Tods Murray Ws V. Arakin Limited
| Jurisdiction | Scotland |
| Judge | Lord Woolman |
| Neutral Citation | [2013] CSOH 134 |
| Date | 08 August 2013 |
| Docket Number | XA59/01 |
| Court | Court of Session |
| Published date | 08 August 2013 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 134 | |
| XA59/01 | OPINION OF LORD WOOLMAN in the cause TODS MURRAY WS Pursuer; against ARAKIN LTD Defender: _______________ |
Pursuer: Duncan QC; Simpson & Marwick WS
Defender: Party, Absent
29 July 2013
Introduction
[1] I have issued two earlier opinions in this case. The first followed a debate in which I dismissed the counterclaim and deleted certain parts of the defences in the principal action: [2010] CSOH 90. The second followed a proof in which I held that the pursuer was entitled to payment of £86,376.40, together with interest: [2012] CSOH 26. Together they set out in detail the issues in dispute and the whole history of the case. Each of those decisions was unsuccessfully reclaimed by the defender. The matter now comes before me to deal with various ancillary motions, including interest and expenses.
Procedure
Motion to uplift consigned sum
[2] On 29 May 2001, Lord Mackay of Drumadoon ordered Mr McNamara (and his then fellow Minuter, Mr Martin Frost), to consign the sum of £100,000 in the name of the Accountant of Court "to await the further orders of this Court." On 18 March 2013 the pursuer intimated a motion to uplift that sum, together with interest. Mr McNamara marked opposition to that motion the following day. In his accompanying statement, he also sought to reopen various substantive issues that had been determined by the court and for orders to be pronounced in his favour.
[3] The deputy in charge of the Offices of Court sent an email to Mr McNamara on 21 March informing him that the motion would be heard on 10 April. Mr McNamara did not, however, attend that hearing. Senior counsel for the pursuer informed the court that his instructing agents had been in email contact with Mr McNamara late the previous afternoon. During a short adjournment, the clerk of court contacted Mr McNamara by telephone at his home on Arran. He stated that he had not received intimation of the hearing.
[4] When the court reconvened, senior counsel stated that his agents had examined their communications with Mr McNamara. There was nothing in them expressly to indicate that he was aware of the hearing. Senior counsel invited the court to adjourn to a date shortly after 1 May, when the Inner House was due to decide upon the expenses of the reclaiming motion.
[5] In granting that motion I indicated that it would be convenient to deal with all outstanding matters at one hearing. I directed the clerk to write to Mr McNamara with a copy of the interlocutor and minute of proceedings so that he could be made aware of the position.
[6] I wish to add one observation. In my view it was surprising that Mr McNamara was unaware of the date of the hearing. The parties to a litigation are responsible for checking the court rolls and liaising with the General Department to discover when cases are scheduled to be heard. Mr McNamara has a great deal of experience of litigation. He regularly communicates with the court offices.
Further Motions Enrolled
[7] On 15 April 2013 Mr McNamara enrolled a motion to recover from the pursuer (a) all costs with interest, (b) the sums of £103,000 and £1,546, and (c) interest on £275,000. He also sought return to him of the consigned sum with interest. He lodged a six page note of argument in support of his position.
[8] He enclosed further notes of argument with his letters of 21 May, 3 June and 26 June. It appears that Mr McNamara's daughter, Miss Carol McNamara, prepared the note of argument enclosed with the letter of 3 June 2013. It suggests that there may have been a conflict of interest on my part, because I appeared as senior counsel on behalf of Tods Murray at a 2002 hearing in the case. The note then states:
"while he was the presiding Judge in this case he disregarded statute, Solicitors' Rules, case law and legal authorities which, had they been properly applied and considered would have hampered the pursuers' case. He failed to record true circumstances of the case or to record unchallenged evidence in favour of Arakin. Of further note, on appeal the three presiding Judges supported the un-judicial decisions of Lord Woolman without reference to the defenders' submissions."
[9] The clerk of court replied by letter on 21 June 2013. She referred to the minute of proceedings for 13 March 2009. That was the first hearing in which I was involved as a judge in this case. The minute records that:
"Lord Woolman informed parties that on reading the closed record, he discovered that seven years ago he had a "walk-on" role, representing the pursuers at a hearing in November 2002. Lord Woolman indicated that he had no recollection of the case or the issues and only became aware of this involvement on reading the closed record. Lord Woolman informed parties that he was certain that he is able to deal with this case and that his prior involvement would not affect his judgement, but stated that if either party did not wish him to hear the proof in this case, that he would recuse himself.
Both Mr Duncan and Mr McNamara confirmed to Lord Woolman that they took no exception to his dealing with the proof."
[10] The letter went on to inform Mr McNamara that the interlocutor dated 13 March 2009 expressly refers to the minute of proceedings. The letter added two points. First, that the closed record includes all prior interlocutors. Second, that the minute has always been available to view by the parties.
[11] On 25 June 2013, Mr McNamara replied using his wife's email address. He stated "I have no recollection of Lord Woolman stating that he had worked for Tods Murray against Arakin." He requested a transcript of the hearing on 13 March 2009. It was not possible to comply with that request, as the proceedings were not recorded.
[12] On 26 June 2013, the pursuer enrolled a motion seeking (a) interest on the principal sum, (b) expenses on a solicitor and client basis, (c) interim payment of £250,000 towards the expenses, (d) an additional fee, and (e) certification of Mr Quinn as a skilled witness. The pursuer lodged a note of argument in support of its motions.
Hearing 1 July 2013
[13] A one day hearing was set aside to deal with all the motions on Monday 1 July 2013. The previous evening, Mrs McNamara sent an email to the solicitor acting for the pursuer, which was copied to the clerk of court and stated:
"late last week my husband had an attack of gout and was prescribed a course of treatment by the doctor. Today he has had severe stomach upset and is unable to travel and will be unable to attend the hearing tomorrow."
[14] The court convened at about 10am on 1 July. In light of Mrs McNamara's email, I continued the case until 22 July. At the time that the hearing was taking place, Mr McNamara telephoned the office of the Keeper of the Rolls. He confirmed that he would not be in attendance that day and added that he would not be available for a hearing in July. That telephone message only reached the court after the hearing had been concluded and the interlocutor pronounced.
Correspondence
Letter to Mr McNamara
[15] The clerk of court then wrote to inform Mr McNamara that the court sought a medical certificate in relation to his non-attendance that day. She also told him that the hearing had been continued until Monday 22 July between 2pm and 4pm. She explained that in order to complete the hearing within the shorter period, senior counsel for the pursuer had indicated that he would rest on his written submissions. With her letter, the clerk enclosed a copy of the interlocutor, the minute of proceedings, and a transcript of the hearing.
[16] By the time that the clerk wrote her letter, the Keeper's office had made her aware of Mr McNamara's indication that he would not be available for a hearing in July. The clerk therefore stated in her letter:
"This message only reached the Court after it had continued the hearing until 22 July 2013. If you wish the hearing to be rescheduled, you should make such a request by motion with a note of the reasons why. If you are unable to attend on 22nd July on medical grounds, a medical certificate will require to be submitted in advance of the hearing."
Mr McNamara's Reply
[17] Mr McNamara replied to the clerk by letter dated 10 July 2013. In relation to the request for a medical certificate, he stated:
"I note the court requests a medical certificate to confirm I had gout and that a symptom of treatment of gout causes severe diarrhoea. If the court requires I shall request from my doctor a note to confirm my attendance for gout and the symptoms relevant to the treatment."
[18] Mr McNamara went on to express concern about the limited time available and to request that the court allocate at least one day for the hearing. He also stated that:
"I am unable to attend on the 22nd July as the second week of July is our family holiday in which we will be sailing in the west coast of Scotland with eight members of our family."
Further Letter to Mr McNamara
[19] On 12 July, the clerk wrote to Mr McNamara and asked him to provide a medical certificate in respect of the hearing on 1 July as soon as possible. The letter continued:
"On the evening of Sunday 30 June, your wife sent an email to the court indicating that you were indisposed and unable to attend that hearing. Accordingly, the court determined that the case should be heard on Monday 22 July, the only date in the reasonably near future which could be found.
The fact that a party is scheduled to go on a family holiday is not a good reason for non-attendance at court. Accordingly the hearing will take place on 22 July 2013.
With regard to the time allocated to the hearing, you have an opportunity to put your submissions in writing. In addition, counsel for the pursuer has indicated that he rests on his written submissions. Accordingly, the bulk of time at the hearing will be available to you."
Letter from Robert McNamara
[20] On 17 July 2013 Mr...
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