Lady Anne Smith (Anne Mather Smith)
Below is a précis of
the complex tale of apparent judicial skulduggery.
It poses the following questions:
It poses the following questions:
Are our
judges and their clerks
above the law?
Am I a victim of private vested interest?
Do our judges ‘chisel’?
Am I a victim of private vested interest?
Do our judges ‘chisel’?
Considering the
- Alleged affairs, coincidences
and impossibilities
- Badmouthing and ‘insider’
gossip and innuendo
- That £600,000 went
‘missing’
- Evidential papers appear to
have been ‘removed’ from my advocates box (locker).
- Further vital documents were
‘destroyed’ and others ‘lost’ in transit
I am forced to answer ‘yes’.
The Crown Office in Edinburgh
Some disturbing questions have been raised – they need answering:
- How does the VAT man decide who
to prosecute?
- Who controls our public
officials, such as the Accountant in Bankruptcy?
- What is a ‘woman of skill’?
Modern Justice and Human Rights:
- Why the Scottish judicial
system must adopt reform
- Why Scottish legal jurisdiction
must be fought for
The purpose of this section of the web site is to highlight reasons why I, Martin Frost, as an individual, do not believe I have had fair and impartial judicial determinations from Lady Smith and why it is not possible for my insolvency to be administered fairly and without perceived conflict of interest from the parties concerned.
Lady Smith has had a direct involvement in three causes which appear on this web site:
A
tale of legal naughtiness and whitewash - Tods Murray v Arakin (Frost &
McNamara).
A
saga in political and financial cover-up - Unity Trust Bank Plc v Frost.
A
chapter in under hand legal and financial greed - Frost & Parkes v Cintec International
Ltd.
For ease of comprehension I have divided this essay as follows.
• Edinburgh’s socio judicial culture of cronyism.
• How this ‘patronage’ could be eliminated.
• Why I was, and remain, unable to obtain real and perceived impartial justice from Lady Smith.
• How Edinburgh’s ‘legal culture’ has failed to give me justice.
• Was the Accountant in Bankruptcy leaned upon?
• Equality of Justice, and Mr Smith.
• Some further coincidences.
• When a judge stands down – the existing legal framework.
• Recent happenings.
• Conclusion.
• Links.
Edinburgh’s socio-judicial culture of cronyism.
In the 1650s Oliver Cromwell abolished the Scottish legal establishment in Edinburgh because he felt that its very structure in Edinburgh was inherently corrupt. Cromwell expressed;
‘That in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked. That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions. That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard. That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.’
Today, some 350 years on, I believe that the Scottish legal establishment, as re-established by the Restoration in 1660, still requires that fundament Cromwellian re-think.
No matter what tinkering and erection of Chinese walls which take place; I believe justice cannot be seen to be done in a conceited and restricted ‘legal village’ governed by nepotism and cronyism.
That is not to say that Scotland does not possess the finest and fairest legal philosophy in the world, nor does it mean that Scotland is not endowed with a plethora of fine legal practitioners and judges; no what I mean is that the structure which synthesises these excellent parts produces a mismatch of actual and perceived unfairness.
Nor, am I saying that Scotland has the worse legal system in the Western World; indeed as I stated to Lord Hope when flying up to Edinburgh last October 03, Scotland has a legal philosophy of which we can be proud, especially in comparison to others found in the second and third worlds.
No what I am saying is that for Scotland to offer perceived independent justice for this millennium, the Scottish legal establishment must geographically and socially reform.
Regrettably, I see little evidence of such reform as may be witnessed by the source of and by current bankruptcy and diligence proposals.
Many sincere people are doing their utmost to improve matters but the basic problem resembles a dedicated group of priests submitting new measuring tools in the justification of a flat earth policy.
In my opinion, Lady Smith for all her brilliance personifies the intellectual myopia encrusted in ‘scholasticism’. It is not her academic understanding of the law that is wrong but the particular way she attempts to apply it.
Scottish justice should not be executed over muffins in Morningside, tea cups in Edinburgh’s New Town; and drinks at Edinburgh’s New Club. In my view it is impossible for Lady Smith not to have been influenced by the mindset of her social contacts and peer groups.
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How this ‘patronage’ could be eliminated.
1. The social interaction of the Edinburgh village should be broken via the simple expediencies of physically moving court functions out of Edinburgh and physically breaking up legal and court functions in Edinburgh. An example of the former could be: The Outer House of the Court of Session could be moved into respective Sheriff Court locations. An example of the latter could be: The Faculty of Advocates is physically separated off from the courts thus concluding idiosyncrasies such as the courts business cease when Faculty’s meeting bell sounds.
2. A Canon of Judicial Conduct, not unlike the Canons of Judicial Conduct promulgated by the American Bar Association, is enacted by the Scottish Parliament. Such a canon could encompass rules that a judge should be a political and cronyistic eunuch. A judge must not have particularly close contact with anyone who regularly appears before him. That a judge must resign from their professional body and that a judge must not solicit for funds for any educational, religious, charitable, fraternal or civic organisation or use or permit their name of the use of their office for that purpose. That the same position of strict neutrality is adopted by the judge’s spouse; in short the position of Lady Smith’s husband as the chairman of Shepherd & Wedderburn solicitors, I believe taints the perceived if not the real impartiality of Lady Smith. Contact between the media and the judge must be strictly regulated so that the judge’s wisdom and impartiality remains unassailable. Lady Smith’s comments to the Scotsman newspaper concerning observations upon me, within and without the issues upon which she is/was judging is plain wrong.
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Why I was, and remain, unable to obtain real and perceived impartial justice from Lady Smith
Is due to:
• Her expressed dislike and open
hostility to me.
• Her direct social connection
with the parties with whom I am in dispute with.
• Public perception of Lady
Smith’s suggested past liaison or affair with me.
• Lady Smith husband’s perceived
past association with me and the current association of his firm
Shepherd & Wedderburn.
• Shepherd & Wedderburn’s
involvement with Ian Smith,
clerk to the Second Division.
I do not believe that Lady Smith did right by me without favour, affection or ill will.
I do not consider that Lady Smith is free of prejudice and partiality.
I do not believe she has conducted herself, in court and out of court as not to provide doubt on her ability and her willingness to decide my cases coming before her solely on their legal merits as they should have appeared to her had she exercised an objective, independent and impartial judgment.
I maintain that Lady Smith lacked the high standard of propriety, integrity, assiduity and personal conduct to have judged issues in which I am involved.
As an aside, Lord Allenbridge may well have been right when he questioned Lady Smith’s fitness for office, for when she, as counsel, appeared before him, Lord Allenbridge described her as too ‘fusty’ with a tendency to sulk if she didn’t get her own way. Though in her support, Lord Allenbridge is also reputed to have said, that what she lacks in intellectual power she makes up with perspiration.
On account of Lady Smith and via the perceived machinations by her, her cronies and acolytes; I believe that Scottish non justice has treated me unfairly. Below are some of the reasons for my belief and complaint.
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How Edinburgh’s ‘legal culture’ has failed to give me justice.
A brief personal history is required (A more detailed account is to be found elsewhere, particularly in the Unity Trust Bank Plc section of this web site). In December 1988 I became involved with the Unity Trust Bank Plc over the development of a heritage park and holiday village in South Wales. Unity, I believe, breached their funding contract with companies to which I was associated with. It is my contention that Unity ran out of money and left me with an impossible situation of a project part started.
In 1994 Unity sued me for some £300,000 which Unity purported to have lent me personally, and I on my behalf and that of others sued Unity for negligence and breach of contract. I employed a Mrs Smith, advocate, to represent my interests.
At that time within the Faculty of Advocates there were two Mrs Smith advocates. Mrs Eirlys Smith, advocate, who represented me in Unity was married to Mr Ian Smith, clerk to Lord Ross, the Lord Justice Clerk, Scotland’s second highest judge and head of the Second Division. The other Mrs Smith, Mrs Anne Smith, advocate, is still married to Mr David Smith, now the chairman of the leading Scottish firm of lawyers, Shepherd & Wedderburn. Mrs Anne Smith is now Lady Smith.
On account of my illness, Mrs Eirlys Smith held my personal power of attorney, which Eirlys in turn used to instruct Mrs Elaine Brailsford, partner of Tods Murray, to instruct her, Mrs Eirlys Smith, advocate, to act for me. Mrs Eirlys Smith and her husband had financial problems. I became concerned that Mr Ian Smith might seek to use assets of mine in the Thomson and London & Edinburgh businesses (over which his wife Eirlys held power of Attorney) for his personal use.
London & Edinburgh was a company set up by me for dispute resolution. It purchased and sold assignations. Mr Ian Smith became a director on account of his intimate knowledge of court procedure and work with advocates. Thus Mr Ian Smith was able to surreptitiously borrow books from the Court of Session Judges library and borrow out third party summons and petitions for company use. I believe some of these were destroyed by Mr Ian Smith along with my Unity papers. Advocates, including Mrs Smith, were engaged, instructed, and paid direct outwit Faculty Services or lawyers offices to execute London & Edinburgh business. (Subsequently, by misrepresenting one of the assignations from London & Edinburgh did Mr Peter Anderson of Simpson & Marwick, Mr Clive Franks of Franks, McAdam & Brown, and I am advised, Mr Ian Smith attempted to defeat my IVA in 2000 as is shown in the links below.)
A Mr R Henderson, advocate and friend of Ian and Eirlys Smith, arranged a business mortgage for Ian and Eirlys Smith with the Allied Irish Bank. Politely put, the Allied Irish Bank was confused into granting the mortgage via an ‘iffy’ application supported by a very strong favourable reference from Lord Ross, Mr Ian Smith’s boss. I became very concerned and reported my concerns to the newspapers.
Regrettably, the tabloid press gave front page coverage to my secondary allegations that Ian Smith and other court staff had stolen evidence for their personal home use from a High Court trial on pornographic tapes.
Mr Ian Smith was suspended for a fortnight and after an ‘extensive’ police investigation was allowed to return to work without a stain on his character. Thereupon, Mr Ian Smith accused me of having an affair with his wife Eirlys and suggested that it was his wife, Eirlys, who was dishonest. Upon such terms, Ian Smith spoke at length with his court colleagues, one such colleague being the clerk to Lord Penrose.
Lord Penrose was horrified, accepted the gossip as being factual and so summoned the Dean of the Faculty of Advocates along with Mr Leslie Kerr, the Accountant in Bankruptcy, into the next court hearing in which Mrs Eirlys Smith was appearing for an insolvent.
In court, Lord Penrose accused Mrs Eirlys Smith of fraud. Mrs Eirlys Smith was suspended from practice by the Dean of the Faculty of Advocates, Lord Hardie. Mr Leslie Kerr, called in the police and brought proceedings for the Recall of Sequestration of the insolvent, Mr James Thomson, an associate of mine. Thus I lost my legal representation; my solicitors resigned and because matters were becoming so unpleasant no one else was prepared to act for me.
I became a party litigant. I was obliged to defend myself in a police enquiry and simultaneously fight the Accountant in Bankruptcy in court.
The police enquiry was dropped; Lord Penrose I understand took some brief gardening leave and thereafter Lord Penrose withdrew his complaint against Mrs Eirlys Smith.
I defeated the Accountant of Bankruptcy in court, secured an award of expenses against the Accountant in Bankruptcy, and thereafter awaited a good dividend upon the £100,000 or so that the Court of Session determined was my entitlement in the sequestration.
Meanwhile, the Dean of the Faculty of Advocates convened an investigating committee, under the chairmanship of Mr T.A.K. Drummond, advocate, and with Mr L Murphy as secretary; to examine the conduct of Mrs Eirlys Smith. I was summoned to give evidence in camera. I was reprimanded by the investigating committee for using listening devices and condemned as an unsavoury character with a sinister past.
On account of which judgment Mr Sutherland, Treasurer of the Faculty of Advocates, refused to pay me the expenses to which I was entitled for my attendance before the investigating committee.
Within the Faculty of Advocates, matters continued to spiral and Mrs Eirlys Smith was arraigned to appear before the House of Lords Judge, Lord Jauncey, in a private trial. Again I was summoned as a witness and threatened with jail if I failed to attend this Faculty of Advocates Court.
Matters abruptly collapsed when Mrs Eirlys Smith resigned from the Faculty of Advocates and an out of court settlement was reached. Not surprisingly the Mrs Smith saga was a major happening in the disciplinary life of the Faculty of Advocates; it did cause shock waves and I was far from popular.
Suspected by products of this episode were: that Lord Ross retired somewhat earlier than expected to be replaced by Lord Cullen and my wife’s counsel took it upon him, without notice or consultation, to reject my wife’s instructions, and he, counsel, so changed sides to support Unity and opposed me in court before Lord Hamilton.
This perfidy was the catalyst of an event chain which prompted my wife and me to separate.
Yet, another co-incidence was that my wife’s solicitor in the above shenanigans, Mr Peter Paterson became a partner in Tods Murray, and a Mr Michael Peter Anderson of Simpson & Marwick, the same Mr. Michael Peter Anderson who (a) represents Tods Murray solicitors (see below and the McNamara section of this web site) just so happened to assist Mr Peter Paterson against my wife’s complaint; and (b) provided Mr Clive Franks for Unity with a libellous and untrue affidavit for use against me in my English IVA proceedings (see the Unity section of this web site).
Onto the above saga I must now lay these sub plots. As the reader may be aware from elsewhere on this web site Unity Trust Bank Plc employs the services of a small Edinburgh legal practice, Franks, Macadam Brown, run for many years by the sole practitioner, Mr Clive Franks. Mr Franks appears to have acquired the Unity business via his close association with the now managing director of Unity Trust, a Mr Sim. (A more detailed appraisal of the background here is to be found in the Unity web section).
Mr Franks appears to be a specialist in bad mouthing people, a trait he appears to have in common with his colleague at the Unity Trust Bank Plc. Mr Franks wrote to solicitors and spoke with counsel who represented me to the effect that I was a crook and I would shortly be apprehended for my evil doing. Therefore, my representative should perhaps rethink representing me.
Mr Franks corresponded with the police and the Inland Revenue investigation unit to prompt my apprehension. As a result of my court dispute with the Accountant in Bankruptcy I had a meeting with Mr Leslie Kerr in his offices. I was more than a little surprised to find at that meeting a Mr Anderson from the Inland Revenue investigation unit. Mr Leslie Kerr explained Mr Anderson’s presence as being the natural consequence of sharing adjacent offices.
In October 1996 Unity lost a summar roll hearing to me in the First Division of the Inner House of the Court of Session. A proof was set down for March 1997. Judging then from the barrage of letters Franks sent me, Unity was upset. Not withstanding an arrangement I had with the Revenue, the Revenue then upon the instructions of Mr Anderson decided to sequestrate me. Upon receipt in December 1996, of the revenue’s debt charge, I opted for an English individual voluntary arrangement (IVA).
An IVA held out the better prospect as to the continuation of the Unity dispute. (Privately I was advised that it had been organised with the Accountant in Bankruptcy office that upon my sequestration my case against Unity would be dropped. In January 1997, in open court before Lord Philip, opposing counsel advised the court that my IVA would fall because he had it on good authority from Unity’s solicitors, that Unity had sufficient votes at the IVA creditors meeting to terminate the IVA, and that furthermore I would thus shortly be sequestrated by the Inland Revenue.)
Mr Anderson and Mr Franks turned up at my IVA creditors meeting in Manchester, and both became somewhat grumpy when the bulk of my creditors voted in favour of the IVA, thus denying Anderson’s wish to sequestrate me and so therein conclude my dispute with the Unity Trust Bank Plc. (Another surprisingly co-incidence then occurred, which fact emerged during my Proof with Unity in 2003, that unfortunately in February 1997 most of Unity’s records regarding my dispute with them in 1989 had inadvertently been destroyed on account that these records had just become six years old, infuriating was that Lord Eassie denied my right to a transcript to this trial.)
Franks and Anderson on behalf of Unity and the Inland Revenue respectively then mounted a section 262 challenge under the 1986 Insolvency Act to negate the IVA upon the grounds of jurisdiction and misrepresentation. I won.
Unity and the Inland Revenue lost and Unity was refused leave to appeal and ordered to pay costs by Mr Justice Behrens, Leeds High Court Insolvency judge February 1998 (a reported decision). In 1999, not withstanding the existence of the IVA, the Inland Revenue again implemented proceedings to sequestrate me. I enclose a copy of my summons against the Revenue to prevent the Revenue’s attack. I won.
The Revenue lost and undertook to the Court of Session not to proceed with sequestration proceedings against me.
In 1999/2000 Franks for Unity again attempted to have my IVA set aside by procuring a libellous affidavit against me sworn by Michael Peter Anderson of Simpson & Marwick (note above the involvement viz my wife) stating that I had defrauded my IVA Trust Fund. This complaint against me was rejected as being unfounded.
Concurrent with the above history there then followed a number of other co-incidences.
Given that there are some 8,500 solicitors in Scotland I do find it a little surprising that Mrs Thomson, ex wife of the founder in the Thomson business (over which Mrs Eirlys Lloyd held power of Attorney), engages Mr Clive Franks of Franks, McAdam, Brown (Unity’s lawyer) to be her solicitor.
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Was the Accountant in Bankruptcy leaned upon?
(And is it still occurring?)
Inter alia one of the reasons I defeated the Accountant in Bankruptcy in the Court of Session action (see above) was that I, as a creditor, wished various perceived dishonesties investigated in the Thomson sequestration. It appeared that it was not appropriate for the authorities so to do.
I find it strange that due to Mr Franks’ representations there was no enquiry in the Thomson sequestration into the Mount Hooley Jedburgh property sale to Mrs Thomson, a connected party at a £200,000 discount.
I find it strange and somewhat contradictory that both Mr Franks and Mr Anderson for the Inland Revenue did not consider it appropriate for the Accountant in Bankruptcy (a) to investigate the cash sum of £240,000 in the Thomson sequestration which also went walk about or (b) £140,000 of Spanish property. In short nearly £600,000 at mid 1990 prices just was lost.
I also find it mind boggling that my papers and my productions in the Court of Session action that I won against the Accountant in Bankruptcy mysteriously became lost between the Accountant in Bankruptcy’s office and the Court of Session General Department. Even more annoying was that due to their absence I was refused a dividend in the Thomson sequestration not withstanding a prior acceptance challenge as to locus in the Court of Session.
Finally, and I suppose this was also to be expected, did the Accountant in Bankruptcy pay me the judicial award of expenses that I obtained against him in the Court of Session? Well, no.
Consider this: Shepherd & Wedderburn upon their application in February 2004, re the Cintec proceedings, to have me sequestrated appointed the Accountant in Bankruptcy as my interim trustee. Because of the perceived voting dissent on whom or who was not a creditor in my sequestration the Accountant in Bankruptcy became by default my permanent trustee. Personally, I do currently believe that Mr R MacGregor, agent for the Accountant in Bankruptcy, has attempted to do a good job in unusual and trying circumstances. But is this the point? Given my above anger and dissatisfaction with the Accountant in Bankruptcy’s office, can the Accountant in Bankruptcy be perceived as truly independent and impartial? Who is the Accountant in Bankruptcy and is the office truly independent? To whom is the Accountant in Bankruptcy responsible? In historic terms the Accountant in Bankruptcy is an officer of the Court of Session, admittedly this direct supervision has diminished with passing of the devolution Scotland Act 1998 but the judicial influence remains. Now reflect on this. At the beginning of June 2004 I lodged adjustments in my petition for Recall of Sequestration. In like manner my creditor Mr Warwick lodged answers. Mr Warwick requested a further adjustment period of ten days from the seven that was awarded with my original petition. Mr Warwick’s request came before Lord Carloway, previously the same Mr Sutherland who had refused me my expenses before Mrs Eirlys Smith’s investigating committee. Mr Murphy, the same Mr Murphy as the secretary of the Smith investigating committee represented Cintec. Lord Carloway’s decision was bias, factually (as to dates and counting) and legally wrong (a creditor by the 1985 Bankruptcy (Scotland) Act via statute has a right to answer my petition not withstanding that the creditor does not concur with the petitioning creditor) but neither I nor Mr Warwick sought to reclaim his decision because so to do would have inevitably delayed my eventual recall hearing by at least 6-12 months. The heart of Lord Carloway’s decision probably lies in his paragraph 9 which reads:
‘Perhaps especially where party litigants are involved, the court should be anxious to monitor what is occurring in a process. If extended adjustment is permitted, there is a danger that the written pleadings will lose form and structure and a party will be put to far more trouble than is either necessary or desirable for the proper conduct of the litigation.’
By removing and disallowing my adjustment Lord Carloway then deprived me of questioning the conflict of interest that the Accountant of Bankruptcy has with me along with the below argument which I had sought to add to my petition.
‘As the Accountant in Bankruptcy is not a woman of skill as per the E.U. Directives and in particular those that were the Second; Fourth; Seventh and Eighth directives and as the Accountant in Bankruptcy fails therefore or does not possess the appropriate accountancy, legal and insolvency qualifications to act and hold office, and in particular to act as Frost’s interim trustee, this sequestration process and the sequestration of Martin Frost is flawed from the start, is currently flawed and so bears to be dismissed. Reference thus made.
The Accountant is a woman with a perceived bias arising from the manner of her appointment and whose position and appointment is in fundamental breach of Article 6 of the Human Rights Convention. In Starrs and Chalmers v Procurator Fiscal (Nov 16th, Court of Session) the court determined that whether a judicial tribunal is independent primarily depends on its ‘manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and whether it presents an appearance of independence.
The Accountant does not have a qualification of a chartered or certified accountant. Experience does not meet the E.U. criterion. The Accountant is not a woman of skill in conformity with the above E.U directives.
There are two aspects in respect to the directives.
The first relates to the individual clerk; i.e. is he qualified? The answer is that he does not have an appropriate E.U. qualification. (i.e. a recognized accountancy qualification from a professional accountancy body; or from a professional body in which an accountancy qualification is majored as occurs say with some solicitors).
The second is by way of statute and is directed at the parties. The Office of the Accountant in Bankruptcy does comply with European Union Directives and British Statute and subordinate law as to insolvency. In view of the above either individually or synergistically Frost objects to the Accountant of Bankruptcy.’
However, the matter does not stop here. When Mr Warwick lodged his answers to my petition the staff in the Petition Department asked Mr Warwick why was he objecting to Frost’s sequestration. What prompted this ethos of misunderstanding in the Petition Department, and why did they wish to express a view?
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Equality of Justice, and Mr Smith.
Consider also, after Lord Ross retired, supra, Mr Ian Smith (husband of Eirlys Smith) became the clerk to Lord Cullen who has since been upgraded to the Lord President of the Court of Session. Remember, it is the same Smith, the thirty odd thousand a year clerk, who I reported for financial impropriety. Well, Ian Smith remained under investigation by the Customs & Excise for potential VAT fraud on his private business activities which I refer to above, associated also with the Thomson business. Mr Darling of Vigilant House, Paisley, cautioned Mr Ian Smith with VAT fraud. The matter was referred to the Customs & Excise lawyers who just happen to be Shepherd & Wedderburn. Yes, the same Shepherd & Wedderburn to which Lady Smith’s husband is chairman. And yes, who had been Mr Ian Smith’s lawyers, the same Shepherd & Wedderburn.
A further co-incidence is that after his divorce, Mr Ian Smith re-married another female advocate and temporary Sheriff, Gail Joughin. Mrs Gail Smith, nee Gail Joughin, professes to be a professional and social friend of fellow advocate, Lady Anne Smith.
Is it no wonder that the investigating VAT officers who after several pain staking years of careful inquiry are a little disappointed in what they see as one law for the privileged and another for the remainder.
Is it no wonder that these investigating officers might perceive that over the respective Smith coffee cups justice was thwarted. These same custom and excise officers deduced that no returns or false VAT returns with no payment appeared to have been made over a six year period and that a sum in excess of £110,000 was due.
So what is the upshot to this heinous non payment? Did Customs & Excise and Shepherd & Wedderburn seek to sequestrate Ian Smith? Was a criminal prosecution brought? Was a fine levied for non payment?
No, none of these things happened. Legal and it is understood judicial influence, suggested that it was not in the ‘public interest’ that such should occur. Mr Ian Smith was given time to pay, a property was sold which satisfied the VAT while at the same time obliging Mr Ian Smith to pay a significant capital gain.
Guess what? Did the Revenue seek to sequestrate for their money, the tax on the capital gain. No, of course not, now the Inland Revenue is giving Smith years to meet this liability.
Does this story stop here, why no, there is the Bank of Scotland. In or about 1998 the Bank of Scotland sues Mr Ian Smith in Edinburgh Sheriff Court for a debt of some £200,000 odd pounds. Does he pay it? Why no. His wife Eirlys Smith pays her share, but polite legal pressure is brought to influence the Bank of Scotland and Mr Ian Smith is let off his portion of the debt.
Mr Smith is obviously a man of influence; a man with good solicitors; a man who can escape debt and sequestration.
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Some further coincidences.
These are some other small quirks that may be added to the flavour of the above hotchpotch. These are dealt with in more detail elsewhere in my web site.
There is maxim that ‘my enemy’s enemy is my friend’; Mr Clive Franks and Mr Ian Smith do exchange information. Prima facie there could be nothing wrong with that but consider this: ‘Should Smith, a senior court official, and Franks an officer of the court engage in malicious gossip?
Indeed should they discuss any business which is not directly pertinent to their current work?
Judge this against the background of my previous complaints concerning the loss of my Unity papers. Mrs Eirlys Smith, then the Frost’s counsel and advocate, claimed that the papers had been removed from her advocates box (a locker without a lock). Somehow, I doubt that this could be the whole story as my Unity papers could not have fitted into her box. No, it is my belief, supported by independent evidence, that my Unity papers were removed from her office at home by her husband Ian Smith. That said, my complaint over the advocates boxes was considered and today close circuit television partly oversees the boxes. (The problem of the advocates box remains; can one imagine any other court system where private and highly confidential papers are stuck in unlocked boxes, in the main court corridors openly accessible to the general public and Scotland’s proven best criminal fraternity’; in my view such topsy turvey thinking is endemic with much of Scottish legal physical procedure)
The loss of my Unity papers is a fundamental problem to my prosecution of the Unity cause. An example, as given in the Unity section of my web site is the loss of the letter from Mr Laurie Bell of Unity in which Mr Bell apologises to Mr Caine for Unity’s failure to lend and to honour Unity’s obligation. That this letter existed is undoubted. (Does a customer of a bank get an apology from the bank if the bank is not in the wrong?) Before the Auditor of Court in the taxation of Frost v Unity, 1997 -1998, the letter was present in the box of papers submitted to the Auditor by Mr Clive Franks. I asked for a copy but was told I would have to seek the document by way of a specification. This I did as the court part process evidences, that is, unless this too is lost, in which case I can provide appropriate copies. Eventually on the morning of the Proof (trial) in 2003, I was given a bundle of documents for which I had requested for over 6 years. Proceedings were adjourned for an hour for me to consider same.
Surprise, surprise the above letter from Mr Laurie Bell was not there. Then, notwithstanding that I had listed Mr Clive Franks as a witness for me for over five years, when I called Mr Franks to the stand to examine Franks over Laurie Bell’s letter at the taxation of Frost v Unity; Lord Eassie, the trial judge, refused me putting Mr Franks on the stand.
The life of a party litigant is not an easy one.
Three further asides on the Unity cause which are dealt with in more detail on the Unity web section:
A. In October 1996 the First Division of the Court of Session pronounced an interlocutor stating that lending limits were applicable, in October 2003, Lord Eassie, a lower court judge ruled that lending limits were not relevant (see relevant interlocutors in Unity section).
B. In the witness box both the finance director and ex managing director of Unity admitted that the bank had regularly exceeded the minimum capital ratios set by the Bank of England, but it did not matter. (See Unity section).
C. Despite protestations and an undertaking so to do entirely at my expense Lord Eassie refused to allow me to have the tapes of the Proof proceedings transcribed; furthermore Lord Eassie refused me leave to appeal, and unlike other jurisdictions, in Scotland, leave to appeal cannot then be granted by a higher court though I believe this issue is under consideration viz the Human Rights Act.
A fourth aside and one which I find hard to contemplate is that it is said that Lord Eassie, Lady Smith and Mr Patrick Hodge Q.C. (advocate for Tods Murray) are professional and personal friends. I have evidence that suggests that Lord Eassie has discussed me with both Lady Smith and Mr Hodge and that such discussions occurred between the commencement of trial dates and delivery of the judgements of Lord Eassie and Lady Smith.
Outwit the direct influence which Franks appears to have with court staff, one must consider secondary influence. We are all human. Lord Cullen, the Lord President, and Lord Gill, the Lord Justice Clerk have in common or had in common Mr Ian Smith as their clerk. Is it suggested that clerks do not communicate with their lordships over personal matters, this obviously is not the case given Lord Ross’s testimonial (as above) to Mr Ian Smith’s financial standing.
Now, I am not saying that the Lord President or the Lord Chief Justice Clerk aren’t excellent judges but surely it is not beyond the bounds of reason to consider some negative influence against me emanating from their clerk Mr Ian Smith. Without disclosing a full hand I believe that there is cause for concern.
The Lord President has expressed annoyance over the McNamara/Arakin business and the need for the Court of Session to swiftly conclude this and other matters in which I am involved. If you recall from other sections of this web site Mr Andrew McNamara owns a company, Arakin Limited. Arakin employed Tods Murray, solicitors, to assist in a number of civil disputes. Arakin complained to the Law Society of Scotland about Tods Murray’s service. The Law Society took the Arakin complaint seriously but before the Law Society could reach a determination Tods Murray sued Arakin for alleged professional fees and in so doing obliged Arakin to lodge some £275,000 into court. (By suing Arakin, Tods Murray defeated the Law Society investigation which upon the legal action being raised against Arakin obliged the investigation to be adjourned). Arakin maintains it paid Tods Murray and todate Tods Murray now concedes that it over assessed Arakin’s liability by some £260,000 still leaving a balance due to Tods Murray of some £15,000. I believe that Arakin overpaid Tods Murray. I believe that Arakin was ‘conned’ by Tods Murray into overpaying Tods Murray. I believe Arakin was deceived into providing a £275,000 bond in favour of Tods Murray. Where Mr McNamara and I part company is that I do not believe that Arakin was entitled to all the funds Arakin received as a result of the above actions that Tods Murray assisted in securing for Arakin. More fundamentally, I no longer believe that the magnitude of the counterclaim against Tods Murray by me and Mr. McNamara is justified. (The size of this counterclaim has been described as akin to the robbed householder who claims from his insurer for items which were never present, let alone stolen.) Lady Smith was given the task in Tods Murray v Arakin of judging the professional integrity and honesty of a number of establishment lawyers. Lady Smith accepted this commission not withstanding her, and her husband’s, personal friendship and professional association with Tods Murray and the principal parties who were accused of malpractice. Furthermore, Lady Smith refused my request for an independent jury arguing that a jury was not necessary in the circumstances. Scotland does not have an abuse of process as such. I argued that the loss and corruption of the court process in the cause of Tods Murray v Arakin was such, which by its very decree suggested that matters had occurred wilfully and not accidentally. Lady Smith, despite my repeated objections, insisted in hearing this matter and in her October 2003 Opinion ruled against me.
Outwit this essay I deal in detail with Lady Smith’s October 2003 opinion in Tods Murray v Arakin but here I make some general observances.
It is my belief that Lady Smith may be an ambitious political animal who rightly perceived that her opinion in Tods Murray v Arakin would assist her social standing and status amongst her fellow judges.
I am told that the Lord President was not only pleased with her Tods Murray opinion but now seeks to shelter and reward her for it. Because the Lord President has indicated a personal preference, other judges, quite humanly, have taken notice.
Such I allude to in the Unity web section with Lord Eassie but here I mention the Lord Gill and Mr Justice Jacob episode as an example.
Below is part of an English High Court approved transcript from a hearing before Mr Justice Jacobs in the matter of Cintec International Limited v Parkes & Frost.
Essentially, the case involved a patent dispute over anti-terrorist devices. In 2003, Lord Bonomy had granted me and my partner, Mr John Parkes, the privilege of suing Cintec in the Court of Session. As a result of this action Cintec subsequently raised similar proceedings against us in London. (See the John Parkes, Cintec section of this web site).
My first concern was that the English court did not have the right to trump a Scottish court and I argued before Mr Justice Jacobs that he did not have jurisdiction because Scotland was the first jurisdiction seized. Mr Justice Jacobs ruled against me and then arranged to have a chat over matters with Lord Gill over lunch. The transcript runs:
(The court adjourned)
MR JUSTICE JACOB: You be glad to
know, and I have checked with Lord
Gill, September sittings are not decided until August, so you will not
have an overlap.
MR FROST: Thank you, my
Lord.
MR FROST: Basically we have
reached agreement. There is just one small
point.
MR JUSTICE JACOB: This is
the latest version of the order, is it?
MR FROST: Yes, my Lord. There is
one small point which is that there is
a pre-reading estimate for the judge of one day. We think it
might take the judge more than one day.
MR JUSTICE JACOB: Do not
worry. The judge will crack it in a day.
Do not forget, there is one slight difference between this jurisdiction
and Scotland. Because we are so much bigger than Scotland, when it
comes to patents we have specialist judges. Although Scotland
sends a couple of judges off to go and do it, we have people who have
done it all their lives. So that will make it quicker.’
The issue here is a simple one. If the Lord President had not proclaimed ‘the get Frost out of here ethos’; would not have Lord Gill fought harder for the Scottish corner/ jurisdiction?
Since proceedings with Cintec had commenced in Scotland, it does appear obvious that Scotland could have concluded matters quicker and more cheaply. To me it does seem somewhat extreme, perhaps complimentary in a way, which members of the judiciary appear to surrender Scottish judicial independence as the preference of having Frost before them.
Finally as I have said before, my sequestration came as a shock to me.
Was I set up and if so did Lady Smith have a part in it? I think so.
Let us put a few more facts into the equation. Cintec International Limited is in the security business and is associated with not only our security services but those of other nations.
Cintec has executed work for the Scottish Parliament and in certain circles it is true to say that Cintec is rumoured to be responsible for the inclusion of many covert listening devices within the building.
How Cintec retained Shepherd & Wedderburn as their Scottish solicitors is not up to me to answer, but the relevant point is that Shepherd & Wedderburn were advising Cintec from day one in my dispute with Cintec.
Consider these co-incidences. Miss Kirstie A Ross is the solicitor employed by Shepherd & Wedderburn to oversee Cintec’s dispute with me. On March 11th 2004, when in London, Mr Philip Radford, Cintec’s English solicitor cautioned me to be careful for he had not previously witnessed before such personal non professional venom emanating against me from Shepherd & Wedderburn, and Miss Ross in particular. Ross, as one appreciates, is a well known name in legal circles.
Elsewhere, I have commented upon the co-incidence of people to my sequestration. Sheriff Drummond (Chairman of Mrs E Smith’s investigating committee, as above) signed the first order; Mr Murphy (Secretary to the investing committee, as above) now represents Cintec; Lord Carloway (As Mr Sutherland, refused to pay my expenses before the investigating committee, as above) delivers an opinion, strange both to timing and content. I regret the co-incidences continue now within the sequestration itself.
It does make me very angry. I took the trouble to ask a mathematician to work out the probability by chance for all the above individuals to be involved. I haven’t enough space to encompass the decimal point, just let say that there is higher probability of a pig growing wings.
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When judges stand down - the existing legal framework.
The law in the UK on a judge standing down or recusing himself or herself is fairly well defined. Briefly it stems direct from the Human Rights Act and indirectly by custom and practice, such being summed up in the English Court of Appeal case, Locabail (U.K.) v Bayfield Properties. The court in Locabail made clear that it was wrong for a judge to accede to applications for recusal unless he regarded them as well-founded. A judge has a duty to try any case in which he is not obliged to recuse himself. The danger of bias must be assessed in the light of the judicial oath to administer justice without fear or favour and the ability to carry out that oath by reason of their training and experience.
The court in Locabail sought to give examples where in normal cases objections on bias grounds would be unlikely to succeed:
(a) Based on religion, ethnic or
national origin, gender, age, class, means or sexual orientation of the
judge.
(b) Based on the judge's social,
educational, service or employment background or history nor that of
any member of the judge's family.
(c) Based on the judge's previous
political associations or membership of social or sporting or
charitable bodies or Masonic associations.
(d) Based on the judge's previous
judicial decisions.
(e) Based on the judge's
extra-curricular utterances in text-books, lectures, speeches,
articles, interviews, reports or responses to consultation papers.
(f) Based on previous receipt of
instructions to act for or against any party, solicitor or advocate
engaged in a case before him.
(g) Based on membership of the
same Inn, circuit, local law society or chambers.
The court thought that a real danger of bias might well be thought to arise where:
(a) There was personal friendship
or animosity between the judge and any member of the public involved in
the case.
(b) The judge was closely
acquainted with any member of the public involved in the case,
particularly if the credibility of that individual could be
significant in the decision of the case.
(c) In a case where the
credibility of any individual were an issue to be decided by the judge,
he had in a previous case rejected the evidence of that person in such
outspoken terms as to throw doubt on his ability to approach such
person's evidence with an open mind on any later occasion. However, the
mere fact that a judge earlier in the same case or in a previous case
had commented adversely on a party or witness, or found the
evidence of a party or witness to be unreliable, would not without more
found a sustainable objection.
(d) If on any question at issue
in the proceedings before him the judge had expressed views,
particularly in the course of the hearing, in such extreme and
unbalanced terms as to throw doubt on his ability to try the issue with
an objective judicial mind.
(e) If there were other reason
for doubting the ability of the judge to ignore extraneous
considerations prejudices and predilections and bring an objective
judgment to bear on the issues before him.
The ECHR has held that impartiality is to be determined:
‘according to a subjective test, that is on the basis of a personal conviction of a particular judge in a particular case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect’.
The subjective element involves whether it can be shown on the facts that a member of the tribunal acted with personal bias against the applicant, whilst on the objective test there is an objective test of impartiality comparable to the doctrine of justice not only being done but also seen to be done.
Possible differences between the conventional approach as laid out in Locabiel and the ECHR test may be:
(a)More effect is given to the
appearance of bias by the ECHR, reasonable suspicion test;
(b)The reasonable suspicion test allows a margin for error in evaluating the facts because it concentrates not on whether there is a danger of bias as an objective fact but on whether a fair minded and informed person might apprehend or suspect that bias existed.
How does Lady Smith measure up to the above legal guidelines?
Given the above I believe it is obvious she should have recused herself or at the very least acceded to my demands for a jury trial. Notwithstanding the entire above, how could Lady Smith, with personal friendships and current social contact with those accused of professional malpractice, be described as impartial?
In my separate analysis of the proof and Lady Smith’s opinion I go into detail but bluntly it does not take a legal genius to see that Lady Smith presidency over the Tods Murray v Arakin Proof may be perceived by the independent onlooker as bias.
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Recent happenings
However, matters do not stop here. Tods Murray asked for and received an uplift in their costs from Lady Smith for the proof upon the general grounds that the tampering proof had been an abuse of process by the defenders. In addition to this award Lady Smith made it a condition that the costs associated with this award had to be paid prior to the continuation of the counterclaim against Tods Murray. I will address these issues in a moment but I was unhappy with this outcome so I enrolled a motion for leave to reclaim Lady Smith’s interlocutor on expenses.
My motion came before Lady Smith on 3rd February 04, but after some discussion I was persuaded to drop my motion because it wasn’t appropriate or necessary at the time. I was then advised, and so was my partner Mr McNamara advised by the Court of Session General Department that leave was not required. Mr McNamara then reclaimed in the normal manner, lodged a reclaiming print and sought orders to lodge Grounds of Appeal and sanction early disposal. The cause called before Lord Cullen in the First Division who ruled that the reclaim was incompetent because leave to reclaim had not been obtained from Lady Smith.
Can one be excused from thinking that yet again there may have been another stitch up.
Article 6 of the Human Rights Act purports to give equality of arms in court proceedings. Under the Court of Session rules a party litigant is unable to secure any uplift on his costs and expenses. Indeed a party litigant is penalised for having the temerity of defending his own property in court and so is given a reduced rate not to exceed two thirds of the basic solicitor’s rate. Given Lady Smith’s uplifted costs award to Tods Murray, this is now obviously not the case for solicitors opposing party litigants who can now secure not only their previous larger costs but now an uplifted rate when opposing party litigants. Should not equality be given both ways?
More shocking is that Lady Smith made payment of her costs award to Tods Murray a prime condition to obtemper, if I wished to continue to pursue my counterclaim against Tods Murray. This is badness in the extreme for the counterclaim in part directly relates to matters of defence in the main action. An obvious agreed example is that Tods Murray has failed to issue VAT invoices upon which VAT should be recoverable.
When such invoices are eventually issued, recovery of VAT by Arakin will not be possible in the normal way from the Customs & Excise because VAT recovery is time barred by a three year E.U. limitation. Thus the prior Scottish way is to sue Tods Murray in the counterclaim for the loss of the VAT recovery.
This VAT recovery sum is likely to amount to a greater sum than that which Tods Murray still maintains it is due from Arakin. In short, by virtue of the VAT money alone, Tods Murray will lose the case prompting horrendous costs and damages against Tods Murray.
Lady Smith by her cost’s decision thus attempts to place a significant obstacle in my way of obtaining justice. In my view she is chiselling or manipulating the court system to assist her fellow legal cronies and endorse what the Lord President is said to perceive to be the public interest in that Tods Murray is vindicated.
In March 2004 Lady Smith granted motions by Unity Trust Bank Plc to dispense with intimation to me and lodge a continuing inhibition (charge) over me in respect of the sum Unity claimed in my IVA. When I was informed I immediately sought leave to reclaim this decision of Lady Smith for her decision was contrary to the 1986 Insolvency Act. Bluntly, it prevented the orderly realisation of my IVA assets. Lady Smith refused me leave but I was able to reclaim without leave upon a motion I made at the bar. In April 2004, before the First Division of the Court of Session Unity dropped their position and agreed to relinquish their inhibition. Thus it is now possible for the IVA assets to be realised.
In April 2004, on account of my recent sequestration, Lady Smith refused Linda Frost’s motion to sist the cause in Unity v Frost. At the motion roll she advised counsel for the Accountant in Bankruptcy that she had previously made known her displeasure with me and thus the Accountant in Bankruptcy should approach me with great caution. Linda Frost reclaimed Lady Smith’s decision and before the Extra Division of the Inner House
Linda Frost’s note read:
Linda
Frost’s Reclaiming Motion Inner House, 2004-05-13
Unity Trust Bank Plc v Frost
My Lords,Unity Trust Bank Plc v Frost
I am terrified of courts and become a complete nervous wreck when before you. My husband’s sequestration came as a complete shock to me, and though he has not formally represented me, the court todate has indulged me with his guidance. Bluntly put, for obvious reasons, I do not like Lady Smith and I find the blatant animosity between her and my husband most uncomforting in that Lady Smith’s mindset seems coloured by her perceived prime directive ‘to get Frost’.
I requested a sist because, under the new circumstances occasioned by my husband’s sequestration, I need to take legal advice, and probably secure legal representation. I am very unhappy in the manner in which I appear to be overlooked. At the last motion roll before Lady Smith I was not given the courtesy of a proper audience. Not only did Lady Smith appear to ignore me but she seemed more intent in telling, with references to her recent Opinion in Tods Murray v Arakin, the Accountant in Bankruptcy’s advocate what a possible scoundrel my husband is. Had I been allowed to speak fully I would have objected to Lady Smith carrying forward Unity’s motions in respect of the proposed minute of amendment and summary decree. Unity’s motion for summary decree was neither intimated nor enrolled according to the Rules of Court 21.2; nor was their motion in respect of their proposed amendment to be received into process intimated to me at all. Lady Smith, previously, had dispensed with Unity’s requirement to abide with rules on intimation, prompting it is perceived my husband’s sequestration by her husband’s firm.
I am unhappy that my own counterclaim has been overlooked, Unity couldn’t even be bothered to answer it; and when mentioned in court in November 2003 I was told by the court not to press it. There is a current shibboleth that Unity won the Preliminary Proof. Despite the First Division’s interlocutor in October 1996 which set down the lending ratio issue (believed then relevant prior to the 1989 Company’s Act); Lord Eassie changed the rules, and whilst he found that Unity had breached its lending ratio’s Lord Eassie then held that issue to be irrelevant (see page 134 of the Reclaiming Print item 3 of Lord Eassie’s Judgement) overturning not only the Inner House’s decision of 1996, but also Lord Nimmo Smith’s Opinion of 1999 and the directive of the Inner House in December 2000. Again as the unaltered pleadings since 1998 show, the Frosts always maintained that Unity had been paid in full only if the insolvency issue of Martin Frost was taken into account whereby direct offset of monies paid by Frost on behalf of Unity could be offset against monies due to Unity. (See Statement of Facts 26, 27, and 28 found on pages 46 to 49 of the Reclaiming Print). At the Proof the impact of Martin Frost’s insolvency as to offset Lord Eassie refused to hear. I find it wrong that Lord Eassie refused our right to have a transcript made from the tapes of the preliminary proof. (See page 136 of Reclaiming Print, third refusal by Lord Eassie for transcript).
Finally, I am aware that conspiracy theory is out of fashion, but given that Lord Eassie and Lady Smith are said to be good professional friends I find it shocking that on April 2nd that Lady Smith is said to have advised Unity that Unity should enrol for Summary Decree and thereby under the current rules of court, review by the Inner House of her interlocutors and Lord Eassie’s interlocutor of October 2nd 2003 would effectively be blocked.
These then are the reasons that I wish to reclaim my motion to sist. I would seek 28 days to lodge my grounds of appeal which I believe would be sufficient time for me to obtain the appropriate legal counsel and representation.
Linda Frost
2004-05-12
Upon recitation of the above, the Extra Division granted Linda Frost the right to lodge her Grounds of Appeal but when her appeal appeared next before the Second Division of the Inner House under Lord Gill; Linda Frost without prior notice was asked to present her appeal then and there. Naturally, though making an attempt she was not able to properly present her case and her appeal was thrown out. Now, I do understand that the merits of some appeals might require expeditious consideration but some notice of a hearing is given even with these. No prior notice was given to Linda Frost. Linda and I are separated and we do not live together. The Deputy Principal Clerk of the Court of Session phoned me two days before the hearing to request that I ask Linda attend court for a hearing. I understood it was to be a directions hearing and I managed to contact Linda the night prior to the day of the hearing. Subsequently, I was told that Linda’s appeal had been prior determined and that the Lord President had directed that the court had to support Lady Smith in the public interest. Maybe, but the manner in which it was dealt with gives me great reason to be alarmed.
Before the First Division in August, in the cause of Frost & Parkes v Cintec International the bench was made up of the Lord President, Lord Eassie, and Lady Smith. Was this not a co-incidence too far? It is not the decision that this bench reached but the perception of impartiality. I am aware that the Lord President expressed anger over my complaint concerning Lady Smith to Mrs Jamieson and I am aware that he has knowledge of this web site, thus it did appear to me to be a public display of ‘Screw you Frost’ we can do what we like.
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Conclusion
I am not saying that our judiciary is deliberately corrupt or inept. I am saying that their mindset prompted by restricted social inter action promotes a myopia of understanding. So that in my opinion most Edinburgh based judges do not honour their judicial oath ‘will do right to all manner of people after the laws and usages of the realm, without fear or favour, affection or ill-will’. In short, while most judges honestly believe they do right, and are so subjectively judged by their fellows from the Scottish College of Justice, by objective international standards the very ethos in which an Edinburgh judge practices is structurally flawed.
Let us consider this oath.
‘Will do right to all manner of people’. What is right? Who are all manner of people? Are their rules in this field? There are some acts; like the acceptance of a gift from a current litigant, or conviction of a conspiracy to pervert the court of justice, which would call for the judge’s immediate removal or dismissal. There is other conduct; like using official writing paper to conduct an argument with one’s insurers, which most judges would regard as ‘a bit off’ or ‘not done’ but which could not attract any sanction.
‘After the laws and usages of the realm’. In other words, a judge must apply the law, not his own predilection, reflecting the wisdom of Samuel Johnson’s observation: ‘To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied’.
‘Without fear or favour, affection or ill will’ plainly covers a very wide range of ethical duties. It suggests that a judge must free himself of prejudice and partiality and so conduct himself, in court and out of it, as to give no ground for doubting his ability and willingness to decide cases coming before him solely on their legal and factual merits as they appear to him in the exercise of an objective, independent, and impartial judgment.
Keeping the above in mind let us consider these other factors:
A.The Court of Session in
Scotland is a collegiate court, a medieval throw back to the time that
all judges were also members of the clergy empowered with a single
divine omnipotence. Which simply meant that specialisation as to cause;
procedure; or law should not happen. Early on in the formulation of the
Court of Session it was realised that sometimes a single judge or
senator might misinterpret God’s will so a single senators decision
could be reclaimed to a chapter or cluster of judges who could better
interpret God’s calling. Hence, in the Court of Session there evolved
two groups or chambers, namely, the Inner House and the Outer House.
The Inner House sits in two Divisions, known as the First and Second
Divisions. Nowadays, an Extra Division, normally consisting also of
three judges, sits when circumstances require. The Inner House
exercises a jurisdiction which is mainly appellate while the Outer
House acts as a court of first instance. In theory each senator has
equal authority and ability as his brother or sister. A case or cause
will pass through many senators’ hands. Because judges are equal there
is regular transference of a judge between the Outer House and the
Inner House. Thus by the simple mechanics of the current working within
the Court of Session it does mean that often a senator sitting as an
appellant judge in the Inner House will be reviewing some of his own
work executed in the Outer House.
B.It is accepted international
practice that a judge should not make disparaging comments about any of
the parties before him.
C.It is plainly improper for a
judge to court publicity or seek peer group acclaim or newspaper
headlines.
D.There is some debate about the
ex parte communications a judge may properly have when preparing his
judgment. It is without doubt fundamental that a judge should not
decide a case on a point which has not been raised in argument without
giving notice to the parties and allowing them to make submissions. But
subject to that it is regular judicial practice for a judge to clear
his mind or test his views by discussing the matter with a colleague or
law teacher. The difficulty arises if such discussion encompasses an
appellate judge who was thereafter called upon to decide an appeal
against the decision.
E.The jury verdict remains the
preferred mode of proof in criminal and quasi criminal trials. Civil
jury trial was introduced in Scotland with the Jury Court by the Jury
Trials (Scotland) Act 1815. Certain causes in Scotland, the ‘enumerated
causes’ must be sent to jury trial unless the parties otherwise agree
or special cause is shown. The enumerated causes are: (1) an action for
damages for personal injuries; (2) an action for libel or defamation;
(3) an action founded on delinquency or quasi-delinquency where the
conclusion is for damages only and expenses; and (4) an action for
reduction on the ground of incapacity, essential error, or force or
fear. As defined in the annotated guide to the current Court of Session
rules: delinquency means fault or violation of duty and these terms
are, therefore synonymous with delict (tort) and quasi delict.
F.I am a party litigant with no
formal legal training whatsoever.
Let us add the following ingredients or
personalities into the above
brew.
1.The personages mentioned so far in this essay.
2.As Lady Smith notes there were some fourteen witnesses called to give evidence before her in the Tods Murray v Arakin Proof in which I charged Tods Murray and/or their legal agents and representatives that: ‘The pursuers and/or their legal agents or representatives have abused and tampered with the court process; have deliberately failed to obtemper court interlocutors; all done in an effort to secure either a tactical or strategic advantage over the defenders'.
These witnesses were:
Mr Robert Dobie, solicitor and
senior partner of Tods Murray;
Sheriff C. Scott, an ex advocate
for Arakin; Mr Michael J R Simpson, solicitor and chairman of Tods
Murray;
Mr Colin Campbell, advocate and
Dean of the Faculty of Advocates;
Mr Dominic Harrison, solicitor
and ex lawyer for Arakin;
Ms Una Doherty, advocate and ex
solicitor for Arakin;
Mr Andrew S. Pollock, solicitor,
and ex lawyer for Arakin;
Mrs Catriona Stewart, senior
solicitor with Simpson & Marwick, legal agents for Tods Murray;
Mr (Sheriff) Michael Peter Anderson, senior solicitor with Simpson & Marwick, legal agents for Tods Murray;
Mr (Sheriff) Michael Peter Anderson, senior solicitor with Simpson & Marwick, legal agents for Tods Murray;
Mr Alastair James Spencer
Kennedy, solicitor, and ex lawyer for Arakin;
Donald Davidson, advocate for
Tods Murray and the man that drafted the original Summons now lost;
Stephanie Hunter, court runner
for Simpson & Marwick;
Carol Ramsay, court runner for
Simpson & Marwick; and
Maureen Paterson, court runner for Simpson & Marwick.
Maureen Paterson, court runner for Simpson & Marwick.
How, many of these witness were known to Lady Smith and how many are friends?
Given all the above I ask:
Was it right for Lord Ross to provide for his clerk, Mr Ian Smith, a financial reference to the Midland and then to the Allied Irish Bank?
Was it right as Mr McNamara states that Lady Smith should have been the presiding judge in Tods Murray v Arakin when there is (a) such general perceived personal romantic association between her and me and (b) of associations in general between her, her husband and her husband’s firm, Shepherd & Wedderburn, with me?
Was it right that Lady Smith should refuse my request for a jury trial in Tods Murray when the Court of Session rules grant me such right?
Was it right that Lady Smith, in person, should have conducted the Tods Murray Proof considering her past and current associations with the witnesses?
Is it right that Lady Smith should sit in the Inner House while being an Outer House judge?
Is it right that during a Proof that Lady Smith should make personal and unconnected derogatory innuendos about me?
Is it right that Lady Smith spoke to the Scotsman newspaper about me and about matters which were not only not before her but upon which I have had no opportunity of making a submission?
Is it right that Lady Smith that Lady Smith should discuss my court appearances before her with the Lord President?
It should be possible to compare the work and social diaries of Lady Smith and her husband with the above parties so mentioned. I am informed by my erstwhile colleague Mr McNamara that Lady Smith met Tods Murray’s advocate Mr Patrick Hodge Q.C. during the course of the Proof before her in Tods Murray v Arakin. If so I am disappointed in Mr Hodge.
I should add that during the Second World War there was a maxim ‘That foolish talk costs lives’. Most of the information that percolates back to me is via what the Japanese call ‘pillow talk’. Let me give some examples. Lady Cosgrove has a sister. Naturally her sister is very proud of Lady Cosgrove’s elevation to the Inner House, but does discussion stop there? Indeed what example is Lady Cosgrove’s sister given, when the Lord Advocate, on the QT by direct implication, delivers the outcome of Lockerbie verdict prior to the decision’s judicial release. Not dissimilar, Lady Gill, wife of the Lord Chief Justice, spoke loosely with her gardener upon legal matters and so initiated an exaggerated newspaper report in the Scotsman. Nor should the younger members of judges’ families talk so familiarly. It may give the individual some temporary kudos but it does not a thing for Scottish justice. I do think it would be more appropriate for our judges to keep their judicial views to themselves and away from their families, friends and associates. As I said, Edinburgh is a village, and it does appear to be very gregarious village which promotes judicial malpractice.
At the start of this essay I posed the following questions:
• Are our judges and their clerks above the law?
• Am I a victim of private vested interest?
• Do our judges ‘chisel’?
By now you can see why I am forced to answer ‘yes’. The links below emphasise the above issues.
Martin Frost
August 2004
Edenside
Kelso
TD5 7BS
Links
1. My letter of complaint to Mrs Cathy Jamieson MSP, Minister for Justice, dated 2004-04-16.
Please note the co-incidence of dates within this letter.
a)The
22nd January 04 date when
out of the blue Lady Smith in a hearing in Tods Murray v Arakin (Frost
& McNamara) asks and then cross examines me about the status of my
IVA insolvency. (The court’s minute of proceedings verify this). This
examination was not relevant to the Tods Murray proceedings so why ask
it? Was it to assist her husbands firm upon Shepherd &
Wedderburn’s plan to issue sequestration proceedings against me?
b)On
March 10th 2004 Lady Smith
granted without intimation to me or knowledge by me, Unity Trust’s
Bank’ motion for an inhibition against Martin Frost on the dependence
of the action of Unity Trust Bank Plc v Frost; an action which had
commenced in 1994. Lady Smith’s decision and support of Unity not only
blocked the sale of IVA assets but perhaps more relevantly this new
inhibition prevented me from dealing in property in Scotland. By chance
my current banker’s HSBC had chosen Shepherd & Wedderburn to act
for the HSBC in taking security for a loan over un-pledged property.
Subject to the perfection of security via Shepherd & Wedderburn I
would have had a total cash utility of some £150,000. This HSBC
facility to me was dealt with the very department that Lady Smith’s
husband runs at Shepherd & Wedderburn.
c)On
30th March Lady Smith
refused Martin Frost’s motion for leave to reclaim her interlocutor of
the 10th March holding that his correct course of action was to make a
motion for recall. Despite knowing and being advised again that Martin
Frost was a discharged insolvent from January 2000 (therefore the
inhibition on a spent debt caught Frost’s new persona) and that Martin
Frost required the inhibition removal so that he could deal in property.
d)On
April 1st I was sequestrated
at Jedburgh Sheriff Court despite offering full property security for
the Cintec claim of £90,000. Shepherd & Wedderburn stated to
the Sheriff that Shepherd & Wedderburn had no way of telling if the
property was worth anything; the learned Sheriff threatened to jail me
for my protestations and quite simply told me I should have sorted out
the security position with Shepherd & Wedderburn before hand. If it
had not been for Lady Smith’s interlocutors of the 10th and 30th March
2004 I would have had cash let alone property. Shepherd &
Wedderburn just wanted me sequestrated along with Unity and I fear Lady
Smith; all for their very own personal reasons.
2. The statement of Martin Frost dated 19th March 2004
This should be read in conjunction with 1 above. This document was also before Lady Smith on 30th March 2004. In essence what is being said is that Unity’s new inhibition granted by Lady Smith on 10th March is against statute law. Not only was Lady Smith continuing a freeze over the disposal of IVA Trust Assets under the Supervision of my IVA Supervisor Mr Conn but she was freezing my current assets acquired post 2000 in my personal discharge from my IVA.
3. Unity Trust Bank Plc between January 1997 and 2001 made no less than four attempts to smash my IVA.
The first was the vote in January 1997 and the second was a 262 challenge under the 1986 Insolvency Act in Leeds High Court in 1998. Both attempts by Mr Franks for Unity in conjunction with Mr Anderson for the Revenue failed as is noted in the main body of the essay above. Important points were that Unity was refused leave to appeal and that Mr Judge Behrens of Leeds High Court directed that if further insolvency proceedings were to be brought against me during the existence of my IVA, such proceedings had to be brought first before him. The third attempt was much nastier in that due to the constant war of attrition by Unity coupled by my ongoing physical ill health I had a mental breakdown in 1998. During this incapacity period I was not able to honour my IVA obligations. Thus I needed to vary my IVA agreement which called for creditor ratification. Midway during the creditor ratification the Inland Revenue, (again, according to Revenue representatives, prompted by Unity and the Accountant in Bankruptcy) commenced sequestration proceedings against me in Scotland. The Revenue’s action obliged me to issue proceedings against the Revenue to block the Revenue’s sequestration attempt. My reason was simply that my IVA took precedence both in terms of time priority and jurisdiction. I enclose three links which relate to these proceedings which established a number of case precedents.
The Revenue lost the argument and gave an undertaking to the Court of Session not to join in Scottish sequestration proceedings against me while my IVA was still extant.
4. The fourth attempt by Unity to smash by IVA came in 2000. The link here is my letter of the 4th July 2000. This letter is largely self explanatory but the core point is that Unity accused me of theft by defrauding my IVA Trust Fund. In support of Unity’s theft allegation Mr Franks arranged for Mr Peter Anderson of Simpson & Marwick to fabricate an affidavit for use in the English court. Separate evidence suggests that Mr Franks, Mr Anderson and Mr Ian Smith were in cahoots. Simply put the contrary position against Mr Anderson’s evidence was so strong that Unity did not get beyond first base in this their fourth challenge.
5. A possible fifth attempt by Unity to smash the IVA is ongoing and is narrated in
b)
the IVA Footnote in
particular section F.
Why might one ask does Unity, a properly constituted bank supposedly run on high moral principles, try so hard to defeat my IVA? I think the answer lies in politics. Unity Trust Bank Plc is a bank set up and owned by the giants of the labour party. The bank exceeded its lending ratios as laid down by the Bank of England and so Unity Bank was unable to honour the lending commitments that Unity had made to its customers. Damages are the result to the Unity Bank but to our current Labour Government, the consequences could be much more severe. No wonder it is said, that the Prime Minister is purported to have indicated his wish that my IVA’s case against Unity is discreetly lost from the Court of Session lists.
6. Abuse of Procedural Rights outlines my concern with Tods Murray Process and gives a quick overview. Given what I have written in the main section of this essay the questions must be asked: ‘Why was Lady Smith selected to preside over the tampering Proof in Tods Murray v Arakin?’ and ‘Why did Lady Smith not only accept but despite repeated opposition insist in remaining the presiding judge?’ Examine the following links, all of which request Lady Smith to cease the function of an arbiter of truth.
Given all the circumstances I do believe that credence may be given to the suggestion that the Lord President himself directed Lady Smith to whitewash the outcome of this Proof against Tods Murray.
7. I enclose three handwritten faxes I received earlier in 2004 from Mr Andrew McNamara.
I appreciate that these faxes from Mr McNamara are difficult to read but apart from displaying McNamara’s ‘slime bag’ tendencies these faxes show an important concern. I do believe that A. McNamara is under no illusion that I ever had an association with Lady Smith. McNamara is being wicked but nevertheless these faxes give trouble upon two fronts. Some people do believe that I did have an affair with Lady Smith. More importantly, such stories, I believe, cannot but have a negative influence on Lady Smith. How can she truly attempt to be dispassionate when such rumours circulate?
8. I enclose Lady Smith’s October 2003 Opinion in Tods Murray v Arakin. I deal elsewhere with Lady Smith’s Opinion which is itself subject to another essay which in web parlance will reached from here but currently is under construction. I make reference to Lady Smith’s paragraph 46 in her Opinion:
‘He also set out a submission
headed: "Lady Smith" in which it is
argued that I should have allowed a jury trial, that I had shown
prejudice against the defenders and that I should, due to Mr Frost's
past association with my husband's firm, have "recused" myself from the
proof. The last of these was a reference back to Mr Frost having
indicated that Shepherd & Wedderburn solicitors, a firm of which my
husband is a partner, had acted for the Department of Trade &
Industry in respect of their investigations of him and his
disqualification in the period referred to in his evidence, something
of which I was unaware until it was disclosed by Mr Frost during his
evidence. He had not, at that time, invited me to decline jurisdiction
although he had done so early on in the proof on the basis that the
firm of Shepherd & Wedderburn were solicitors to the Faculty of
Advocates and had, he understood, been consulted in respect of the
issue of whether or not members of Faculty who they wished to call as
witnesses should appear, even although the proper procedure for citing
them had not been used.’
I enclose my letter to the Scotsman reporter Mr RobertsonThe circumstances to Mr Robertson contacting me somewhat annoyed me. He indicated to me that not only had he had sight of Lady Smith’s Opinion for some time but that she and Tods Murray had prompted him to write on it. He read out some sections of the Opinion and asked me to comment. Since, at the time I did not have sight nor know the outcome of Lady Smith’s Opinion I was somewhat disadvantaged, hence my request to write back to Mr Robertson. I do not question Mr Robertson’s right to write but I do question Lady Smith’s apparent prior disclosure.
9. I have been somewhat surprised by the number, quality and geographical location of the people visiting this web site. Elsewhere, I have attempted to explain various Scottish terms which appear for the benefit of North American, Antipodean, English, Indian and European visitors. In similar vein I here enclose a brief ‘dramatis personae’ of some of the people mentioned above.
Lady Smith is described on the Scottish Court web site thus:
‘Lady Smith was appointed a Judge (Senator) of the Supreme Court in 2001. She is a graduate of the University of Edinburgh (LL.B.). She was admitted to the Faculty of Advocates in 1980 and was Standing Junior Counsel to the Countryside Commission. Lady Smith was appointed Queen's Counsel in 1993. She served as a Temporary Sheriff from 1995 to 1999. Lady Smith was appointed Chairman of the Scottish Partnership on Domestic Abuse from 1998 to 2000 and served as Advocate Depute in 2000. She has served as a member of the Court of Session Rules Council and is a past Chairman of the Advocates Family Law Group and Chairman of the Advocates Professional Negligence Law Group.’
The Court of Session is described:
The superior court in Scotland is the Court of Session formed by the Inner House (comprising the first and second divisions) and the Outer House (where only single judges or Lords of Session also styled Senators of the College of Justice sit). The principal judge is the Lord President, who leads the first division, whereas the Lord Justice Clerk leads the second division. The court sits only at Parliament House in Edinburgh.
Thus the Faculty of Advocates describes itself on its web page as:
‘The Faculty of Advocates is a body of independent lawyers who have been admitted to practise as Advocates before the Courts of Scotland. Faculty records date as far back as 1532 when the College of Justice was established by an Act of the Scottish Parliament, though its origins are believed to predate that event.
Membership of the Faculty has expanded considerably in recent years and currently stands at around 744 members. Approximately 463 of these are practising advocates, the remaining 281 includes judges, sheriffs, academics and retired members. Senior Counsel or "QCs" make up around one fifth of the practising membership.
The Faculty is a democratic body led by its Dean. The Dean of Faculty is elected by the whole membership and is assisted by four other office bearers, the Vice-Dean, Treasurer, Clerk and Keeper of the Advocates Library, all of whom are elected by the practising membership. These office-bearers remain in practice as advocates and receive no remuneration. The office-bearers are assisted in their work by an elected Faculty Council and by a wide range of committees.
The Faculty is self-regulating and controls its own admissions and disciplines. In recent years the Faculty has reinforced its commitment to quality by establishing a rigorous professional training and education programme for those embarking upon a career at the Scottish Bar.’
Shepherd & Wedderburn describes itself:
Shepherd+ Wedderburn is one of the UK's leading law firms. In a complex solutions-driven world, we have a simple philosophy.
We provide expert, experienced legal advice, tailored to meet our clients' business needs. We are based in Edinburgh, Glasgow, London and, from August, Aberdeen, and our team of legal experts work with clients all over the UK and beyond.
Shepherd+ Wedderburn is a leading UK law firm, with 50 partners and some 460 staff. We have offices in Edinburgh, Glasgow and London. We provide corporate, commercial, public sector and private clients throughout the UK and abroad with a full range of legal services. Our client base includes not only large organisations, but also small and medium-sized enterprises, based both in the UK and increasingly further afield. Our approach is to acquire an in-depth understanding of our clients' businesses and the legal issues they face and to employ this knowledge in developing solutions-led advice. At the centre of our relationships is TRUST, and in the current business environment nothing can be more important. We want to be the trusted lieutenant of the client, the first person to whom he or she turns. To be that trusted advisor, we ensure that we know what we are talking about, AUTHORITATIVE. We interact proactively with clients, so that they want to work with us, ENGAGING. We focus on finding the right solution for the client and do not shoehorn the problem into one or other pre-determined legal solution, OPEN-MINDED and INNOVATIVE. We seek to understand what is important to the client and deliver our advice concisely and on time, INCISIVE and ASSURED. These are our core brand values.
The Chambers guide to the legal profession has noted that we are "cultivating a youthful, dynamic image" and are "charging full steam ahead". The Legal 500 directory has commented that we are "well placed to grow and move forward" with "renewed client focus" and that our "clients benefit from the firm's strong individuals across the board, one noting that the lawyers understand and add to the business process rather than letting the law get in its way."
Tods Murray describes itself:
Tods Murray is one of Scotland's leading independent law firms, operating from offices in Edinburgh and Glasgow, providing the highest quality of specialist legal and commercial advice. Tods Murray's strategy is to coordinate the delivery of specialist skills for individual clients, establishing an understanding of client requirements.
The firm: The firm provides specialist advice in corporate, banking, commercial and employment law, capital projects and commercial property law, construction law and commercial litigation, private clients, agriculture and estate law, investment funds and corporate financial services, e-commerce, IT and IP, media and entertainment law, leisure and timeshare.
To support its clients and to give greater access to information and for the delivery of the firm's specialist services, Tods Murray has invested in the latest IT systems.
To pursue the firm's strategy and to maintain its quality of service, Tods Murray is committed to the recruitment and continued training and development of the best legal and support staff.
Tods Murray's clients include banks and financial institutions, listed and private companies, public sector organisations, property investors and developers, large and small businesses, landowners and private individuals.
Global reach is achieved through membership of Multilaw, providing a network of associated law firms located in the world's major commercial centres.
Types of work undertaken: The capital projects team deals with all capital and infrastructure projects including PFI/PPP with particular expertise in healthcare, water, waste to energy, social housing and local authority projects. The team works on projects throughout the UK and overseas.
The banking team has extensive experience in corporate and public sector lending, project finance, property finance and securitisation.
The corporate team is recognised for its experience in corporate finance including public issues, acquisitions, placings, and buy-outs, and expertise in pension schemes.
The commercial property team, while perhaps renowned for its work for institutional investors, in relation to their property portfolios, also acts for all manner of clients involved in commercial property including landlords, tenants, developers and funders. Advice is also given on property investment vehicles, planning, construction and environmental projects.
T2M is an integrated team of experts in e-commerce, intellectual property, information technology and media and entertainment.
The litigation team handles all types of commercial and civil litigation and employment issues across the firm for both commercial and private clients.
The private client team, with a renowned reputation, undertakes all legal work associated with landed estates and farms. The team deals with wills, trusts and executries, charities, tax and estate planning, financial management (for both individuals and trusts) and the purchase and sale of residential property.
Investment funds and corporate financial services is a specialist, sector-facing practice group servicing the UK funds sector, having a top-ranked reputation recognised by the UK Fund Industry Review and Directory, Chambers, The Legal 500 and Global Counsel 3000 and acting for a wide range of fund management groups, investment companies, banks and trustees.
Tods Murray has a specialist hotels and leisure team with a significant expertise in all areas of the sector including timeshare.
The Accountant in Bankruptcy describes itself:
Accountant in Bankruptcy is an Executive Agency of the Scottish Ministers in terms of the Scotland Act 1998. The Chief Executive is also the Accountant in Bankruptcy, who is an independent statutory officer appointed under section 1 of the Bankruptcy (Scotland) Act 1985, as amended.
The 1985 Act is the principal legislation determining the work of Accountant in Bankruptcy although there are still a small number of sequestrations subject to the previous, 1913 Act.
The main statutory functions of the Accountant in Bankruptcy are to:
(i) Generally supervise the
process of sequestration in Scotland and to ensure that those involved
in that process, principally trustees and commissioners, properly carry
out their responsibilities, and to take appropriate action when they
fail to do so.
(ii) Maintain a public register
of sequestrations, protected trust deeds and company insolvencies.
(iii) Undertake the functions of
commissioners in sequestrations where none may be, or are, elected.
(iv) Act as interim and permanent
trustee in sequestrations where no insolvency practitioner is appointed
or elected to do so.
The Accountant also has responsibility for administering the Government's policies in respect of personal insolvency and the process of corporate insolvency in Scotland and to monitor the implementation of these policies.
Structure
The office is presently divided into 4 branches:
Registration & Supervision Branch
maintains the register of
insolvencies; audits the accounts and fixes the remuneration of
trustees; supervises the operation of the Agency Scheme by which the
Accountant's function as trustee are sub-contracted to insolvency
practitioners (about 75% of all sequestrations).
Case Management Branch
administers directly
approximately 25% of those cases where the Accountant is appointed
trustee.
Finance & Office Administration Branch
operates the financial,
personnel, accommodation and IT systems which support the work of the
other branches. It also provides internal and external training; has
responsibility for publishing information booklets and operates the
helpline service.
Operational Policy Unit
provides advice and guidance on
legislative and other Policy matters.
Current Judicial Criticism
Campbell
BoydA leading lawyer has hit out at personal criticism of judges.
Colin Campbell, Dean of the Faculty of Advocates, sprung to the defence of the judiciary after a "league table" named Lord Marnoch as Scotland's worst judge. He said: "It provides no proper basis for adverse personal comment on individual judges."
The editor of The Firm magazine, which published the table, said he could not comment on how the media had used it but it had prompted a positive debate.
Fury erupted after a recent case when Lord Reed sentenced a man to five years for raping a child when she was aged between 13 months and five years. Appeal court judges increased James Taylor's sentence to eight years.
At the time, Lord Advocate Colin Boyd said a public attack on a judge could undermine public confidence in the criminal justice system. It might also affect a judge exercising his independent judgement and discourage others from going on the bench. The lord advocate said the situation would be worsened if, as happened in the Taylor case, the sentencing judge and his family were personally harassed.
The head of the Faculty of Advocates has now given support to his remarks. Commenting on The Firm's "league table", Mr Campbell said: "The description of Lord Marnoch by newspapers as 'the worst judge in Scotland' on the strength of the survey was wholly inappropriate and unjustified. "This was the latest in a series of recent articles in the media about judges which are causing real concern in the profession." He added: "Of course judicial decisions and conduct should be subject to public scrutiny and discussion. That is entirely legitimate, indeed vital in a free society. "However, it has to be recognised that unjustified and personal attacks, of the kind which are becoming common, undermine public confidence in the administration of justice and cause needless damage to an independent institution on which we all depend for our freedoms and civil liberties.’ We are all the poorer for it."
Mr Campbell added that he wished to stress that all Scotland's judges had the "support and confidence" of the country's leading lawyers.
Richard Draycott, editor of The Firm, said: "What our league table aimed to do was highlight the very best judges in order that others can perhaps learn from them for the good of the justice system.
"While our league table might not have been seen as the best way to scrutinise judges it has certainly promoted widespread debate, which is what a healthy media should do. We stand by The Firm's league table and believe it is good that debates such as this one are now being aired by high profile figures such as Mr Campbell QC."
Edenside
Kelso
TD5 7BS
17th October 04
Re: Your recent media defence of the judiciary
Dear Mr Campbell,
I write to you as a man who has been at the receiving end of more judicial verdicts than I care to remember. Although I can be very grumpy towards our judiciary I would like to generally echo your recent defence. I have had sufficient experience in other legal jurisdictions to realise that by comparison our Scottish judges do a good job. That said I do think that they could improve and such improvement instruments could and should be provided by the Faculty of Advocates.
In management theory there use to be a maxim that an individual was promoted to that level at which his incompetence became apparent. The talents which constitute a good bus conductor are not the same as a bus inspector. Consider Stair, look at his record as an advocate, and consider then his judicial opinions, neither rank in comparison to his writings. Simple put, it is horses for courses and I fear you plonk too many advocates into a judicial role for which they lack adequate training. My personal view is that the Faculty should nurture a future judge and once the advocate is elevated Faculty should disown him in the interests of perceived judicial independence.
Upon my web site at here: http://www.martinfrost.ws I have made some further related judicial comments.
Yours sincerely
Martin Frost
Readers
please email comments to: editorial AT
martinfrost.ws including full name
MartinFrost.ws index page
MartinFrost.ws index page