The Right Honourable Elish Angiolini Qc Her Majesty's Advocate V. James Duff For An Order Under The Vexatious Actions (scotland) Act 1898
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Marnoch,Lord Mackay of Drumadoon |
| Neutral Citation | [2013] CSIH 50 |
| Docket Number | P746/10 |
| Court | Court of Session |
| Date | 12 June 2013 |
| Published date | 12 June 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Mackay of Drumadoon Lord Marnoch | [2013] CSIH 50 P746/10 OPINION OF THE COURT delivered by LADY PATON in the petition of THE RIGHT HONOURABLE ELISH ANGIOLINI QC, Her Majesty's Advocate Petitioner; against JAMES DUFF Respondent: for an order under the Vexatious Actions (Scotland) Act 1898 _______________ |
Alt: Party - Respondent
12 June 2013
Introduction[1] The respondent raised numerous court actions against inter alios the Lord Advocate, the Chief Constable of Dumfries and Galloway Constabulary, a local authority (Dumfries and Galloway Council), and the former trustee in his sequestration. As a result of the number and nature of those actions, the Lord Advocate raised the present petition (P746/10) seeking to have the respondent declared a vexatious litigant. A hearing took place on 28 November 2012. The respondent represented himself, as he has done in many of his litigations.
The respondent's submissions and counsel's reply[2] At the outset, the respondent made the following submissions:
- The respondent had previously moved the court to ordain the petitioner to state precisely what was "vexatious" about the actions. The petitioner had not done so.
- There was a conflict of interests as the petitioner was the Lord Advocate who would obviously support a chief constable, yet one of the respondent's main complaints was that the Chief Constable of Dumfries and Galloway Constabulary and his officers had fabricated police reports.
- There was a conflict of interests as counsel appearing for the petitioner (Mr Balfour) had represented the Dumfries police and Dumfries and Galloway Council.
- It was appropriate to sist the present petition (P746/10) to await the outcome of the respondent's appeal against the decision of the Inner House dated 18 May 2012 to the European Court of Human Rights in Strasbourg (see case number 12 below, Duff v Shearer (B56/11, XA48/11)).
- The respondent stated that Brendan Kearney, the former head of legal services of Dumfries and Galloway Council, had been disciplined and sacked in May 2012. According to the respondent, it was Mr Kearney who had suggested that the respondent should be declared a vexatious litigant.
- There was a conspiracy dating back to the 1980s to have the respondent declared a vexatious litigant (see, for example, a police report dated 18 June 1986).
[3] Counsel for the petitioner responded as follows:
- The written argument for the petitioner set out why it was contended that the litigations were vexatious.
- This court could properly decide whether the petitioner was a vexatious litigant by applying the statutory test to the objective information placed before the court.
- Counsel stated that he had not in fact represented either the Dumfries police or Dumfries and Galloway Council.
- The appeal which had gone to Strasbourg was only one of many cases. It might take some time before the outcome was known.
- Counsel had no knowledge of the allegations concerning Mr Kearney.
- Any question of a conspiracy was for this court to assess.
[4] Having taken time for consideration, this court concluded that there was nothing in the six points raised by the respondent which prevented the court from considering the merits of the petition P746/10 and answers, largely on the basis of the written pleadings, notes of argument, and productions. Parties were so advised.
[5] The respondent then reminded the court that he was seeking to have case number 1 below (Duff v Forbes) re-opened. A motion was to come before Lord Glennie in December 2012 (as to which, see paragraphs [10] to [12] below).
The respondent's sequestrations[6] The respondent was sequestrated on 27 May 1976. On 10 March 1993, Lord Morison granted the trustee his discharge. In his judgment, Lord Morison observed (at page 7) that averments in the respondent's minute of amendment criticising the trustee's conduct of the sequestration were -
" ... utterly lacking in any specification. It is impossible to tell in what respect or respects the respondent wishes to allege [that the trustee] failed to perform his duties in a proper and diligent manner."
[7] In 2007 the respondent was again sequestrated: see paragraph [18] below.
The respondent's court actions[8] What follows is a chronological summary of most of the actions raised by the respondent. Sources include (i) the petition as amended on 25 July 2012 number 20 of process; (ii) the respondent's adjusted answers dated 15 November 2010 number 8 of process, his 3-page fax dated 26 January 2012, and a minute of amendment for the respondent dated 30 August 2012 number 22 of process; (iii) productions for the petitioner, namely files containing court papers (tabs 6/1 to 6/28); (iv) a fourth inventory for the petitioner containing two initial writs 6/29 and 6/30; (v) written submissions for the petitioner; (vi) oral submissions presented by counsel for the petitioner and by the respondent at the hearing on 28 November 2012; (vii) a manuscript letter from the respondent to the Court of Session dated 29 November 2012; (viii) information concerning the current position in each action which, at the request of this court, was retrieved from the relevant court processes by the Deputy Principal Clerk of Session (DPCS); and (ix) further information from the Keeper of the Rolls concerning the current position in the petition to the nobile officium.
[9] The summary is restricted to actions initiated by the respondent. As noted by Sheriff Principal C G McKay at paragraph 17 in his opinion in Duff v Forbes (case number 7 below):
" ... Mr Duff explained that the grievances for which he was seeking redress were that he ought not to have been sequestrated in the first place since the debts for which he was made bankrupt were not personal to him but debts of his limited company and secondly that in the course of the sequestration a valuable asset, land belonging to him, had been sold by the trustee to a company of which one of the directors, if not the only director, was a commissioner in his sequestration ..."
The actions are as follows:
1. Duff v Forbes (the trustee in sequestration): the Court of Session
[10] In November 1979 the trustee in sequestration made certain adjudications on the creditors' claims. The respondent appealed those adjudications. On 17 March 1983 Lord Kincraig refused his appeal. The respondent reclaimed, but withdrew his reclaiming motion. In 1986 the respondent presented a petition to the nobile officium seeking an accounting of the trustee's intromissions, in which the prayer was amended to read "to declare the sequestration of James Duff granted on 27 May 1976 to be at an end". The petition was sisted, with motions to recall the sist being refused in 1987. Also in 1987, the respondent petitioned the Court of Session in terms of section 82 of the Bankruptcy (Scotland) Act 1913, again seeking an accounting of the trustee's intromissions. The petition was sisted in 1987. On 10 March 1993, when granting the trustee his discharge, Lord Morison noted in his opinion (page 4) that the section 82 petition sisted in 1987 contained "no live issue". In 1994, the sist in the petition to nobile officium was recalled and a question of expenses dealt with. In 1995 the respondent raised a petition seeking to have Lord Kincraig's decision quashed. The petition was dismissed.
[11] In 2012 the respondent sought to resurrect the section 82 petition which had been sisted some 25 years previously in 1987. The petition was formerly numbered P2/5/87 and is now numbered P153/01. As is recorded in a Note by Lord Menzies dated 13 November 2012 (issued when the court was dealing with the appeal in another process XA72/12, case number 8 Duff v Forbes below):
"[2] Until this month, the last interlocutor in the section 82 petition was pronounced in 1993, some 19 years ago. The petition relates to Mr Duff's sequestration in 1976. We were told by Mr Jones [solicitor advocate] for the defender and respondent that the trustee in sequestration was granted discharge by this court in about March 1993 at a hearing in which Mr Duff was represented by counsel..."
[12] In the 1987 petition, the respondent refers in paragraph 1 to the award of sequestration against him on 27 May 1976, the election of the trustee, the trustee's adjudication of claims in November 1979, the respondent's appeal against those adjudications and the refusal of his appeal on 17 March 1983. In paragraphs 2 and 3, the respondent avers that the debts were owed by a limited company J & J Duff (Lochmaben) Ltd, and not by him personally. The respondent further avers that his appeal was refused "by reason of [his] inability to prove the company and not him was indebted to [the creditor]." In paragraph 4 of the 1987 petition, the respondent refers to section 82 of the Bankruptcy (Scotland) Act 1913 and seeks an accounting from the trustee of his intromissions and management of the bankruptcy estate. In the prayer of the petition, the respondent craves the court to ordain the trustee in bankruptcy to account for his intromissions and management. In his recent adjustments to the 1987 petition, the respondent has added averments inter alia that:
"...The decision of Lord Kincraig dated 17 March 1983 should be treated as void, because a party with no legal right to enter into a process cannot defend the cause. Lord Kincraig acted ultra vires by allowing the [trustee] and his agents to defend the appeal which was clearly an abuse of process. Reference is made to Skinner's Trustee v Keith 4 March 1987. The [trustee's] discharge should be treated as void due to the fact that it was obtained by deception. The [trustee] and his agents deliberately withheld from the court that three court actions were still pending when the [trustee] had lodged his application in October 1991. Reference is made to Swan...
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