Everyone is entitled to their day in court or so the old adage goes.
But what happens if this day turns not just into months but many years?
And what happens to the democratic process if the court action itself, as opposed to the result, becomes a way of winning the argument?
There was a Roman general called Fabius. He wore down Hannibal’s army, not by fighting it, but by avoiding a pitched battle, by endless delay.
Fabian tactics seem to be becoming increasingly popular throughout our legal system. We have seen this in recent times in Scotland sometimes from individuals but more often from major corporations.
One of the most famous was William Walton. Mr Walton managed to hold up the Aberdeen peripheral road for many years at the Court of Session, the Scottish Appeal Court and then off to the UK Supreme Court.
At each stage his case was dismissed but at each stage the clock and indeed the public bill was ticking.
Indeed there is little doubt that if he had been allowed he would have been off to the European Courts.
In all likelihood he would still have been there. In the meantime there would not be a spade in the ground in a desperately needed road, the North East of Scotland economy would be damaged severely for the future and motorists stuck in Aberdeen’s traffic jams would not even have the consolation that blessed relief, in the form of the new road, is now on the way.
However Mr Walton has lots of corporate company in his legal tactics.
In 2007 Kenny MacAskill, as an elected Scottish Justice Secretary, moved to correct an injustice whereby those suffering from pleural plaques were to be prevented from pursuing claims, even when previous employers had been shown to be negligent.
A group of insurance companies did not want to take the risk of paying up and so they fought the change tooth and nail for four years.
It is worth naming and shaming them. Aviva, Axa and Zurich are all companies who spend millions burnishing their public image.
But they were willing to spend millions blocking the potential claims of poor people for four years.
It is worth recalling the terms in which their case was eventually dismissed by the Supreme Court.
Lord Hope said in his judgment: “The anxiety that is generated by a diagnosis of having developed pleural plaques is well documented and it had been the practice for over 20 years for such claims to be met.
“The numbers of those involved, and the fact that many of them live in communities alongside people who are known to have developed very serious asbestos related illnesses, contributed to a situation which no responsible government could ignore.”
For insurance companies and pleural plaques you could insert whisky companies and minimum pricing of alcohol.
All companies which use the legal system to block, tackle and delay legislation which has been passed by democratic process.
Now the Trump corporation can be added to that ragman’s roll of the use of corporate power.
The issues being dealt with are different. But the court processes they go through are the same.”
‘The Donald’ doesn’t like wind energy. And he is entitled not to like wind, even if he seems vague on the difference between a demonstrator of 11 turbines designed to test new offshore technology and onshore windfarms.
And leave to one side the irony that someone responsible for a controversial development now wants to stop other developments.
The argument is about how you go about the opposition.
The Trump organisation is quite blatant that they think the wind demonstrator will run into the Menie sands as a result of court and other delays.
And so even after two defeats already they, like Mr Walton, the insurance companies and the whisky magnates before them, are off hot foot to London to have another go at the Supreme Court and then perhaps on to the European Court.
Mr Trump argues that you can’t get a fair hearing in the Scottish Courts, an argument which is as wrong as it is insulting.
However the real issue for Scotland is how we can stop our excellent legal system being a forum not for argument and fair judgment but for delay and procrastination.
What brings this issue into sharp relief is the argument that the Transatlantic Trade Agreement (TTIP) will, open up lots more areas to litigious American corporations who wanted to force their way into healthcare and other public services provision.
That is a nightmare scenario which could make the ballot box redundant.
The people could say no privatisation of the health service but then the mighty dollar unlimited could take the elected government to court again and again. So what is to be done?
We can’t and should not remove the inalienable right of people or even companies to pursue their rights through law and therefore we have to find ways to speed up the process.
We could also open the possibility that litigants who go forward beyond the first appeal could be liable for any loss to public funds of unreasonable delay. This later point would remove the incentive to use delaying tactics as a means of blocking projects.
We should repatriate the Supreme Court to Scotland and set strict timetables on judgment times for appeals. We could set up special planning courts just as there are specific land courts.
Above all we should think long and hard before opening up vital public services to predatory corporations with an eye on litigation as a means of forcing their way into public provision.