Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 25
A611/09	OPINION OF LORD STEWART in the cause RICHARD NEIL MACDIARMID ANDERSON as Executor Nominate of the late MRS PATRICIA ANDERSON Pursuer; against (FIRST) SHETLAND ISLANDS COUNCIL; and (SECOND) SCOTTISH WATER Defenders: ________________

Pursuer: Party

First Defenders: Gale QC; Ledingham Chalmers LLP

Second Defenders: No representation at this hearing; HBM Sayers

13 February 2014

[1] In this action the pursuer seeks damages in the sum of £75,000, specific performance and specific performance ad interim, interdict and interdict ad interim. The action is laid in fault, nuisance and breach of statutory duty. The complaint giving rise to the action is one of structural water damage to a house called "The Sea Chest" on the eastern shore of East Voe, Shetland. The water is alleged to have run off from a housing development higher up East Voe Hill. The immediate source of the water is said to be a roadside ditch on the landward side of the B9074 road which runs between "The Sea Chest" and the development. The ditch drains through a culvert under the road which discharges on the seaward side into the affected property. There has been an unsuccessful judicial review at the instance of this pursuer arising out of the same complaint. For the history of the judicial review proceedings see my opinion issued today in the action Shetland Islands Council v Richard Anderson, Court of Session reference A374/13. That action A374/13 is an action for enforcement of awards of expenses in the judicial review.

[2] An application for summary decree by Shetland Islands Council, pursuers in the action A374/13, called before me on 13 November 2013 along with five motions at the instance of Mr Anderson pursuer in this action, Court of Session reference A611/09. I continued three of these matters in this action to a date to be afterwards fixed. The matters not continued were (1) a motion by Mr Anderson to find the following three persons in contempt of court namely (a) a solicitor employed by Shetland Islands Council, (b) the solicitor in private practice instructing counsel in this case on behalf of the Council and (c) a consulting engineer instructed to make investigations on behalf of the Council and to report; and (2) a motion to conjoin this action A611/09 with the action at the instance of Shetland Islands Council A374/13 in which there is an application for summary decree.

[3] Dealing first with the motion for conjunction, this is contingent on the outcome of the application for summary decree. Since I have decided to grant the motion for summary decree in the action A374/13 there is nothing to conjoin this action with and I shall refuse the motion for conjunction. If I had not granted the motion for summary decree I would not have conjoined the actions. There is some overlap in subject matter: but there is a great deal of other material in the action A374/13 which puts conjunction out of the question in my view. I do not accept Mr Anderson's submission that the other material can be allowed to "lie on file" while the common element is litigated.

[4] As regards the question of contempt of court, Mr Anderson ultimately asked to withdraw his motion at the bar. I allowed him to withdraw his motion, rather than refusing it; and I authorised and directed him to remove from process his note of argument no 51 of process in support of the motion for contempt. I did this because the note of argument contains inflammatory material for which there is now no use. The question then became one of liability for expenses.

[5] The substance of the contempt allegation is briefly stated. Shetland Islands Council wanted to arrange for "The Sea Chest" to be inspected by an independent consulting engineer. On 30 September and 2 November 2011 Lady Smith heard an application by the Council for an order for inspection in terms of the Administration of Justice (Scotland) Act 1972. Her Ladyship granted the order. One of the consulting engineers named in the application and the resulting order is the consulting engineer who is alleged to be in contempt. Mr Anderson says that, during the hearing of the motion before Lady Smith, Mr Anderson made it known in open court that some remedial work had already been done at the south west corner of the house. During the inspection made under the authority of the court order the engineer dug a trial inspection pit at that location. Mr Anderson says that in his subsequent report the engineer ignored the fact that there had been previous remedial works with excavation, drain installation and re-filling. Mr Anderson alleges that one or both of the two solicitors referred to above failed to pass on the information given by Mr Anderson in court, or failed to include reference to that information in the formal instructions to the engineer or that the engineer intentionally omitted reference to that information when discussing the findings of the trial digging in his subsequent report. According to Mr Anderson these alleged acts or omissions should be treated as contempt. He explained that he was under the necessity of bringing this matter to the attention of the court.

[6] Mr Gale QC, who appears in this action as he has appeared in other proceedings for Shetland Islands Council, described the motion for contempt as "an utter disgrace". An allegation of contempt was a very serious matter personally and professionally for the individuals involved. He described the contempt motion as one of the most disgraceful applications that he had come across in three decades of practice at the bar. No responsible lawyer would have put his name to the application. Mr Anderson is dominus litis. Mr Gale moved for expenses against Mr Anderson personally in respect of Mr Anderson's now withdrawn motion for contempt. Mr Anderson moved for there to be no expenses due to or by either party.

[7] I should explain that issues have previously emerged about Mr Anderson's equivocal status as a pleader. No point of that kind was taken by Mr Gale in front of me [cf. Shetland Islands Council v Anderson A374/13, my opinion of today's date; the earlier opinion of Lady Smith in this action A611/09, Anderson v Shetland Islands Council [2011] CSOH 187; and Anderson, Re Application for Judicial Review [2007] CSOH 187].

[8] Mr Anderson is an advocate. He appeared before me, without wig and gown, in the character of executor-litigant in person. He assumes that character as executor nominate on the estate of his late mother, Mrs Patricia Irvine Anderson, who inherited "The Sea Chest" from her deceased husband, Mr Anderson's father, Major W A Anderson MC, TD, MA, JP. Mr Anderson declared the value of his mother's estate for confirmation to be £313,000 of which £150,000 is attributed to a claim in the county court in England which has now been struck out as being "totally without merit" and £25,000 is attributed to the claim in the present action and a related action in the Sheriff Court at Lerwick. That leaves an estate worth £138,000 including a claim for £25,000 in respect of "household insurance policy and damages for conflict of interest". When the judicial review proceedings reached the Supreme Court it was said that the total amount of expenses awarded against Mrs Anderson (now Mrs Anderson's estate) in favour of Shetland Islands Council, Scottish Water and an interested third party was £120,000, "more than the value of the house". Accordingly Mr Anderson is litigating as the representative of a currently insolvent or barely solvent estate. He and his brother, he tells me, are the sole beneficiaries of their mother's will, a copy of which has been exhibited in the action A374/13: but they have not taken title to the property. Mr Anderson has, for what it is worth, a beneficial interest: but so long as he litigates in a representative capacity his personal assets are normally shielded against adverse awards of expenses.

[9] The contempt motion was intimated late, Mr Gale says, on 11 November 2013 for hearing on 13 November. A substantial amount of work was involved in deciding how to respond and what procedure should be followed. On 13 November I heard submissions on Mr Anderson's five motions for one hour and 45 minutes of which 30 minutes should be attributed to the contempt motion. Much of the discussion on that day was about procedural aspects. On 15 November I heard argument about the contempt motion and the related motion for expenses for one hour and 50 minutes, that is from 12.25 to 15.15 with the luncheon adjournment intervening.

[10] My own assessment is that the contempt application was extraordinarily ill‑advised as to substance, as to timing and as to the terms in which it was expressed. It is competent to make an award against Mr Anderson personally and it is reasonable that this should be done. I shall make an award as I am asked to do by Mr Gale of the expenses incurred by the first defenders "of and arising out of the pursuer's motion" to find the persons mentioned in contempt of court. The remaining parts of Mr Anderson's opposed motion, which relate to (i) amendment, (ii) recovery of documents by specification and diligence and (iii) fixing a preliminary hearing, have been continued and can be considered at the By Order hearing now fixed for Friday 14 February 2014.