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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v. McGuiness [2003] ScotCS 198 (11 July 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/198.html Cite as: [2003] ScotCS 198, 2003 SCLR 998 |
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OUTER HOUSE, COURT OF SESSION |
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A2120/99
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OPINION OF LORD BONOMY in the cause ROBERT MARTIN Pursuer; against JOHN McGUINESS Defender: ________________ |
Pursuer: Summers; Henderson Boyd Jackson, W.S.
Defender: McNeill, Q.C.; HBM Sayers
11 July 2003
[1] On 7 July 2003 the pursuer accepted a tender for £7,500 made on 8 August 2000. He now seeks the expenses of the action until the tender. He also seeks an award of all expenses incurred "arising out of the surveillance by the defender averred on record from 5 December 2000 to date, including, without prejudice to the foregoing generality, the costs of the procedure roll hearing of 12 to 14 November 2002". In the alternative he seeks a finding of no expenses due to or by either party in respect of the same period. The defender concedes expenses up to the tender, but seeks an award of expenses for all procedure thereafter. [2] The action was raised under optional procedure at the end of 1999. Proof was originally appointed to take place over three days from 24 October 2000. The tender made in August 2000 was immediately rejected. The October proof did not proceed because there was no judge available. In discussion at that time those acting for the pursuer indicated that his claim was valued at £200,000 but that the pursuer would accept £150,000, albeit the sum sued for was only £50,000. In light of that information the defender's agents immediately instructed surveillance of the pursuer by a firm of private investigators. Their report led to a minute of amendment for the defender being presented on 5 December 2000 and to the agreement of parties to the discharge of a second proof diet set down for 16 January 2001. In answering the defender's averments about the results of the surveillance the pursuer introduced a plea in law seeking exclusion from probation of the evidence obtained by surveillance, and conclusions supported by pleas in law seeking declarator that the conduct of the private investigators and their surveillance were unlawful acts and damages of £5,000. The pursuer's case to exclude the evidence and for declarator and damages was founded upon Article 8 of the European Convention on Human Rights. The cause then proceeded as an ordinary action. Following debate on 12, 13 and 14 November 2002 I found the evidence obtained to be admissible and dismissed the conclusions for declarator and damages. The pursuer then accepted the tender. [3] Mr Summers, counsel for the pursuer, founded his argument on the judgement of the Court of Appeal in England in Jones v University of Warwick [2003] EWCA siv 151, [2003] 1 WLR 954, where the Court, having decided that the evidence obtained by the defendant by surveillance was admissible, nevertheless expressed the view that the defendant should meet the costs of the proceedings that were necessary to resolve the admissibility of that evidence, principally because the evidence had been obtained by what the Court considered to be "improper and unjustified conduct", but also because such an order was necessary to deter improper conduct by litigants in general. Mr Summers submitted that the present defender, like the defendant in Jones, was responsible for the commission of "legal wrongs" in the course of obtaining the evidence, and invited me to express the Court's displeasure at the conduct of the defender by finding him liable in expenses. [4] It has been recognised since Shepherd v Elliot (1896) 23 R 695 that the general rule that expenses should follow success may be modified to reflect the contribution of the successful party to causing, or contributing to the bringing about of, the lawsuit. Ewart v Brown (1882) 10 R 163 is an example of no expenses being awarded to a successful defender whom the Court regarded as having acted improperly in the incident which gave rise to the litigation. [5] Mr Summers suggested that two aspects of the investigator's conduct amounted to wrongful acts. In reliance upon Gordon, Land Law, para.13.10 he submitted that, since the investigator had no reason to believe that the pursuer and his wife consented to his presence at the door of their home, he was a trespasser. However, it is also clear from Gordon that such an act of trespass is a wrong of a rather technical nature which would not sound in damages. Indeed, the one example he cited, Geils v Thompson and others (1872) 10 M 327, where interdict was pronounced, involved unlawful inference with, and damage to, the pursuer's land. Mr Summers relied also on Smith v Donnelly 2002 SLT 1007, and the definition of breach of the peace set out in para.17 and at p.1012B, as demonstrating that the visit to the pursuer's home was sufficient to constitute the crime of breach of the peace. He instantly recognised, however, that such conduct would never be prosecuted as a breach of the peace. [6] I agree with Mr McNeill, Q.C., for the defender, that there are a number of significant differences between the present case and Jones. In Jones (paragraph 9 and paragraph 25) it was conceded that the inquiry agent was guilty of trespass and that there had been an infringement of the plaintiff's privacy contrary to Article 8(1). The surveillance in Jones included covert filming within the plaintiff's home. On the other hand, I decided at procedure roll that the inquiries and surveillance in the present case were reasonable and proportionate steps for the defender to take in the course of investigating the case brought against him, and that the conduct involved in gathering the evidence did not infringe the pursuer's Article 8 Convention right. Even if going to the pursuer's home could be said to amount to trespass, it would not warrant the description "improper and unjustified conduct". The act of engaging the pursuer's wife in conversation about where he could be seen, and referring falsely in that conversation to an acquaintanceship with the pursuer, is little different from what is done daily by sales persons and canvassers throughout the country, and does not amount to breach of the peace. The pursuer's wife did not ask the investigator to leave nor attempt to close the door. The video footage subsequently recorded was of the pursuer outwith his house. I do not consider that the conduct of the investigator was such as to merit disapproval by the Court. While the surveillance was carried out on behalf of the defender, the issues in the litigation relating to the surveillance were raised by the pursuer. I found against the pursuer on all issues raised by him. There are no circumstances, therefore, which warrant departure from the usual rule that expenses should follow success. [7] My attention was drawn to no Scottish authority in which a decision was made on expenses with a view to discouraging improper conduct by litigants in general. My decision following debate and my decision on this motion are based entirely on the circumstances of the present case. Neither should be regarded, as was feared by Mr Summers, as an indication that "anything goes" in carrying out inquiries in the course of adversarial litigation. Indeed, I am not at all sure that, faced with the situation presented to the Court of Appeal in Jones, I would have admitted the evidence. The members of the Court of Appeal were strongly influenced by what they saw as practical difficulties in the way of reaching a just outcome - see para.28. It is not clear to me that similar difficulties would arise in a Scottish case. In our jurisdiction evidence of which both parties are aware is regularly excluded without impairing the ability of parties to present their cases on the strength of the admissible evidence. However, a decision on circumstances similar to those in Jones must await the day when they arise here. [8] It did trouble me that all of the contentious procedure arose following the abortion of the initial proof diet for reasons which were not the fault of either party. However, the loss of a proof diet for reasons for which neither party can be blamed is simply an incident of litigation for which the party responsible for expenses must, as between the parties themselves, bear responsibility. [9] I shall accordingly find the pursuer entitled to expenses to the date of the tender and shall thereafter find the defender entitled to expenses.
