in the appeal

in the cause


Pursuers and Appellants



Defenders and Respondents

Act: Mr W Burns, Authorised Representative

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


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 was adjourned, allowing Sheriff Andrew Lothian at the continued hearing to proceed as if there had not been a previous hearing favourable to the Pursuers, SACL.]

(signed) E Bowen


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.  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.  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.

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.  Just admit the simple truth: the deposits should have been returned.]

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 return the deposit?]

7. Whilst I have a degree of sympathy for Mr Burns and the organisation he represents in having taken part in an election which was well recognised as having a number of unsatisfactory aspects, I am nevertheless in no doubt that this action is wholly misconceived.  Until such time as the pursuers successfully challenge the election return, the result stands.  That result did not, it would appear, produce a figure which showed that the pursuers had obtained one twentieth of the requisite vote and in consequence by operation of law their deposit was forfeited.  [Ed ~ Neither did it show that SACL did NOT obtain one twentieth of the requisite vote and in consequence by operation of law the deposit should NOT have been forfeited.]  It is to no avail to suggest that the spoiled ballot papers might have contained sufficient votes to put the pursuers into a more favourable position.  [Ed ~ It conforms to natural justice and every fructifying legal and moral concept to give SACL the benefit of the doubt that the spoiled ballot papers DID contain sufficient votes to put the pursuers into a more favourable position.]  So long as the election return stands the spoiled papers are invalid and do not count.  [Ed ~ Was that not the whole point of the exercise!  By advancing that very point, it was supportive of SACL's claim that the council had no right to forfeit our deposit after holding such a shambolic election, being unable to prove we had not received sufficient votes.  Mr M Mohammed, Solicitor for the City of Edinburgh Council was given leeway at the first hearing to provide the figures that SACL received, which was obviously an impossibility, but Sheriff Lothian totally ignored why that first hearing was adjourned.]  The election result itself could only be challenged by virtue of a petition to the Court of Session in terms of section 120 of the Representation of the People Act 1983.  [Ed ~ Again, this is a departure from SACL's action.]  In consequence the present action might be viewed as a side door attempt to challenge the election result which the law does not permit.  [Ed ~ How dare he suggest that SACL's action might be viewed as a side-door attempt to challenge the election result.  SACL is a hybrid campaign group made up of all political and religious persuasions and none.  Our action was honourable and no law warehouseman has the right to put forward extraneous possibilties to try to justify his own side-door judgement.]  Equally the concept of applying rules applicable to the satisfactory supply of goods and services is wholly inapplicable to the present circumstances.  [Ed ~ He is creating an argument here of his own invention.]  The defenders carried out their statutory function of conducting the election and produced a result which stands as a matter of law.  They were not providing "a service".  [Ed ~ What on earth were they providing if they were not providing a service?  Is Sheriff Principal Bowen acceding here to statutory functions that are restricted to farcical events conducted under rules to be manipulated by the vagaries of only grubstreet lawyers?  It is the people who hold the power in this country, not politicians or law herdsmen.  These overly paid so-called public servants are supposed to provide the necessary service to protect society and its moral and legal fibre; not hinder it.  The more money these characters are paid, the more unaccountable they become.  That is the biggest threat to our democratic society.]

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 the share of the vote.]  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 was not "general circumstances"; this was a farce 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:

  1. The action was wholly relevant and Sheriff Andrew Lothian would be found to be incompetent for refusing it, as would Sheriff Principal Edward Bowen for coming to the defence of Sheriff Lothian;
  2. It would have become apparent that Sheriff Lothian totally ignored the reason that the reconvened hearing was put on the agenda, which was to provide the defenders the opportunity to demonstrate, by reference to authority or otherwise, why the Hearing should be dismissed, but having failed to provide the court with any authority, Sheriff Lothian prevented the pursuer from even referring to that proviso, gagging him and forcing him to enter the contest with both hands tied behind his back, as it were; and,
  3. Having been unable to provide the court with the required auhtority within the timescale designated, the pursuer's/SACL's case should automatically have been accepted.

Incidentally, when Sheriff Lothian imparted his decision in court after suppressing any relevant submissions favourable to SACL's cause, I informed him that before this particular hearing even began, on learning there was a different sheriff appointed to preside over the proceedings, I had asked in the Sheriff Clerk's Office for an appeal form, convinced  the result of the hearing was already predetermined in favour of the Council. (Given that the pursuer had failed to provide the necessary details requested by the sheriff at the first hearing, who could dispute the veracity of my comment!)  Sheriff Lothian demanded that I retract the accusation, which I refused to do.  He said: "I think you should leave the courtroom before you say something else you might regret."
I merely replied: "Yes, I think I should," and proceeded to leave the courtroom.

Nevertheless, had I known of Sheriff Lothian's exploits in the city saunas at that time, and of his ex-wife Harriet's even more sordid tales, I would have given him a mouthful right there and then.  The audacity of this low-life rodent standing in judgement in cases involving decent groups of human beings beggars belief.  And to think that people in authority knew of his exploits and did nothing, demonstrates just how pitiful the judiciary is.]

- - - ENDS - - -

The BBC News Channel reported on Wednesday, 9 May 2007 that:

The number of rejected votes in the Scottish elections was much higher than previously thought.
It had been estimated that about 100,000 ballots had been discounted, mainly because of errors in the way they were completed.

Figures obtained from returning officers show the final tally of rejected votes was almost 142,000.

This was made up of 85,644 rejected constituency votes and 56,247 from the regional list.
Much of the confusion seems to have been caused because voters were asked for the first time to enter their choice for the regional list and for their constituency on a single ballot paper.

The chaos was compounded by a separate ballot paper for the local authority elections.

This used a different voting system which asked voters to use numbers to indicate their preference rather than a cross.

About two-thirds of the papers on the regional list were rejected because they were unmarked or otherwise unclear.

The other third were rejected because more than one candidate had been chosen.

It is still not possible to say how many individuals may have been disenfranchised because some may have lost both their votes.

The turnout at the election was 51.8%, with 2,016,978 constituency votes cast and 2,042,109 regional votes.

That means 3.5% of the total votes cast were rejected.

The figures for spoilt ballots were obtained by Newsnight Scotland after Scottish Secretary Douglas Alexander told the House of Commons he had no idea what the true number of spoilt papers was.

The number of spoilt ballots caused severe delays for several counts across Scotland as election night descended into chaos.

The volume of spoilt papers has also led to threats of legal action, with former minister Allan Wilson consulting Labour party solicitors after losing his Cunninghame North seat by only 48 votes to the SNP.

While lawyer Mike Dailly from the Govan Law Centre has said he was considering action over the result of the Glasgow regional list.

An electoral commission report into the fiasco is expected to be published in the summer.

SNP leader Alex Salmond has already called for a further independent inquiry into what went wrong with the electoral process.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

The Scottish SUN reported on 24th November 2008 that Sheriff Andrew Lothian quit in a sex-for-sale sauna scandal.  His ex-wife Harriet McEwan revealed she wasn’t surprised her former hubby had resigned after being caught up in vice claims. LINK

Harriet came to SACL's A.G.M. that year and  disclosed even more harrowing stories about Sheriff Lothian than those reported in the press.  I wish I had known this in February that year when I appeared before him as the authorised representative of SACL. LINK

I also wish I had known at the time that he was a member of the exclusive, secretive and highly suspect Speculative Society of Edinburgh (Spec), numbered at 1795 LINK, for which I would have asked him to recuse himself from the proceedings for his involvement with an underground organisation.  All said, the original sheriff ought to have presided over the case.

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Wolves in stoats' ermine
Scotland Against Crooked Lawyers - SACL


Scotland Against Crooked Lawyers


Gordon Jackson QC
Gordon Jackson QC
SACL were at the forefront of Naming and Shaming.
The coeval list of the Rogues Gallery of crooked lawyers and law firms. LINK
Donald Findlay QC
Donald Findlay
The above statement was made by Donald Findlay QC LINK
Some people regard an attack on an advocate as an act of social work.
Billy Burns
Read the full chronological synopsis of my fight against the illegal tax LINK
Billy Burns' fight exposing the immoral and illegal Poll Tax. LINK
Colin Boyd QC
Colin Boyd QC
Why did Boyd try to protect Lord Cullen LINK
The Lord Advocate assisted in the imposition of a "Gagging Order".
Trusting cCient
Trusting Client
Trust a thief in the night before a lawyer in the day.
View the flow chart of the futile legal complaints procedures. LINK


Sheriff Andrew Lothian
Sheriff Andrew Lothian
Click the link above to see how he moved the goalposts.
SACL v The City of Edinburgh Council, reclaiming election deposits.  LINK
Lord cullen
Lord Cullen
Read the letters to Lord Cullen that incriminate him. LINK
Why did Cullen try to bury Billy Burns' letters to him for 100-years? 
Tom Crooks
Tom Crooks
Read his letters to the media, vilifying crooked lawyers. LINK
Tom Crooks fell victim to operatives in the Faculty of Ad-vermin-cates (sic)
See a video of Stuart's historic walks around Edinburgh. LINK
Read a short history of SACL's founding father, Stuart Usher  LINK
Stuart Usher