Scottish Court of Session Decisions

In this application to the Court, brought within the terms of Chapter 58 of the Rules of Court, the petitioner, George Lesley Saunders, seeks reduction of a decision of the Sheriff of Grampian, Highlands and Islands, Sheriff Booker-Milburn, sitting in Tain, dated 4 November 1998. On that date, having heard the agent for the defenders and senior counsel for the pursuer, the Sheriff granted a reponing note by the defenders, in terms of which he recalled the decrees against the defenders granted on 13 April 1994 and 9 April 1997, and appointed defences to be lodged within 14 days thereafter. The petitioner maintains that the Sheriff could allow the defenders to be reponed in terms of Rule 28 of the Sheriff Court Rules only if the decrees granted, and in particular the decree of 13 April 1994, were in absence. Since they were granted in foro, the Sheriff's decision of 4 November 1998 was not competent and, it not being subject to review by appeal to the Sheriff Principal or the Court of Session, the only remedy open to the pursuer was reduction of the decision in an application for judicial review.

The application arises in this way. The petitioner raised an action for reparation in the Sheriff Court at Tain in respect of personal injuries he sustained on 9 December 1990 as a result of the alleged negligence of Monica and Bruno Buchler who at that time were the proprietors of the Fearn Hotel, Fearn. I was not informed when the action was raised, but it must have been after the Buchlers were sequestrated on 19 February 1993, because the action was raised per incuriam against their trustee in sequestration who entered appearance and lodged defences. On 16 February 1994 the Sheriff at Tain, Sheriff Fraser, allowed the initial writ to be amended in terms of a minute of amendment which inter alia sought to substitute the Buchlers as defenders for the trustee in sequestration. The pursuer was ordained to serve the initial writ as amended on the new defenders. Because their whereabouts could not be traced - it was thought that they had returned to their native Germany - the pursuer in terms of Rule 11 of the Sheriff Court Rules obtained warrant from the Sheriff to cite the new defenders by the publication in a newspaper circulating in the area of their last known address by means of a suitable advertisement in terms of the Rules. That was done on 11 March 1994. The defenders however did not enter appearance and they did not lodge defences. By interlocutor dated 13 April 1992 the Sheriff, Sheriff Booker-Milburn, on the pursuer's motion granted decree as craved together with the expenses of the action. (The interlocutor of 9 April 1997 was concerned with the decerniture for payment to the pursuer by the defenders of the actual amount of expenses as taxed). In the reponing note it was averred that the defenders were unaware of the terms of the newspaper advertisement and they had never had sight of the writ. I am not clear upon what these averments are based because, as I understood it, the whereabouts of the Buchlers are still unknown. The defence to the action has been conducted by their public liability insurers, the Royal Insurance plc in whose name answers have been lodged to the pursuer's petition. On their behalf it is averred in the reponing note that they did not receive any notification from the pursuer or his agents that court proceedings had been raised until the pursuer's agents wrote to them by letter of 1 August 1994 enclosing the copy extract decree.

The first matter raised on behalf of the Royal Insurance plc (to whom I shall refer as "the insurers") is that the petition is incompetent. Mr Jones who appeared for the insurers, argued that an application to the supervisory jurisdiction of the Court by way of judicial review in terms of Chapter 58 of the Rules of the Court of Session could not be made, according to Rule of Court 58.3(2), if such an application could be made by appeal or review under or by virtue of any enactment. That was so even where the application could be said to fall within the principles set out by Lord President Hope in West v The Secretary of State for Scotland 1992 S.C. 385 at pages 412-413. The reference to an "enactment" included subordinate legislation, in terms of Section 23(1) and (2) of the Interpretation Act 1978. The Rules of the Court of Session 1994 were contained in an Act of Sederunt, S.I. 1994 No. 1443. That, plainly, was subordinate legislation. The words "enactment" in Rule of Court 58.3(2), therefore, included a reference to the other Rules of Court. If another Rule of Court provided for a different type of application to the supervisory jurisdiction of the Court of Session, the applicant was bound to proceed by way of that application. Rule of Court 53.2 provided for just such an application in the circumstances of this case. This was a case in which the petitioner sought reduction of a Sheriff Court decree which he claimed the Sheriff had granted in error in circumstances where no appeal was possible to the Sheriff Principal or the Court of Session. That should be made the subject of an action of reduction in terms of Rule of Court 53.2. That Rule provided for a specific procedure to be followed where reduction of a decree of an inferior court was concluded for. The procedure involved intimation to the Clerk of the relevant Court both when the action was raised and, if the action was successful, when decree of reduction was pronounced. Similar provisions were made in the Rule in the event of an appeal to the House of Lords.

The question had been considered in Bell v Fiddes 1996 S.L.T. 51. In that case the Sheriff at Campbeltown granted decree in absence against the petitioners who maintained that they had a good defence to the Sheriff Court action which was never advanced because their agents failed negligently to lodge a notice of intention to defend. The petitioners in these circumstances applied to the court by way of judicial review for reduction of the Sheriff Court decree which, of course, it was accepted had been lawfully granted by the Sheriff. Lord Marnoch upheld the respondents' submission that the petition was incompetent because there were separate Rules of Court dealing with petitions for suspension (which was sought in the petition) and for actions of reduction. He said at page 52H:

That case, said Mr Jones, well illustrated the point he sought to advance, and I should apply its reasoning. (I should observe in passing that there would appear to have been another and better ground in that case for holding that the petition was incompetent and that was that the Sheriff Court Rules themselves provided a remedy by way of reponing, since I assume that by the time of the application for judicial review there had not been implement in full of the Sheriff Court decree against the petitioners).

Mr Macdonald, who appeared for the petitioner, in reply said that this case fell clearly within the principles of West since it was averred that the Sheriff had exceeded his jurisdiction. In Bell the Sheriff had acted within his powers. It would be surprising if in a case like the present the expedited procedure provided for in Chapter 58 were not available. I may add that not much expedition has been shown in the course of this litigation, and I refer to this later in my judgment.

I am in no doubt that Mr Jones is well founded in his submission. The substance of the petition is the reduction of a Sheriff Court decree. Separate provision for that is made in Rule of Court 53.2 which has its own specific procedure by way of intimation to the inferior court. It matters not, as it seems to me, that the case might also fall within West principles, which both counsel, as it happens, thought this case did. Rule of Court 58.3(2) makes it abundantly clear that an application for judicial review in terms of that Chapter may not be made if the application could be made by appeal or review under another specific Rule of Court. I will therefore uphold the insurers first plea-in-law. I hold the petition to be incompetent, and I will dismiss it.

If, however, I am wrong about that, I turn now to consider the merits of Mr MacDonald's submission. It was, at least initially, relatively simple and short. When the Sheriff's interlocutor of 13 April 1994 was extracted by the Sheriff Clerk Depute on 28 April 1994, it bore to record that the Sheriff in foro granted decree against the Buchlers jointly and severally or severally. That, according to Mr MacDonald, was determinative of the matter. It was a case of "the extract decree right or wrong". Since a decree in foro could not be the subject of reponing which, in terms of Sheriff Court Rule 28, applied only to decrees in absence, the Sheriff in granting the reponing note had exceeded his powers, and his decree of 4 November 1998 granting the reponing note and recalling the decrees of 30 April 1994 and 9 April 1997, should be reduced.

As Mr Jones pointed out, the extract decree is not a step in process. The question in my view is whether it correctly reflects or records the interlocutor of 13 April 1994. In that interlocutor the Sheriff was silent about whether it was pronounced in absence or in foro. One has to look at all the circumstances to determine whether it was one or the other. For my part, that determination is unaffected by the interpretation of the interlocutor by a Sheriff Clerk Depute. When the Buchlers were substituted as defenders for their trustee in sequestration, the initial writ as amended had to be served on them. Since their whereabouts were not known, citation was by means of advertisement, as I have already said. In short, the action had to be raised against them as individuals. (See and compare Miller v NCB 1960 S.C. 376, especially per Lord Guthrie at pages 389-390). Not having, it appears, received notice of the advertisement or the initial writ itself, they did not lodge any notice to defend nor did they enter the process. No defences were lodged within the time appointed, namely 6 weeks. And so, at the procedure roll hearing of 13 April 1994 the pursuer moved for decree. It is clear to me beyond doubt that that decree in the circumstances was granted in absence. Had it been granted in foro it would have had to have been a decree by default. Sheriff Dobie in his Sheriff Court Practice said of the two types of decree at page 132:

There is no way, in my opinion, that the decree pronounced on 13 April 1994 can be characterised as a decree by default. It follows that the Sheriff Clerk Depute who extracted the decree on 28 April 1994 was in error when he characterised it as a decree pronounced in foro. Besides, Sheriff Booker-Milburn, who is an extremely experienced Sheriff, must have been fully aware from the submission made to him at the hearing of the reponing note, even if not before, that he could only grant the note if the decree he pronounced on 13 April 1994 was in absence. Although he did not issue a judgment nor did he record anything specifically in his interlocutor of 4 November 1998, it must follow that he himself considered that the decree he pronounced on 13 April 1994 was in absence. Otherwise, he could not have granted the reponing note.

I am therefore of clear opinion that the Sheriff acted lawfully and within his powers when he granted the reponing note. Had I not found the petition incompetent I would have upheld the insurers fourth plea-in-law also, and I would have refused to grant the remedies sought. On this ground also I would have dismissed the petition.

As a footnote I hope that I may be permitted to question how much longer this litigation can or will continue. An Inner House reclaiming motion awaits a hearing. The action constituted by the initial writ and defences is set to proceed, in light of the judgment I have just given. Yet, all that the petitioner offered to prove in the first place was that about 22.35 hours on 9 December 1990 in the grounds of the defenders' hotel in Fearn, Ross-shire, he tripped and fell in the dark over an unlit obstruction, thereby sustaining a fracture of his left kneecap and other associated injuries. I think that I appreciate most of the twists and turns of this litigation, which are, it is true, out of the ordinary. But, I cannot think that the delay of more than 8 years since the alleged accident which has yet to be established in evidence, reflects well on the law and its procedures, and indeed upon the way in which both of these have been applied in the circumstances of this case.