CASE OF MCNAMARA v. THE UNITED KINGDOM
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Kristina Pardalos;Robert Spano
4. The applicant was born in 1942 and lives in Lamlash. 5. In 1966 the applicant founded a business which was later incorporated as Arakin Limited (“Arakin”). 6. In the second half of the 1980s, Arakin became involved in commercial disputes. In 1986 Tods Murray solicitors were retained in relation to those disputes. However, Tods Murray’s fees were not settled in full by Arakin. 7. On 27 May 1996 Tods Murray commenced legal proceedings against Arakin in the Outer House of the Court of Session (the first-instance civil court in Scotland in respect of claims over a certain value) for payment of 32,696.75 pounds sterling (“GBP”) in respect of fees relating to a dispute against Arakin’s former accountants. 8. On 30 January 1998 Arakin issued a counterclaim alleging professional misconduct and negligence. It sought GBP one million. 9. The dispute gave rise to four sets of overlapping proceedings. First, the proceedings to establish Tods Murray’s fees, which ran from 8 October 1996 to 2 October 2008 (in this the courts were assisted by the auditor for taxation, an expert officer of the Outer House who advises the court on disputes concerning legal fees); second, proceedings in respect of Arakin’s allegations of fraud against Tods Murray running from July 2001 to 22 January 2004; third, proceedings concerning the principal claim and counterclaim which ran from 9 January 2009 to 14 November 2012; and fourth, proceedings settling the overall costs of the case (excluding the fraud proceedings) which ran from 14 November 2012 to 13 November 2014. 10. On 8 October 1996, the Outer House ordered a detailed account of the fees owed to be produced to the auditor for taxation, in order for the amount of the fees due in respect of the litigation in question to be determined. 11. By March 1997 all accounts had been lodged with the auditor. On 4 August 1997 the taxation hearing began before the auditor. It lasted four weeks. On 27 March 1998 the auditor issued his reports. 12. The parties objected and from April 1998 the Outer House which was responsible for overseeing the taxation proceedings, held a number of hearings to settle the procedure and deal with the notes on objections, and also to hold a preliminary debate in the claim and counterclaim (the third proceedings). Some hearings were discharged at Arakin’s request. The court however refused Arakin’s request to stay the case. 13. The auditor issued his report on 26 October 1999. 14. By 14 October 1999 Arakin’s then solicitors had ceased acting for it. In February 2000 Arakin’s new solicitors withdrew from acting. From that time onwards Arakin had no legal representation. The applicant sought to appear at hearings in early 2000, on Arakin’s behalf. 15. The applicant subsequently applied for summary decree in the counterclaim and dismissal of the principal action. This was dismissed as incompetent on 22 June 2001. 16. Between June 2001 and April 2002, the Outer House sought to regulate the procedure in relation to the notes of objection lodged by both parties in respect of the accounts and dealt with other motions lodged by the applicant. It held a number of hearings. 17. However, no further progress could be made on the notes of objections until the allegations of fraud had been determined (the “second proceedings”; see paragraphs 23-28 below). In the course of 2002 and 2003, the court heard various incidental motions by the applicant who increased the sum sought in the counterclaim to GBP forty-five million. He also renewed motions which had previously been refused. 18. The allegations of fraud made by the applicant having been determined, the Outer House on 24 March 2004 ordered a two-day hearing on the notes of objections for 7 June 2004, which finally concluded on 12 November. In total, around fifty objections had been made, of which, seven were lodged by Tods Murray and the remainder by the applicant. 19. On 28 April 2006 the Outer House gave a judgment on the notes of objections, running to 223 paragraphs. Tods Murray appealed. On 14 July 2006 the Inner House ordered that there should be a hearing on 21 March 2007. Following that hearing, the Inner House found in favour of Tods Murray on all three points raised in the appeal. On 27 April 2007 the case was remitted to the Outer House. 20. On 9 May 2007, the Outer House ordered the parties to lodge their proposals for further procedure. 21. The accounts were returned to the auditor to consider the impact of the notes of objection which had been upheld. On 21 January 2008 a taxation hearing was held before the auditor and on 2 June 2008 he reported on his taxation of the remitted accounts. He assessed the total amount due in legal fees as GBP 409,597.50. Tods Murray accepted that Arakin had paid GBP 321,766.39 to date and the sum sued for was therefore the balance of GBP 87,831.11. 22. On 24 September 2008 a final hearing took place on the notes of objections. On 2 October 2008 the Outer House delivered its judgment, finally determining all questions relating to the valuation of the accounts. The taxation proceeding were therefore at an end. 23. In the meantime in July 2001, the applicant made allegations about the authenticity of the court papers, which developed into allegations of fraud against Tods Murray and their solicitors. Hearings took place before the Outer House between August and December 2001. On 20 December 2001 the Outer House ordered the applicant to lodge, by 11 January 2002, particulars of his allegations. On 18 January 2002 it directed that the case be heard on 13 February 2002. On that date, having regard to further allegations made by the applicant, it ordered that he lodge details of these allegations within fourteen days. On 6 March 2002, a factual hearing on the allegations was fixed for 14 May 2002. This hearing lasted 15 days but was ultimately insufficient. 24. From May 2002 the court repeatedly attempted to fix hearing dates that the applicant did not accept; the case was finally heard in August 2003. 25. On 31 October 2003 the court issued an opinion rejecting the applicant’s allegations in their entirety. It concluded, inter alia, that none of the allegations were well-founded; that the applicant had made representations which he knew or ought to have known were incorrect; that the hearing had taken an inordinate length of time because the applicant had persistently resorted to irrelevant lines of inquiry and had been disorganised in his presentation; that the hearing had been used as a vehicle to air grievances going beyond its scope and to advance the applicant’s interests in other litigation; that the applicant’s approach had been reckless; and that he had had no reasonable grounds for his asserted belief in the truth of the allegations. 26. The applicant sought leave to appeal the decision to the Inner House of the Court of Session. On 21 April 2004 the Inner House dismissed the application to appeal as incompetent since leave had not been obtained from the Outer House. 27. In the meantime, on 22 January 2004, the Outer House awarded costs against the applicant at a punitive rate in light of his conduct. The court also ordered that their payment was a condition to proceed with the counterclaim. Between 2004 and 2009 the amounts remained unpaid and the matter proceeded on the basis that the only issues to try were contained in the principal claim. 28. In early August 2009, the applicant paid the amounts to which the order of 22 January 2004 referred. 29. Following the conclusion of the taxation proceedings, the Outer House heard the parties on several occasions between 9 January 2009 and 22 October 2009 to determine future procedure and finally listed an eightday hearing of legal issues to commence on 1 December 2009. By the time of the hearing the applicant sought over GBP sixty-two million in his counterclaim. On 10 December 2009, after an eight-day hearing, the court reserved judgment. 30. On 9 July 2010 the Outer House delivered its opinion. It noted that Tods Murray’s claim was a simple one, namely an action for payment of a debt. The applicant’s position, it said, was “a great deal more complicated”. Despite lengthy written pleadings, the court had found it “difficult to determine the precise factual background” upon which he relied. Turning first to his defences to the principal claim, the court rejected all except one, namely the applicant’s argument that he had paid the fees due in full. This, the court said, was a matter for evidence appropriate for the subsequent factual hearing. 31. As to the counterclaim, after a careful examination of the applicant’s evidence, the court held that it was an “abuse of process”. It noted that very grave allegations had been made but that the applicant had produced no expert opinion to support them. 32. The applicant appealed against the decision. Between 20 October 2010 and 28 January 2011 the Inner House dealt with various procedural aspects of the appeal. On 3 March 2011 the Inner House heard the appeal and refused it. The case was remitted to the Outer House. 33. On 11 May 2011 the Outer House heard both parties and fixed a hearing on the facts. On 21 July 2011 that hearing took place. A day was set aside for further argument and the parties lodged detailed notes of arguments, the applicant’s running to one hundred pages. 34. On 14 February 2012 the court handed down its judgment. It noted that Tods Murray’s case was “straightforward and cogent” but that it had been “very difficult to discern the defence to the action”. The applicant had repeated “scurrilous allegations” against partners in Tods Murray and the witnesses he had led had been of no assistance in determining the question before the court. The court also commented that the applicant had sought to revisit many points which had already been decided. It found in favour of Tods Murray in the principal claim and held that the applicant was liable in the sum of GBP 86,376.40. 35. The applicant appealed. On 6 March 2012 the Inner House found the appeal suitable for urgent disposal. A hearing took place on 4 and 5 July. In a judgment of 14 November 2012 the Inner House upheld the decision of the Outer House. It commented that it “had not found it easy to understand the arguments which [the applicant] sought to advance”. It further noted: “Throughout the course of this protracted litigation Mr McNamara has sought to revisit arguments and allegations which have not found favour with the court on previous occasions ... Many of the issues which Mr McNamara has sought to argue before us cannot be argued competently before us now.” 36. It held that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation in the context of interim appeals. This brought to an end the substantive issues in the litigation. 37. The only remaining issue was costs. Tods Murray applied for its costs and the applicant lodged various applications. The Outer House listed a hearing to take place on 1 July 2013. However, the applicant contacted the court stating he was unwell, so it was adjourned to 22 July. He then told the court he was on holiday on 22 July. The court found this an inadequate reason for non-attendance and maintained the date. 38. The applicant did not appear at the hearing on 22 July 2013. The Outer House granted a further one-week adjournment in order to allow the applicant a “final opportunity to appear”. The clerk of court and Tods Murray’s solicitors sought to bring the hearing, which had been re-listed for 29 July 2013, to the applicant’s attention by e-mail, telephone and by personal attendance at the applicant’s home address. 39. On 29 July 2013 the applicant did not appear and the hearing proceeded in his absence. The judge found in favour of Tods Murray on the issue of expenses at an enhanced, punitive rate of expenses in light of the applicant’s conduct. The court commented: “When this action was first raised in 1996, it appeared to be in short compass. The pursuer sought payment from the defender of its outstanding professional fees. It was therefore a simple action for recovery of a debt. Since then, Mr McNamara has introduced a great many factual and legal issues, which have been exhaustively examined over many hearings.” 40. In relation to the applicant’s conduct he found that it had been: “ ...unreasonable and incompetent. He has thereby caused the pursuer unnecessary expense...” 41. It also awarded an additional fee to Tods Murray to reflect the “huge amount” of correspondence and documents sent to the Tods Murray’s solicitors by the applicant, much of which was irrelevant, the complexity of the proceedings, having regard to the “number, difficulty and novelty of the questions raised”, the skill time, labour and specialist knowledge required of the solicitors and the accusations of deception, incompetence and bad faith levelled against individual solicitors at Tods Murray. It rejected a number of motions lodged by the applicant. 42. The applicant appealed and lodged a number of documents. The appeal was refused on 16 July 2014. On 13 November 2014 the applicant was found “liable in the expenses” (that is, liable for the costs) of that appeal. His various motions were dismissed. The Inner House again noted that the applicant had sought to reopen issues already determined and continued to express his dissatisfaction with the court’s substantive decisions. 43. Meanwhile, in 2009 the Lord Advocate (the chief legal officer of the Scottish Government) applied to have the applicant declared a vexatious litigant. He relied on four sets of proceedings, including the Tods Murray litigation. 44. On 4 June 2009 the Inner House declared the applicant a vexatious litigant but excluded the Tods Murray litigation from the order. It referred to the applicant’s ill-founded allegations about lack of authenticity of documents which it said were a “serious abuse of process”. In coming to this conclusion it also took into account the finding that he had used a proof in the Tods Murray litigation for collateral purposes. Moreover, he had wasted time because of his disorganisation and persistent pursuit of irrelevant matters in that litigation. It noted that the applicant had accepted that his lack of legal expertise had caused delay in the proceedings.