Reclaiming Motion In The Minute And Answer Proceedings Arising From The Petition By Martin & Co (uk) Limited Against (first) Kenneth Stenhouse And (second) Graham Main For An Order Under Section 1 Of The Administration Of Justice (scotland) Act 1972
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Smith,Lady Dorrian |
| Neutral Citation | [2015] CSIH 86 |
| Docket Number | P1217/12 |
| Published date | 01 December 2015 |
| Court | Court of Session |
| Date | 01 December 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 86
P1217/12
Lady Paton
Lady Smith
Lady Dorrian
OPINION OF THE COURT
delivered by LADY PATON
in the reclaiming motion
in the minute and answer proceedings
arising from the petition
by
MARTIN & CO (UK) LIMITED
Petitioners, minuters and reclaimers;
against
(FIRST) KENNETH STENHOUSE and (SECOND) GRAHAM MAIN
Respondents:
for
an order under section 1
of the
Administration of Justice (Scotland) Act 1972
Petitioners, minuters and reclaimers: A Smith QC; Simpson & Marwick
Respondents: Sandison QC; Brodies LLP
1 December 2015
Alleged contempt of court in the course of a commission and diligence
[1] The minuters sought certain recoveries in terms of section 1 of the Administration of Justice (Scotland) Act 1972 in relation to a franchise agreement. The court granted the necessary interlocutor. A senior member of the Scottish bar, Mr D I Mackay QC, was appointed as commissioner.
[2] On Friday 16 November 2012 at 10.19 am the commissioner, accompanied by staff all as detailed in his report, entered premises in Hamilton. He explained the purpose of his visit. His report sets out certain allegations concerning the behaviour, language, and general reaction on the part of the respondents. Read short, the commissioner reports that they were not co-operative. It is further recorded that a female member of staff left the premises carrying two cardboard boxes containing files, despite being instructed not to do so by the commissioner. On the basis of the report, it would appear that the commissioner was unable to commence carrying out his duties until much later in the day (15.40 pm) and only after having contacted the court and having obtained and exhibited an e-mailed interlocutor containing a power of arrest.
[3] On Monday 19 November 2012 at 15.35 pm the commissioner, again accompanied by staff, entered premises in Airdrie. The first respondent was present and did not seek to prevent the commissioner carrying out his duties. However the commissioner reports that he found no files or computers, all as detailed in his report.
[4] On 23 November 2012, a further stage of the commission took place. Senior counsel questioned the two respondents and Miss Little. Each stated that they had no documents relating to the franchise, and did not know where they were. The minuters were unable to make further progress. They obtained an award of expenses against Miss Little and against one of the respondents.
[5] The minuters concluded that they had made every effort to achieve recovery of documents, without success. They decided that they would take no further proceedings to try to enforce the orders, as Miss Little and one of the respondents had become bankrupt. However they were concerned that there had been a major contempt of court and a challenge to the court’s authority. They considered that it was their duty to take proceedings, and accordingly instructed the present proceedings by way of a minute.
[6] The respondents lodged answers, averring that what had occurred during the commission was banter, although adding that they had been irritated by the unjustified intrusion into their business. They denied saying that they would physically stop the execution of the commission.
[7] In view of the disputes in fact, senior counsel for the minuters moved the Lord Ordinary (Lord Glennie) to fix a proof on the minute and answers. Senior counsel for the respondents invited the Lord Ordinary to fix a shorter hearing, at which the case of Sovereign Dimensional Survey Ltd v Cooper 2009 SC 382 could be considered, and the Lord Ordinary could decide whether it would be proportionate or sensible in the circumstances to order a proof.
[8] The Lord Ordinary appointed the matter to a “hearing on proportionality” (paragraph [2] of his opinion). At that hearing, he heard submissions on the proportionality of continuing with the minute and answers proceedings. He made no finding of contempt, but ultimately decided, on the basis of the commissioner’s report, other papers, and submissions, that even if the respondents had been in contempt, it would not be proportionate for the minute and answers to continue. By interlocutor dated 21 February 2014 he dismissed the minute.
[9] The minuters reclaimed.
Submissions for the minuters
[10] Senior counsel submitted that the Lord Ordinary had erred in law. There was a clear dispute in fact. If the commissioner’s report was accurate, it was a serious matter (cf Cordiner, petitioner, 1973 JC 16). The authority of the court had been undermined. The commissioner should be allowed to give evidence, and in particular to give his view as to whether what had occurred was intended as a joke. The appropriate course of action was to fix a proof. The case of Sovereign Dimensional Survey Ltd was distinguishable, as, in the present case, the minuters were no longer pursuing their main action (which was not therefore available as a means of dealing with the alleged contempt). In any event, the alleged contempt was more serious than in Sovereign.
[11] The Lord Ordinary had not made a finding whether or not there had been contempt of court. He had not heard evidence which would enable him to decide one way or the other. Senior counsel invited this court, on the basis of the conduct admitted in the answers, to find that there had been a contempt of court. Alternatively the case should be remitted to a different Lord Ordinary to hear a proof on the matters in dispute in the minute.
Submissions for the respondents
[12] Senior counsel submitted that the reclaiming motion should be refused. The Lord Ordinary’s decision was a discretionary one, and could be the subject of review only on the well-recognised grounds of erring in law, taking into account an irrelevant factor, leaving out of account a relevant factor, or going “plainly wrong” by reaching a decision which no reasonable judge would reach.
[13] The Lord Ordinary had looked at the allegations as a whole. He had concluded that the behaviour was not laudable, but was not of such a level of severity as to affront the dignity of the court. Moreover he considered that there was no point in trying to progress the minute and answers as the respondents were bankrupt. The Lord Ordinary had carried out a balancing exercise, taking into account the dignity of the court, and had concluded that the circumstances were not such that further judicial resources should be used. That might be a decision with which an appellate court disagreed: but it was a discretionary decision, and the Lord Ordinary had not erred. It was open to the Lord Ordinary to proceed as he did without hearing evidence.
[14] If the court was not with the respondents, the case should be remitted to a Lord Ordinary for a proof.
Reply for the minuters
[15] It was wrong to submit that the Lord Ordinary’s decision was entirely a matter of discretion. This court was not prevented from overturning the Lord Ordinary’s decision.
Discussion
[16] Contempt of court is a serious matter. Maxwell, Court of Session Practice, at pages 96 to 98, notes that contempt can take many forms, including:
“ … absolute defiance of the orders of the court, as when a person … failed to produce … a document which he had been ordered to produce … disrespectful behaviour of a party in court.”
As was pointed out by Lady Smith in Martin & Co (UK) Limited, petitioners, 2014 SLT 71:
“If litigants can ignore orders of the court, and act in the manner complained of in the minute … the very foundation of the system of justice can be defeated with impunity.”
Contempt of court can result in criminal penalties, for example, imprisonment or fines.
[17] Where contempt is alleged, it is necessary in our view for the court to ascertain whether the contempt is admitted. Legal representation should be made available. If the contempt is not admitted, the court must, before making any finding of contempt, order a proof on the minute and answers, and hear submissions. Only then is it open to the court to make a finding of contempt.
[18] If contempt is admitted or proved, the contemnor should be given an opportunity to purge the contempt (if possible), and/or to make submissions in mitigation. The appropriate disposal can then be made.
[19] As Lord Reed explains at paragraph [31] et seq of Sovereign Dimensional Survey Ltd v Cooper Ltd 2009 SC 382:
“[31] The rationale of the court’s jurisdiction in contempt is to uphold the rule of law by protecting or enforcing the authority of the court. As Lord Justice-General Emslie said in HM Advocate v Airs 1975 JC 67 at page 69, the court’s power to punish contempt
‘arises from the inherent and necessary jurisdiction to take effective action to vindicate its authority and preserve the due and impartial administration of justice’.
Since the jurisdiction is inherent in the court and is exercised in order to protect the administration of justice, it is for the court to determine the circumstances in which it will permit the jurisdiction to be invoked. As Lord Diplock observed in Attorney General v Times Newspapers Ltd [1984] AC 273 at page 312, in relation to the corresponding English procedure of committal for contempt:
‘[I]t is a procedure which if instituted by one of the parties to litigation is open to abuse … The courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases where, although a contempt has been committed, there is no serious likelihood that it has caused any harm to the interests of any of the parties to the litigation or to the public interest … [T]he court’s discretion in dealing with a motion for committal is wide enough to entitle it to dismiss the motion with costs, despite the fact that a contempt has been committed, if it thinks that the contempt was too venial [‘pardonable, excusable, not very wrong’: Oxford English Dictionary definition] to...
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