Courts should be "circumspect", especially in cases involving party litigants, when complimenting legal practitioners acting for the other side, the Lord President has said in a new Inner House decision.
Lord Carloway, who sat with Lords Menzies and Brodie, rejected an allegation by Brian Philp in his action against Highland Council that the Lord Ordinary had shown "unconscious bias" in her opinion dismissing the action, but said the court was not surprised that the pursuer "took umbrage at the imbalance of comment and criticism, even if the well-informed observer would not have done so".
The court allowed Mr Philp's appeal on two of his three heads of claim and held that although his pleadings were prolix and lacked clarity as to the legal basis of the action, he had averred sufficient to be allowed a proof.
Mr Philp had a warehouse at Kyle of Lochalsh in which a company, EWOS, had been interested as a storage and distribution depot. EWOS was considering Mallaig and Kyle as possible locations; Mallaig then lacked the necessary facilities and woukld only secure grant funding to provide them if there was no adverse effect on facilities elsewhere. Mr Philp averred that when he began trial operations with EWOS, two of the defenders' employees interfered and made false claims concerning the legality of his operation and put unreasonable and unnecessary obstacles in his way, delaying the trials so that Mallaig secured funding for facilities, after which EWOS elected to use these. Further, the councillor who represented Mallaig also chaired the defenders' harbours board (which instructed one of the employees concerned, a Mr Usher) while sitting on the Mallaig Harbour Trust board, thus acting in a conflict of interest to the pursuer's disadvantage. In the alternative, Mr Usher wrongly interfered with the subsequent sale of the pursuer's business, leading to loss of the sale. A third case concerned the wrongful charging of rates for the premises, through false information presented by Mr Usher.
The Lord Ordinary found that no relevant duty was averred to have been owed by the defenders to the pursuer, when the claim was one of pure economic loss; no relevant averments of any contract that had been breached; and no relevant averments that Mr Usher was acting in the course of his employment. The rates issue had been settled extrajudiclally.
Lord Carloway, giving the opinion of the appeal court, said the case was about the alleged malicious actings of public officials and/or a public authority in the exercise of their duties, and fell within the principles set out in Micosta v Shetland Islands Council (1986). While criticisms could be made of the pursuer's pleadings, in relation to interference with his negotiations with EWOS his case was plain enough. It fell within the type of liability referred to in Micosta, "incurred for a deliberate misuse of the defenders’ powers in the management of the harbour at Kyle for malicious reasons, causing the pursuer loss; notably the chance of securing the EWOS contract". The employees' actings were on the instruction of the councillor or in any event as officials of the defenders.
The alternative of interference with the potential sale of Mr Philp’s business was sufficiently interlinked with the major case to merit proof. However the settlement precluded the third aspect of the case, despite the pursuer's discontent.
The Lord President noted that the Lord Ordinary had made reference to the defenders "helpfully" lodging a note of argument "well in advance of" the debate; had referred to the pursuer’s pleadings as prolix, and to the defenders’ counsel’s submissions as being presented with "commendable economy"; had stated, subject to certain limited comments, that she accepted "all of the defenders’ legal propositions as well founded in law" before proceeding to apply them; and later referred to the defenders’ criticisms of the pursuer’s case as well made or well founded and often referred to agreeing with what the defenders’ counsel had said.
In a postscript he commented, dealing with the allegation of unconscious bias: "The court does not consider that there is substance in this allegation, but the pursuer’s criticisms do highlight the need for courts to be circumspect, especially in cases involving party litigants, when complimenting legal practitioners, their assistance to the court or diligence in preparation. Praise from the bench, when merited, can be a deserved morale boost to the practitioner concerned. There is a place for it within the wider legal system. Whether, and to what degree, it should find its way into a judicial opinion is a more delicate question.
"Because of the potential effect it may have on the perception of the, often unsuccessful, opposition, especially when that party’s forensic efforts have been met with opprobrium, it should certainly not feature as a matter of routine. It may be best to confine it to rare and exceptional cases. It may also assist the perception of balance if a judge, rather than avowing a wholesale acceptance of one party’s submissions, simply stated, in his or her own words, what propositions and criticisms are well founded. In short, the court is not surprised that the pursuer took umbrage at the imbalance of compliment and criticism, even if the well-informed observer would not have done so."