Litigants who argued sheriff should have recused himself fail in appeal following ‘fanciful’ bias claim

The Sheriff Appeal Court rejected the appellants’ claim that a sheriff who remitted their damages action against a construction company to the Court of Session in 2011 and subsequently signed an interlocutor relating to their sequestration in 2015 should have recused himself from hearing the case when it came before him again earlier this year, when he granted decree of recovery of the couple’s property.

Sheriff Principal Ian Abercrombie QC, sitting at Hamilton Sheriff Court, heard that a summary cause action for recovery of heritable property had been raised by the trustee Kenneth Patullo on the sequestrated estate of the appellants Donal Nolan and Melanie Collins, who had lived together at Comloebank House in Newmains for over 20 years.

‘Biased against the appellants’

The appellants argued that Sheriff Millar, who granted decree for recovery of the property in 2017 following upon their sequestrations in 2015, should have recused himself due to his previous involvement in the second appellant’s sequestration process.

The court was told that the sheriff had signed an interlocutor on 14 April 2015 – two weeks after Ms Collins’ sequestration – correcting a mistake in an interlocutor dated 30 March 2015, which recorded that the Accountant in Bankruptcy had been appointed as the trustee, when in fact it was Mr Patullo.

The appellants argued that “anyone independent” being aware of the sheriff’s actions on the 14 April 2015 would form the view that he was “biased” against the appellants when it came for him to consider the action for recovery.

The appellants also argued that it was further evidence of bias that Ms Collins was not told that the interlocutor required to be changed, despite the fact she was in court on 30 March 2015, had a “clear recollection” that the Accountant in Bankruptcy was not appointed as her trustee, and Mr Patullo had been corresponding with her.

The parties agreed that the test was that specified by Lord Hope in the House of Lords case of Porter v Magill 2001 WL 1479752, but the respondent argued that if that test was applied there were no grounds for suggesting that bias could arise, and Sheriff Principal Abercrombie agreed.

“I cannot see how any fair-minded and informed observer could conclude that there was a real possibility that Sheriff Millar was biased, when granting decree in this case, because he had, two years earlier, issued an interlocutor correcting the name of the trustee,” he said, adding: “The appellants were unable to suggest why the real possibility of bias could be said to arise. The appellants’ argument was that any judge who has anything at all to do with a case involving one of the parties should not have any dealings with any subsequent case involving the same party. That is not the test to be applied.”

Sheriff ‘should have recused himself’

The appellants also argued that Sheriff Millar’s involvement at an early stage in the proceedings which ultimately led to their bankruptcy amounted to further grounds for recusal.

The first appellant had raised an action against Advance Construction (Scotland) Ltd in Hamilton Sheriff Court for declarator, reinstatement and damages following upon spoil being deposited on his land by the company, but Advance enrolled a motion to remit the case to the Court of Session, which was heard by Sheriff Millar on 30 September 2011.

Advance’s position was that the sum sued for – over £6 million – and the issues raised in the cause were of sufficient difficulty and complexity to justify it being remitted to the superior court, while the appellants – who were both present at the hearing and represented by solicitors – argued that the action was not difficult or complex and that it should remain in the sheriff court.

Sheriff Millar ultimately remitted that matter to the Court of Session, and the appellants’ argument in this appeal was to the effect that the sheriff should have recused himself from deciding the action for recovery of possession – because it was the first appellant’s lack of success in the Court of Session action together with the second appellant being found liable in expenses as dominus litis which led directly to the appellants’ bankruptcy.

Warrant for arrestment on the dependence of the action had been granted in the sheriff court and the appellant’s claimed that the fact that the Court of Session recalled the arrestment on the dependence was “indicative of the sheriff’s bias” – he was “too ready” to send the case to a higher court so that this recall could take place.

The respondent argued that in all the circumstances a fair-minded observer could not conclude that there was a real possibility that the sheriff was biased when hearing this case in 2017 because of his involvement in the Advance case of 2011.

Refusing the appeal, Sheriff Principal Abercrombie noted that the appellants’ submission again proceeded on the basis that any involvement by a sheriff in a previous case involving one of the parties should preclude that sheriff from dealing with a subsequent case involving that party, but that was not the test.

‘An informed and fair minded observer’

In a written opinion, the vice president of the Sheriff Appeal Court, said: “In my view, an informed and fair-minded observer would not be led to conclude that there was a real possibility that because the sheriff had decided to remit the Advance case to the Court of Session, that he was biased against the appellants in this action. The decision he made in September 2011 related to a preliminary stage in the proceedings in the Advance case – essentially about which court was the most appropriate to deal with the case. The issues he was dealing with then were completely different from the issues in this case.

“As the sheriff indicates in the Stated Case – he was not required to hear evidence about the merits or otherwise of the Advance case, nor was he required to form a view on the credibility or reliability of the parties or any witnesses. He was not required to consider who was responsible for dumping the spoil (although that was a matter which was admitted fairly early on) or decide any of the issues relating to liability or damages.

“While he would have to consider the pleadings and parties’ submissions on the issue of the importance and complexity of the action, he had no role in determining who was right or wrong. The fact that he decided that the case was sufficiently complex and important to be remitted to and heard by a superior court, does not mean that a fair-minded observer, being informed of the material facts, would conclude that the sheriff was biased when dealing with the present case.”

He added: “The test is whether an informed and fair-minded observer, being aware of the facts could conclude that there was a real possibility that the sheriff was biased. The word ‘real’ is used in conjunction with the word possibility to give it an obvious emphasis. The word ‘possibility’ should not be interpreted as being a fanciful or remote chance. The word real gives context to the possibility.”