A COUPLE who were made bankrupt despite winning a controversial court action want to take their case to the UK Supreme Court alleging that their human rights were directly breached by Scottish judges.
Former racehorse trainer Donal Nolan and his partner Mel Collins from Newmains in North Lanarkshire are seeking legal aid and permission to take their case to the Supreme Court in London after discovering that one of the judges who heard their case from 2012 onwards, Lord Malcolm, is the father of Ewen Campbell, now an advocate but formerly a litigation solicitor for the law firm Levy & McRae.
The couple also say their human rights were breached because Lord Brodie refused them leave to appeal to the Supreme Court after issuing a judgement against them earlier in the case.
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They will now have to ask the Supreme Court to set aside that judgement and hear their case anyway, saying that the case raises an arguable point of law of general public importance, namely where and when Scottish judges should recuse themselves – the legal term for stepping aside from the judicial bench.
At the moment, it is a matter for the judges themselves and there is no register of interests against which their decisions can be checked. The Scottish Parliament has been investigating the issue of judges’ interests for some years, and the pair’s MSP Alex Neil thinks their case shows why there should be a register. In 2012, Ewen Campbell was supporting the firm’s then partner Peter Watson, who was suspended from being a sheriff more than two years ago, in defending Advance Construction Ltd against Nolan who sued for £6 million after thousands of tons of contaminated waste were dumped on land he owned in North Lanarkshire.
In a case which involved seven different judges in all, Lord Woolman eventually awarded Nolan £20,000 in damages, but expenses were awarded against Nolan and he was made liable for legal fees of £900,000 over which he was sequestrated.
Nolan and Collins contend that as soon as he knew his son was involved, Lord Malcolm should have recused himself from the case. Other judges took over the case, but Lord Malcolm later returned to it after his son stopped acting for Advance Construction. Lord Malcolm, who is a Privy Councillor and advises the Queen, has confirmed that he conducted the May 3 hearing but he did not realise his son was involved until after May 11. He went on to deal with other procedural matters in 2012 only after his son had stopped supporting the senior partner in the case.
Nolan and Collins say the family involvement is a breach of Article 6 of the European Convention of Human Rights that guarantees the right to a fair and impartial trial. Collins told The National: “Lord Malcolm was involved in our case in 2012 before his son left Levy & McRae to become an advocate. We were never told that Lord Malcolm’s real name was Colin Campbell and that he was Ewen’s father.”
A second alleged breach of their rights came last year when Lord Brodie refused them leave to appeal to the Supreme Court.
In his published opinion Lord Brodie admits he had previously judged the case involving them but last night his spokesperson said Lord Brodie did not consider it “necessary” to recuse himself.
In his opinion refusing leave to appeal, Lord Brodie wrote: “Ms Collins drew attention to the fact that I have had some involvement in the case…She enquired whether I considered that I should accordingly recuse myself from consideration of the present application. I advised her that I did not consider that to be either necessary or appropriate.”
Collins said: “Lord Brodie turned down our plea to be allowed to appeal to the Supreme Court. How can he be allowed to judge that issue when he had previously judged against us? We are sad that we are having to go to the Supreme Court, as we had hoped for justice in Scotland, but the Scottish legal establishment has circled the wagons against us and it seems to us that we will only get justice by going to a court outside of Scotland.”
Complicating matters for both Lords Brodie and Malcolm is that in 2014 the then most senior judge in the land, Lord Gill, the then Lord President, recused himself from a case in which his son Brian was appearing for one of the parties. There are also numerous examples in the official Register of Recusals, set up by Lord Gill in 2014, of judges recusing themselves because they had previously conducted hearings and issued judgements against participants in a case.
The European Court of Human Rights has the following advice on article 6, based on case law decided by the Court: “Professional or personal links between a judge and a party to a case, or the party’s advocate, may also raise questions of impartiality.”
Alex Neil told The National: “This case raises the wider issue of how do we make potential conflicts of interest for the judiciary much more transparent and who polices it?”
A spokesperson for the Judicial Office for Scotland said: “In the Commercial Court Lord Malcolm presided over only one hearing in this case, which was of a purely procedural nature. This took place on 3 May, 2012. His son was not representing the defenders, nor was he in court. The outcome was the allowance of adjustments to the written pleadings and the fixing of a preliminary hearing in July.
“On 11 May, 2012, Lord Malcolm allowed an unopposed application to change the time of a hearing [a paper exercise involving no court hearing].
“Subsequently Lord Malcolm learned that his son might be a witness. He has no recollection of any earlier knowledge of his son’s involvement in the case. Clearly this meant that any proof would have to be allocated to one of the other commercial judges.
“Lord Malcolm’s son’s involvement as an assistant solicitor to the responsible partner ended in June 2012. Thereafter, between 24 July 2012 and 28 May 2013 Lord Malcolm granted six unopposed applications of a procedural nature. These were uncontentious and purely paper applications involving no court hearings. Matters covered included changing the time of a hearing, allowing adjustment of the written pleadings, and requiring the defenders to produce certain documentation.
“Lord Malcolm did not hear any evidence, nor make any rulings on the merits of the dispute. At no time did Lord Malcolm’s son represent the defenders in court.
“In March 2016, some 15 months after the conclusion of an appeal against Lord Woolman’s decision, Lord Malcolm [who by this time was an Inner House Judge] was allocated an application for the uplift of £5000 which had been lodged in court. There was no good reason why that matter should not be dealt with by Lord Malcolm.
“Lord Brodie did not consider it either necessary or appropriate to recuse himself from dealing with the application for leave to appeal Lord Malcolm’s decision of March 2016 to the UK Supreme Court.”
Collins said: “Brodie’s answer just tells you everything about the attitude of judges towards people like us that want justice to be done and be seen to be done. They just don’t like independent scrutiny.
“It has made us even more determined to take this case as high as we can.”
ANALYSIS by Martin Hannan
THE case of Donal Nolan and Melanie Collins v the Scottish Judges will make for good reading if it gets to the Supreme Court.
It is part of an ongoing saga over the failure of judges to register their interests so that the public can see whether there are any conflicts, an issue which has been considered by the Scottish Parliament for several years.
Whenever there is a conflict or potential conflict of interest, judges are supposed to recuse themselves, but that decision is ultimately up to the individual judge. Significantly, the Register of Recusals brought in by previous Lord President Lord Gill in 2014 does not include any details of when judges have refused to recuse themselves.
Our sister paper the Sunday Herald has revealed that Scotland’s most senior judge, the current Lord President, Lord Carloway, may extend the Recusals Register to include details of when a judge declines to recuse, but campaigners including the SNP’s Alex Neil and the Conservatives’ Jackson Carlaw say they still want a full list of judges’ interests to be made public as is the case with the US Supreme Court.
The National can reveal that the Nolan and Collins case has already been considered by the Scottish Parliament’s Petitions Committee, though most MSPs did not know it.
Veteran legal rights campaigner Peter Cherbi brought a petition to that committee calling for a register of pecuniary interests for the judiciary.
While quizzing Professor Alan Paterson of Strathclyde University at a meeting of the committee, Angus McDonald, the SNP MSP for Falkirk East, said: “On the issue of recusals, let me throw a hypothetical example at you. The son of a judge is the litigation solicitor for a defendant in, for example, the Court of Session, but the judge fails to recuse himself and to highlight the family connection to all interested parties.
“Clearly such a situation could be avoided were the decision on recusal not to be taken by the judge presiding over the hearing himself. We would look to avoid such a situation, and the register would help.”
Paterson replied: “It might – and if we are talking about a criminal defendant, it would be the High Court. Generally speaking, a relationship would be known to the parties. In the past, it was not unknown for an advocate who was a relative – a son or daughter – of a judge to appear before that judge. In a small country such as Scotland, saying that such a thing could not happen would make things a bit tough. It used to happen. As long as everybody knows about it and it is declared, it should not mean an automatic disqualification. In such situations, all the parties usually know and no objection will be made.”
The National has established that the case raised by MacDonald was that of Donal Nolan v Advance Construction.