Arun Gupta V. West Lothian Council
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lady Paton,Lord Philip |
| Neutral Citation | [2012] CSIH 82 |
| Court | Court of Session |
| Date | 23 October 2012 |
| Published date | 23 October 2012 |
| Docket Number | XA27/09 |
| Year | 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Mackay of Drumadoon Lord Philip | [2012] CSIH 82 XA27/09 OPINION OF THE COURT delivered by LADY PATON in the cause ARUN GUPTA Pursuer and Appellant; against WEST LOTHIAN COUNCIL Defenders and Respondents: _______ |
Act: Party
Alt: R. Macpherson, Solicitor Advocate; Simpson & Marwick WS
23 October 2012
Introduction[1] In 2003 the appellant raised an ordinary action in Linlithgow Sheriff Court against the respondents concerning property at 2 Burnbrae, Whitburn. There followed various procedural hearings and appeals at the instance of the appellant. The first substantive hearing in the case (a debate) was to take place at 10am on 8 December 2008. At an earlier procedural hearing on 3 December 2008, the appellant represented himself. He had several motions for the attention of the court, including a motion for leave to appeal against the interlocutor allowing a debate, a motion for summary decree against the respondents, and a motion for an order barring Messrs Simpson & Marwick from participating in further hearings in the action. After some discussion, the appellant made a motion that the sheriff should recuse himself on the ground of his alleged bias against the appellant. The motion for recusal was opposed by Mr Macpherson, solicitor-advocate for the respondents. The sheriff considered the submissions and refused the motion. The other motions at the instance of the appellant were continued to the diet of debate on 8 December.
[2] On 8 December 2008 the appellant again represented himself. At about 10.15 am, he produced, at the bar of the court, a 12-page manuscript document entitled "Pursuer's Common Law Appeal to the Inner House of the Court of Session". The document contained references to events in the present litigation and in other litigations involving the appellant and the respondents. However, the main focus of the document was a challenge to the sheriff's refusal to recuse himself. A debate then took place on the question whether or not the appellant required leave to appeal against the sheriff's interlocutor of 3 December 2008. The appellant contended that he did not, as he was entitled to a "common law appeal without leave", which had the effect that the case should immediately be transferred to the Court of Session. He cited previous occasions in his own litigations where that had occurred. In his written grounds of appeal before us, the appellant complained that the sheriff remained silent during his submissions relating to those previous occasions. That silence, according to the appellant, amounted to dishonesty which disqualified the sheriff from holding the position of sheriff. The sheriff was also "being controlled" by Mr Macpherson for the respondents.
[3] Having considered the submissions presented to him on 8 December 2008, the sheriff issued his decision. Mr Macpherson took a contemporaneous note of that decision as follows:
"I have considered the submissions. The sheriff court is a creature of statute. No authority that has been placed before me suggests that I have any power to deal with an appeal under these circumstances. The Sheriff Courts Act is very clear as to where an appeal can be lodged without leave. The sheriff clerk has no duty to transmit this appeal process and the appeal is therefore incompetent. I invite Mr Gupta to continue with his submissions regarding his earlier motions."
[4] The appellant responded by stating that he considered that the sheriff should have recused himself on 3 December 2008, and that all his actings since 3 December 2008 were unlawful. He should not have purported to continue the other motions to that diet on 8 December 2008. The appellant collected his papers and left the court.
[5] Mr Macpherson for the respondents then moved the court to dismiss the action. The sheriff wished intimation of that motion to be given to the appellant. He accordingly continued the debate and the outstanding motions to 15 December 2008 and ordered that intimation be given to the appellant that, in the event of his failure to appear on that date, decree might be granted against him. The relevant intimation was served personally upon the appellant by sheriff-officers. In his written grounds of appeal before us, the appellant complained that much of the wording of the interlocutor of 8 December 2008 was that of the sheriff, whereas it should have been that of the independent clerk of court. Also the sheriff should not have refused the motion for his recusal but should have referred the matter to another sheriff for his decision (as Sheriff Fleming had done in 2005: cf Sheriff Fleming's Note dated 26 May 2005).
[6] On 15 December 2008 the appellant failed to appear. The sheriff dismissed the action in terms of Rule 16.2(2)(c) of the Ordinary Cause Rules 1993. The dismissal of the action was intimated to the appellant. On 24 December 2008, the appellant timeously marked the current appeal against that dismissal in terms of the Sheriff Courts (Scotland) Act 1907. No leave was required, it being a final interlocutor. The appeal then came before the Inner House of the Court of Session.
Submissions by the appellant[7] In challenging the final interlocutor, namely the decree of dismissal dated 15 December 2008, the appellant submitted that the sheriff had no jurisdiction following upon the presentation of the common law appeal on 8 December 2008. He contended that there was a common law right of appeal in sheriff court proceedings, quite distinct from and additional to the statutory rights of appeal provided by the Sheriff Courts (Scotland) Act 1907. Accordingly although, in terms of the statute, leave would have been required for any appeal against the sheriff's refusal to recuse himself (that being an interim matter and neither a final interlocutor nor an interlocutor falling within any of the categories specified in section 27), such leave was not required for a common law appeal. As soon as a litigant such as the appellant presented a common law appeal at the bar of the court, the sheriff clerk was obliged to transmit the sheriff court process to the Deputy Principal Clerk of Session at the Court of Session who should fix an Inner House appeal hearing before three judges. The sheriff had no jurisdiction from that point onwards. Any steps which the sheriff had purportedly taken following upon the presentation of the appellant's common law appeal at about 10.15 am on 8 December 2008 were incompetent, as he had no jurisdiction. It followed that the continuation of the case until 15 December 2008, the intimation to the appellant, and the purported decree of dismissal granted by the sheriff on 15 December 2008, were incompetent and without effect, and should be recalled.
[8] As authority for his propositions relating to a common law appeal without leave, the appellant made general and undocumented references to inter alia Lord Macphail as a recognised authority on sheriff court procedure, and to an unspecified "act of court" said to have been introduced by Sheriff Principal Macphail (as he then was) in February 2005, in which it was suggested that the case of VAG Finance & Co Ltd v Maureen Smith (1988) should be followed. The "act of court" to which the appellant referred would appear to be Practice Note No. 1, 2005, in the Sheriffdom of Lothian and Borders "Appeals to the Sheriff Principal". Under the heading "Incompetent Interlocutors", paragraph 2.4 provides:
"An appeal may be taken to the Sheriff Principal, without the leave of the sheriff, against an interlocutor which is incompetent in the sense that the sheriff had no power or right to pronounce it (Kirk v Kirk 14 March 2003, following VAG Finance Ltd v Smith 1988 SLT (Sh Ct) 59, 1988 SCLR 598)."
That Practice Note reflects the views of Sheriff...
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Scottish Legal Aid Board V. Ms Ken Dalling Solicitor
...to the sheriff principal can be open. In saying that I have in mind the observations of the Inner House in Gupta v West Lothian Council 2012 CSIH 82 when considering the scope for a common law appeal outwith the provisions of section 27 of the 1907 Act. The question whether the sheriff's di......