Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 195
A220/09	OPINION OF LADY CLARK OF CALTON in causa GLYNHILL HOTEL LTD Pursuers; against DUNDAS & WILSON C.S. LLP Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Crawford QC

Defender: Hanretty QC; Watts

Applicant: R Dunlop QC

Other appearance: Brown

8 November 2011

Procedural History

[1] On the motion roll on 20 November 2011, I was asked to consider an opposed application for leave to intervene on behalf of a member of the Faculty of Advocates ("the applicant"). He sought leave of the court to intervene in the cause Glynhill Hotel Limited against Dundas & Wilson, C.S. LLP.

[2] The action in which Glynhill Hotel Ltd are pursuers has a long history. The current pleadings are contained in the Closed Record dated September 2009. A proof before answer in the cause is due to commence on 15 November 2011.

[3] Senior counsel appeared on behalf of the applicant to move the motion. This motion was opposed on behalf of the defenders. Senior counsel for the pursuers submitted that she had no substantive submissions to make in respect of the motion and sought leave to withdraw. I granted her motion. There was also appearance on behalf of Messrs Fleming and Reid who are solicitors instructed by the pursuers.

Submissions

Submissions on behalf of the applicant

[4] Senior counsel on behalf of the applicant summarised the background to the action between the pursuers and the defenders. His submissions in law fell into three main chapters. These are summarised in outline written submissions 18 of process. In dealing with the first chapter, which related to competency, he accepted that intervention is not covered or permitted by any Rule of Court. Under reference to Tonner v Reiach and Hall 2008 SC 1 and Hepburn v Royal Alexandra Hospital 2011 SC 20, he submitted that the Court of Session had jurisdiction to do justice even when the Rules of Court are silent. He also referred to AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46, paragraphs 158 to 159. He accepted that case was primarily concerned with questions of public law and judicial review. He referred also to Aamer Anwar [2008] JC 409 as an example in which the court had permitted an intervention by a third party. He accepted that the intervention in that case was granted in contempt of court proceedings which are sui generis. He gave a number of examples in which the court had allowed persons to become parties to an action. He conceded that the intervention sought in the motion was unusual and novel in the Scottish courts albeit intervention was often accepted by the Supreme Court in public law cases. He did not consider that the Scots law procedure for entering an action as a party minuter was particularly appropriate in the present case as there was no conclusion, in the formal sense envisaged in the Rules of Court, which the applicant wished to make.

[5] Senior counsel then dealt with the second chapter of his submissions. He stated that in the particular circumstances of the case, intervention by the applicant was appropriate and necessary because it appeared that allegations were being made on behalf of the defenders, which if established, would involve or imply professional misconduct by the applicant. Senior counsel submitted that if the court accepted evidence in support of the allegations, the result would be an inevitable stain on the professional reputation of the applicant. He submitted that the applicant was entitled to intervene in the action to protect his professional reputation. Senior counsel referred to Helmers v Sweden (1991) 15 E.H.R.R. 285 and Werner v Poland (2003) 36 EHRR 28.

[6] Dealing with the third chapter, senior counsel further submitted that if application for leave to intervene was not granted, the court proceedings would not be Article 6 compliant. It was for these reasons he sought to invoke the inherent jurisdiction of the court to guarantee the Article 6 rights of the applicant. He referred to Secretary of State v AF (2010) 2 AC 269 and Al Rawi v Security Service (2011) 2 WLR 388. He submitted that if I refused the application, the court in hearing the proof before answer would not be acting compatibly with Article 6. The consequences of the grant of application would mean that the applicant would have the procedural guarantees appropriate to Article 6 which would include the entitlement to see the process; to know the allegations against him; to call evidence and to cross-examine; and to make submissions. Further he submitted that there was no prejudice to the defenders in permitting intervention.

[7] There was some discussion about the implications of the submissions on behalf of the applicant and the practical effect thereof. I was invited by senior counsel to consider the present case on its own merits and not to be concerned about a "floodgates" argument. Senior counsel assured me that the interest of the applicant was very limited in scope. The applicant had no interest in the outcome of the action by the pursuer against the defenders and did not seek to involve himself in that. His interest was very specific and limited to his interest in his own good professional reputation. Senior counsel submitted that if the application was granted, it would not delay the proof or have any significant effect in relation to the time required for the proof.

Submissions on behalf of the defenders

[8] Senior counsel for the defenders opposed the motion and submitted that the motion is incompetent. The applicant did not have any interest in the cause and is not entitled to representation merely as a consequence of being cited by a party to litigation. He pointed to the absence of any practice of intervention in the Scottish courts, even in cases where a person was incriminated and accused of a crime. An incriminee was never represented separately. He submitted that the recognition of such a principle of intervention would lead to many unacceptable and impracticable consequences in litigation and reference was made to some examples.

[9] Senior counsel also submitted that the narrative provided in the application for leave to intervene contained in paragraphs 4 and 5 of the application did not reflect the averments on record or in the proposed minute of amendment. Senior counsel accepted that he had refused to give any undertaking in relation to the conduct of the proof to the effect that he would not be making any allegations regarding the professional conduct of the applicant. He submitted that the fact that there might be a criticism of a professional or that there might be different views taken by professionals about how to plead certain facts, did not amount to an attack on the professional conduct or reputation of a professional person such as senior counsel.

[10] In any event senior counsel submitted the court has a general obligation to ensure that a proof is conducted fairly and to protect witnesses from unfairness in the course of giving evidence.

Other submissions

[11] I also heard counsel for Messrs Fleming and Reid, Solicitors. Counsel stated that he had no substantive submissions to make at this stage. He explained that there might be a motion made by him at some later date similar to the motion on behalf of the applicant. He advised that there was no dispute that the applicant was responsible for the drafting of the Minute of Amendment in 2007 and that there were no criticisms that he intended to make of the applicant.

Discussion

[12] It was not disputed as a matter of law that the absence of a procedure for intervention in the Rules of Court did not mean that there was no inherent power of the court to grant the application. It was also not disputed that Scots civil law recognised a "right" to reputation as a right which might be protected in civil proceedings. The form of protection might include the right to know in advance about allegations, the right to see evidence, the ability to lead evidence and cross-examine and the ability to make submissions. It was also not in dispute that in private law in civil proceedings in Scotland, there was no known example of the grant of an application similar to the present application. That of course did not decide the question as to whether the application could and should be granted in the present case.

[13] In order to decide this motion, it is necessary to look in more detail at the pleadings in the action in which the applicant seeks to intervene. The Closed Record (September 2009) is a document of fifty pages. In the Closed Record, the pursuers set out the history of their involvement with the defenders when the defenders were acting for them in an earlier action by defending an action of damages for personal injury by Miss MacDonald. In that action, Miss MacDonald was the pursuer and sued Glynhill Hotel Ltd as defenders for alleged loss, injury and damage suffered when she lost her footing on wet tiles and fell down steps at the hotel. In the Closed Record the pursuers also aver certain problems relating to their insurers. One of the complaints made by the pursuers against the defenders in the Closed Record relates to the defenders' failures (according to the pursuers) to carry out proper inquiries in relation to liability in the action by Miss MacDonald and their lack of strategy in relation to liability. Detailed averments are made about the way in which the defenders dealt with or failed to deal with the defence of the action by Miss MacDonald against the pursuers over the years up to 20 November 2006. On that date it is averred that the defenders and counsel then instructed withdrew from acting for the pursuers. The pursuers aver that they were advised by the defenders that it was necessary to settle the action by Miss MacDonald because they had no defence on liability and that the settlement range was between £600,000 and £750,000. That advice was not accepted by the pursuer.

[14] Thereafter it is averred that the proof set down for 21 November 2006 was discharged and the pursuers instructed new solicitors, Messrs Fleming and Reid, and Anderson Strathern LLP. I was informed that the new senior counsel instructed was the applicant in this motion. Senior counsel for the applicant said that there could be no dispute about the fact that it was the applicant who had drafted a Minute of Amendment introducing a substantive case in defence of liability in the action by Miss MacDonald. That Minute of Amendment had been drafted by the applicant after the new solicitors instructed had obtained further information including an expert report and precognitions of potential witnesses. It is averred that on 12 June 2007 the action by Miss MacDonald was settled for £55,000 plus expenses.

[15] The grounds of action by the pursuers against the defenders are set out in Article 12 and 13 of Condescendence of the Closed Record. The loss which is said to result from the defenders breach of contract et separatim the fault and negligence of the defenders is set out in Article 14 of Condescendence.

[16] I note in the Closed Record that there is no specific averment by the defenders relating to the applicant. As part of the defenders' defence to the pursuers' action, averments are set out in Answer 11 to the effect that "the said precognitions did not support the pursuer's position...the Minute of Amendment for the present pursuers as presented in the action did not accurately reflect the true nature and extent of the material disclosed in said precognitions".

[17] I was also referred to the terms of the Minute of Amendment (15 of process). No attempt by the defenders has been made as yet to move this Minute of Amendment. I was informed that the Minute of Amendment and Answers were still being adjusted. I am not in any position to express any views as to whether it is likely or not that the averments in this Minute of Amendment which are said to bear upon the issue before me will ever form part of the pleadings in the case. The terms of the Minute of Amendment which were said to be relevant are as follows:

"The Minute of Amendment so far as proceeding upon the basis that there was no requirement in relation to installation of handrails was inaccurate, there being doubt about the necessity therefor, which doubt was known to Messrs Fleming & Reid. Further explained and averred that in any event Messrs Fleming & Reid were or ought to have been aware that the report which had been obtained by them (the CERAM report) did not support the proposition that the tiles were slip resistant. In particular on examination the "wet value" for the tiles recovered from the entrance to the pursuers' leisure club demonstrated an high potential for slip in wet conditions. Notwithstanding Messrs Fleming & Reid being aware that the Minute of Amendment could no longer be supported in its terms, the Minute of Amendment was moved and the record opened up and amended in terms thereof and the pursuer's answers thereto."

[18] Senior counsel on behalf of the applicant invited me to infer from the pleadings at page 41 C-D of the Closed Record and separately to infer from the terms of the Minute of Amendment that these averments were capable of constituting an attack on the right of the applicant to his good professional reputation.

[19] I am of the opinion that although there have been some changes and developments in the court's attitude to pleading, the pleadings in a case still form a very important role. The present action is not an action under the new personal injuries procedure where a more relaxed attitude may be appropriate. The pleadings in the present case provide notice of the basis of the factual and legal case or cases which are the subject of the dispute. A proof before answer is not a proof at large but is a proof before answer in relation to the averments in the Closed Record. The issues which are in dispute which are to be decided by the court are focused in the conclusions, which in the present case relate to damages, and in the pleas-in-law. The only parties to this private law dispute about alleged breach of contract and negligence of the defenders are the pursuers and defenders. Any decision by the court which is made in the case is res judicata only in relation to the pursuers and the defenders.

[20] There are a number of ways under our procedure in which an additional party may be convened as a defender in relation to a private law dispute between two parties. The applicant in this case does not however seek to defend the action and it has been made plain that he has no interest in the merits of the action. His interest, if any, is in relation to a collateral issue which may relate to his own reputation. He may or may not be called as a witness. The evidence may or may not focus on matters which might adversely affect his professional reputation.

[21] I have carefully considered the pleadings in the Closed Record, in particular the averments at page 41 C-D. I have considerable difficulty in understanding how a case might be developed on the basis of these averments that the applicant acted in a manner incompatible with the office of advocate and/or in breach of the Guide to the Professional Conduct of Advocates, and/or that the averments bear upon the applicant's honesty and integrity and allege that he had misrepresented questions of fact and that he had averred certain facts without having any proper basis for doing so. I understand that these are the nature of the concerns of the applicant.

[22] In my opinion, the pleadings do not focus any such matters in relation to the applicant. I consider that the averments, as they stand, indicate that there may be a dispute as to how one might interpret the information available at the time of drafting the Minute of Amendment. There is no averment that no competent advocate could have so read the information or any averments to support dishonesty or misrepresentation or incompetence. I consider that if these issues were to be raised, some notice on record would be necessary.

[23] I am reluctant to speculate about developments in the pleadings. It may assist, however, if I give my views in relation to the proposed Minute of Amendment (15 of process). The Minute of Amendment appears to make it plain that the issues which the defenders seek to explore in relation to the Minute of Amendment in the first action relate to Messrs Fleming and Reid and their knowledge. All the averments relate to Messrs Fleming and Reid. No averment relates to the role or knowledge of the applicant. If that Minute of Amendment became part of the pleadings, I would find it even more difficult to understand on what basis the defenders would be entitled to explore issues of the type which are causing concern to the applicant and to which I have previously referred.

[24] I am not persuaded that the pleadings in this case properly raise or involve any dispute about the applicant's professional reputation. That decision is sufficient to determine the motion by refusing the applicant's motion for leave to intervene.

[25] I acknowledge, however, that I might be wrong about the interpretation of the pleadings and that a different view might be taken by the judge at the proof. It may be that no objection will be taken and that a very wide latitude is given to the leading of evidence. It may be helpful therefore if I express my opinion on the hypothesis that the pleadings in this case do open up issues of the type which concern the applicant and that this is a case in which there might be some evidence led or allegations made which adversely affect the professional reputation of the applicant.

[26] It is not disputed in this motion that the applicant has a "right" to a professional reputation. I was not addressed about the content of that right or about possible limitations to that right. For present purposes I merely assume that the right exists. Senior counsel for the applicant sought to persuade me that if I did not allow intervention in the present action the proceedings would not be compliant with Article 6 insofar as the applicant's right. As I understood senior counsel's submissions, he seemed to assume that because the applicant had a civil right to reputation, Article 6 required that his right should necessarily be vindicated in the context of the present litigation between the pursuer and the first defender. I consider that assumption misplaced.

[27] Senior counsel for the applicant accepted that in determining whether there is an issue which affects "civil rights" for the purpose of Article 6, it is necessary that there must be a genuine claim or dispute and he referred to the well known French term "contestation". He sought to persuade me that Werner v Poland is an example of a case which supports the application in the present case. I do not consider that case supports the submissions of the applicant. The case concerned a liquidation. There were plainly procedural irregularities in the dismissal of the insolvency judge. That dismissal and the hearing of the court to consider the dismissal clearly involved a "contestation" i.e. whether or not the judge should be dismissed. The judge was dismissed and that plainly was directly decisive of his legal rights. No authority from the European Court of Human Rights was put before me to support the procedure of intervention by a potential witness to contest a collateral issue relating to the witness. I consider that the claim or dispute in the present case between the pursuers and the defenders does not relate to the professional reputation of the applicant. Even if the pleadings were plainly directed to that issue, I consider that in the context of the case and the matters for decision in the case, it is a collateral issue. The professional reputation of the applicant is not the "contestation" in the case. I am not persuaded that with every collateral issue raised by parties to a private law civil dispute gives some entitlement to third parties to enter that action to resolve a matter of interest to them.

[28] I am also not persuaded that the outcome of the dispute, if it is a live "contestation" for the purposes of Article 6, is directly decisive of any civil right of the applicant. Plainly under our procedure the decision in the present action between the pursuers and the defenders is not res judicata in relation to the applicant. It is not res judicata and not decisive because he is not a party to the action.

[29] In my opinion, in the context of the present action, any fact found or expression of view of the court about the applicant is not determinative (in the Article 6 sense) of anything in relation to the applicant. It is not determinative of any disciplinary proceedings.

[30] In conclusion, I consider the application is ill founded for the reasons given and I do not therefor consider it necessary to deal with the issue of competency. If I had been persuaded of the merits of the application, I might have been slow to refuse a remedy on competency grounds in circumstances where it is accepted that the court has wide ranging inherent powers.