Thursday, 29 September 2016

COMPLAINT ABOUT LORD PENTLAND'S BREACHES OF JUDICIAL CODE


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

16 September 2016                 

 

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

                                              

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD PENTLAND

I want to raise a formal complaint about unethical conduct by Lord Pentland in respect of his outright rejection of my proposed writ against Mr Iain Scott.

Lord Pentland appears to have failed to act in accordance with the principles of impartiality, integrity, propriety and competence and diligence.

The Scottish Judiciary has an honourable tradition in the attainment of high standards of judicial conduct. Maintaining such standards is essential if the community is to have confidence in its judiciary.

 

In the section of the published report on Judicial Ethics that addresses the principle of impartiality the following statements are made, reproduced here in italics for convenience:

 

‘Where there exists some reason, apart from pecuniary interest,

why a judge should not handle a case on its objective merits, or

may reasonably appear to be unable to do so, he or she should

recuse himself or herself. Thus, for example, a meaningful

acquaintance with a litigant, or a person known to be a significant

witness in the case might constitute such an objection. Other

examples of such reasons are set out in the judgment of the court in

Locabail (U.K.) Ltd v Bayfield Properties Ltd (C.A.) [2000] Q.B. 451 at

Statement Of Principles of Judicial Ethics for the Scottish Judiciary

April 2010 23 page 480. Further, recusal would be necessary where a well informed

and fair-minded observer would consider that there was

a real possibility of bias: Porter v Magill [2002] 2 A.C. 357.

Consideration of the operation of that principle is to be found in

Helow v Secretary of State for the Home Department 2008 SC (HL) 1.’

 

In the section that addresses the principle of integrity the report states ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.

 

In the section that addresses the principle of propriety the report states the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.’

 

In the section that addresses the principle of competence and diligence the report states:

 

Since the public have certain legitimate expectations as to the

decision making of the court, it is important that these should be

met. Written decisions should be formulated in such a way as to

render them comprehensible to the public, so far as that is

consistent with the handling of what may be very complex legal

and factual issues. Judges should carefully consider whether they

have a sound basis for making critical observations in their

judgments.....’

 

As detailed below, Lord Pentland appears to have violated all these principles.

 

Firstly, Lord Pentland ought to have recused himself from considering my proposed writ against Mr Iain Scott in order to avoid an appearance of bias against me. It is public knowledge that Lord Pentland was employed by the Crown Office and Procurator Fiscal Service and a reasonable suspicion could arise in the mind of an independent observer that Lord Pentland may well have been aware of my allegations of misconduct and criminality against one or more of his former colleagues, including Ms Elish Angiolini, Mr Colin Boyd, Ms Catherine Dyer, Ms Michelle Macleod, Ms Shona Barrie, Mr John Dunn, Mr John Logue, Mr Peter Collings, Mr Scott Pattison, Ms Lesley Thomson and Mr David Harvie.

A further real possibility of bias arises with regard to two previous formal complaints of unethical conduct that I submitted against Lord Pentland.

These are reproduced below in order to show that a well informed and fair-minded observer would consider that there was a further real possibility of bias against me by Lord Pentland in these circumstances:

 

 

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

15 December 2012                 

 

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

                                              

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD PENTLAND

I want to raise a formal complaint about unethical conduct by Lord Pentland as indicated in his interlocutor dated 10 December 2012 in respect of my proposed writ against Scottish Enterprise dated 1 December 2012.

Lord Pentland appears to have failed to act in accordance with the principles of impartiality, integrity, propriety and competence and diligence.

In the section of Lord Hamilton’s report on Judicial Ethics that addresses

the principle of impartiality Lord Hamilton includes the following:

 

‘Where there exists some reason, apart from pecuniary interest,

why a judge should not handle a case on its objective merits, or

may reasonably appear to be unable to do so, he or she should

recuse himself or herself. Thus, for example, a meaningful

acquaintance with a litigant, or a person known to be a significant

witness in the case might constitute such an objection. Other

examples of such reasons are set out in the judgment of the court in

Locabail (U.K.) Ltd v Bayfield Properties Ltd (C.A.) [2000] Q.B. 451 at

Statement Of Principles of Judicial Ethics for the Scottish Judiciary

April 2010 23 page 480. Further, recusal would be necessary where a well informed

and fair-minded observer would consider that there was

a real possibility of bias: Porter v Magill [2002] 2 A.C. 357.

Consideration of the operation of that principle is to be found in

Helow v Secretary of State for the Home Department 2008 SC (HL) 1.’

 

 

In the section that addresses the principle of integrity Lord Hamilton states ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.’

 

In the section that addresses the principle of propriety Lord Hamilton states ‘the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.’

 

In the section that addresses the principle of competence and diligence Lord Hamilton states:

 

Since the public have certain legitimate expectations as to the

decision making of the court, it is important that these should be

met. Written decisions should be formulated in such a way as to

render them comprehensible to the public, so far as that is

consistent with the handling of what may be very complex legal

and factual issues. Judges should carefully consider whether they

have a sound basis for making critical observations in their

judgments.....’

 

As detailed below, Lord Pentland appears to have violated all these principles.

 

Firstly, Lord Pentland ought to have recused himself from considering my proposed writ against Scottish Enterprise on the grounds that it indicated, especially in conjunction with Lord Pentland’s professed knowledge of ‘the long running history of complaints brought by the pursuer’, allegations of criminality against a former employer of Lord Pentland, namely the Crown Office.

Lord Pentland failed to avoid an appearance of bias. 

Thereafter Lord Pentland appears to have unfairly and unlawfully applied a more stringent test to this proposed action than what was legally required by the vexatious actions order. He appears not to have decided the matter on a prima facie basis at all but rather to have applied standards more appropriate for a later stage in procedure, for example a proof hearing. 

Lord Pentland failed to address the arguments and evidence presented and failed to provide convincing reasons for his decision that would enable the public to comprehend it.

The reasons given by Lord Pentland for his decision are reproduced below in bold type and my comments are added in normal type:

 

‘The Initial Writ is clearly irrelevant in the sense that it discloses no valid legal claim.’

This is a false statement by Lord Pentland.

The proposed action for negligence was quite properly based upon important new evidence obtained in June 2012. 

With reference to the case of Spring v Guardian Assurance [1994] 3 All ER 129, Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), states the following at page 5:

‘Though this is an English case, it is one that falls into the sphere of negligence rather than defamation and the House of Lords is not likely to accept that the Scots law of negligence is any different from the English law of negligence.’

RA Buckley’s book, The Modern Law of Negligence,  Butterworths, (1999), states the following at page 100 with reference to White v Jones [1995] 2 AC 207, [1995] 1 All ER 691:

‘In this case, and in another recent decision of the House (Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, [1994] 3 All ER 506), their Lordships appeared to favour the notion that a defendant’s ‘assuming responsibility’ for a particular task, where the adverse effect upon the plaintiff if it were not discharged was foreseeable, could provide an adequate foundation for liability.’

And at page 123 also with reference to White v Jones the following is stated:

‘........... after the duty of care has been assumed by the defendant .......... it can make no difference whether its breach occurs by way of omission or of positive act. ([1995] 2 AC 207, at 295)’

At page 131 the following is stated:

‘It has, of course, always been clear that a plaintiff who himself suffered personal injury, or whose property was damaged, could recover financial losses consequential upon this injury or damage. The most common example is a claim for lost income by a person incapacitated through the defendant’s negligence.’

Lord Pentland has addressed none of these important issues, although they were included in the proposed writ along with other relevant issues. His assertion that this proposed writ is ‘clearly irrelevant in the sense that it discloses no valid legal claim’ is entirely unsupported, does not accord with the facts, and is simply false.

The Pleas in Law presented in the proposed writ summarised its legal validity in the following terms, reproduced here in italics for convenience:

 

PLEAS-IN-LAW FOR THE PURSUER

 

1. In August 1993 the defender assumed responsibility to investigate the pursuer’s allegations of financial irregularities in Enterprise Ayrshire, at that time a subsidiary of the defender in which the pursuer was employed on a contract for services.

 

2. The pursuer relied upon the defender taking care in carrying out this task and the defender was aware of that reliance.

    

3. In these circumstances a special relationship between the defender and the pursuer was created of sufficient proximity to impose a duty of care on the defender.

 

4. New evidence obtained by the pursuer in June 2012 indicates that the defender breached the duty of care by failing to investigate the pursuer’s allegations properly and by failing to take positive steps to safeguard the pursuer’s professional reputation and employability.

 

5. The pursuer incurred economic losses as a result of the defender’s negligence.

 

6. The sum sued for being a reasonable amount of reparation in respect of estimated economic losses resulting from the defender’s negligence, decree should be granted as craved.

 

Lord Pentland has addressed none of these important points and he has abjectly failed to provide reasons that are valid in law for stating that the writ is ‘clearly irrelevant in the sense that it discloses no valid legal claim’.

 

‘Any obligation to make reparation to the pursuer on the part of Scottish Enterprise has long since prescribed.’

Here Lord Pentland has gravely misrepresented the legal position in respect of prescription.

According to the terms of the Prescription and Limitation (Scotland) Act 1973, quoted here in italics for convenience:

(4) In the computation of a prescriptive period in relation to any obligation for the purposes of this section—

(a) any period during which by reason of—

(i) fraud on the part of the debtor or any person acting on his behalf, or

(ii) error induced by words or conduct of the debtor or any person acting on his behalf,

the creditor was induced to refrain from making a relevant claim in relation to the obligation, and

(b) any period during which the original creditor (while he is the creditor) was under legal disability,

shall not be reckoned as, or as part of, the prescriptive period:

Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the fraud or error, as the case may be, referred to in that paragraph.

 

I repeatedly requested information from Scottish Enterprise on their investigation into my allegations. Scottish Enterprise persistently evaded my requests.

Relevant averments clearly indicated this important aspect of the proposed case, an extract from which is reproduced here in italics for convenience:

 

The pursuer was completely excluded from the defender’s investigation and effectively shunned thereafter. No opportunity was given to the pursuer for him to provide any input to the defender’s investigation and no information was ever provided by the defender to the pursuer as to the findings of its investigation.

The defender’s failure to obtain any information from the pursuer in respect of his expulsion or to address the significant absence of any proof that the pursuer had made unauthorised disclosures was grossly negligent in the circumstances.

 

‘The so called new evidence makes no difference to this.’

This is another false statement by Lord Pentland.

Firstly, referring to the new evidence as ‘so called’ is clearly unfair, effectively undermining the evidence and rejecting all the related averments without any reasonable or lawful basis and without proof.

Contrary to Lord Pentland’s misleading comments, new evidence can indeed make a difference to any case.

Lord Pentland’s approach appears to be fundamentally unlawful and overtly biased against me. Therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer.

In particular, Lord Pentland’s reasoning does not respect my fundamental rights under the European Convention on Human Rights, Article 6, as established in the Human Rights Act 1998.

As stated above, ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.’

 

‘In fact, it does not amount to new evidence at all, but merely to an explanation of the long running history of complaints brought by the pursuer.’

This is another false statement and a further indication of bias against me by Lord Pentland.

The documents presented to the court did indeed amount to new evidence. Lord Pentland’s reference to these documents as amounting ‘merely to an explanation of the long running history of complaints brought by the pursuer’ has no reasonable basis in fact or in law and can properly be regarded as outrageous.

I have in fact only ever presented two complaints to Scottish Enterprise and these were both completely disregarded. Scottish Enterprise subsequently pretended falsely that responses had already been provided.

Lord Pentland was supposed to be addressing the arguments and evidence provided in the proposed writ in order to assess whether or not a prima facie case was disclosed. He was not supposed to be having regard to unspecified and unproven additional material. 

Since Lord Pentland indicates that he apparently has significant knowledge of this case additional to what is contained in the proposed writ it is a matter of very grave concern indeed that he has entirely omitted to mention anything at all about what is clearly at the heart of this case, overwhelming evidence of the operation of a criminal conspiracy to pervert the course of justice involving senior managers in Scottish Enterprise, senior Strathclyde Police officers and senior employees of the Crown Office and Procurator Fiscal Service, Lord Pentland’s former employer.

There is no limitation to prevent due consideration of what the available evidence discloses in respect of blatant criminality but any regard for such due consideration is conspicuous by its absence in Lord Pentland’s reasoning.

Even without the professed additional knowledge, Lord Pentland would have been in no doubt about the very serious allegations of criminality, including implied allegations of criminality against his former employer which took no action, because the proposed writ plainly stated the following, reproduced here in italics for convenience:

 

COND. 2  In 1993 the defender’s subsidiary company Enterprise Ayrshire employed the pursuer on a contract for services beginning in January. The pursuer’s contract was abruptly terminated on 18 August 1993 following his objection in writing on 17 August 1993 to having been instructed to omit funds from the balance sheet in respect of a cash receipt of £187,069 from the European Regional Development Fund. This instruction was effectively an incitement for the pursuer to enter into a conspiracy to commit fraud, plainly a very serious matter.

The pursuer’s email to his supervisors Mr Gary Tracey and Ms Janie Maxwell, dated 17 August 1993, contained the following:

‘For the record, as I said to you both today, I am not comfortable with your instruction to exclude from Enterprise Ayrshire’s balance sheet funds received from the EC.’

‘Your comment that the management accounts do not matter so much, being produced only for internal use, seems to underplay the potentially serious consequences of circulating figures that are incorrect.’

‘I stated to you both that I know this aspect of Scottish Enterprise’s finances is under investigation by the National Audit Office therefore you must accept my concern as genuine.’

‘I have been advised that such omissions from management accounts are in breach of the Institute’s ethical guidelines.’  

..............

COND. 5  ...... The defender’s negligent conduct can reasonably be suspected as designed to cover up the true nature of the matter, which in fact gave rise to a reasonable suspicion of the operation of a criminal conspiracy to commit fraud, not a minor accounting technicality at all.....  

 

Consequently, Lord Pentland seems to be content to condone the criminality at the heart of this case while pouring scorn on my attempt to obtain reparation in the light of important new evidence. Lord Pentland’s comments are immoderate and inappropriate in the circumstances and reveal a disturbing lack of proper concern for integrity and justice on his part.

As stated above, ‘the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality’ and ‘Judges should carefully consider whether they have a sound basis for making critical observations in their judgments.....’

 

‘There is no basis for the pursuer’s assertions that the defenders have been in continuous breach of duties owed to him.’

This is another false statement by Lord Pentland.

The basis for my assertions on this issue was provided in the proposed writ in the following terms, reproduced here in italics for convenience:

 

COND. 5  This new evidence indicates that the defender did not carry out the task it had undertaken with the level of care that was required in the circumstances.

As a result the defender negligently destroyed the pursuer’s career in 1993 and the defender has been negligent towards the pursuer in respect of this matter ever since.

Firstly, the new evidence indicates that the defender carelessly treated the pursuer’s concerns as a relatively unimportant technical accounting matter regarding when a credit should have been shown in management accounts. 

In fact the pursuer had been concerned about being instructed by his supervisors to overlook in his reconciliation work the omission from the balance sheet of a cash grant from the European Regional Development Fund of £187,069 which had simultaneously been deposited in a high interest bank account.

Referring to this as relating to an accounting matter regarding when a credit should have been shown in the management accounts was therefore misleading and negligent. The defender consequently appears to have failed to address and investigate the substance of the matter in accordance with its duty of care.

The defender’s negligent conduct can reasonably be suspected as designed to cover up the true nature of the matter, which in fact gave rise to a reasonable suspicion of the operation of a criminal conspiracy to commit fraud, not a minor accounting technicality at all.  

Secondly, the new evidence indicates that the defender carelessly disregarded important evidence and negligently concluded that no evidence of wrongdoing was found.

The pursuer’s email to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell, dated 17 August 1993 had recorded his objection to their instruction for the pursuer to omit from the balance sheet funds received from the EC.

The correction to the balance sheet, made within less than a day of the pursuer’s email, was a significant increase in the bank balance and a corresponding decrease in the funding required from taxpayers.

Consequently, there was indeed evidence of wrongdoing.

Before this correction the accounts had been wrong by £187,069.

Thirdly, the new evidence indicates that the defender was negligent in respect of investigating how the pursuer had been treated when he raised his concerns about financial irregularities in an email.

The new evidence from the defender states that following unauthorised disclosures relating to the above matter to the press and various other third parties the pursuer’s position was untenable and his contract with Enterprise Ayrshire was terminated in August 1993.

In fact the pursuer did not make any unauthorised disclosures relating to the above matter to the press and various other third parties before his contract was terminated. The defender appears to have carelessly accepted those damaging falsehoods about the pursuer’s conduct without properly investigating them and without proof.

The pursuer was swiftly expelled from his position without explanation or justification on the day that the accounts were corrected, 18 August 1993. The pursuer was completely excluded from the defender’s investigation and effectively shunned thereafter. No opportunity was given to the pursuer for him to provide any input to the defender’s investigation and no information was ever provided by the defender to the pursuer as to the findings of its investigation.

The defender’s failure to obtain any information from the pursuer in respect of his expulsion or to address the significant absence of any proof that the pursuer had made unauthorised disclosures was grossly negligent in the circumstances.

 

COND. 6  In the circumstances the defender owed a duty of care to the pursuer requiring the taking of positive steps. It made no difference whether the breach of the duty of care occurred by way of omission or of positive act.   

The new evidence from the defender indicates that the defender has seriously breached its duty of care towards the pursuer over an extensive period of time.

The defender’s actions and omissions have been persistently unfair and negligent towards the pursuer with very grave consequences for the pursuer’s employability.    

 

Lord Pentland has addressed none of these important points and he has abjectly failed to provide reasons that are valid in law for stating that ‘There is no basis for the pursuer’s assertions that the defenders have been in continuous breach of duties owed to him.’

 

‘In the circumstances, it is plain that the proposed action has no proper legal basis and stands no prospect of succeeding.’

This is another false statement by Lord Pentland.

The proposed action does indeed have a proper legal basis. Lord Pentland’s reasons for rejection of the proposed writ are entirely lacking in relevancy and specification. His reasons are not valid in law.

In any event Lord Pentland was supposed to be assessing whether or not a prima facie case was disclosed. He was not supposed to be assessing the prospects of success thereafter.

My comments above in the section referring to Lord Pentland’s statement that ‘The Initial Writ is clearly irrelevant in the sense that it discloses no valid legal claim’ also apply here.

 

‘Leave, must, therefore, be refused.’

This is another false statement by Lord Pentland.

Since this conclusion has been arrived at after a succession of unlawful remarks and blatantly defective reasoning by Lord Pentland, it simply has no justification at all.

Such conduct blatantly violates Judicial Ethics and would tend to undermine public confidence in the administration of justice.

Lord Pentland has provided no sound basis for making the critical observations in his interlocutor highlighted herein.

He appears not to have applied the correct legal tests for whether or not the proposed writ contained a prima facie case.

His defectively reasoned assertions that he is not satisfied that the proceedings are not vexatious or that there is a prima facie ground for such proceedings will simply be incomprehensible to the general public.

Consequently, a reasonable suspicion could arise in the mind of an independent observer that Lord Pentland was determined to exclude me from the court by whatever means and thereby seems to have acted unfairly, unlawfully and in breach of Judicial Ethics.

All these failures were incompatible with the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Section 6 of the Human Rights Act 1998 provides, to the extent relevant:

‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

‘(6) ’An act’ includes a failure to act....’

Article 6 of the European Convention on Human Rights provides, to the extent relevant:

‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 323:

‘5.80  In general, the European Convention on Human Rights, Article 6 obliges courts to give reasons for their judgment. (Hadjianastassiou v Greece (1992) A 252-A, para 33) The giving of reasons is generally implicit in the concept of a fair trial since reasons inform the parties of the basis of the decision and enable them to exercise any right of appeal available to them, and also enable the public to understand the rationale for judicial decisions.......’

‘The right to a reasoned judgment imposes on domestic courts a duty, in principle, to examine and address the arguments and evidence put forward by the parties to a case. (Quadrelli v Italy (11 January 2000), para 34), (Ruiz Torija v Spain (1994) A 303-A, para 19) ..........’

‘The reasons given must be valid in law. (De Moor v Belgium (1994) A 292-A, paras 54-55)’  

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 106:

‘The fact that the Convention imposes positive as well as negative obligations is reflected in the terms of the Human Rights Act 1998. (Section 6(6))’

At page 253 the following points are relevant:

Fair administration of justice’

‘Procedural propriety and the prohibition of the retroactive imposition of criminal liability lie at the heart of any legal system grounded in the rule of law. The European Convention on Human Rights, Articles 6 and 7 codify those crucial principles of the fair administration of justice which form the bedrock of European legal tradition.......’

‘The central importance of Article 6 is reflected in the volume and scope of applications claiming violation of its guarantees. This provision has been employed by applicants to challenge aspects of criminal, civil and administrative procedures of European legal systems, and the European Court of Human Rights has been at pains to protect the fundamental notion of the effective delivery of fair justice.........’ 

Yours faithfully,

                                Eddie Cairns.

 

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

20 December 2012                 

 

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

                                              

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD PENTLAND

I want to raise a new formal complaint about unethical conduct by Lord Pentland as indicated in his interlocutor dated 17 December 2012 in respect of my proposed writ against Scottish Enterprise dated 13 December 2012.

Lord Pentland appears to have failed to act in accordance with the principles of impartiality, integrity, propriety and competence and diligence.

In the section of Lord Hamilton’s report on Judicial Ethics that addresses

the principle of impartiality Lord Hamilton includes the following:

 

‘Where there exists some reason, apart from pecuniary interest,

why a judge should not handle a case on its objective merits, or

may reasonably appear to be unable to do so, he or she should

recuse himself or herself. Thus, for example, a meaningful

acquaintance with a litigant, or a person known to be a significant

witness in the case might constitute such an objection. Other

examples of such reasons are set out in the judgment of the court in

Locabail (U.K.) Ltd v Bayfield Properties Ltd (C.A.) [2000] Q.B. 451 at

Statement Of Principles of Judicial Ethics for the Scottish Judiciary

April 2010 23 page 480. Further, recusal would be necessary where a well informed

and fair-minded observer would consider that there was

a real possibility of bias: Porter v Magill [2002] 2 A.C. 357.

Consideration of the operation of that principle is to be found in

Helow v Secretary of State for the Home Department 2008 SC (HL) 1.’

 

 

In the section that addresses the principle of integrity Lord Hamilton states ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.’

 

In the section that addresses the principle of propriety Lord Hamilton states ‘the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.’

 

In the section that addresses the principle of competence and diligence Lord Hamilton states:

 

Since the public have certain legitimate expectations as to the

decision making of the court, it is important that these should be

met. Written decisions should be formulated in such a way as to

render them comprehensible to the public, so far as that is

consistent with the handling of what may be very complex legal

and factual issues. Judges should carefully consider whether they

have a sound basis for making critical observations in their

judgments.....’

 

As detailed below, Lord Pentland appears to have violated all these principles.

 

Firstly, Lord Pentland ought to have recused himself from considering my proposed writ against Scottish Enterprise on the grounds that a formal complaint against him had been raised by me on 15 December 2012 and was in progress therefore a well informed and fair-minded observer would consider that there was a real possibility of bias against me in the circumstances.

 

Further, the new writ indicated, especially in conjunction with Lord Pentland’s earlier professed knowledge of ‘the long running history of complaints brought by the pursuer’, allegations of criminality against a former employer of Lord Pentland, namely the Crown Office.

Lord Pentland was an employee of the Crown Office during the time that the original so-called investigation into the allegations of a criminal conspiracy to defraud taxpayers at the heart of this case was carried out. Subsequent disclosures show that no proper investigation has ever been carried out into those allegations or into the later allegations of a criminal conspiracy to pervert the course of justice.

Lord Pentland failed to avoid an appearance of bias in respect of both of these points. 

A reasonable suspicion could arise in the mind of an independent observer that Lord Pentland’s dismissive approach towards this case is designed to continue with the alleged cover up. 

Thereafter Lord Pentland appears to have unfairly and unlawfully applied a more stringent test to this proposed action than what was legally required by the vexatious actions order. He appears not to have decided the matter on a prima facie basis at all but rather to have applied standards more appropriate for a later stage in procedure, for example a proof hearing. 

Apart from his brief comment on condescendence 6 Lord Pentland has failed to address the specific arguments and evidence presented in the writ and has failed to provide convincing reasons for his decision that would enable the public to comprehend it.

The reasons given by Lord Pentland for his decision are reproduced below in bold type and my comments are added in normal type:

 

‘The latest Initial Writ is clearly irrelevant and discloses no valid cause of action.’

This is a false statement by Lord Pentland.

The proposed action for negligence was quite properly based upon important new evidence obtained in June 2012. 

With reference to the case of Spring v Guardian Assurance [1994] 3 All ER 129, Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), states the following at page 5:

‘Though this is an English case, it is one that falls into the sphere of negligence rather than defamation and the House of Lords is not likely to accept that the Scots law of negligence is any different from the English law of negligence.’

RA Buckley’s book, The Modern Law of Negligence,  Butterworths, (1999), states the following at page 100 with reference to White v Jones [1995] 2 AC 207, [1995] 1 All ER 691:

‘In this case, and in another recent decision of the House (Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, [1994] 3 All ER 506), their Lordships appeared to favour the notion that a defendant’s ‘assuming responsibility’ for a particular task, where the adverse effect upon the plaintiff if it were not discharged was foreseeable, could provide an adequate foundation for liability.’

And at page 123 also with reference to White v Jones the following is stated:

‘........... after the duty of care has been assumed by the defendant .......... it can make no difference whether its breach occurs by way of omission or of positive act. ([1995] 2 AC 207, at 295)’

At page 131 the following is stated:

‘It has, of course, always been clear that a plaintiff who himself suffered personal injury, or whose property was damaged, could recover financial losses consequential upon this injury or damage. The most common example is a claim for lost income by a person incapacitated through the defendant’s negligence.’

Lord Pentland has addressed none of these important issues, although they were included in the proposed writ along with other relevant issues. His assertion that this proposed writ is ‘clearly irrelevant and discloses no valid cause of action’ is entirely unsupported, does not accord with the facts, and is simply false.

The Pleas in Law presented in the proposed writ summarised its legal validity in the following terms, reproduced here in italics for convenience:

 

PLEAS-IN-LAW FOR THE PURSUER

 

1. In August 1993 the defender assumed responsibility to investigate the pursuer’s allegations of financial irregularities in Enterprise Ayrshire, at that time a subsidiary of the defender in which the pursuer was employed on a contract for services.

2. The pursuer relied upon the defender taking care in carrying out this task and the defender was aware of that reliance.

3. In these circumstances a special relationship between the defender and the pursuer was created of sufficient proximity to impose a duty of care on the defender.

4. New evidence obtained by the pursuer in June 2012 indicates that the defender breached the duty of care by failing to take positive steps to safeguard the pursuer’s professional reputation and employability.

5. The defender has persistently refused to provide relevant information to the pursuer.

6. The pursuer was induced by the defender’s fraudulent conduct to refrain from making a relevant claim until the documents containing the defender’s position on this issue were obtained, which occurred in June 2012, therefore the period before the documents were obtained should not be reckoned as part of the prescriptive period in respect of this claim for the purpose of Section 6 of the Prescription and Limitation (Scotland) Act 1973, according to subsection (4) of Section 6.    

7. The pursuer incurred economic losses as a result of the defender’s negligence.

8. The sum sued for being a reasonable amount of reparation in respect of estimated economic losses resulting from the defender’s negligence, decree should be granted as craved.

 

Apart from his brief comment on condescendence 6 Lord Pentland has addressed none of these important points and he has abjectly failed to provide reasons that are valid in law for stating that the writ is ‘clearly irrelevant and discloses no valid cause of action’.

 

‘What I said in my previous Note continues to be valid.’

Consequently, all my points of complaint in respect of Lord Pentland’s previous Note also apply in this complaint.

In particular, Lord Pentland’s generally disparaging remarks are overtly biased against me and completely devoid of any supporting legal arguments, authorities or relevant evidence.

 

‘The averments in condescendence 6 amount to no more than assertions.’

Those averments are reproduced below in italics for convenience:

COND. 6  The pursuer was induced to refrain from making a relevant claim until the documents containing evidence of the defender’s position on this issue were obtained, which occurred in June 2012, therefore the period before these documents were obtained should not be reckoned as part of the prescriptive period in respect of this claim for the purpose of Section 6 of the Prescription and Limitation (Scotland) Act 1973, according to subsection (4) of Section 6.    

 

Clearly, proofs in relation to these assertions in the event of them being disputed by Scottish Enterprise could have been presented to the court at a later stage in procedure.

Separately, Lord Pentland has entirely disregarded information available in the public domain disclosing that I have been under legal disability continuously since September 2002 which is a relevant factor already undoubtedly known to the court since orders for caution and vexatious actions have been recorded.

Lord Pentland was supposed to be assessing whether or not a prima facie case was disclosed. He was not meant to be judging the case itself.

In any event, Lord Pentland has highlighted the fact that his own statements in relation to this proposed action ‘amount to no more than assertions’. He has referred to no evidence or authority in support of his assertions. 

 

‘In any event there is no ‘new’ evidence.’

This is another false statement and a further indication of bias against me by Lord Pentland.

The documents presented to the court did indeed amount to new evidence. Lord Pentland has completely failed to produce or even identify any evidence previously available to me in respect of that averred to be new in the writ.

It is for the defender to answer the specific averments in the writ, not the judge who is meant to be assessing whether or not a prima facie case is disclosed. For example Scottish Enterprise may well not challenge the averments based upon the new evidence because they know that I can prove that the evidence is indeed new.

Lord Pentland’s approach appears to be fundamentally unlawful and overtly biased against me. Therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer especially in view of Lord Pentland’s former employment in the Crown Office.

Lord Pentland’s reasoning does not respect my fundamental rights under the European Convention on Human Rights, Article 6, as established in the Human Rights Act 1998.

As stated above, ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.’

 

Lord Pentland was supposed to be addressing the arguments and evidence provided in the proposed writ in order to assess whether or not a prima facie case was disclosed. He was not supposed to be having regard to unspecified and unproven additional material. 

Since Lord Pentland indicates that he apparently has significant knowledge of this case additional to what is contained in the proposed writ it is a matter of very grave concern indeed that he has entirely omitted to mention anything at all about what is clearly at the heart of this case, overwhelming evidence of the operation of a criminal conspiracy to pervert the course of justice involving senior managers in Scottish Enterprise, senior Strathclyde Police officers and senior employees of the Crown Office and Procurator Fiscal Service, Lord Pentland’s former employer.

There is no limitation to prevent due consideration of what the available evidence discloses in respect of blatant criminality but any regard for such due consideration is conspicuous by its absence in Lord Pentland’s reasoning.

Even without the professed additional knowledge, Lord Pentland would have been in no doubt about the very serious allegations of criminality, including implied allegations of criminality against his former employer which took no action, because the proposed writ plainly stated the following, reproduced here in italics for convenience:

 

COND. 2  In 1993 the defender’s subsidiary company Enterprise Ayrshire employed the pursuer on a contract for services beginning in January. The pursuer’s contract was abruptly terminated on 18 August 1993 following his objection in writing on 17 August 1993 to having been instructed to omit funds from the balance sheet in respect of a cash receipt of £187,069 from the European Regional Development Fund. This instruction was effectively an incitement for the pursuer to enter into a conspiracy to commit fraud, plainly a very serious matter.

The pursuer’s email to his supervisors Mr Gary Tracey and Ms Janie Maxwell, dated 17 August 1993, contained the following:

‘For the record, as I said to you both today, I am not comfortable with your instruction to exclude from Enterprise Ayrshire’s balance sheet funds received from the EC.’

‘Your comment that the management accounts do not matter so much, being produced only for internal use, seems to underplay the potentially serious consequences of circulating figures that are incorrect.’

‘I stated to you both that I know this aspect of Scottish Enterprise’s finances is under investigation by the National Audit Office therefore you must accept my concern as genuine.’

‘I have been advised that such omissions from management accounts are in breach of the Institute’s ethical guidelines.’  

A copy of the pursuer’s email to his supervisors in Enterprise Ayrshire dated 17 August 1993 is produced and referred to for its terms which are held as incorporated herein brevitatis causa.

 

Lord Pentland’s background also raises cause for concern because of his close association with Colin Boyd QC, the former Lord Advocate and now Lord Boyd of Duncansby 

Lord Pentland’s earlier professed knowledge of ‘the long running history of complaints brought by the pursuer’ indicates that he may well be aware of my complaints about Lord Boyd relative to this case when he was Lord Advocate.

Lord Pentland may well have known that in 2006 Ms Valerie Stacey QC, now Lady Stacey, had advised me, on behalf of the Faculty of Advocates, that I had grounds for a formal complaint to the Scottish Government about the Lord Advocate’s conduct in the case.

Lord Pentland may well have known that in 2007 the Legal Services Ombudsman had issued an Opinion which concurred with that advice and agreed that the Lord Advocate’s alleged collusion and misconduct ought to be formally investigated.

Lord Pentland may well have known that Strathclyde Police indicated their intention to have me categorised as a vexatious litigant in 2003, shortly after receiving new evidence from me that they were meant to be reviewing impartially.

Lord Pentland may well have known that the petition was raised in 2004, during several related live civil actions and during a lengthy criminal review directed at that time by the Lord Advocate Mr Colin Boyd QC, all of which were founded upon the same allegations that the Lord Advocate was then presenting to the Court as vexatious, clearly inconsistently.

How could the Lord Advocate’s own department spend a considerable time, about two years, investigating allegations that the Lord Advocate apparently belatedly regarded as vexatious? This was without doubt utter nonsense.

Lord Pentland may well have known that relevant evidence that I had already submitted to the authorities objecting to the vexatious actions petition raised by the Lord Advocate included a letter sent by Ms Claire Cullen at the Office of the Solicitor to the Scottish Executive to solicitors Anderson Fyfe who were at that time acting for Scottish Enterprise Ayrshire, Scottish Enterprise and Scottish Enterprise director Mr Andrew Downie, my opponents in separate live civil actions and, simultaneously, suspects in the review of the criminal investigation based upon the same allegations relating to the £187,069 fraud.

The text of that letter, dated 18 August 2004, is reproduced below:

’Dear Sirs,’

‘EDWARD CAIRNS’

’PETITION UNDER SECTION 1 OF THE VEXATIOUS ACTIONS (SCOTLAND) ACT 1898’

‘I refer to previous correspondence, and in particular to my colleague’s letter to you dated 7 July 2004.’

‘The Lord Advocate has now instructed that the Petition be presented in terms of section 1 of the Vexatious Actions (Scotland) Act 1898. Counsel has been instructed and has been asked to deal with this Petition promptly.’

‘Yours faithfully,’

‘Claire F Cullen’

The live civil actions and the criminal investigation were not concluded until several months later, in 2005.

This shows that during the time that he was meant to be independently directing a review the Lord Advocate was in reality secretly colluding with the suspects to nullify my related civil claims against them.

Outrageously, the suspects were being informed that the Lord Advocate was taking urgent action against me, the whistleblower at the centre of the allegations of criminality, even before the criminal investigation had been concluded and before important evidence that the police had undertaken in writing to collect from me had in fact been collected for consideration. That evidence was actually never collected by the police, providing additional grounds for grave concern about the conduct of the Lord Advocate and the other conspirators.  

The letter proves that the Lord Advocate was not acting independently at all, nor was he acting in the public interest or in the interests of justice, and that several individuals were involved in a conspiracy to pervert the course of justice. The letter also reveals that this corrupt correspondence with the solicitors acting for my opponents had been going on for some time, since it refers to previous correspondence on the matter.

The Lord Advocate’s supposed independent direction of the police and prosecutors had actually been biased against me from an early stage, contrary to the most fundamental requirements of justice, completely at odds with the Human Rights Act 1998 and the European Convention on Human Rights.

Lord Pentland may well have known all these relevant facts in view of his comments but he has completely disregarded them. 

Consequently, Lord Pentland seems to be content to overlook the criminality at the heart of this case while pouring scorn on my attempt to obtain reparation in the light of important new evidence that he has unjustifiably tried to undermine.

Lord Pentland’s comments are grossly disproportionate, immoderate and inappropriate in the circumstances and reveal a disturbing lack of proper concern for integrity and justice on his part.

I am a qualified accountant whose career was unjustifiably destroyed by alleged crooks and liars in Scottish Enterprise. Their fraud was allegedly covered up by Strathclyde Police and the Crown Office, both of whom appear to have concealed evidence and persisted in falsehoods for many years, for example that I was the only witness to the financial irregularities in a department full of finance staff.

As stated above, ‘the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality’ and ‘Judges should carefully consider whether they have a sound basis for making critical observations in their judgments.....’

 

‘In the circumstances, the proposed action is without merit and leave must be refused.’

This is another grossly disproportionate and unfair statement by Lord Pentland in the circumstances.

The proposed action does indeed have merit on balance. The public will justifiably be concerned that Lord Pentland has strained out a gnat while swallowing a camel in respect of this case.

In plain language, Lord Pentland appears to have turned a blind eye to the outstanding alleged crimes of his former employer while concentrating on finding fault with my writ without any reference to relevant evidence or authority in support of his assertions.

Lord Pentland knows that vexatious litigants are refused legal aid and that in these circumstances there is no professional advice available to me to enable the presentation of a professionally stated case. Consequently, Lord Pentland’s overtly unbalanced approach is particularly unacceptable and contrary to the interests of justice. 

Such unfair conduct will of course be very discouraging for whistleblowers who encounter financial irregularities in public agencies in future because Lord Pentland seems to be determined to crush any attempt to obtain the slightest semblance of justice in this case.

Lord Pentland’s conduct gives the disturbing impression of favouring a prevailing culture in Scotland where honesty is punished.

My comments above in the section referring to Lord Pentland’s statement that ‘The latest Initial Writ is clearly irrelevant and discloses no valid cause of action also apply here.

Since Lord Pentland’s conclusion has been arrived at after a succession of disproportionate, unfair, unlawful remarks, unbalanced reasoning and unsupported criticisms, it simply has no justification at all.

Such conduct blatantly violates Judicial Ethics and would tend to undermine public confidence in the administration of justice.

Lord Pentland has provided no sound basis for making the critical observations in his interlocutor highlighted herein.

He appears not to have applied the correct legal tests for whether or not the proposed writ contained a prima facie case.

His defectively reasoned assertions that he is not satisfied that the proceedings are not vexatious or that there is a prima facie ground for such proceedings will simply be incomprehensible to the general public.

Consequently, a reasonable suspicion could arise in the mind of an independent observer that Lord Pentland was determined to exclude me from the court by whatever means and thereby seems to have acted disproportionately, unfairly, unlawfully and in breach of Judicial Ethics.

All these failures were incompatible with the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Section 6 of the Human Rights Act 1998 provides, to the extent relevant:

‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

‘(6) ’An act’ includes a failure to act....’

Article 6 of the European Convention on Human Rights provides, to the extent relevant:

‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 323:

‘5.80  In general, the European Convention on Human Rights, Article 6 obliges courts to give reasons for their judgment. (Hadjianastassiou v Greece (1992) A 252-A, para 33) The giving of reasons is generally implicit in the concept of a fair trial since reasons inform the parties of the basis of the decision and enable them to exercise any right of appeal available to them, and also enable the public to understand the rationale for judicial decisions.......’

‘The right to a reasoned judgment imposes on domestic courts a duty, in principle, to examine and address the arguments and evidence put forward by the parties to a case. (Quadrelli v Italy (11 January 2000), para 34), (Ruiz Torija v Spain (1994) A 303-A, para 19) ..........’

‘The reasons given must be valid in law. (De Moor v Belgium (1994) A 292-A, paras 54-55)’  

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 106:

‘The fact that the Convention imposes positive as well as negative obligations is reflected in the terms of the Human Rights Act 1998. (Section 6(6))’

At page 253 the following points are relevant:

Fair administration of justice’

‘Procedural propriety and the prohibition of the retroactive imposition of criminal liability lie at the heart of any legal system grounded in the rule of law. The European Convention on Human Rights, Articles 6 and 7 codify those crucial principles of the fair administration of justice which form the bedrock of European legal tradition.......’

‘The central importance of Article 6 is reflected in the volume and scope of applications claiming violation of its guarantees. This provision has been employed by applicants to challenge aspects of criminal, civil and administrative procedures of European legal systems, and the European Court of Human Rights has been at pains to protect the fundamental notion of the effective delivery of fair justice.........’ 

Yours faithfully,

                                Eddie Cairns.

 

Available evidence confirms that Lord Pentland has repeatedly failed to avoid an appearance of bias. Actual bias does not have to be alleged or proven to render a judge insufficiently impartial.

Lord Pentland failed to address the arguments and evidence presented in the proposed writ dated 8 September 2016 and failed to provide convincing reasons for his decision that would enable the public to comprehend it.

The reason given by the Court for Lord Pentland’s decision is reproduced below in bold type and my comments follow:

‘His Lordship’s reasons for refusal are; the further changes to the Initial Writ have done nothing to render this proposed action a relevant one. None of the statements complained of is even arguably defamatory of the pursuer. In the circumstances, leave to institute proceedings must again be refused.’

In any event since the averred defamatory statements have to be taken as a whole and in context Lord Pentland’s reference to an earlier version of the proposed writ was entirely irrelevant. The complete proposed writ presented to Lord Pentland ought to have been considered in its totality.

On the face of it any fair minded member of the public would regard the defender’s statements about me prima facie as tending to lower me in the estimation of right-thinking members of society generally, especially in view of my status as a qualified accountant and in the context of alleged financial irregularities in a public authority.

Lord Pentland’s view that none of the statements complained of is even arguably defamatory of the pursuer has no reasonable basis. It appears to be completely false. Any financial expert whose professional competence and integrity have been repeatedly attacked could of course argue that such attacks are defamatory. 

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that I had fully exhausted the complaints and review procedures of all the organisations that I had involved, including Scottish Enterprise and the Scottish Public Services Ombudsman, but that I was continuing with my complaint, would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that I was continuing to raise a complaint beyond all the review processes and that I was placing my former employer Scottish Enterprise in a difficult, indeed, unprecedented position would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that I was continuing with a complaint that has exhausted even the processes beyond Scottish Enterprise’s complaints procedure would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that I was asking Scottish Enterprise to re-address questions posed by me that were the subject of the original complaint would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that there was no substance to any of the allegations made by me regarding the receipt of European funds by Enterprise Ayrshire would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that there were no grounds for taking any action in response to my allegations of financial irregularities would not tend to lower me in the estimation of right-thinking members of society generally.

Inexplicably, Lord Pentland has held that prima facie the defender’s statement that my former employer was aware of my allegations and rejected them totally and that the European funds were handled absolutely correctly in legal and accounting ethical terms would not tend to lower me in the estimation of right-thinking members of society generally.   

These are not views with which the general public would readily concur at first sight. Prima facie the defender’s accusations against me that I was continuing with a complaint although I had already fully exhausted the complaints and review procedures of all the organisations that I had involved, including Scottish Enterprise and the Scottish Public Services Ombudsman, that I was placing my former employer Scottish Enterprise in a difficult, indeed, unprecedented position, that I was continuing with a complaint that had exhausted even the processes beyond Scottish Enterprise’s complaints procedure, that I was asking Scottish Enterprise to re-address questions posed by me that were the subject of the original complaint, that there was no substance to any of the allegations made by me regarding the receipt of European funds by Enterprise Ayrshire, that there were no grounds for taking any action in response to my allegations of financial irregularities, that my former employer was aware of my allegations and rejected them totally and that the European funds were handled absolutely correctly in legal and accounting ethical terms would undoubtedly tend to lower me in the estimation of right-thinking members of society generally, especially in view of my status as a qualified accountant. 

Therefore Lord Pentland’s decision appears to be irrational and biased against me. Pertinent explanations from Lord Pentland in support of his decision that the defender’s statements about me were not defamatory would seem to be required in order for justice to be seen to be done, because the defender’s statements about me appear to be undoubtedly defamatory prima facie. This is unsatisfactory for an open judicial process.

The text of Lord Pentland’s interlocutor dated 12 September 2016 is reproduced in its entirety below in bold type and my comments follow:

‘The Lord Ordinary, having considered the proposed Initial Writ and not being satisfied that the proceedings are not vexatious and that there is a prima facie ground for such proceedings, refuses leave to Mr Edward Cairns, 72 Hillhouse Street, Glasgow, G21 4HP to institute the proceedings in terms of Section 1 of the Vexatious Actions (Scotland) Act 1898.’

Conspicuous by its absence is any accompanying Note:

As averred in the proposed writ:

‘The pursuer is a qualified accountant therefore the defender’s defamatory statements in the context of alleged financial irregularities in a public authority were particularly insulting and damaging. The words amounted to an unjustified attack on the pursuer’s professional competence and integrity. They falsely portrayed the pursuer as a dishonest and unreasonable person, an incompetent accountant, a false accuser and someone who had breached professional standards.’

‘The defender’s defamatory statements about the pursuer resulted in Mr Bob Doris MSP deciding to take no further action on behalf of the pursuer. Clearly the defender’s words had lowered the pursuer in the estimation of Mr Doris.’

‘The defender’s defamatory statements about the pursuer resulted in Scottish Enterprise disregarding the pursuer’s rights as a former employee, whistleblower and complainant. Clearly the defender’s words had lowered the pursuer in the estimation of Scottish Enterprise.’

‘It was simply false for the defender to pretend that the pursuer had exhausted the complaints and review procedures of Scottish Enterprise and the Scottish Public Services Ombudsman, that Scottish Enterprise National had taken the pursuer’s allegations seriously and had investigated them thoroughly on the day that they were made, that there was no substance to any of the allegations made regarding the receipt of European funds by Enterprise Ayrshire, that their enquiries were complete and there were no grounds for taking any action, that the pursuer’s former employer said it was aware of the pursuer’s allegations and rejected them totally, that the European funds were handled absolutely correctly in legal and accounting ethical terms, that the European funds were handled absolutely correctly in legal and accounting ethical terms, that the bank statements had been reconciled only to the cash book, that as the entry had been made in the cash book for the ERDF income, no discrepancy arose, that had the cash book balance been subsequently reconciled to the bank account in the financial ledger the difference would have been highlighted and that there was no evidence that this reconciliation had been carried out.’

‘Taken as a  whole these false statements would undoubtedly tend to lower the pursuer in the estimation of right-thinking members of society generally, especially in view of the pursuer’s status as a qualified accountant and in the context of the pursuer’s valid objection to financial irregularities in a public authority.’

‘The reconciliation in question is included in the productions. It shows that £187,069 had been omitted from the balance sheet, in accordance with Mr Gary Tracey’s unlawful directions to more junior finance staff, as other productions confirm.’

‘Clearly the correction to the accounts on 18 August 1993 was forced by the pursuer’s crucial email dated 17 August 1993 to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell but the report makes no mention of this email which stated the following, reproduced here in italics for convenience:’

‘’For the record, as I said to you both today, I am not comfortable with your instruction to exclude from Enterprise Ayrshire’s balance sheet funds received from the EC.’’

‘’Your comment that the management accounts do not matter so much, being produced only for internal use, seems to underplay the potentially serious consequences of circulating figures that are incorrect.’’

‘‘I stated to you both that I know this aspect of Scottish Enterprise’s finances is under investigation by the National Audit Office therefore you must accept my concern as genuine.’’

‘‘I have been advised that such omissions from management accounts are in breach of the Institute’s ethical guidelines.’’  

Lord Pentland addressed none of the important adverse consequences for me that were averred in the proposed writ as detailed in the above extract.

In the absence of convincing explanations Lord Pentland’s decision appears to be perverse and one that would tend to bring the court into disrepute.

Lord Pentland appears at least to have unfairly and unlawfully applied a more stringent test to this proposed action than what was legally required by the vexatious actions order. He appears not to have decided the matter on a prima facie basis at all but rather to have applied standards more appropriate for a later stage in procedure, for example a debate or a proof hearing.

In any event Lord Pentland has not stated which test he did apply and in what respects every averred defamatory statement failed to meet the requirements of that test.

Lord Pentland’s overt failures render his conduct fundamentally unlawful and in breach of ethical standards.

Contrary to Lord Pentland’s completely unreasoned decision there were indeed prima facie grounds for the proposed proceedings.  

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 9, the paramount test for defamation is:

’Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’

‘(Sim v Stretch [1936] 2 All ER 1237 at 1240. This test has been accepted as representing the law of Scotland in Steele v Scottish Daily Record and Sunday Mail 1970 SLT 53 and in Thomson v News Group Newspapers 1992 GWD 14-925.)’

‘The significance of this test cannot be overstated.’

There is no indication that Lord Pentland applied this test. Even if he did he has not stated why every averred defamatory statement failed the test.

Lord Pentland’s approach appears to be fundamentally unlawful and overtly biased against me. Therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer.

In particular, Lord Pentland’s lack of a reasoned judgment does not respect my fundamental rights under the European Convention on Human Rights, Article 6, as established in the Human Rights Act 1998.

As stated above, the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality’ and ‘Judges should carefully consider whether they have a sound basis for making critical observations in their judgments.....’

  

Lord Pentland’s reason for rejection of the proposed writ is entirely lacking in specification.  

Such apparently improper conduct violates Judicial Ethics and would tend to undermine public confidence in the administration of justice.

Lord Pentland has provided no sound basis for making the critical observations in his interlocutor in respect of not being satisfied that the proceedings were not vexatious and that prima facie there was no ground for the proposed proceedings.

Consequently, a reasonable suspicion could arise in the mind of an independent observer that Lord Pentland was determined to exclude me from the court by whatever means regardless of the valid grounds for the proposed proceedings.

Most importantly, his decision that the averments are not defamatory would appear to any independent observer of average intelligence to be simply wrong. 

All these failures were also incompatible with the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Section 6 of the Human Rights Act 1998 provides, to the extent relevant:

‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

‘(6) ’An act’ includes a failure to act....’

Article 6 of the European Convention on Human Rights provides, to the extent relevant:

‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 323:

‘5.80  In general, the European Convention on Human Rights, Article 6 obliges courts to give reasons for their judgment. (Hadjianastassiou v Greece (1992) A 252-A, para 33) The giving of reasons is generally implicit in the concept of a fair trial since reasons inform the parties of the basis of the decision and enable them to exercise any right of appeal available to them, and also enable the public to understand the rationale for judicial decisions.......’

‘The right to a reasoned judgment imposes on domestic courts a duty, in principle, to examine and address the arguments and evidence put forward by the parties to a case. (Quadrelli v Italy (11 January 2000), para 34), (Ruiz Torija v Spain (1994) A 303-A, para 19) ..........’

‘The reasons given must be valid in law. (De Moor v Belgium (1994) A 292-A, paras 54-55)’  

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 106:

‘The fact that the Convention imposes positive as well as negative obligations is reflected in the terms of the Human Rights Act 1998. (Section 6(6))’

At page 253 the following points are relevant:

Fair administration of justice’

‘Procedural propriety and the prohibition of the retroactive imposition of criminal liability lie at the heart of any legal system grounded in the rule of law. The European Convention on Human Rights, Articles 6 and 7 codify those crucial principles of the fair administration of justice which form the bedrock of European legal tradition.......’

‘The central importance of Article 6 is reflected in the volume and scope of applications claiming violation of its guarantees. This provision has been employed by applicants to challenge aspects of criminal, civil and administrative procedures of European legal systems, and the European Court of Human Rights has been at pains to protect the fundamental notion of the effective delivery of fair justice.........’ 

As stated above, in the section of the published report on Judicial Ethics that addresses the principle of integrity the report states, ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.

 

Consequently for all the reasons presented herein Lord Pentland’s decision appears to be unlawful, irrational, incomprehensible, unexplained and biased rendering it unethical and unacceptable.

Lord Pentland’s decision appears to be based upon falsehoods and to be simply wrong.

It should be set aside in the public interest and in the interests of justice.

In a wider context Lord Pentland’s failure to have any regard for my right to reputation in the face of the defender’s many false and damaging statements about me as a financial expert and whistleblower in a public authority is not in the public interest nor is it in the interests of justice.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 1:

‘The law of Scotland has always placed high regard on a person’s right to reputation. Stair, listing the important interests that are protected by the law, puts ‘fame, reputation, and honour’ third to ‘life, members and health’ and ‘liberty’.

‘(Institutions of the Law of Scotland, 1,4,4)’

‘If character, honour and reputation is unjustly attacked the law provides remedies through the actions for defamation, verbal injury, and even negligence.’

On page 8 the following is stated:

‘Defamation is, literally, the taking away of one’s fame and to be actionable the pursuer must establish that the statement or communication is injurious in the sense of being capable of harming the pursuer’s public character, honour or reputation.’

‘(Green’s Encyclopaedia of Scots Law, vol 5, 1102)’

Any repetition of a defamatory statement is actionable. The defender has fallen foul of the “repetition rule”, i.e. that a person who repeats a libel is equally responsible with his author.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 74:

‘An individual is liable for his or her own delicts, committed either personally or through the medium of another. To instruct one’s employee to defame another is to commit the wrong oneself (though the employee will be personally liable too). If more than one person joins in the defamation each is personally liable for the whole loss to the pursuer, for, notwithstanding that the defamation is committed by more than one person, liability is individual and not joint and several.’

In the light of the available evidence Lord Pentland has effectively denied justice to me regardless of the law of Scotland on defamation by pretending, without giving reasons to enable the public to understand the rationale for his decision, that prima facie the proposed action for defamation would be vexatious and that there is no ground for it.

Yours faithfully,

                                Eddie Cairns.

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