Man who pursued meritless fraud case against former solicitors since 2017 given vexatious litigant status

About this case:

• Citation:
  [2023] CSIH 23
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Forbes Bruce Sime, a private hire driver, had instigated multiple actions against McCash & Hunter LLP since 2017 alleging that they had not represented him properly at a licensing hearing and had negligently failed to conclude missives for the sale of his house. Mr Sime opposed the granting of an order and asserted he was being maliciously prosecuted.

The petition was considered by the Lord Justice Clerk, Lady Dorrian, along with Lord Malcolm and Lord Pentland. McLean, solicitor advocate, appeared for the petitioner and the respondent appeared as a party litigant.

Refusal to accept decisions

In 2017, the respondent raised a professional negligence action against McCash & Hunter seeking £100,000 in damages arising from the suspension of his taxi/private hire car driver’s licence. Decree of absolvitor was granted on the firm’s successful plea that the claims had prescribed, with a further appeal presenting new arguments refused in 2018. It was also averred that the defenders negligently failed to conclude missives for the sale of his house resulting in financial loss.

The respondent went on to raise an action against solicitor Iain Nicol in 2019 again alleging professional negligence and breach of fiduciary duty by reason of conflict of interest. The sheriff concluded that the case had no reasonable prospect of success and at a further hearing in June 2019 considered the action to be fundamentally incompetent. He was then refused permission to appeal to the Court of Session.

Further actions against Mr Nicol were raised in order to interdict him from recovering expenses in relation to the previous action and to restore to the Register of Companies a company of which Mr Nicol had been sole director. These were also refused, with Mr Nicol continuing to hold extract decrees for expenses in the sum of £14,171.94 unpaid by the respondent.

For the Lord Advocate it was submitted that the respondent had habitually and persistently instigated vexatious legal proceedings without any reasonable ground for doing so. He had demonstrated a refusal to accept decisions made against him and had wasted the time and resources of the court by repeatedly attempting new litigation to argue the same point again against a widening circle of alleged co-conspirators.

No effort to engage

Lady Dorrian, delivering the opinion of the court, said: “There is no question that the respondent has habitually and persistently instituted civil proceedings and made applications to the court in the course of civil proceedings. The first limb of the test is thus satisfied. We are also satisfied that these proceedings and applications may properly be classed as vexatious. It is clear from the determinations in each case that the proceedings lacked any identifiable substantive merit.”

She continued: “It is clear from the court papers that the respondent has attempted at every turn to prolong the litigations by mounting wholly fruitless appeals. In each case there was little or no effort to engage with the relevant tests for leave to appeal, with the focus instead being on a mere repetition of the allegations against Mr Nicol and firms with which he has been associated. In each case he has made very serious accusations against legal professionals which he has failed to substantiate with any evidence, documentary or otherwise.”

Addressing the overall nature of the respondent’s proceedings, she said: “We agree with the submission of Mr McLean that the proceedings have been of a vexatious nature, involving complex and incoherent pleadings of an increasingly scandalous tone directed towards a widening circle of individuals. We note that the circle of wrongdoing now includes, apart from Mr Nicol, solicitors with Perth & Kinross Council, at least 3 separate law firms, and individuals therein, officials of the Law Society of Scotland, and now, the Lord Advocate who is alleged to be acting maliciously in bringing these proceedings.”

Lady Dorrian concluded: “The interests of justice require the effect on the court’s resources of dealing with persistent and unfounded litigation to be taken into account. The persistence of the respondent’s conduct may be seen in his letter to the Deputy Principal Clerk of Session attempting to air the same issues as already determined in the various litigations noted above. The granting of the order does not prevent the respondent from raising new proceedings or engaging with existing litigations. Instead it represents a safeguard where the respondent will be able to do so only if he satisfies the court that there is a reasonable ground for taking such a step.”

The prayer of the petition was therefore granted.