PETITION OF JOHN STEWART MAUGER FOR JUDICIAL REVIEW OF A DECISION TAKEN ON BEHALF OF THE CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND DATED 8 MAY 2015
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 22
P715/15
OPINION OF LORD PHILIP
In the petition of
JOHN STEWART MAUGER
Petitioner;
for Judicial Review of a decision taken on behalf of the Chief Constable
of the Police Service of Scotland dated 8 May 2015.
Petitioner: Carmichael QC, Mr Hay; Balfour + Manson
First Respondent: Maguire QC, MacGregor; Clyde & Co
Second Respondent: Burnett; DLA Piper LLP
29 January 2016
[1] In this petition the petitioner seeks reduction of a decision dated 8 May 2015, taken on behalf of the first respondent, the Chief Constable of the Police Service of Scotland, refusing to review a decision taken by the Force Vetting Officer to refuse the petitioner Management Vetting Clearance under the Standard Operating Procedure of the Police Service of Scotland relating to security vetting.
[2] He also seeks interdict against the second respondents from terminating his engagement as Assistant Chief Constable on grounds connected with the decision of the first respondents challenged in this petition. The second respondents have given an undertaking that, pending determination of this judicial review, they will not take steps to require the petitioner to resign or to terminate his engagement as Assistant Chief Constable.
[3] The petitioner holds the post of Assistant Chief Constable in the Police Service of Scotland. He joined the police service in 1983 and served in the Metropolitan Police. In April 2009 he joined the Central Scotland Police Force as an Assistant Chief Constable. On 1 April 2013 he transferred to the Police Service of Scotland retaining the same rank.
[4] The first respondent is responsible for applying the National Vetting Policy for the Police Community established by the Association of Chief Police Officers (“ACPO”) and the Association of Chief Police Officers in Scotland (“ACPOS”). The purpose of the policy is to maintain the highest levels of honesty and integrity and to prevent corrupt, dishonest, unethical and unprofessional behaviour among police officers, and to establish uniformity in vetting procedures throughout the United Kingdom. Each force has a Force Vetting Unit and appoints a Force Vetting Officer.
[5] The National Vetting Policy document is supported by Standard Operating Procedures (“SOPs”), 19 in number, which give guidance on various aspects of vetting and vetting procedure. In addition, the first respondent has instituted a Standard Operating Procedure relating to the vetting of officers in the Police Service of Scotland which requires to be read along with the UK Standard Operating Procedures. The Procedure provides for a number of levels of vetting applicable to the holders of different posts. The level of vetting with which this petition is concerned is Management Vetting which applies to the holders of “designated posts”, officers who have wide access to Police Service of Scotland information, intelligence, financial and operational assets. As an Assistant Chief Constable the petitioner is the holder of a designated post. Paragraph 6.1 of the Police Scotland Standard Operating Procedure provides:
“Management Vetting (MV) specifically relates to members of the Service who will be required to hold posts within designated sensitive areas. The purpose of MV is to provide a means of ensuring that persons serving in ‘designated posts’, which are those with access to sensitive Police information, intelligence, financial or operational assets, have been assessed as to their reliability and integrity. The procedure therefore serves to reduce the risks of unauthorised disclosure, or loss of, sensitive Police assets....”
[6] Holders of designated posts who wish to obtain or to renew Management Vetting clearance are required to complete two questionnaires, one relating to personal, and the other to financial information. They also require to submit information as to third parties, for example, spouses or partners, family members and associates. The procedure may also involve an interview with the Force Vetting Officer who is responsible for the decision on vetting clearance.
[7] Paragraph 4.1 of Standard Operating Procedure number 4, which also deals with Management Vetting, sets out a number of factors which may create a presumption of unfitness for appointment to designated posts. They are:
“Past infringement of security or vetting policy or procedures;
Significant or repeated breaches of discipline;
Providing false or deliberately misleading information, or omitting significant
information from the vetting questionnaires;
Unauthorised association with persons with previous convictions or those reasonably suspected of being involved in crime;
Criminal convictions or cautions;
Other identified areas of concerns for example, but not exclusively, misconduct
matters, drug and alcohol usage etc.”
[8] Standard Operating Procedure number 10 deals with aftercare and renewal of clearance. Paragraph 4.1 provides that all individuals who are subject to the vetting process must report any changes in their personal circumstances. Included in the list of potential changes requiring notification is “known/suspected criminal association”.
[9] Standard Operating Procedure number 16 deals with third party risk assessments. In this context a third party is any individual, such as a relative or an associate, in relation to whom adverse information has been uncovered during the vetting process. Paragraph 4.3 sets out the following list of factors which operate against clearance being granted:
“Evidence of joint enterprise between the applicant and the third party,
Currency of convictions or cautions of the third party,
Currency of intelligence relating to the third party,
Gravity of offences committed by the third party,
Nature of the relationship,
Fiduciary relationship between the parties.”
[10] The paragraph also sets out a list of factors operating in support of clearance being granted. These include:
“Evidence of distance between applicant and third party,
Openness of applicant,
Ignorance of third party’s activity.”
Paragraph 4.7 provides:
“Where the applicant has omitted the declaring of an individual whose details are required on vetting forms and adverse information is held about that individual, the assumption should be that the details have been deliberately omitted and should ordinarily be treated as an integrity issue in the first instance.”
Section 17 of the Police Scotland Standard Operating Procedure deals with third party risk assessments in similar terms.
[11] In the petition the petitioner avers that he obtained Management Vetting clearance from Central Scotland Police on 25 August 2009, having previously obtained clearance from the Metropolitan Police. In about 2000, when he was still living in southern England, he met a music and events promoter, Brian Rix and his wife. From about 2007 he developed a friendship with Rix which involved meeting and socialising with him and his wife at music festivals, dinners and receptions, usually in England. In July 2013 he arranged to receive a loan of £250,000 from Rix which he avers was for the purpose of making alterations and improvements to his home in Essex.
[12] In July 2013 the petitioner was asked to submit an application for renewal of his Management Vetting clearance. For this he completed the two questionnaires, one personal and one financial, on 31 July 2013. In the personal information questionnaire, in answer to the question:
“Are you aware of any other circumstances or characteristics which may affect your suitability for appointment to or continued employment in the post applied for… or other conduct which could make you susceptible to pressure or improper influence by any person.”
He wrote:
“I now own a property in Essex in my own right. This was purchased in 2012 as a home as part of a separation; it is registered in my name, it is/was intended for my residence once complete. (It is being developed and renovated.) My intention was to sell this on and develop another property either while in service or in retirement. Recently a friend has loaned the money to assist with this and future plans, £250,000. This is a loan with no interest or conditions and will be returned if I don’t go ahead with future plans or on receipt of the communtation (sic) at the point of retiring or when capital is released from a house sale. I have to review my life plans as a result of the return to PSoS. I have only just received this money. With recent changes – returning to Scotland I may need to sell my house now.”
[13] The petitioner avers that, owing to a change in his personal circumstances, he did not spend the money loaned to him by Rix, but in early August 2013 advised him of his intention to return the funds. He avers that he was advised (it is not said by whom) not to return the funds until agreement could be reached between the Rixes as to their disposal. He goes on to aver that the Rixes’ marriage had broken down by October 2013, about which time he learned from Mrs Rix that her husband had convictions for assault, fraud and firearms offences for which he had received custodial sentences, the last having been imposed on 8 May 2000.
[14] On 16 October 2013 the petitioner sent the following email to Deputy Chief Constable Iain Livingstone who, although he was the petitioner’s superior officer, was not concerned with vetting procedure:
“Private and confidential – for direction
Since 2000 I have become friendly with a married couple who have run events and companies. I do not know the extent of the businesses and both as I understand are directors of various companies.
I have joined them at events and as a friend provided advice re the running and management of events.
I have socialised with them, stayed at their marital home and attend the events they run which are extremely successful.
In recent years the wife qualified as a barrister.
However they are now going through a bitter acrimonious separation and today the wife disclosed to me that the husband has criminal convictions and that he has served time in prison.
I was and have been completely unaware of this. She further disclosed that she was not fully aware of this until some way into the marriage and only when her daughter was five years old.”
[15] According to the petitioner, he received no response or advice in relation to this email, while the first respondent avers that the Deputy Chief Constable advised him to disclose the information to the Force Vetting Unit. He did not do so at that time.
[16] On 1 November 2013 a freezing injunction was made in the Rixes’ divorce proceedings in the Family Division of the High Court of Justice against, among others, the petitioner preventing him from taking any steps to defeat Mrs Rix’s claims by removing from the jurisdiction or in any way disposing of, dealing with, or diminishing the value of any of Rix’s assets. The petitioner avers that the funds loaned to him by Rix were returned (it is not said to whom) around 15 November 2013.
[17] About eight months later, on 2 July 2014, the petitioner was interviewed in relation to his application for vetting clearance by the Force Vetting Officer of Police Scotland, Detective Superintendent Carole Auld. He avers that at that interview Rix’s name was mentioned and discussed but he declined to provide his (Rix’s) telephone number. Instead he offered to ask him what form of contact he would be agreeable to. The first respondent’s position is that at the interview, and later on 28 July 2014, the petitioner declined to name the lender of the £250,000. He only provided Rix’s name and information as to his convictions in response to a further request in an email dated 6 August 2014 to Detective Superintendent Auld, to which he attached a copy of the email dated 16 October 2013 to Deputy Chief Constable Livingstone.
[18] On 14 August 2014 the petitioner provided a witness statement in the divorce proceedings in support of Rix’s application for contact with his children. In that statement he set out details of his police experience to add weight to his support, but made no mention of Rix’s criminal convictions or the loan of £250,000.
[19] On 2 September 2014, Detective Superintendent Auld informed the petitioner that he had been refused Management Vetting clearance. He subsequently sought a review of that decision on the basis that his and Rix’s social lives were inextricably linked and impossible to separate. The first respondent however refused to institute a review on the ground that the petitioner’s application was out of time.
[20] After the refusal of vetting clearance the petitioner completed a Notifiable Association Report relating to Rix. In it he described increasing social contact between himself and Rix from 2000. He described Rix as a friend and said that he had been in social contact with him in 2014 at his birthday party and at events organised by him. Rix had sought advice from him on the running of large scale events. He explained that Rix and his wife were undergoing an acrimonious separation during which Mrs Rix had disclosed to him that her husband had been in trouble with the police. In relation to the Rixes’ separation he said “I have no knowledge on the separation of assets etc, finance etc. I have no knowledge of his businesses” and “the separation was settled in the High Court – they both employed solicitors and counsel as I believe.” No mention was made of the loan of £250,000 or the fact that divorce proceedings were in train. Nor was any mention made of the freezing order or the witness statement.
[21] The petitioner avers that he discussed the Notifiable Association Report with Deputy Chief Constable Livingstone on 17 September 2014 and offered to sever all future contact with Rix. He avers that he received no instructions to do so and no guidance in relation to his friendship with him. According to the first respondent, the outcome of the Notifiable Association procedure was that the petitioner was instructed not to associate with Rix.
[22] On 19 December 2014, as a result of the refusal of Management Vetting clearance, the second respondents gave notice to the petitioner of their intention to call on him to retire or be required to resign on grounds of effectiveness or efficiency, in terms of section 14 of the Police and Fire Reform (Scotland) Act 2012. The petitioner avers that if the second respondents were to proceed with their stated intention to call upon him to retire or require him to resign he would face the termination of his engagement with consequent financial loss. After the commencement of these proceedings the second respondents granted the undertaking described in article 2 of condescendence.
[23] He then intimated his intention to seek judicial review of the first respondent’s refusal to review the Management Vetting decision of 2 September 2014. He was subsequently reminded that it was open to him to make a further application for Management Vetting at any time, and he completed a fresh application for Management Vetting clearance on 2 February 2015.
[24] In the financial questionnaire, in answer to a request for any other details or explanations which would help to explain his current financial status, he wrote:
“In 2013 I received £250,000 from a (then) associate, Mr Brian Rix. The details of this have been fully explained. The money was repayed and never used. Return was only delayed as a result of an unexpected separation and claims from both parties – represented by respective legal teams who requested it was retained pending separation hearings in the High Court. The Hugh Court directed its return.”
[25] On 8 March 2015 the Force Vetting Officer advised him that she had refused his second application “on the following principal bases”:
“The financial arrangement you entered into in 2013 with Mr Brian Rix. Adverse
information held by Police Scotland”.
[26] On 31 March 2015 the petitioner sought a review of this decision and a review panel hearing was held on 1 May 2015 at which he was represented by counsel. He was also provided in advance with all the material considered by the Force Vetting Officer. This material consisted of an incomplete copy of the freezing injunction and a copy of his witness statement in the divorce proceedings, copies of the two sets of vetting application forms and the Notifiable Association Report, and two articles from the Sun newspaper, one dated 24 January 2015, in which Rix was reported as complaining about the petitioner’s treatment at the hands of Police Scotland because of his friendship with him, and a second in which the petitioner was reported as criticising the first respondent.
[27] The review panel’s decision refusing to review the refusal of vetting clearance, which is the subject matter of this petition, was communicated to the petitioner on 8 May 2015. The reasons given for refusal were as follows:
“The Panel was mindful of the terms of the Police Scotland Vetting Standard Operating Procedures (SOP) and the overarching SCPO/ACPOS National Vetting Policy for the Police community. The Panel noted the references in the Police Scotland SOP to the ACPO/ACPOS document insofar as the latter sets out the factors which might lead to refusal of Management Vetting clearance (see paragraph 6.4.12).
These factors include the provision of false or deliberately misleading information or omitting significant information from the vetting questionnaires.
The panel considered the two sets of questionnaires completed and submitted by you, both personal and financial, and noted obvious inconsistencies about material matters when comparing those presented in 2013, with those presented in 2015. More critically, however, the panel noted that the position in relation to the receipt of the £250,000 was not stated consistently.
The ACPO/ACPOS document also includes as a relevant factor, having an unauthorised association with a person with previous convictions. In your case that unauthorised association was with Mr Brian Rix.
The extent and terms of your association (e.g. the provision of a ‘character reference’ for him in connection with civil proceedings) demonstrated you to have been routinely close.
Neither did you disclose the existence of civil court proceedings, to recover a large sum of money from you in connection with divorce proceedings, between your associate and his then wife when served with a High Court Order.
On the basis of these matters alone, the financial agreement entered into between you and Mr Brian Rix, the Panel is satisfied that it should not rescind Detective Superintendent Auld’s decision.
The Panel’s determination in relation to your review request is not to overturn it and you have therefore been refused Management Vetting clearance.”
Submissions
[28] On behalf of the petitioner, Ms Carmichael QC submitted that the decision should be reduced and the matter remitted back to the panel on a number of grounds. She argued firstly that the first respondent had failed to give the petitioner notice of the issues on which the application might be determined. In particular, he was given no notice that the content of the information provided in the forms completed by him, as opposed to the fact of the loan arrangement itself, was a matter which might be seen as a reason to refuse the review. In this respect the procedure was unfair and in breach of natural justice.
[29] Secondly, the panel had failed to identify the specific alleged discrepancies and inconsistencies in the questionnaires, or the way in which they were said to be misleading, false or significant. In any event, there were no obvious inconsistencies in the information given in the various forms. In this respect the panel had made a factual error and so took into account an irrelevant consideration.
[30] Thirdly, the panel had failed to apply Police Scotland’s own policies and operating procedures in assessing the material before them. They did not apply their minds to the question whether the material demonstrated a risk of unauthorised disclosure or a loss of sensitive police information and intelligence. None of the material disclosed such a risk. Paragraph 12.3 of Standard Operating Procedure number 4 stated that vetting clearance would only be withdrawn in the most serious cases. There was no indication that the panel regarded this as an exceptional case. They had failed to give reasons for their decision by reference to the overarching principles of vetting.
[31] Fourthly, the panel had failed to understand the nature of the petitioner’s involvement in the Rixes’ matrimonial proceedings. They appeared to think that he was being pursued for the recovery of a debt. No reasonable decision maker would have regarded the petitioner’s involvement in those proceedings as a relevant consideration in the determination of his Management Vetting clearance.
[32] Fifthly, the panel had failed to have regard to the fact that the petitioner was an officer of high rank who had held Management Vetting clearance for many years. Rix had not offended for over 15 years and the petitioner was unaware of his convictions until 2013. He disclosed his association as soon as he became aware of the convictions and had offered to sever all future contact with Rix. Having regard to all these factors, Ms Carmichael submitted that no reasonable panel would have refused to grant Management Vetting clearance.
[33] On behalf of the first respondent, Ms Maguire QC submitted that the critical public interest in the vetting of senior police officers required a wide margin of appreciation to be accorded to the decision maker. She made a detailed comparison of the various documents completed by the petitioner and submitted that he had failed to disclose Rix’s identity in 2013, had only done so reluctantly after the first respondent had obtained the information from his own sources, and had attempted to minimise the relationship. He had given inconsistent accounts of the circumstances in which the loan was given and returned.
[34] The petitioner had been given notice of the real issue in the case, his relationship with Rix and the loan of £250,000. He was aware of the National Vetting Policy and was given all the material on which the panel had based their decision. In response to the argument he had had no notice of the inconsistencies and discrepancies in the information provided, Ms Maguire submitted that it was unnecessary to have the deficiencies in his reporting pointed out to him. There was no general obligation on decision makers to air concerns about evidence presented to them, even if the evidence was unchallenged, HA v Secretary of State for the Home Department (No 2) 2010 SC 459 and cases cited therein. The discrepancies and omissions were obvious. In any event, procedural errors could not vitiate a decision if no prejudice had been suffered as a result.
[35] The panel had not misapprehended the nature of the petitioner’s involvement in the divorce proceedings. His witness statement was to all intents and purposes a character reference, and the freezing order was designed to recover funds which were the subject of the divorce proceedings. Both were made after the petitioner had learned of Rix’s criminal convictions. They were not brought to the attention of the Force Vetting Officer during the vetting process, nor were they or the loan of £250,000 mentioned in the Notifiable Association report. These matters were relevant to the assessment of the petitioner’s relationship with Rix.
[36] The argument that the panel failed to have regard to the fact that the petitioner was a high ranking officer was without merit. The decision letter included a statement that the panel had had careful regard to everything said on the petitioner’s behalf by his counsel. Those submissions included reference to his high rank. In any event, that factor was outweighed by the fact that he, as a senior officer, had thought it appropriate to accept a loan of £250,000 from someone about whose business, according to the Notifiable Association report, he knew little, and who turned out to have a criminal record. In these circumstances his high rank could reasonably be viewed as a negative factor.
[37] Mr Burnet for the second respondents made no submissions on the merits. He explained the circumstances of the undertaking granted by his clients and moved the court, in the event that the petitioner’s motion for reduction of the panel’s decision were to fail, to refuse the petitioner’s motion for interdict.
Discussion
[38] The fact that petitioner is a very senior officer with 30 years’ experience in the police service, and that he had the benefit of legal representation and was in possession of all the material which had been before the Force Vetting Officer are important factors in the determination of this application. In that capacity he must be taken to be fully aware of the National Vetting Policy and of the requirement for complete and honest disclosure of his personal and financial circumstances.
[39] I deal first with the argument that the petitioner received insufficient notice of the issues on which his application for review was to be decided. The passage in the opinion of the court delivered by Lord Reed in HA v Secretary of State for the Home Department (No 2), at paragraphs 10 to 13, is applicable to the facts of this case. There the court held that there is no general obligation on a decision maker to give notice to parties to a dispute of all the matters on which it may rely in reaching his decision. Nor is it under an obligation to air its concerns about the evidence presented to it, even if the evidence is unchallenged. This is so because an applicant can generally be expected to be aware that the decision maker will have to assess his credibility, and that the consistency of his accounts will be relevant to that assessment. This approach is clearly appropriate in the case of an applicant in the position of the petitioner. An Assistant Chief Constable should know that a Force Vetting Officer would be concerned with the way in which, and the extent to which, he reported the details of a relationship. It is clear from the petitioner’s answer in the personal questionnaire of July 2013 that he understood that the loan of £250,000 might make him susceptible to improper influence. I therefore conclude that the petitioner’s first ground of argument should be rejected.
[40] The argument that the review panel failed to understand the English court proceedings is also without merit. The purpose of the freezing order was to prevent the alienation of assets by Rix with a view to defeating his wife’s financial claims. The statement in the decision letter that the petitioner had failed to disclose the existence of civil court proceedings to recover a large sum of money from him in connection with the Rix’s divorce was substantially accurate. The witness statement can in my view reasonably be described as a character reference. The petitioner’s involvement in those proceedings was relevant to the assessment of the nature and extent of his relationship with Rix.
[41] I also reject the argument that the first respondent failed to apply the National Vetting Policy and operating procedures in its assessment of the material. The overarching purpose of the policy is to maintain the highest levels of honesty and integrity and to prevent corrupt, dishonest, unethical and unprofessional behaviour among police officers. The need to reduce the risks of unauthorised disclosure or loss of sensitive police assets is only part of that and it was unnecessary for the panel to make specific reference to it. It is clear that they applied their minds to the extent to which the petitioner’s relationship with Rix, and his reporting of it, reflected upon his honesty and integrity.
[42] In relation to the argument that the first respondent failed to have regard to the fact that he was an officer of high rank who had held vetting clearance for many years, I consider that Ms Maguire’s submissions, which I have set out above, provide a complete answer. I accordingly reject the argument.
[43] In my opinion there were obvious inconsistencies and omissions in the petitioner’s answers to the two sets of questionnaires, and in the Notifiable Association Report lodged in September 2014. In addition he repeatedly failed to provide notifiable information concerning his relationship with Rix.
[44] In the forms lodged in July 2013 he disclosed that he had received from a friend an interest-free and unconditional loan of £250,000 to assist with development of his residence and unspecified “future plans”. The loan was to be returned if he did not go ahead with those plans or if funds became available from other sources. The identity of the lender was not disclosed.
[45] In October 2013 he became aware of Rix’s criminal convictions. He did not however advise the Force Vetting Unit of this but emailed his superior officer, Deputy Chief Constable Livingstone, who had no responsibility for the vetting process. In the email he disclosed that he had become friendly with a couple but that during their acrimonious separation the wife had informed him that the husband had criminal convictions and had served a prison sentence. He made no mention of the loan and the couple were not identified. So the petitioner gave different and incomplete pieces of information about Rix to two separate authorities within the police force. It was reasonable for the panel to question why he did not give the complete information to the Force Vetting Officer.
[46] According to the petitioner, at the interview with the Force Vetting Officer on 2 July 2014, Rix’s name was mentioned but he refused to pass on his (Rix’s) telephone number. The first respondent’s position is that the petitioner declined to identify the lender of the £250,000 until August 2014 by which time the Force Vetting Officer had got the information from his own sources.
[47] After the freezing order was made on 1 November 2013 the petitioner failed to report it to the Force Vetting Unit, and in August 2014 he failed to advise the Unit that he had provided a witness statement in support of Rix’s claim for contact. Both these pieces of information were relevant to the assessment of the nature of his relationship with Rix.
[48] In the Notifiable Assessment Report which he completed immediately after the refusal of vetting clearance on 2 September 2014 he described extensive social contact with Rix but failed to mention the loan, the divorce proceedings, the freezing order or his witness statement. He denied any knowledge of Rix’s business although Rix had apparently sought his advice in running large scale events. He said he had no knowledge of the separation of assets and finance in the separation, his only comment being, “separation settled in High Court – both employed solicitors and counsel”. He also denied knowledge of Rix’s addresses although he had visited Rix’s homes several times. In the light of this report, from which a quantity of relevant information had been omitted, the panel were entitled to conclude that the petitioner was attempting to minimise his relationship with Rix.
[49] In the forms lodged in February 2015 the petitioner implied that the decision to return the money was his, and that any delay in doing so was occasioned by the divorce proceedings. It is clear therefore that there were inconsistencies in the various accounts given by the petitioner as to his relationship with Rix, and in relation to his knowledge of, and participation in, the divorce proceedings. There was also inconsistency and evasion in his statements about the purpose of the loan and the return of the funds.
[50] Paragraph 4 of Standard Operating Procedure number 4 listed the following factors as potentially creating a presumption of unfitness for appointment to designated posts: “Providing false or deliberately misleading information, or omitting significant information from the vetting questionnaires”, and “Unauthorised association with persons with previous convictions or those reasonably suspected of being involved in crime.” I refer also to the factors operating against clearance being granted set out in Standard Operating Procedure number 16 which have already been mentioned. These were factors which were present in this case and to which the panel had to have regard.
[51] On the whole matter I am clearly of the view that the review panel made no error of law. There was ample material before them entitling them to come to the conclusion they did, and accordingly the petition falls to be dismissed. I therefore repel the pleas in law for the petitioner and sustain pleas in law one and two for the first respondent. It follows that the petitioner’s motion for interdict must fail. I accordingly sustain the pleas in law for the second respondent. I reserve all question of expenses meantime.