Her Majesty's Advocate V. Martin Frost For An Order Under Section 1 Of The Vexatius Actions (scotland) Act 1898
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Osborne,Lord Kirkwood |
| Neutral Citation | [2006] CSIH 56 |
| Court | Court of Session |
| Published date | 29 November 2006 |
| Year | 2006 |
| Date | 29 November 2006 |
| Docket Number | P1539/04 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Carloway Lord Kirkwood | [2006] CSIH 56 P1539/04 OPINION OF THE COURT delivered by LORD OSBORNE in PETITION of HER MAJESTY'S ADVOCATE Petitioner; against MARTIN FROST Respondent: for AN ORDER UNDER SECTION 1 OF THE VEXATIOUS ACTIONS (SCOTLAND) ACT 1898 _______ |
Act: Mr J Wolffe, Advocate; The Solicitor to the Scottish Executive
Alt: Party Litigant
29 November 2006
The background circumstances
[1] In this petition, the petitioner seeks an order under section 1 of the Vexatious Actions (Scotland) Act 1898, referred to hereafter as "the 1898 Act", to the effect that:
" ... no legal proceedings shall be instituted by the respondent in the Court of Session, Sheriff Court or any other inferior court unless the respondent first obtains leave of a judge sitting in the Outer House of the Court of Session, having satisfied such a judge that such legal proceedings are not vexatious and that there is a prima facie ground for such proceedings in terms of section 1 of the Vexatious Actions (Scotland) Act 1898".
The respondent has lodged answers to the petition. The hearing on the petition and answers commenced on 25 October 2005, running until 27 October 2005, when it had to be discontinued on account of a lack of time and the respondent's indisposition. The hearing was resumed, at an adjourned diet on 31 October 2006. At the commencement of the adjourned diet, counsel for the petitioner moved the court to allow amendment of the petition and answers in terms of a minute of amendment for the petitioner, Nos 14 and 16 of process, and answers for the respondent, No 15 of process. This motion, not being opposed, was granted.
[2] In the petition, the petitioner avers details of the respondent's involvement in a number of legal actions, the procedure which occurred in those actions and, where possible, their outcome. We refer to the petition, as amended, for its terms. In Statement III of the petition, the petitioner summarises the basis of the petition in this way:
"... the respondent has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for doing so. In so far as the merits of the actions and counterclaims instituted by the respondent and condescended on above have been adjudicated upon by a court they have been unsuccessful. In Frost v Unity Trust Bank plc, Frost & McNamara v Alexander Stone & Co and McNamara & Frost v The First Minister and Peebles the respondent abandoned or withdrew from the proceedings before the merits were considered. In Frost v Bulman he allowed decree of absolvitor to pass against him by default. He has taken appeals without success. He has regularly but without success advanced unmeritorious motions that judges should decline to hear particular matters. The respondent has taken assignations of claims so that he can appear before the court as a party litigant. He has acted as a procurator or advocate for other persons. He has sought to use legal process for reasons unconnected with the issues in the case. His conduct of proceedings has involved the court and other parties in unnecessary procedure, time and expense. Judges have repeatedly commented adversely on his written pleadings and oral submissions. The respondent has been sequestrated and parties who succeed in obtaining an award of expenses against him have little prospect of recovering those expenses. ...".
In his answer 3, the respondent avers that, in his opinion, "the petition paints an unrepresentative, contradictory and often factually incorrect or distorted picture". That contention is elaborated in the succeeding averments, to which we refer for their terms.
Submissions on behalf of the petitioner
[3] At the outset of the hearing, counsel for the petitioner drew our attention to the fact that, at an earlier stage in the proceedings, the respondent had offered an undertaking. The minute of proceedings in the petition showed that, on 14 December 2004, the respondent undertook not to raise any further proceedings in Scotland unless such litigation had been put before a judge of the Court of Session and that judge was satisfied that that litigation had prima facie grounds and was not vexatious. Counsel for the petitioner stated that the petitioner did not accept that undertaking. In that connection he drew our attention to Attorney General v Akena Adoko [2004] E.W.H.C. 1409 (Admin). In that case, Collins J. expressed the view that an undertaking in lieu of a finding under section 42 of the Supreme Court Act 1981, the counterpart of section 1 of the 1898 Act, was likely to be inappropriate in many, if not most, cases.
[4] Counsel for the petitioner moved the court to grant the prayer of the petition. He drew our attention to certain developments in some of the litigations referred to in the petition, which had occurred since it was prepared. In relation to the contention of the respondent that the petition did not give an objective and accurate picture, it had to be made clear that, while the respondent might be involved in litigations beyond those mentioned in the petition, the petitioner was not a party to those actions nor had they been drawn to his attention. The present petition had been brought upon the basis of material that was available to the petitioner. This court could make an order under section 1 of the 1898 Act if it held that the requirements of that enactment had been satisfied in relation to some cases, regardless of what might be the position in others. However, the matter was one for the discretion of the court, in the final analysis.
[5] The decision in Attorney General v Jones [1990] 1 W.L.R. 859 showed that a defendant who made a counterclaim, whether by way of defence or otherwise, instituted proceedings in respect of the counterclaim, just as a plaintiff instituted proceedings in respect of a claim, as appeared from the observations of Lord Donaldson of Lymington, M.R. at page 861. What was said in Bhamjee v Forsdick [2004] 1 W.L.R. 88 highlighted the damaging impact of persons who instituted groundless litigation on the court system. What was true in England was equally true in Scotland.
[6] The petitioner accepted that section 1 of the 1898 Act differed from the equivalent English legislation. A consequence of that was that incidental motions in existing proceedings would not be relevant to an application under section 1 of the 1898 Act. However, the bringing of counterclaims, or the enrolling of reclaiming motions, could be taken into account, since they involved the institution of legal proceedings.
[7] There was a further feature of the public interest to which the court ought to have regard. That was the need to protect members of the public from what could be described as unqualified representation. In this connection, counsel referred to the averments in the petition concerning the case of Tods Murray W.S. v Arakin Ltd, which was action No (5) founded on by the petitioner. Counsel referred to a series of productions containing Opinions delivered by several judges in this case, 6/16-18. What emerged from this material, it was submitted, was that the respondent had developed a practice of taking assignations from litigants, sisting himself as a party to the litigations on the basis of the assignations and then proceeding to litigate as a party litigant in the cases of others. This had been done, not once, but many times. It could be said, to use the words of section 1 of the 1898 Act, that it had been done "habitually and persistently".
[8] Counsel next referred to production 6/23 of process, a judgment of Laddie J., dated 2 October 2003, in Cintec International Ltd v John Humphries Parkes & Martin Frost [2003] E.W.H.C. 2328 which contained numerous criticisms of the respondent's conduct as an advocate in that case, particularly at paragraphs 81, 82 and 83. Although those proceedings had been brought in the High Court in England, it was submitted that they described relevant conduct for the purposes of section 1 of the 1898 Act.
[9] Counsel went on to put before us a number of cases in which the proper approach to applications such as this one had been explained. The first of these was Lord Advocate v Henderson 1983 S.L.T. 518. The basis of that petition was the bringing of six actions, one of which had been successful and five of which had failed. That was considered sufficient for an order to be made under section 1 of the 1898 Act. The court, in that case, had not entered into a close examination of the merits of the actions, but had had regard to their outcome. Another relevant case was Lord Advocate v Cooney 1984 S.L.T. 434. In that case the court had taken a global or impressionistic approach towards the litigations which were the subject of the petition. There was no close analysis of the features of the litigations founded upon. Counsel also relied upon Attorney General v Barker [2000] 1 F.L.R. 759 and, in particular, the observations of Lord Bingham of Cornhill at pages 764-765 on the subject of what was meant by the adjective "vexatious". He also founded upon Attorney General v Covey and Attorney General v Matthews [2001] E.W.C.A.Civ 254, particularly paragraphs 53-57 and 69. Finally, before addressing himself to the proceedings founded upon in this petition, counsel drew attention to Lord Advocate v James Bell 23 March 2001 (unreported), in which, in paragraph 12, the court indicated that a limitation imposed to restrict the activities of a vexatious litigant was compatible with the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, since an order under the 1898 Act did not prevent the respondent from raising actions altogether; it required only that he should obtain leave from a Lord Ordinary before doing so.
[10] Counsel for the petitioner went on to draw attention to a number of legal proceedings initiated by the...
To continue reading
Request your trial
-
The Lord Advocate V. Andrew Mcnamara
...to a judge sitting in the Outer House. [4] There are few reported decisions under the 1898 Act, and in only one, HM Advocate v Frost 2007 SC 215, was the legislation considered in any detail. That was the only relevant decision to which we were referred in the course of the parties' submiss......
-
Geraldine Mcwilliams Against Richard Russell
...not to apply to proceedings in dependence when it is made. No authority is cited in support of that proposition. In HM Advocate v Frost 2007 SC 215, at 225, an Extra Division of the Inner House held, following a consideration of the relevant rule of the Court of Session (one which is in ide......
-
PA v Her Majesty's Revenue and Customs (TC)
...and so, if a section 1 order applies to the FTT, then there is the potential for inconsistency. She noted that in HM Advocate v Frost [2006] CSIH 56, 2007 SC 215 the Extra Division at paragraph 32 considered that the 1898 Act would apply only to proceedings within Scotland. Ms Irvine did no......
-
Mrs Joan Pentland-clarkfor Judicial Review
...October 2003, Lady Smith, at §§ 41, 42, 58, 59; Pentland-Clark v MacFie and Anr, 21 May 2004, Lord Hardie; Her Majesty's Advocate v Frost [2006] CSIH 56 at § 14; Lord Advocate v McNamara [2009] CSIH 45 at §§ 46, 49. [46] I decline, in fairness to the Auditor as much as anything else, to adj......