JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

SCOTLAND AGAINST CROOKED LAWYERS

Pursuers and Appellants

against

THE CITY OF EDINBURGH COUNCIL

Defenders and Respondents

Act: Mr W Burns, Authorised Representative

Alt: Mr M Mohammed, Solicitor, City of Edinburgh Council

EDINBURGH, 29 MAY 2008

The Sheriff Principal, having resumed consideration of the cause, answers the question of law contained in the Stated Case in the affirmative and refuses the appeal; adheres to the Sheriff's interlocutor of 5 February 2008.
[Ed ~ And ignores the reason why the original hearing by the original sheriff was adjourned, allowing Sheriff Andrew Lothian, at the continued hearing, to justify his unconditional support of the Defenders as though there had not been a previous hearing favourable to SACL/the Pursuers and Appellants.]

(signed) E Bowen

NOTE:

1. In this small claim an organisation known as "Scotland against Crooked Lawyers" sues Edinburgh City Council for £500.   The pursuers are said to be registered as a political party. They were represented before the Sheriff, and at the appeal, by Mr William Burns as authorised representative.

2. The claim bears to relate to a deposit paid in respect of regional candidates in the Scottish Parliament Election in April 2007.  The details of the claim are stated in the following terms: "That the defenders ran the election on behalf of the Scotland Office.  That the pursuer paid the defender £500 deposit on the 2nd April 2007 for himself and John Lovie to stand in the Lothian Region. [Ed~ It was not for himself, but for Derek Cooney and John Lovie.]  That the pursuer was never informed that the procedure for the 2007 election had been altered and entirely different from the 2003 election.  That the pursuer only became aware of the changes and the advice given to the defender on the day of the election and after the election it was made known that the defender had been advised not to run the regional and the constituency votes on the same ballot paper.  If the pursuer had been made aware of the changes he would not have paid the deposit.  That as a result of the changes made thousands of ballot papers were made void, putting the pursuer at a disadvantage in the election.  The circumstances are exceptional and the pursuer has contacted the defender requesting his deposit returned, the defender has refused, making this action necessary".

3. The case called for a Hearing in terms of Rule 9.1 before a part-time Sheriff on 22 January 2008.  On that date it was continued, the note on the record of proceedings stating "For defender to produce evidence".  In point of fact there appears to have been some discussion as to whether the action was competent, the defenders' solicitors having moved that it should be dismissed at the Hearing.
[Ed ~ In point of fact, there was no discussion about whether the action was competent, but a claim by the Defenders that it was not competent, so to avoid the essence of the case - a typical law mechanic's stratagem.  But this was a nonissue as it was a groundless claim.]
The purpose of the continuation seems to have been to provide the defenders with an opportunity of demonstrating, by reference to authority or otherwise, why that course should have been taken.
[Ed ~ The purpose of the continuation was precisely to provide the defenders/the council with an opportunity of demonstrating, by reference to authority, to prove that the pursuers/SACL did not accrue enough votes to justify the forfeit of their election deposits.   But the Defenders did not, and could not, produce the figures to justify the forfeit, so they were underhandedly allowed to change the goalposts, assisted by a compliant judiciary.]

4. It is not altogether surprising that Mr Burns took issue with this procedure, since on the face of it Rule 9.2 of the Small Claim Rules makes no provision for continuations of the Hearing.  Whilst it may be true that the Rule does not contemplate continuations I am aware that as a matter of practice [Ed ~ Here we go!  The "matter-of-practice" dodge has no bearing in law, so why use it other than to try to justify to the unsuspecting the attempt to continue the hearing?] these are granted and in certain circumstances - for example to enable parties to produce a joint minute agreeing evidence upon which the case can be disposed of - continuation of the Hearing is a sensible course.  In general terms however, a party who wishes to challenge the competency of an action or the soundness of its basis in law ought to do so when the case first calls.   There was, however, nothing devious or suspicious about the grant of a continuation.
[Ed ~ Is that right?  It was granted because the defender did not have a competent defence so was allowed leeway to try to dig one up.  Sheriff Andrew Lothian, the stand-in sheriff at the renewed hearing, ignored the reason why the continuation was granted.  Despite my opposition, he started the case from scratch.  He even prevented me from remotely referring to the one and only purpose of the continuation.  So not only was there something devious and suspicious about the granting of the continuation, it was reprehensible of Sheriff Lothian to prevent me from even referring to it.  If the original sheriff had presided over the proceedings, SACL's prayer would have had to be accepted since the defender failed to provide the necessary evidence.]

5. The case called again before Sheriff Lothian on 5 February 2008.   On that date the Sheriff dismissed the action.  In his Stated Case he sets out six reasons why he did so.  The first four might be said to relate to title to bring the action.  In this respect I have some sympathy with the view taken by the Sheriff, although on full examination I do not think that his misgivings were totally justified.  The second sentence of the statement of claim quoted above states "that the pursuer paid the defender £500 deposit on the 2nd April 2007 for himself and John Lovie to stand in the Lothian Region".
[Ed ~ If Sheriff Principal Bowen had actually paid attention to SACL's cause he would have known it was Mr John Lovie and Mr Derek Cooney who were SACL's candidates.  Mr William Burns was the Nominating Officer.]
This looks as if the candidates were Mr Burns and Mr Lovie: and that it was Mr Burns who paid the deposit.
[Ed ~ The deposits were paid from SACL funds, which were gifted by well-wishers who had previously been stung in the law warehouses we call courts of law.]  On any view it was not unfair to point out that the identity of the pursuers, as a distinct legal entity, and Mr Burns, was confused.  Mr Burns clarified the situation at the appeal hearing.  The deposit was paid by SCACL on behalf of two candidates, a Mr Usher and Mr Lovie.
[Ed ~ I ought to have clarified that it was Sheriff Lothian who was confused.  Also, if he is incapable of getting the name of the pursuers right, how can he competently preside, attentively and honestly, over SACL's fairminded cause?  Deputy Dawg Lothian was in the wrong kennel.]
That being so it appears to be that an action brought in name of SCACL was not inappropriate and Mr Burns, who is described as Nominating Officer [Ed ~ Within the space of a paragraph, Sheriff Principal Bowen had me, William Burns, as, first, one of the candidates, then, not one of the candidates, then, last, the Nominating Officer - the third guess being the correct one] was entitled to represent the pursuers as authorised lay representative in terms of SCR 2.1(1)D.  The confusion which arose here demonstrates [Ed ~ Lothian and Bowen were the only ones confused - perhaps by design], in my view, the dangers of accepting at face value the written averments of a party litigant without taking steps at the first hearing, as Rule 9.2(2) contemplates to "ascertain the factual basis of the claim...and the legal basis on which the claim..." proceeds.
[Ed ~ What on earth is he waffling about?  I did ascertain and establish the legal and factual bases on which the claim was to proceed.  He was changing the goalposts again.  The simple truth: is that the deposits should have been refunded.]

6. Be that as it may the substantial question which arises in this case is whether there was any sound basis for the case in law.  If there was not there was no point in allowing a proof which in the particular circumstances of this case would have resulted in undue expenditure of public funds as well as a waste of court time.  Whatever may be said in the Statement of Claim the basis upon which SCACL seek return of the deposit paid in respect of their two candidates appears to me, on discussion with Mr Burns, to proceed on two grounds. The first is that the election was, in his words, a fiasco because of the large number of spoiled papers arising from a lack of clarity in the instructions as to how to vote.  This, Mr Burns maintained, constituted in effect an unsatisfactory service provided by the defenders for which his organisation was entitled to reimbursement.  Second, he would maintain that because of the large number of spoiled ballot papers it was impossible for the defenders to say that the party he represents failed to secure one twentieth of the vote, that being the statutory justification for forfeiture of the deposit (see Rule 67(7)) of the Scottish Parliament (Elections etc) Order 2007 (SI 2007 No 937).  In advancing these as his grounds of action Mr Burns accepted that his party did not challenge the election result.
[Ed ~ I did not challenge the result of who actually won the election.  That was not SACL's argument.  SACL's argument was that if the council did not know how many votes were actually cast for SACL, how can it justify refusing to refund the deposits?]

8. I have only to add that Mr Burns seemed to be of the view that there was some burden on the defenders of proving that his party had not received a one twentieth share of the vote.
[Ed ~ I did not "seem" to be of that view, I "was" of that view; and justifiably so; as was the first sheriff who placed the burden on the defenders to provide SACL's share of the vote and put to bed the the justification for forfeiting the election deposits.]
That is also a misconception. [Ed ~ Not so.]  In general terms it is for the pursuer to establish his case, not for a defender to refute it.
[Ed ~ This is an outrageous claim.  How can any political party prove how many votes it received?  They depend entirely on the people responsible for running the election to do it competently and provide a veracious result.  It was widely reported and accepted that the vote counting at the election was a farce.  This was not "general circumstances"; this was a mockery where around 140,000 votes were not counted and deposits forfeited illicitly.]
In the present circumstances the fact of the matter is that the election result stands and it would be up to the pursuers to prove that it was invalid.
[Ed ~ The puruers did not raise an action in order to prove the election result was invalid or otherwise, so why are they promoting such inapplicable nonsense?   SACL's representations, oral and written, were specific.  It was already established that the number of votes cast could not be verified due to the inept running of the election, so how can it be claimed that it was not up to the council to prove that SACL did not secure the necessary votes to warrant a refund of its two deposits?]

9. In all these circumstances, whether the action was incompetent or simply irrelevant, I am in no doubt that no useful purpose would have been served by appointing it to proof and that the Sheriff was correct to dismiss it.
[Ed ~ A more believable reason for him seeing no point in appointing it to proof is that: