Party litigant refused permission to appeal to Court of Session in damages claim against RBS

A multiple property owner who raised an action for damages against a bank which was dismissed as “irrelevant” has had an application for permission to appeal to the Court of Session refused.

 

A judge ruled that the case did not raise an “important point of principle or practice” and rejected the party litigant applicant’s argument that there was “some other compelling reason” to hear the appeal.

 

Lady Paton heard that the applicant Mohammed Aslam, who owns many properties in Glasgow and rents them out for income, sued Royal Bank of Scotland (RBS) after the mortgage lender exercised its rights under standard securities and sold 27 properties.

 

 

He raised an action in Glasgow Sheriff Court seeking damages for his losses, claiming that RBS, in breach of its duties, sold the properties at an “undervalue”.

 

Following a legal debate in July 2017, Sheriff Deutsch held that the action was “irrelevant” and “lacking in specification”, and dismissed the action.

 

The applicant appealed to the Sheriff Appeal Court and an accelerated appeal hearing was fixed for January 2018.  

 

The applicant’s note of appeal was lodged in November 2017, but at the hearing on 18 January 2018 and without prior notice he produced a minute of amendment and moved to amend his pleadings and discharge the hearing. 

 

He apologised for not intimating the minute of amendment sooner, referring to the absence of his “Mackenzie friend” and the intervention of the festive season, but the solicitor for the RBS opposed any amendment as coming “too late”, and in any event “failing to cure the defects” identified in the pleadings.  

 

The Appeal Sheriff agreed with the respondent’s submissions; refused to discharge the appeal hearing; and after hearing parties, refused the appeal.

 

 

The applicant then sought leave to appeal to the Court of Session, but the Appeal Sheriff refused leave in a judgment issued on 14 March 2018 - prompting the application to the Court for permission to appeal.

 

In his written application, the applicant stated that the “appeal raises an important point of principle or practice in that it raises the question of what constitutes adequate notice of an appeal hearing, both generally and in the case of an unrepresented party litigant having no legal qualifications, in particular where an important and lengthy holiday period such as Christmas and New Year intervenes”, adding that it also “brings into question the manner in which a court conducts its business and explains its conduct and the effects of failing to do so properly”.

 

The application also stated that insofar as it may be considered that the appeal does not raise an important point of principle or practice, there is also some other compelling reason for the Court of Session to hear the appeal because of the “serious miscarriage of justice” resulting from the decision complained about.

 

The applicant’s grounds of appeal were to the effect that the sheriff “erred” in applying an “unduly strict standard” when he dismissed the action on the basis that the case as stated was irrelevant and lacking in specification, and that he should be allowed an opportunity to amend his pleadings to “clarify” the prices for which the properties should have been expected to be sold and to give “greater specification in the calculation of his loss and damage”.

 

 

In a written opinion, Lady Paton said: “I am unable to accept the applicant’s submission that the appeal raises ‘an important point of principle or practice’ concerning adequate notice of an appeal hearing, both generally and in the case of a party litigant, particularly where Christmas and New Year intervene. As set out in the Appeal Sheriff’s judgment of 14 March 2018, the appellant had approximately two months to prepare for the appeal hearing, which was ample even where public holidays intervened.  

 

“As for the involvement of a Mackenzie friend and a party litigant, the UK Supreme Court in their recent decision Barton v Wright Hassall LLP [2018] 1 WLR 1119 emphasised that party litigants and their Mackenzie friends must comply with the rules of court and court administration in the same way as any other party: to give party litigants special indulgence would, the Supreme Court observed, render the court system unfair.”

 

The judge further considered that the sheriff court’s conduct of business and communication with both parties could not be criticised. 

 

She added: “I am also unable to accept the applicant’s submission that there is ‘some other compelling reason for the Court of Session to hear the appeal’. What has happened in the present case is a fairly common occurrence in litigation, namely that a claim has been found to be irrelevant and lacking in specification such that it would be a waste of time and resources to permit the claim, as pled, to go to a proof before answer involving witnesses, productions, and court time. It is standard practice for such a claim to be dismissed. 

 

“The allowance of any amendment seeking to improve the pleadings with a view to making the action relevant and specific is a matter entirely for the discretion of the court, taking account of the timing and content of the proposed amendment. The decisions of the court below make it quite clear why amendment was not permitted in the present case. Those decisions were justified and cannot be criticised in the circumstances that prevailed.”