Judge should not act as party litigant’s legal adviser, Court of Session rules in refusing appeal

The First Division made the observation in refusing an appeal by a builder who was seeking to challenge a sheriff’s decision granting decree of payment of nearly £11,000 to a shop owner following a dispute over a construction contract.

The court ruled that no point of principle or practice was raised and that the procedural judge, who considered it appropriate in the circumstances to advise the party litigant appellant to amend his grounds of appeal, ought not to have granted permission to appeal.

‘Breach of contract’ 

The Lord President, Lord Carloway, sitting with Lady Paton and Lord Drummond Young, heard that the issue arose out of an appeal by the defender Alvin Gutowski to the Sheriff Appeal Court (SAC) against an interlocutor of the sheriff granting decree for payment to the pursuer Abdul Khaliq of £10,946 in a breach of contract case.

The appeal was refused by the SAC primarily as a consequence of the defender’s failure to lodge an appeal print before the deadline. 

The appeal raised questions concerning: the operation of the SAC rules on the lodging of documents and decrees by default; the test for reviewing a decision of the SAC pronouncing decree by default; and the relationship of a court with a party litigant, in particular the extent to which a court should assist a party litigant in relation to matters of substantive law and excuse a party litigant’s failure to comply with procedural rules. 

The court was told that after the defender failed to lodge the appeal print timeously, the pursuer moved for decree by default on the basis of procedural failures.

The procedural appeal sheriff recorded that the defender’s grounds, as advanced at the hearing, were inter alia that: the sheriff had failed to “recuse” himself on grounds of bias, having previously found the defender in default and dismissed his counterclaim. 

The appeal sheriff held that there was no proper basis for an assertion of bias beyond the fact that the sheriff had previously found against the defender twice, adding that there was not a “scintilla of hope” of showing that the sheriff had not been entitled to reach the view which he had.

In all of the circumstances, the appeal sheriff decided to exercise his discretion by refusing to relieve the appellant from the consequences of his failure to comply with the timetable and refused the defender’s appeal.

‘Unfair judges decision’

Thereafter, the defender lodged his proposed grounds of appeal in advance of the hearing on permission to appeal, which was stated as “unfair judges decision”.

The procedural judge understood “unfair judges decision” to mean that the refusal of his appeal on procedural grounds was “unfair” and granted permission to appeal, having considered that the appeal raised issues as to what might be characterised as an “over rigid application” of the Sheriff Appeal Court Rules.

He also observed that, having regard to “broader access to justice issues” and the right to a fair trial, a party litigant cannot be expected to know the rules as well a qualified lawyer.

The procedural judge added the where the court recognises that the appellant has a “stateable ground of appeal” which is not articulated in the note of appeal, it should “take steps to encourage the appellant to amend the grounds of appeal”.

However, the appeal judges ruled that there was no merit in the appeal and that permission should not have been granted.

‘Independent arbiter’

Delivering the opinion of the court, the Lord President said: “The procedural judge took the view that, where a court recognises that a ground, which is not included in the written version, is stateable, it should encourage the party to amend the note. This is not the function of the court as independent arbiter. The court should not take it upon itself the role of adviser to a party in relation to what grounds of appeal should be advanced. It should not become the party’s law agent, just because he appears unrepresented. 

“If it were otherwise, the court would fall foul of the principle that it should not act in a manner by which the fair minded and impartial observer would conclude that there was a real possibility of bias… Especially in a case which involves two small businesses, such a possibility is easily inferred where the court adopts the role of a party’s advocate.

“The court has taken some time to explore whether there is any merit in any of the other many grounds upon which the sheriff’s decision is attacked. There is none. Most of them proceed upon a misunderstanding of the law in relation to the conduct of a proof or an appeal.”

Lord Carloway added: “The fact that the court has answered the issues raised in the appeal in some detail, does not carry with it an assumption that this appeal, involving a relatively small sum, ought to have reached this court. [T]he court is again concerned that permission to appeal to this court has been granted in a case which raises no point of principle or practice, far less an important one, and there was no compelling reason for this court to hear the appeal. 

“The issue before the appeal sheriff was one involving the use of a discretion, which was reviewable only upon conventional grounds. No such grounds were presented. ‘Unfair judges decision’ is neither a specific ground of appeal nor a proper basis for review.”

Postscript

In a postscript, the court made clear the procedure to be adopted for dealing with permission to appeal applications.

The Lord President explained: “In terms of the Courts Reform (Scotland) Act 2014, section 113(1), permission is required for an appeal from the Sheriff Appeal Court to this court. Before permission can be granted, the potential appellant must lodge a statement of the proposed grounds of appeal. 

“There is no provision permitting the court to grant leave on restricted or specific grounds. The rules envisage that the actual (as distinct from the proposed) grounds are lodged after the permission stage (RCS 40.11.2(d)). 

“Accordingly, the task for the procedural judge is simply to determine whether permission should be granted or not. If there is a ground which raises an important point of principle or practice or there is some other compelling reason for the court to hear the appeal, permission should be granted simpliciter. 

“However, the procedural judge should specify, in the interlocutor or a separate Note of Reasons, which grounds are considered to meet the statutory test. That may be useful at least on the question of expenses, should a party seek to found on other grounds, which the court ultimately determines to be without merit.”