Scottish Court of Session Decisions

On Friday 3 September 1999, there was placed before me in chambers an application by the pursuers in the present action for Letters of Inhibition. In the application, it was narrated that the pursuers and applicants had raised an action in Glasgow Sheriff Court against the defenders. It was averred that the Initial Writ in the action was warranted on 11 March 1999 and served on 15 March 1999. It was also narrated that, in that action, the pursuers and applicants requested the Court to order the defenders to pay to them (1) £28, 200, (2) interest on that sum at the rate of 8 per centum per annum from the date of citation until payment, and (3) the expenses of the action. In the application, it was averred that a certified copy of the Initial Writ with the warrant and execution was produced with the application. What was in fact produced with the application was a document, which appeared to be a copy of the Initial Writ in the action concerned, which bore the following words:

I was informed by counsel for the pursuers and applicants that the matter was brought before me in terms of Rule of Court 59.1(4) of the Rules of the Court of Session. Rule 59.1 makes provision for applications for letters of arrestment or inhibition. Rule 59.1(1) provides that an application for letters of inhibition may be made, as the case may be in -

Rule 59.1(2) provides that an application under (1) is to be presented to the Deputy Principal Clerk together with any relevant supporting documents. Paragraph (3) of this Rule makes provision for a situation where the Deputy Principal Clerk is satisfied that the applicant for such letters is entitled to a warrant for arrestment or inhibition. Paragraph (4) of Rule 59.1 provides as follows:-

When the application was placed before me, I was informed that the Deputy Principal Clerk, or his authorised substitute in terms of Rule of Court 1.3.(4), had refused to sign and date the warrant requested, apparently upon the ground that the purported certification of the copy Initial Writ was unsatisfactory, in respect that it appeared to have been made by a solicitor acting on behalf of the pursuers and applicants. I was informed that the normal practice was that such certifications were made by the Sheriff Clerk.

Against that background, I was invited to sign and date the warrant sought. In the course of the discussion which ensued, I examined the law which is applicable to this situation. The starting point is a consideration of Form 59.1-D, referred to in the Rule of Court concerned. In that Form, paragraph 2 is in the following terms:

Those words, to my mind, suggest that what is intended by the draftsman of the Rules of Court is that the Initial Writ itself, with the warrant and execution thereon, should be produced with the application. I was confirmed in that view by what appears in Graham Stewart on Diligence at page 537. A similar view is expressed in Sheriff Court Practice, Macphail, 2^nd Edition, at paragraph 11.37. There the learned author states that inhibition on the dependence of a Sheriff Court action proceeds upon a warrant of the Court of Session contained in Letters of Inhibition issued under the Signet. He then goes on:

Counsel for the pursuers and applicants maintained that that procedure was incapable of being followed in practice, since the Initial Writ in a Sheriff Court action could not be borrowed. That contention is plainly wrong in the light of the Sheriff Court Ordinary Cause Rules 1993, Rule 11.2(3), which provides as follows:

Counsel for the pursuers and applicants went on to contend that section 6 of the Civil Evidence (Scotland) Act 1988 validated a copy of a document purporting to be authenticated by a person responsible for the making of the copy. That section provides, inter alia, as follows:

I found myself unable to agree that the provisions of that section obviated the difficulty which had arisen. In the first place, the provisions of section 6(1) are qualified by the words "unless the Court otherwise directs". In formulating Form 59.1-D, I consider that the Court desiderated that the Initial Writ itself should accompany an application of the kind under consideration. In the second place, I doubt whether it is correct to regard the present situation as one in which "evidential purposes" are being served. It appears to me that what is involved in an application such as this is the obtaining of a warrant from and with the authority of the Court of Session, which has to proceed upon the basis that that Court is satisfied that appropriate Sheriff Court proceedings have been initiated. It appears to me that that situation stands apart from one in which an issue may arise, in the course of evidence, in some proceedings as to the authenticity of a document. In all of these circumstances, I was not persuaded that it would have been proper for me to sign and date the warrant on the application, since that application was not supported by the appropriate documentation. I take the view that the appropriate documentation would be the Initial Writ by which the Sheriff Court proceedings had been initiated.