Some people have expressed surprise that the SPL Independent Commission, chaired by Lord Nimmo Smith, has not yet delivered its verdict. Various eccentric conspiracy theories have been aired about the reason for the delay; one I saw was that Peter Lawwell of Celtic, as part of his control which runs all through every strand of Scottish football (© David Leggat), had insisted it be delayed to overshadow a Celtic defeat in the Champions League.
I suspect that many such observers do not realise how long it can take to write a judgement, especially where there might be substantial issues of fact and law to determine.
The art of writing a judgement is to explain fully how the verdict was arrived at, what evidence was accepted, what was disregarded and why, and to answer the questions about the verdict which the appeal court or appellate tribunal will ask, even before they are asked.
We have waited almost four weeks for the decision.
However Lord Nimmo Smith has “previous” for taking longer than observers think he should to issue a decision.
He presided over one of the longest civil actions in Scottish legal history, which was the case of McTear v Imperial Tobacco. The full judgement can be seen here.
He issued his decision on 31st May 2005. This covered thirty days of evidence, twelve days of submissions and 85,000 pages of documents.
In the case Lord Nimmo Smith rejected Mrs McTear’s claim that her husband’s death from lung cancer was the fault of Imperial Tobacco.
His decision runs to 569 pages in Session Cases and over 350,000 words (longer even than my blog posts!)
It is little surprise that it took him over a year after the final submissions to produce the decision, especially as he was still engaged in other cases during the time he was at “Avizandum”. (By the way, that is not a night club or holiday resort for judges, but rather the Scottish term for the court having reserved judgement.)
However questions had been asked about the “delay” and this occasioned Lord Nimmo Smith convening a calling of the case to explain precisely why there was such a delay. This was prompted by Allan Wilson MSP having written to His Lordship calling for an explanation.
A LETTER from a politician about a historic damages case led yesterday to a furious judge reporting a senior lawyer for possible disciplinary action.
Allan Wilson, MSP, wrote to Lord Nimmo Smith about the time he has taken to give a ruling on a widow’s claim for compensation from a tobacco firm for the death of her husband from lung cancer.
In an amazing and angry outburst at the woman’s QC, Colin McEachran, who had suggested that she contact her MSP, the judge said he found the situation “reprehensible”.
Lord Nimmo Smith took it as implying that he was not properly performing his duties. He accused Mr McEachran of thinking he knew better than the judge how to do his job, and suggested the QC had brought himself and his professional body, the Faculty of Advocates, into disrepute.
Mr McEachran insisted that he had merely given advice to contact an MSP, not that there should be direct communication with the judge. On being told by Lord Nimmo Smith that the matter was to be referred to the Faculty of Advocates, Mr McEachran commented: “As your Lordship pleases.”
The parties were called to a hearing before the judge yesterday. He said that on 18 November – the day he began to preside over (a) murder trial in the High Court – he received a letter from Mr Wilson, Labour MSP for Cunninghame North. The politician asked why there had been no decision in Mrs McTear’s case. A reply was sent, indicating that discussion with third parties was not possible.
Lord Nimmo Smith said there was a convention, aimed at maintaining judicial independence, that politicians did not intervene in current cases. He said the court could not allow itself to be, or appear to be, influenced by third parties.
He had no doubt that Mr Wilson had written in good faith, but he continued: “What I find reprehensible is that Mr Wilson should have become involved at all. This can only have been designed to put pressure on me to issue my decision sooner than I might otherwise do… I regard this as wholly improper. The clear implication is I have not been applying myself as diligently as I should to my judicial duties.”
Lord Nimmo Smith said he had given up a week’s leave to work on the judgment, and already had a draft of more than 860 pages and 250,000 words. He had other judicial commitments and had indicated in July that he might not be able to produce the judgment until late in the year.
He asked Mr McEachran: “What on earth is this all about?”
Mr McEachran said the litigation had started almost 12 years ago and Mrs McTear was entitled to have her case determined “within a reasonable time”.
He had learned that his client had become unhappy about the administration of justice, and he suggested that she write to her MSP.
“It was as broad as that. I did not suggest that any communication be made directly to your Lordship,” said Mr McEachran.
Lord Nimmo Smith said Mr McEachran seemed to think he knew better than the judge how to do his job. What should he have done, that he had not done?
“I have no comment on that,” said Mr McEachran.
The judge added: “I am not a magician. I cannot wave a magic wand and produce an opinion [judgment].”
He believed Mr McEachran was not being candid with him in “this entire shenanigan” and the matter would be reported to the Faculty of Advocates.
Now, I do not expect that the SPL Commission will take until April 2014 to issue a decision, and indeed the rumours abound that the judgement in the Rangers case is imminent, but, as one always says to clients who ask how long a decision will take to be issued “how long is a piece of string?”
(I do realise that that is a particularly unhelpful answer, but having once had a tangential involvement in a case where it took the presiding Sheriff almost a year to issue a four page judgement – the scurrilous suggestion being that they had lost the notebook in which all their notes had been taken – there is no such thing as a time limit for a decision.)
(As an aside, what should one do if a decision seems to be taking too long? As Lord Nimmo Smith made clear, getting an MSP to write to the judge is NOT a good idea! Instead the suggestion is that a letter should go, in the case of a Sheriff, to the Sheriff Principal who can inquire into the matter and raise it with the Sheriff. This is seen as very much a last resort. Sheriffs and judges are human and, even though there would be no possibility of this happening, one would want to avoid even the slightest chance that, subconsciously, the judge could take against the person who has “complained” about them).
Bearing in mind that the three members of the panel are all eminent jurists, and all are undoubtedly busy with things other than the SPL Commission, it would be a fine effort should their written decision be released imminently.
We can only wait and see.
Posted by Paul McConville