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Cite as: [2012] ScotCS CSIHC_31

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i

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Paton

Lord Hardie

Lord Emslie

[2012] CSIH 31

P982/11

OPINION OF THE COURT

delivered by LADY PATON

in the petition

of

THE RIGHT HONOURABLE EILISH ANGIOLINI, QC, Her Majesty's Advocate

Petitioner;

against

A B

Respondent;

for

an order under the Vexatious Actions (Scotland) Act 1898

_______

Act: D Cameron; Scottish Government Legal Directorate

Alt: Party

27 March 2012

Introduction


[1] The respondent, AB, raised various actions in
Glasgow Sheriff Court. Such were their nature, number, and content that the Sheriff Principal, by letter dated 11 January 2010 (with list of cases attached) invited the Lord Advocate to consider bringing proceedings to have the respondent declared a vexatious litigant. The Lord Advocate raised the current petition. A hearing took place in the Court of Session. The respondent represented himself, as he had done in the majority of the litigations referred to.

The respondent's personal circumstances


[2] The respondent spent much of his youth abroad, where his father was posted. He became a piano tuner. He married Y, a foreign national. They had three children, P, Q and R currently aged 13, 12 and 11. The couple separated in about 2000. The respondent settled in
Glasgow as a single parent looking after the three children. The children attended CD Primary School. In March 2007, they moved to another primary school (G).

The court actions


[3] Many of the actions raised by the respondent related to CD Primary School, to social services, and to police intervention. The respondent raised actions against school staff, parents of pupils at CD, social workers, the City Council, the procurator fiscal and the police. In two litigations, he lodged lengthy counterclaims seeking damages and other remedies (which qualify as proceedings "instituted" by the respondent: paragraphs [23], [28] and [30] of Lord Advocate v McNamara 2009 SC 598). What follows is a chronological summary of most, but not all, of the respondent's litigations. As the respondent's pleadings were so wordy and lengthy, only abbreviated versions have been given. Sources include (i) the list of cases attached to the Sheriff Principal's letter of
11 January 2010; (ii) the petition and the respondent's manuscript answers; (iii) two files containing some of the court papers (the "Court Files"); (iv) a file containing court interlocutors; (v) verbal information given by the respondent in the course of the hearing. Only those litigations "instituted" by the respondent have been numbered below.

2005

1. AB v JB (SC1895/05)


[4] The respondent stated that the defender had made untrue statements that he was not the father of his children. He explained that the action had been settled.

2. AB v JS (SE754/05)


[5] The respondent said that his friend, JS, took the respondent's dog for a walk, but did not return it. It was a misunderstanding. The dog was ultimately returned.

2006

3. AB v CD Parent Teachers Association (SA6092/06)


[6] The respondent said that he paid a bill of about 93 out of his own funds on behalf of the Association in connection with candles. He sought repayment (all as averred in Case A8741/06 pages 28-29 and 49-50), and raised a small claim. The matter went to proof. The sheriff dismissed the action as the respondent was unable to prove that he had taken money from his own funds to pay the Association's bill.


4. AB v ML (SA6093/06)


[7] The respondent stated that he paid in advance for ML to give his child ten piano lessons (85, as averred at page 28 of Case A8741/06). According to the respondent, ML did not provide the lessons. The action was raised, but was dismissed because the respondent could not find the relevant cheque stub.

5. Counterclaim in GM v AB (A8741/06): sections 6/12 and 6/20 of the Court Files


[8] GM, the head teacher of CD Primary School, raised an action against the respondent seeking interdict, non-harassment orders, and a power of arrest. She averred that the respondent's child had complained to school staff about being kicked in the back and slapped on the leg. In compliance with her statutory duties, GM made child protection referrals to the Social Services department in May 2006 and provided reports. That resulted in difficulties between the respondent and the school.


[9] On
13 December 2006, the court granted interim interdict in terms of Craves 1 and 4 (prohibiting the making of false statements about child protection referrals and any molestation or harassment of GM). On 6 February 2007, GM received a threatening letter from the respondent, quoted in paragraph [28] below. As a result, on 8 February 2007 a further interim interdict in terms of Crave 5 was granted (prohibiting the respondent from approaching GM, attending at her place of work, or communicating with her). Diets of debate set for 11 May 2007, 14 June 2007, and 16 August 2007 were discharged on the respondent's motions (page 3 of the Sheriff Principal's list of cases). A power of arrest was initially refused, but then granted on 8 May 2007, and extended on 10 and 16 August 2007.


[10] The respondent was initially represented by a solicitor, but the latter withdrew from acting on
18 January 2007. The respondent then drafted and lodged lengthy answers and a counterclaim, resulting in a record of 203 pages. He averred inter alia that GM was "an extreme Roman Catholic headmistress" (Answer 5 page 25) who was afraid of the truth (Answer 5 page 35), behaved in an "unethical" way (Answer 5 page 34), told lies to the court (Answer 5 page 35), wilfully covered up the assault of another young child (Answer 5, pages 31 and 34), and was conducting a personal vendetta towards the respondent (Answer 5 pages 22 and 34). The answers included inter alia the following averments:

"ANS 1 (page 6) ... [GM made] an unfounded and malicious child protection referral ...

ANS 5 (page 20) ... [a] fabricated and inaccurate child protection referral ... (page 22) ... [GM] is conducting a personal vendetta designed to cause [the respondent] and his family maximum distress ... (pages 35-36) ... The .... community support [the respondent] and his young children in their defence of [GM's] malicious and evil attacks upon said family ..."

Article 9 of Condescendence quoted a letter dated 28 November 2006 by the respondent to GM's solicitors as follows:

" ... (page 51) 'Please advise your client [GM] that as soon as charges are referred [against GM] or any court action commences either at my instance or your client's, I have a journalist with whom I enjoy a close relationship. The very next day a story will be printed in a major tabloid newspaper with a photograph of your client so the public are fully aware who made these unfounded allegations about my family and I ..."


[11] The respondent continued in the letter that he expected GM to admit liability, to make an offer of reparation to the respondent's family, and also to resign from the school. The respondent's answers had further averments, including the following:

"ANS 9 (page 55) ... said letters were written by [the respondent] because God told him to demand justice for his children. The pursuer is called upon as an extremist Roman Catholic to place her hand upon the Holy Bible in order to state she is telling the truth and nothing but the truth in relation to the abuse and malicious allegations she has made towards [the respondent] and his family as failure to do so shall be founded upon ... (page 57) ... the pursuer is interfering with his family life by her negligent and malicious actions ...

ANS 14 (page 78) ... To the reasonable man, the pursuer's conduct would be clearly and immediately defined as a personal vendetta toward [the respondent] with the sole intent to cause [the respondent] and his children the maximum amount of loss, injury and damage ...

ANS 15 ... (page 136-137) ... Explained and averred that said Mrs H's opinion of [the respondent] has been unduly influenced by the malicious acts and evil intentions of other parent members within the .... community. But for the malicious and evil acts of other said unknown community members, Mrs H's rejection of the [respondent and his children] would not have

happened ..."


[12] In his counterclaim, the respondent sought inter alia payment of 800,000 in damages, and the installation and independent monitoring of closed circuit television in all classrooms, halls, and other areas in CD and all other Glasgow Council schools (as the respondent averred that he had received reports of maltreatment from his children). The counterclaim includes averments (Statement 3, which ran to nearly 40 pages) that:

" ... The pursuer [GM] falsely, wilfully and maliciously accuses the defender of following three mothers [of pupils] home after school ... By falsely and maliciously accusing the defender of a [serious] offence, the pursuer and said three mothers have committed common law perjury ... The pursuer reported the defender maliciously in terms with section 57 child protection procedures ... The pursuer fabricated evidence ... The pursuer has wilfully and recklessly breached ... Article 8 of the Human Rights Act ... The pursuer did [a particular act] with the intent to harm and upset the defender and his children ... The pursuer did this wickedly and with evil intent ... with malice ... to cause the defender maximum injury, hurt, loss, damage and distress ... in pursuit of her personal vendetta against the defender and his innocent children ..."


[13] The action and counterclaim were sisted and re-sisted on inter alia
11 May 2007, 16 August 2007, 30 November 2007 and 7 November 2008 to enable the respondent to obtain legal representation and to apply for legal aid. They remain sisted. The interim interdicts remain in force.

6. Counterclaim in Glasgow City Council v AB (A8819/06): section 6/15 of the Court Files


[14] Glasgow City Council, acting on behalf of all the teaching staff at CD Primary School, sought to interdict the respondent from entering the primary school premises or harassing the staff. They referred to the sequence of events involving the child protection referrals and the subsequent tensions between the respondent and the school staff, including the respondent's attempts to canvass support from other parents. It was averred inter alia that the respondent stated that he would raise an action of damages and recompense against the Council for the negligence of their teaching staff. He demanded payment from the depute head, failing which he would "go to the papers" or to "take her to the small claims court".


[15] The respondent lodged lengthy defences and a lengthy counterclaim on his own behalf and on behalf of his three children. In the counterclaim, he sought damages (according to the Sheriff Principal's note page 2) of 1 million for himself; 1 million for his son Q; and 250,000 for each of his daughters P and R, for loss, injury and damage caused by GM. In statement 3, he averred that the Council had failed to control GM's conduct (which amounted to harassment of the respondent as detailed in statements 3 and 4).


[16] Interim interdict was granted in favour of the Council on
15 December 2006. That interdict became unnecessary in March 2007, as the children moved to another school. The Council acknowledged the change of circumstances and abandoned their action. The interim interdict was recalled on 23 March 2007. However the respondent wished to continue with his counterclaim. He failed to lodge a record in proper form, and also sought to add his three children (who were not defenders in the main action) to the counterclaim. In the result the sheriff dismissed the counterclaim on 6 March 2009, and found the respondent liable in expenses. An appeal to the Sheriff Principal failed. The respondent appealed to the Court of Session: Sheriff Principal's list of cases pages 2-3.


2007

7. AB v JS and JMcL (A135/07): section 6/19 of the Court Files


[18] The respondent and his three children sought damages of 3,000, a non-molestation interdict, interdict against defamatory remarks (in particular concerning child protection referrals and the respondent's parenting skills), a non-harassment order, and a power of arrest. The respondent averred that the child protection referrals had caused unrest and suspicion in CD parent teachers association. Everyone excepting the respondent had resigned. The defenders shouted aggressively at the respondent in the school playground that he was bringing CD's reputation into disrepute and affecting the children's education. The police had to escort the respondent's family to school. The defenders circulated allegations that the respondent did not care properly for his children, and also that the respondent had shouted at ML that she owed him 85. The defenders were "the ringleaders" of parents who booed, chanted, and told the respondent to take his children to another school. JM was named by the respondent as one of his sympathisers and supporters: she was subsequently sued by him, as set out in paragraph [40] below.


[19] On
10 January 2007 a hearing was continued to allow the writ to be signed and the respondent to take legal advice. On 12 January 2007 the court was telephoned and told that the respondent could not attend the hearing as he was indisposed. The writ was returned to the respondent. According to the Sheriff Principal's list of cases page 4, there has been no further procedure.

8. AB v JMcL (A1228/07)


[20] The respondent explained that he had sought interim interdict against another parent at the school, JMcL, averring that JMcL was the leader of a whispering campaign against the respondent. According to the respondent, parents questioned his situation as a single male looking after three children. Some suggested that he had murdered their mother. The respondent had been subjected to abuse, humiliation, defamation, and death threats. The respondent had requested that the police escort the family to school. The outcome of the action is not known.

9. AB v JMcL and JS (A1367/07): section 6/18 of the Court Files


[21] Page 3 of the Sheriff Principal's list of cases refers to a letter from the respondent, alleging that the two individuals named had forced the family to move to another school due to violent and intimidating abuse. The list of cases, paragraph 2(3) of the petition, and section 6/18(i) of the Court Files, record that at a hearing on 16 March 2007 the court was not satisfied that there had been proper service of the initial writ. On
21 March 2007, the respondent was permitted to abandon the action at common law. The defenders were assoilzied, with a finding of no expenses due to or by either party.

10. AB v Glasgow City Council (A8947/07): section 6/2 of the Court Files


[24] The respondent sought interdicts and a non-harassment order against the Social Services department, and in particular a social worker named JMcD. He averred that in May 2006, the head teacher of CD had maliciously and in bad faith submitted a child protection referral to the Social Services department. In 2007 the department had maliciously and perversely placed the children's names on an internal "at risk" register (acting ultra vires and contrary to natural justice). At a meeting on
19 December 2007 JMcD made a defamatory statement, namely "We are concerned for the safety of your children". On 20 December 2007 the respondent resisted attempts by social workers and police to enter his home. There had been similar such incidents in the past. The Social Services department was in effect harassing the respondent and the children.


[25] On
11 January 2008 the sheriff ruled that the court had no jurisdiction, dismissed the action, and found no expenses due to or by either party.

2008

GM v AB (B28/08): section 6/13 of the Court Files


[26] GM raised an action against the respondent averring that he was in breach of interdict. The respondent defended the action. The sheriff issued a judgment dated
11 March 2009, in which he made the following findings-in-fact:

" ... (3) On 11 October 2007 [the respondent] wrote an entry in the Home/School Diary of his child, Q, which he intended should and which did come to the attention of Mrs B, the head teacher at G School. The diary entry was in the following terms:

'11.10.07 Miss B, thank you. Recently, [Q] has been talking about his maltreatment and abuse at the other school (CD), in particular being segregated and left sitting alone in a corridor for hours. His older sister supports his testimony. Please have this reported. AB. Regards my eldest daughter, she recounts that she was molested by the Head Teacher at her other school. This 'overspills'. Given the children are on 'at risk' register I expect you to report this to JMcD (SWS). I have also been noting how my children's English has worsened since being forced to move school. By that I mean using words they would not normally use. Please advise me what will be undertaken regards the points I raise. Given the fact that this is a diary I have recorded these facts for futures sake."

...(5) The allegations ... were reported ... to the Social Work Department of Glasgow City Council for them to investigate.

(6) The allegations made in the diary entry were untrue."


[27] The sheriff made the following findings-in-fact-and-law:

"(1) The allegation against the pursuer which was made in the diary entry was false and defamatory.

(2) The occasion upon which the diary entry was made was not subject to qualified privilege.

(3) In making the diary entry the defender [AB] acted out of malice.

(4) In making the diary entry the defender [AB] breached the interim interdict granted by the court on 13 December 2006."

The respondent appealed to the Court of Session (Sheriff Principal's list of cases page 6). The respondent's Note of Appeal extended to 16 pages and 217 paragraphs. The process was transmitted to the Court of Session on 21 May 2009.

Procurator fiscal, Glasgow v AB (trial 22, 27 February and 12 March 2008)


[28] The respondent was charged on a summary complaint which libelled that:

"between 6 February 2007 and 8 March 2007 at the premises of [a solicitors' firm] ... and at [CD Primary School] you ... did conduct yourself in a disorderly manner repeatedly harass [GM], a teacher at [the] school and did by means of a letter threaten said [GM], enter the playground, repeatedly fail to comply with requests to retreat from the teacher, place said [GM] in a state of fear and alarm for her safety and commit a breach of the peace."

The letter, received by GM's solicitor on 6 February 2007 to be forwarded to her, stated inter alia:

"In the name of Jesus, I am asking you to admit you have told evil lies about me. Admit that you have lied to your own lawyer and Council bosses."

The letter urged GM to admit all her sins so that she would be forgiven. It concluded:

"If you do not, then the Lord, King of Kings, Lord of Lords, will condemn you to solitude. If you do not tell the truth now, this letter and my voice, will be the last things you see and hear before being cast to Hell. In God's name, Amen (signature of the respondent)".

The letter caused fear, alarm, anxiety, distress and upset, all as set out in an opinion of the High Court in the respondent's appeal: AB v Procurator fiscal, Glasgow
[2010] HCJAC 138. That opinion also gives details of an incident on
8 March 2007 when the respondent, with two interim interdicts against him, sought to deliver his son Q to school. According to the opinion, he arrived wearing dark sunglasses. He entered the school playground and went beyond a white line marked on the ground which parents were encouraged to stay behind. He spoke to a teacher. When GM arrived, she was frightened and alarmed by the respondent's presence. He was asked to go behind the white line, but ignored those requests. The police were called. They arrested the respondent using the power of arrest attached to the interim interdict. The sheriff, in a written note quoted in paragraph [8] of Lord Carloway's opinion, observed:

"I have no doubt that [the respondent's] mere presence was designed to intimidate [GM] and was provocative ... [and] that [the respondent] had written ... the note to [the solicitor] enclosing the letter to [GM] ... The complainer was apprehensive at the mere sight of [the respondent] on 8 March 2007 because of the events of 6 February 2007 and the granting of the intervening interim interdict."

11. AB v JMcD and KW (A3128/08): section 6/3 of the Court Files


[29] The respondent sought inter alia interdict against two social workers from (i) making false and defamatory remarks about the respondent's parenting skills; (ii) maliciously alleging that he had murdered the children's mother and buried her abroad, and that he had threatened a "Dunblane-style" massacre at CD. He also sought damages of 200,000. The supporting averments referred to various incidents including those already mentioned in action A8947/07, and to social workers' accusations that the respondent was maliciously planting ideas in the children's heads.


[30] Defences were lodged. On
10 October 2008, after various procedures, the sheriff dismissed the action against the first and second defenders (JMcD and KW) with no expenses due to or by either party. On 11 March 2011 the sheriff assoilzied the third party minuters (Glasgow City Council), finding the respondent liable in their expenses.

2009

12. AB v LMcB (A17/09): section 6/10 of the Court Files


[31] The respondent sought damages for defamation (62,000 for himself and 62,000 for his daughter P) against a parent at CD Primary School. The respondent averred that the defender maliciously wrote a letter dated
16 November 2006 to GM, misrepresenting a conversation and implying that the respondent was a "stalker". The letter was part of an evil conspiracy against the respondent and his children. According to the respondent, GM used the letter to persuade the sheriff to grant her an interim interdict and a non-molestation order against the respondent. The respondent and his family were then ostracised and intimidated, and had to move out of the community. The letter is quoted in the pleadings as follows:

"FAO Mrs GM

From: LMcB

Subject: This information is for the attention of:

MO, PASTORAL CARE OFFICER

Dear M,

I would like to inform you of an incident which took place on Monday 13th November 2006.

I was approached by [AB] at 09.05am on the way to [L] Nursery school with my 3 year old daughter and nephew. I have no idea if [Mr B] knew of my whereabouts but he appeared 'FROM NOWHERE' whilst I was startled my main concern was getting the kids into nursery.

[Mr B] wanted to speak to me about recent events which had happened between himself and [CD] school which I was unaware of. He was trying I think, to gain my support and to back up his claims of being a 'GOOD FATHER'.

I would like to make it clear that I felt quite harassed by this type of attention and I have no real opinions on his ability as a father other than to say that I felt [P], his eldest daughter could be given more care and attention in the personal hygiene department.

I expressed to [Mr B] that it would be in his best interests I believe, to try to resolve his differences with [CD]. I also told him that in my opinion [CD] is a school myself and my husband both trust and we have experienced that the teachers have the children's emotional as well as academic developments in their best interest. One of the main reasons my own daughter eventually settled and began to thrive at [CD] was because of ML.

I have considered the approach by [Mr B] and feel that it was entirely inappropriate. I will not approach the police at this stage but feel I must if it happens again as I do not take kindly to this type of behaviour.

Yours sincerely,

LMcB."


[32] The respondent averred that the defender wrote the letter out of personal ill-will and spite, and that the letter was defamatory, containing an innuendo that the respondent followed or surreptitiously stalked the defender, and that P's personal hygiene required attention (defamatory of P and also carrying the innuendo that the respondent was an uncaring father). The defamatory statements caused GM and Glasgow City Council to apply for interim interdicts against the respondent. On 13 and
15 December 2006 interim interdicts were granted against the respondent which, he avers, "prevented him from taking his children to their school". He further avers that he and his daughter suffered loss, injury and damage, and damages should be awarded.


[33] Defences were lodged, and various procedures took place. LMcB instructed counsel. It is not known whether she had Legal Aid. A continued peremptory diet of debate was fixed for
5 March 2009, with continued dates on 23 November 2009 and 21 December 2009. The respondent did not attend on the latter date, having telephoned the clerks to say that he had suffered an adverse reaction to his medication. The Sheriff Principal's list of cases records that LMcB suffered considerable distress during the litigation, particularly when matters were continued on the respondent's motions. On 26 April 2010 the sheriff issued a judgment of 32 pages and 99 paragraphs, concluding that both the respondent's and P's cases fell to be dismissed.

13. AB v MMcL (A18/09): section 6/7 of the Court Files


[34] The respondent sought 220,000 as damages for defamation from MMcL, a school parent. He averred that the defender was the ringleader in forming mobs to intimidate the respondent and his children. In Article 5 the respondent averred that the defender had shouted comments such as "Leave this school. Because of you the parent teacher association is not working", and "You [i.e. the respondent] are not fit to be the chair person of the PTA". The respondent also held the defender responsible for writing a letter in February
2007 in which he criticised the respondent for intimidating parents and staff, being charged with a breach of the peace in school premises, and sending malicious letters to the school. The respondent further averred that on 8 March 2008 the defender had repeated defamatory statements to GM, including allegations that the respondent had murdered his wife and was going to repeat the Dunblane massacre.


[35] Defences were lodged. On
3 April 2009, the sheriff refused the respondent's motion for summary decree. On 15 April 2009 the court sisted the action to allow the respondent to apply for legal aid: petition paragraph 2(10) and the Sheriff Principal's list of cases page 12. The defender's solicitor has not yet received intimation of a legal aid application. The action remains sisted.


14. AB v Procurator Fiscal and Chief Constable of Strathclyde Police (A613/09): section 6/9 of the Court Files


[36] The respondent sought (i) damages on the ground that the defenders had failed to fulfil their statutory duties, as a result of which the respondent and his children suffered emotional and psychological abuse; (ii) declarator that the respondent was unlawfully abducted from his home on 8 March 2007 [the date of the alleged breach of interdict when the respondent took his son Q to CD Primary School: see paragraph [28] above]; (iii) declarator that, on that date, his home was unlawfully entered and searched; and (iv) to conjoin the action with A8819/06 Glasgow City Council v AB. The sums concluded for were 250,000 for each of the respondent and his children (i.e. 1 million in total). The averments give details of events in 2007 and 2008, including police intervention on 8 March 2007 relating to the alleged breach of the interim interdict obtained by GM (see paragraph [28] above), and the charge of breach of the peace concerning GM. The respondent averred that his children were ultimately forced to move school and community. The respondent's subsequent conviction of breach of the peace was unjust and arbitrary. The police refused to investigate the respondent's complaints that GM was making false statements about him. They failed to investigate bullying behaviour on the part of GM and parents at the school. Their failure to fulfil their statutory duties caused the respondent and his children loss and injury, and they were entitled to damages.


[37] Defences were lodged by both defenders. A diet of debate was fixed for
5 February 2010. On 5 February 2010 the respondent was ordained to lodge a record. A peremptory diet was fixed for 12 March 2010. On 12 March 2010 the cause was sisted pending the outcome of the appeal against the conviction for breach of the peace. On 7 April 2011 the sheriff recalled the sist, dismissed the action, and found no expenses due to or by either party.

15. AB v Glasgow City Council (A2471/09): section 6/5 of the Court Files


[38] The respondent and his children sought an "exceptional cash payment" of 1.5 million from Glasgow City Council in terms of section 22(3)(b) of the Children (
Scotland) Act 1995. The respondent attributed his family's social isolation to the local authority's unlawful interference, including intimidating home visits from social workers and mocking observations that "we are here because your children are on the 'at risk' register". Cash was due in order to obtain essential and necessary services such as a stable and consistent education. His children's welfare was being severely affected by the bullying and intimidation tactics of the local authority senior management team. Reference was made to the vexatious and inappropriate attacks upon the respondent's family by raising wrongful actions of interim interdicts, submitting innumerable and unfounded child protection referrals to the Children's Reporter, and making threats to the respondent. It was "in the overwhelming paramount interests of the children that they be provided with the tutor and private educational establishment as well as other services inter alia per the verbal agreement between the local authority and [the respondent]". The averments reiterated many of the complaints against social workers such as JMcD, and teachers such as GM, and included the following:

"COND 6 ... To the reasonable observer, the local authority are neglecting, abusing, and harming the education, the general wellbeing, and the healthy development of [the respondent's] children by the unlawful and immoral actions of the defender's rogue employees for whom the defenders are liable ...

COND 11 ...The defenders are covering up child abuse allegations being made not only by [the respondent and his children], but other families in the community ...

COND 13 ... The defenders have made innumerable false and defamatory statements about [the respondent]. It is the defenders that are making vexatious, unfounded, incompetent, deficient, unfair, inaccurate and reckless allegations out of ill will and spite towards [the respondent] ...

COND 14 ... Given the local authority's continued vexatious and inappropriate attacks upon [the respondent's] family by raising wrongful actions of interim interdicts, submitting innumerable and unfounded child protection referrals to the Scottish Children's Reporters Administration, and making further threats [to the respondent and his children], it is in the paramount interests and immediate welfare of the three children and the family that they are provided with [an exceptional cash payment] ..."


[39] Defences were lodged. After various procedures, a diet of debate was fixed for
14 December 2009. The respondent failed to appear. A peremptory diet was fixed for 29 January 2010. On that day, the court was informed that the respondent was unwell and the peremptory diet was re-assigned to 22 March 2010. On 16 March 2010, prior to that peremptory diet, the diet of debate was discharged on joint motion, and the cause dismissed with no expenses due to or by either party.

16. AB v JM (A3766/09): section 6/4 of the Court Files


[40] The respondent sought damages of 15,000 from a parent who allegedly made defamatory statements in 2007 about the respondent's having sympathies with the Dunblane killer Thomas Hamilton; being capable of carrying out a similar massacre; being a "maniac"; having a knife; and acting bizarrely. It is not known what stage this action has reached.

17. AB v Glasgow City Council (A3768/09): sections 6/6 and 6/21 of the Court Files


[41] The respondent sought damages for defamation against social workers. The sums concluded for were 750,000 for the respondent; and 500,000 for each of his three children. The respondent averred that social workers had made accusations that he had put ideas into the children's heads; fabricated false reports about the children; and subjected the children to unjustified child protection investigations. The averments included the following:

"COND 4 ... In or around the summer of 2006 the defender's employee [GM] fabricated a number of false reports about [the children P, Q, and R] ...

COND 6 ... The defender's employees set about compiling highly incompetent, highly inconsistent, highly unfair and highly inaccurate and exceeding [sic] highly misleading reports about [the respondent and his children]. All of the aforesaid reports are deficient and were made out of personal ill will, spite, and out of bad faith towards [the respondent] in particular ... All of the statements were made maliciously by the defender's employees and officers, and were made so as to upset and injure [the respondent and his children]. As well as to provide a good smoke screen for the allegations [the respondent and his children] were making against the defender's employee [GM] ...

COND 10 ... The defender's employees, servants and agents were motivated by malice, not duty, by making such statements with reckless disregard to whether they were true or not ..."


[42] Article 6 of Condescendence also provided four pages of alleged defamatory statements. Defences were lodged. On
17 May 2010 the respondent failed to attend court but sent a "soul and conscience" medical certificate dated 10 May 2010. The sheriff granted decree of dismissal by default and found the respondent liable in expenses, taxed at 6,335.72.

18. AB v Glasgow City Council (A3769/09): section 6/8 of the Court Files


[43] The respondent sought (i) damages for defamation; (ii) declarator that the interim interdict pronounced on
15 December 2006 (Case 8819/06, paragraph [14] above) was wrongful; and (iii) interdict against the defenders from acting ultra vires. The sums sought as damages were 100,000 for each of the respondent and his three children (i.e. 400,000 in total). The respondent averred that a complaint made by him in May 2006 about child abuse at the school had resulted in an interim interdict against him and his children from approaching teaching staff or making defamatory statements about them. The interim interdict had operated from 15 December 2006 until 23 March 2007, making it difficult for him and his children to attend school. GM had also obtained an interim interdict prohibiting the respondent and the children from making defamatory comments about the staff. Those interim interdicts were obtained on the basis of false statements. Ultimately the respondent's family had been forced to relocate to another primary school (G). The action is currently sisted to await the outcome of the appeal against the conviction for breach of the peace (see paragraph [44] below): paragraph 2(11) of the petition.


2010

Appeal against conviction for breach of the peace: AB v Procurator Fiscal, Glasgow


[44] The opinion of the High Court of Justiciary (delivered by Lord Carloway) AB v Procurator Fiscal,
Glasgow
[2010] HCJAC 138 is in section 6/14 of the file. In this appeal, the respondent sought to have the conviction for breach of the peace dated
12 March 2008 (referred to in paragraph [28] above) quashed. His appeal having failed at the first and second sifts, he made an application to the Scottish Criminal Cases Review Commission. The SCCRC referred the matter back to the High Court on the question of the sufficiency of evidence of breach of the peace. The appeal was heard in November 2010 and refused. The appeal court noted inter alia:

"[21] The court has no difficulty in holding that the sending of a threatening letter to the headmistress of a primary school followed by an appearance by the sender at the door of that school at the start of the day, when parents, teachers (including the headmistress) and children could be expected to be present, is conduct which satisfies the dual test in Smith v Donnelly (supra) and thus amounts to a breach of the peace ...


[24] ... the terms of the letter received by the complainer's solicitor on
6 February 2007 can reasonably be described as presenting a death threat by the [respondent] to [GM] ..."

The respondent stated that he was appealing the case further, to the European Court of Human Rights in Strasbourg.


Submissions

Submissions on behalf of the Lord Advocate


[45] Counsel for the Lord Advocate moved the court to grant the prayer of the petition, and in particular:

" ... to order that no legal proceedings shall be instituted by the respondent in the Court of Session, Sheriff Court, or any other inferior court unless the respondent first obtains leave of a judge sitting in the Outer House of the Court of Session, having satisfied such a judge that such legal proceedings are not vexatious and that there is a prima facie ground for such proceedings in terms of section 1 of the Vexatious Actions (Scotland) Act 1898."

Counsel submitted that the court had a discretion whether or not to grant the order sought. The order would not be an absolute bar to litigation: rather a restriction or a filter. The respondent in this case met the test, in that he had habitually and persistently instituted legal proceedings in the Sheriff Court without reasonable grounds. There were thirteen actions mentioned in the petition, and two counterclaims. Those were the actions in which the petitioner had been able to trace pleadings and interlocutors. A further six actions (specified in statement 3 of the petition but under deletion of a case against someone called BG whom the respondent stated that he did not know) were listed in a letter from the Scottish Court Service dated 15 December 2009, but no pleadings or interlocutors had been recovered. Thus counsel calculated that the respondent had instituted nineteen actions and two counterclaims during the years 2004 to 2009.


[46] Counsel selected two cases as illustrative the respondent's approach as a litigant. (i) In AB v Glasgow City Council (A3768/09) there were wide-ranging, diffuse pleadings alleging evil motives and malice supporting a conclusion for payment of 750,000 in damages to the respondent on the basis of defamation, and another conclusion for payment of 500,000 as damages for each of his three children. (ii) In the respondent's counterclaim in GM v AB (the action of interdict by the head teacher of CD: A8741/06) the respondent sought excessive damages. The averments in the counterclaim were lengthy, and contained serious allegations against GM.


[47] Counsel referred to Lord Advocate v McNamara 2009 SC 598, particularly paragraphs [35] et seq. On the question whether proceedings had been instituted without reasonable ground, counsel acknowledged that, in the present case, there had been few expressions of judicial opinion. Sheriff Ross had issued an opinion/note in AB v LMcB (A17/09). There was also a note by Sheriff Principal Taylor in GM v AB (B28/08). But those apart, there were no opinions in the respondent's litigations. Counsel relied more upon the surrounding circumstances, and the fact that the respondent's proceedings had either failed or been abandoned. The respondent had raised numerous actions, citing the same people as defenders, all arising from the same subject-matter, and all unsuccessful. The respondent had all the hallmarks of a vexatious litigant. He was conducting a war of attrition against people whom he regarded as failing in the context of his children and their education. The pleadings had become increasingly lengthy, and contained allegations of abuse, defamation, malice, harassment, and discrimination. The sums sought in the conclusions were excessive. Issues which had been the subject of abandoned actions were resuscitated in new actions, resulting in a proliferation of claims.


[48] Addressing the component parts of the test to be satisfied in order to demonstrate that a litigant was vexatious, counsel submitted that:

(a)   The respondent had instituted 19 actions and 2 counterclaims.

(b)  His raising of those actions and counterclaims during 2004 to 2009 had been habitual and persistent.

(c)   The majority of the actions had been dismissed or abandoned, pointing to their being unmeritorious even although there were few judicial commentaries.

Currently, there were four cases outstanding namely (i) AB v JS and JMcL (A135/07); (ii) AB v JM (A3766/09); (iii) AB v MMcL (A18/09); and (iv) the counterclaim in GM v AB. There had been no success on the merits in any action. The respondent was draining the resources of the sheriff court. This court should exercise its discretion and grant the prayer of the petition.

Submissions by the respondent


[49] At the outset, the respondent wished it to be noted that, despite the conviction and the lack of success in his appeal against conviction, he denied having committed a breach of the peace at any time. He intended taking the matter further, to
Strasbourg.


[50] In relation to the Sheriff Principal's letter dated
11 January 2010, the respondent conceded that he had featured as a party litigant, but reluctantly. He had had difficulty finding a solicitor to act for him in order to obtain judicial determinations. He had had difficulty getting access to the court. Also as a defender, he was entitled to defend himself against actions raised against him. He vigorously denied adopting an "aggressive" manner as was alleged in the Sheriff Principal's letter dated 11 January 2010.


[51] It was disturbing that the Crown had produced so many interlocutors from old cases. The respondent's civil liberties were being affected. He had had to take his children to the school of which GM was the head. He had been abducted by the Scottish Government Agencies, in effect kidnapped on 8 March 2007 at 12.30 when four police officers arrived and advised him that he had to be taken off the streets. He had been forced to move the children to another school (G) where there were no difficulties.


[52] The respondent then addressed the actions mentioned in paragraph 3 of the petition. There had been reasonable grounds for the action in 2001 against Y, a foreign national and the biological mother of the children. Interim interdict had been necessary to prevent the mother from returning to the sheriffdom and removing the youngest daughter R from the jurisdiction. It was important that the three children be kept together. The mother had raised another action abroad. The Hague Convention had been involved. Ultimately a satisfactory outcome had been achieved, with the mother being granted contact every six weeks (although in fact, the respondent had not heard from her).


[53] The respondent explained the circumstances leading to his raising actions against JB, JS, CD PTA, ML, and JMcL, all as set out in paragraphs [4] et seq above.


[54] In relation to the action GM v AB (A8741/06), the respondent denied ever threatening or harassing GM. He had lodged a counterclaim seeking inter alia payment of a sum of 800,000 and also the installation of closed circuit television in all classrooms and other areas in CD Primary School and all other Glasgow Council Schools, and the monitoring of the television system by an independent body. That was necessary because the respondent had received reports of maltreatment from his children. Both the action and the counterclaim were currently sisted. The respondent had instructed a solicitor in connection with this particular case.


[55] The respondent confirmed taking proceedings against the Social Services department. Social workers and teachers had been fabricating stories about his family, suggesting that he had murdered the children's mother and buried her abroad, and that he was capable of another Dunblane massacre. Glasgow City Council had placed the children's names on the children's protection register. The respondent had been obliged to take proceedings to protect the honour and wellbeing of his family. The children's names had then been removed from the register. As a result the respondent advised the sheriff that he was not insisting on interim interdict against the department, and the case was dismissed of consent. There was therefore no judicial decision.


[56] The respondent explained that he had requested and received the two volumes of Lord Gill's Report on the Reform of Civil Justice. That report discussed the issue of vexatious actions. It was a very difficult area. Feelings and emotions ran high. In one case, Attorney General v Barker [2000] 2 FLR 1, there was recognition in paragraph 18 of the extent to which such actions were often linked to deep upset and illness. The respondent readily accepted that he had raised actions, but he had done so in order to protect the reputation and honour of his family and the emotional and physical wellbeing of the children, and also to protect his property (the latter because visitations from various departments resulted in his flowers being trampled on, and plant-pots being kicked over). Some actions had been dismissed when the respondent had been unfit, for example with a fractured elbow. He could give his word that he did not intend to raise further actions: cf the circumstances in Attorney General v Barker. Of the actions said to be "live", his honest belief was that AB v JS and JMcL (A135/07) was long gone. AB v JM (A3766/09) related to another mother repeating allegations about murder and Dunblane-type massacres; the action was undefended as the defender had chosen not to lodge answers; despite that, the court would not grant decree, and the respondent had written the action off. AB v MMcL (A18/09) was sisted, awaiting the outcome of his application to
Strasbourg. It was accepted that the counterclaim in GM v AB (A8741/06) was still live, but it was sisted.


[57] The respondent advised the court that he had always conducted himself in a civil and non-vigilante way. Other people had got away scot-free: for example, GM had lied in the interdict action when she alleged that the respondent had followed three women home. At the criminal trial for breach of the peace, the respondent had been forced to represent himself. The witness LMcB had supported GM: but in the respondent's view, it was a pyrrhic victory for her, as the sheriff stated categorically that what had occurred was not stalking.


[58] The respondent invited the court to accept that there had been a high emotional content and stress in the past events; to adopt the line taken by the court in the case of Attorney General v Barker; and to refuse the petition. There were currently live proceedings relating to the children. As the children's reporter had noted that the respondent's family had been subjected to persistent referrals for compulsory measures of supervision since 2006, he had assigned the case to a hearing. There had been a notional diet, but no proof date was yet fixed, and disclosure was still to come. Of the respondent's three children, his daughter P (aged 13) had chosen her own solicitor, and a curator ad litem had been appointed for his son Q. The respondent gave the court his word that he would not embark upon any ordinary action without a solicitor, and that he would do anything to avoid being involved in a small claim. He had no outstanding litigations abroad. He had not raised any actions or counterclaims since 2009. He was concentrating on his children's health, seeking a peaceful life, and asking not to be interfered with.

Discussion

The Vexatious Actions (Scotland) Act 1898


[59] Section 1 of the Vexatious Actions (Scotland) Act 1898 provides:

"Power of Court of Session to prohibit institution of action without leave

It shall be lawful for the Lord Advocate to apply to either Division of the Inner House of the Court of Session for an order under this Act, and if he satisfies the Court that any person has habitually and persistently instituted vexatious legal proceedings without any reasonable ground for instituting such proceedings, whether in the Court of Session or in any inferior court, and whether against the same person or against different persons, the Court may order that no legal proceedings shall be instituted by that person in the Court of Session or any other court unless he obtains the leave of a judge sitting in the Outer House on the Bills in the Court of Session, having satisfied the judge that such legal proceeding is not vexatious, and that there is prima facie ground for such proceeding ..."


[60] Thus the petitioner has to establish inter alia the following matters:

(1) Proceedings instituted habitually and persistently


[61] In Attorney General v Barker [2000] 2 FLR 1, at paragraph 22, it was said that:

" ... [the] essential vice of habitual and persistent litigation is keeping on and on litigating when earlier litigation has been unsuccessful and when on any rational and objective assessment the time has come to stop."

(2) Proceedings instituted without any reasonable ground

[62] As was explained in Lord Advocate v McNamara 2009 SC 598:

"[36] ... The court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances ..."

(3) The whole circumstances of the litigations


[63] In Lord Advocate v McNamara cit sup, it was noted in paragraph [40] that:

" ... the court has a discretion to make an order under [section 1 of the 1898 Act], but is not obliged to do so. Whether, where the conditions are met, the court will exercise its discretion to make an order will depend on the court's assessment of whether it is appropriate to do so in the interests of justice. In exercising its discretion, the court is entitled to have regard to any matter which is relevant to that assessment, including the conduct of the litigant in other proceedings besides those which form the basis of the court's jurisdiction to make the order. The prima facie right of all citizens to invoke the jurisdiction of the civil courts, and the availability of other powers to deal with abuses of process, will be relevant considerations. So too will be the need to protect members of the public, and the resources of the court itself, against further abuses of process. The extent to which vexatious litigation drains the resources of the court, in particular, is a matter of considerable concern. In that regard, the court in HM Advocate v Frost (paragraph 44) expressed its agreement with what had been said by Staughton J in Attorney General v Jones (page 865), where he explained why there must come a time when it is right for a court to exercise its power to make a civil proceedings order against a vexatious litigant. He said that there were at least two reasons:

'First, the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection; secondly the resources of the judicial system are barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances, and should not be squandered on those who do not.'

As has been said in other cases, it is necessary to look at the whole picture, having regard to the cumulative effect of the litigant's activities, both on the other persons involved in the proceedings and on the administration of justice generally. It also has to be borne in mind that an order under the section operates not as a bar to the bringing of further proceedings, but as a filter".

The particular litigations in this case

(1) Habitually and persistently


[64] Although counsel for the Lord Advocate referred to the years 2004 to 2009, we are content to limit our consideration to the years 2005 to 2009. For ease of reference, we list the majority of the actions instituted by the respondent during that period, year by year. We include the counterclaims, which qualify as proceedings instituted by the respondent: cf paragraphs [23], [28] and [30] of Lord Advocate v McNamara 2009 SC 598.

2005: AB v JB (SC1895/05)

2005: AB v JS (SE754/05)

2006: AB v CD Parents Teachers Association (SA6092/06)

2006: AB v ML (SA6093/06)

2006: Counterclaim in GM v AB (A8741/06)

2006: Counterclaim in Glasgow City Council v AB (A8819/06)

2007: AB v JS and JMcL (A135/07)

2007: AB v JMcL (A1228/07)

2007: AB v JMcL and JS (A1367/07)

2007: AB v Glasgow City Council (A8947/07)

2008: AB v JMcD and KW (A3128/08)

2009: AB v LMcB (A17/09)

2009: AB v MMcL (A18/09)

2009: AB v Procurator Fiscal and Chief Constable of Strathclyde Police (A613/09)

2009: AB v Glasgow City Council (A2471/09)

2009: AB v JM (A3766/09)

2009: AB v Glasgow City Council (A3678/09)

2009: AB v Glasgow City Council (A3769/09)


[65] Counsel for the Lord Advocate stated that he was instructed that the respondent had raised a further action against LMcB on
21 September 2010 (XA113/10) and had abandoned that action on 16 December 2010. No court papers had been traced. The respondent denied that such an action had been raised.


[66] In our view the facts speak for themselves. Even accepting the respondent's statement that he did not raise any action against LMcB in 2010, it is nevertheless the case that he raised actions in a habitual and persistent manner during 2005 to 2009. We do not consider this case to be similar to Attorney General v Barker, cit sup. In Barker, the litigant was ill for a period of about three months, having suffered a mental breakdown. It was during that time that most of the actions were raised. By the time of the hearing, he had recovered his health, and it appeared unlikely that he would embark on further litigation. He acknowledged to the court that he had been ill, and that the illness had affected his behaviour. By contrast, in the present case, the respondent raised a multiplicity of actions over a period of five years. While he suffered some injuries and illnesses during that period (for example, a fractured elbow), in our view he has failed to identify any illness or condition which could, in itself, explain or justify the multiplicity of actions raised and the type of content. Furthermore we note that moving the children from CD Primary School to G Primary School did not appear to stop the stream of actions, as that move occurred in March 2007, but actions continued to be raised in 2007, 2008 and 2009. In our opinion, therefore, the first requirement of proceedings being instituted habitually and persistently has been satisfied.

Without any reasonable ground


[67] We accept that a lack of success in litigation is not necessarily indicative of the lack of a reasonable ground: cf the observations of Lord Reed in paragraph [36] of Lord Advocate v McNamara, cit sup. However we consider that the nature and purpose of many of the respondent's litigations, as outlined above, in themselves demonstrate lack of reasonable grounds. The fact that the respondent has not been successful in those actions in our opinion simply confirms that conclusion. Taking the litigations in the order listed above:

2005: AB v JB (SC1895/05): The respondent stated that the action was settled.

2005: AB v JS (SE754/05): The respondent advised the court that there had been a misunderstanding, and that his dog was ultimately returned.

2006: AB v CD Parent Teachers Association (SA6092/06): The respondent stated that the action was dismissed.

2006: AB v ML (SA6093/06): The respondent stated that the action was dismissed.

2006: Counterclaim in GM v AB (A8741/06): The action and counterclaim were sisted on 30 November 2007 to enable the respondent to apply for legal aid.

2006: Counterclaim in Glasgow City Council v AB (A8819/06): On 6 March 2009, the counterclaim was dismissed. The respondent's appeals were unsuccessful.

2007: AB v JS and JMcL (A135/07): In January 2007 the writ was returned to the respondent (unsigned). There has been no further procedure

2007: AB v JMcL (A1228/07): The outcome of this action is not known.

2007: AB v JMcL and JS (A1367/07): On 21 March 2007 the respondent abandoned the action at common law.

2007: AB v Glasgow City Council (A8947/07): On 11 January 2008 the action was dismissed.

2008: AB v JMcD and K W (A3128/08): On 10 October 2008 the action against the first and second defenders was dismissed. On 11 March 2011 the third party minuters (Glasgow City Council) were assoilzied.

2009: AB v LMcB (A17/09): On 26 April 2009 the action was dismissed.

2009: AB v MMcL (A18/09): On 15 April 2009 the action was sisted to enable the respondent to apply for legal aid.

2009: AB v Procurator Fiscal and Chief Constable of Strathclyde Police (A613/09): On 12 March 2010 the action was sisted pending outcome of the respondent's appeal against his conviction for breach of the peace.

2009: AB v Glasgow City Council (A2471/09): On 16 March 2010 the action was dismissed.

2009: AB v JM (A3766/09): It is not known what stage the action has reached.

2009: AB v Glasgow City Council (A3768/09): On 17 May 2010 the action was dismissed by default.

2009: AB v Glasgow City Council (A3769/09): The action is sisted pending the outcome of the respondent's appeal against his conviction for breach of the peace.


[68] Thus, on the information available to us, not one of the actions raised by the respondent has resulted in any court making an award in his favour. Two expressions of judicial opinion are available, namely the opinion of Sheriff Ross dated 26 April
2010 in Case A17/09, and a Note by the Sheriff Principal in Case B28/08. These are not favourable to the respondent.

The whole circumstances of the actions

[69] We now turn to consider the whole circumstances of the litigations: cf the views expressed in paragraph [36] of Lord Advocate v McNamara 2009 SC 598, namely that:

" ... the court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances ..."


[70] We recognise at the outset that the respondent is a single parent looking after three young children, which is a considerable responsibility. We also accept that his children and their welfare are very important to him. Nevertheless we consider that in the course of his contact with the children's school, other parents, teachers, the local education authority, the social work department, the procurator fiscal and the police, and even his own friends, the respondent has responded to situations which he perceived to be unsatisfactory or objectionable by raising a multiplicity of writs, often without reasonable grounds, using extravagant, hostile and unnecessarily wordy and repetitive language. He has made allegations of defamation, conspiracy, ill-will, spite, bullying, intimidation, negligence, fabrication of false reports, unlawful and immoral actions of the Council's rogue employees, the Council's covering up of child abuse allegations, and a smoke screen for allegations against the head teacher of CD Primary School. He has claimed sums which are clearly excessive (for example, an exceptional cash payment of 1.5 million; damages of 750,000 for himself and 500,000 for each of his children). He has requested orders which are prima facie unrealistic, such as the installation of CCTV cameras in classrooms in Glasgow. He has repeatedly sued teachers, parents, Glasgow City Council, the Social Services department, and individual social workers, all in connection with difficulties and incidents which he perceived to have arisen in connection with his children's care and education. The same incidents and the same people feature in many of the writs. The litigations instituted by him have proved time-consuming, costly, and upsetting for many individuals and public service departments.


[71] The language used in the respondent's writs is often prolix and repetitive, and includes allegations that the head teacher of CD Primary School is "an extreme Roman Catholic headmistress"; that the head teacher made a child protection referral "maliciously"; that the social work department "maliciously and perversely" placed the children's names on an at risk register; that vexatious and inappropriate attacks had been made upon the family by raising wrongful actions of interdict and submitting unfounded child protection referrals. The respondent characterised a social worker's explanation that "we are here because your children are on the at risk register" as "mocking", and another explanation that "we are concerned for the safety of your children" as "defamatory". He has averred that his children have suffered emotional and psychological abuse as a result of failures on the part of the procurator fiscal and the police.


[72] Taking into account the nature and number of the actions raised, the reasons underlying each action, the persons sued (public departments carrying out public duties, teachers and social workers also with duties to fulfil, fellow parents, and friends of the respondent), and the lack of success in these actions, we have little difficulty in concluding that the conditions which the Lord Advocate requires to establish in terms of section 1 of the Vexatious Actions (Scotland) Act 1898 have been established. The ultimate disposal is one for our discretion. Such has been the intensity of the litigation instituted by the respondent over a number of years (2005 to 2009) that we are not persuaded that it would be appropriate in the interests of justice to accept the respondent's undertaking referred to in paragraph [58] above, even taking into account an apparent hiatus in his raising of actions during recent months. In that context we are mindful that the order which we are about to pronounce does not prevent access to the courts (paragraph [9] of Lord Advocate v McNamara 2009 SC 598) but imposes a sifting mechanism which in the respondent's case is, in our view, wholly justified.

Decision


[73] For the reasons given above, we shall grant the prayer of the petition.


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