Glynhill Hotel Ltd V. Dundas And Wilson
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2011] CSOH 195 |
| Published date | 23 November 2011 |
| Date | 08 November 2011 |
| Court | Court of Session |
| Docket Number | A220/09 |
| 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 E.H.R.R. 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...
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