provides that:
"(2) Proceedings under subsection (1) -
(a) shall, in England and Wales, be brought only in a designated county court; and
(b) shall, in Scotland, be brought only in a sheriff court;
but all such remedies shall be obtainable in such proceedings as, apart from this subsection, and section 53(1), would be obtainable in the High Court or the Court of Session, as the case may be".
The legislature has, accordingly, prescribed the procedural route whereby legitimate complaints under the Act may be made the subject of court proceedings. It has, in particular, prescribed that they are to be equiparated to an action, in Scotland, for breach of statutory duty. Our law of pleading and practice still demands, even of litigants in person, that within any such action there is set out a sufficiently relevant and specific claim which, if proved, would entitle the pursuer to the remedy he seeks. That requires, also, the giving of adequate notice, not only to the other party, but to the Court as to what the basis in fact and law of the claim is. There is no procedure provided for in the 1976 Act or elsewhere which allows for the avoidance or dilution of these requirements in a claim brought under the Race Relations Act. In particular, as the Sheriff Principal in the case of Singh v Napier observed, there is certainly no procedure available in our system to allow a person who considers that he may have been aggrieved by another, due to unlawful actions in terms of the 1976 Act, to carry out, or have carried out on his behalf, an inquiry into whether or not such a claim truly exists. Despite the appellant's attempts at times to equiparate claims made under the 1976 Act to criminal procedure, any such contention simply flies in the face of the express provisions of section 57 of the 1976 Act. We should add that there is nothing contained in section 65 of the 1976 Act, which deals with the questionnaire procedure, and whose operation and scope was discussed by the Sheriff Principal, which assists the appellant in that regard. Having regard, then, to the procedural requirements for bringing a relevant claim under Part III of the 1976 Act, it is clear that both the sheriff and the Sheriff Principal were entirely correct in holding that the appellant's pleadings, do not begin to meet the basic requirements for pleading a relevant case of breach of statutory duty, even making allowance for the fact that the appellant is a litigant in person. More fundamentally, in our view, the appellant has identified no possible basis for any of the remedy which he seeks. We are therefore satisfied that the appellant's claims are fundamentally misconceived, that his pleadings are wholly irrelevant and that the action was correctly dismissed by the sheriff on that basis. In so far as the action seeks some sort of judicial examination of the respondent it is also incompetent.
[29] The appellant, of course, complains that he sought before the sheriff the opportunity to amend his pleadings and that this application was refused, unjustifiably. Whether or not amendment should be allowed is always a matter for the discretion of the judge to whom the application is made. The justification for allowing an amendment is that it is necessary to focus truly the issues between the parties. The sheriff in this case refused the application to amend because (a) it was made at the commencement of a debate hearing when a previous debate had been discharged some months previously to allow the appellant time to consider the respondent's case and (b) in any event, no proposed minute of amendment was produced by the appellant which indicated what he might have intended to achieve. These were perfectly good reasons for the sheriff to exercise his discretion, as he did, in refusing the motion to discharge the debate to enable the appellant to seek to amend. Neither before the Sheriff Principal nor before this Court did the appellant present a minute of amendment. He did refer to material which he suggested would have been included in an amendment but nothing said to this Court, or which was contained in any of the other material referred to by the appellant, began to address the fundamental deficiencies in his pleadings as we have already described these.
[30] It is sufficient for the disposal of this appeal that we have arrived at the conclusion we have in relation to the lack of relevancy of the appellant's pleadings and the rejection of the criticism of the sheriff's decision to refuse the appellant's motion to discharge the diet of debate to enable him to amend. We should, for completeness, say that even had we considered that the appellant's pleadings met the required tests as to relevancy and competency, he would still in our view have been unable to overcome or disapply the absolute privilege afforded to advocates in what they do, and say, in the course of litigation. That privilege is to be distinguished from the immunity from suit for negligence at the instance of an advocate's client and according to the authorities referred to by the respondent, remain robustly alive. In our view judgment here is no reason to think that it would not cover statements and acts which otherwise might be unlawful having regard to provisions of the 1976 Act.
[31] Lastly, the appellant, as has been seen, complained of bias on the part of the sheriff demonstrated, he said, by the way in which the sheriff described his pleadings, the offending remarks were alleged to be inconsistent or incompatible with the sheriff granting a motion, made on behalf of the respondent, for certification of the cause as suitable for the employment of counsel. We have no hesitation in saying that there is no substance in this point. The sheriff was entitled to use the language he did, however strong it might seem, about pleadings which this Court itself has found to be wholly deficient and misconceived . The nature of the claims being made in these proceedings, and the difficulties posed simply by the way in which they were formulated, fully justified the decision of the sheriff that the case was suitable for the employment of counsel. There was nothing in that decision which was, in any way, inconsistent or incompatible with the way in which the sheriff chose to describe the appellant's pleadings.
[32] For all the foregoing reasons the appeal is refused.