Scottish Court of Session Decisions

In this case the Sheriff granted a motion for interim decree against the defenders in the sum of £19,965.53. He did so in the course of a "Preliminary Hearing" which we were given to understand was an extra-statutory consensual hearing designed to facilitate the progress of actions of a commercial nature raised in Glasgow Sheriff Court. The questions raised in the present appeal are, first, whether it was competent for the Sheriff to entertain the motion in question and, second, whether in any event he erred in the exercise of his discretion in granting it.

As to competency, the real question is whether the "Preliminary Hearing" in question did, or did not, constitute a "hearing" within the meaning of Rule 15.1(1)(a) of the Ordinary Cause Rules in the Sheriff Court. If so, that paragraph provides that a motion may be made during such a hearing "orally with leave of the court". In that connection, no prior or written intimation of the motion had been given as otherwise required by the Rules. We have not found the answer to this question of competency to be particularly easy but are presently minded to take the view that, since the "Preliminary Hearing" was fixed of consent and is referred to in the interlocutors of the court, it did, indeed, qualify as a "hearing" for the purposes of Rule 15. At all events, without formally deciding the point, we are prepared to proceed on that basis so far as the present appeal is concerned. We say that because, when we turn to consider the second of the two questions raised, we are left in no doubt that the Sheriff cannot be said to have exercised his discretion in a proper manner.

In the first place, it appears from the Sheriff's Note that at the time of dealing with the motion the Sheriff was in fact unaware that it, the motion, had not been earlier intimated in the ordinary way. This means that he cannot have applied his mind to whether it was appropriate to grant leave for the motion to be made orally and without notice. This, in the circumstances, was no mere formality because, as we say, the "Preliminary Hearing" was essentially taking place by consent. What is more, the period for adjustment was still running in so far as the Options Hearing had earlier been discharged without, it seems, any further Options Hearing being fixed. We note this with some surprise since it seems to us that Rule 9.2A of the Ordinary Cause Rules clearly envisages these two things being done simultaneously. However that may be, it was clearly important for the Sheriff to apply his mind to the appropriateness or otherwise of allowing a contentious motion to be made orally in the circumstances just described, and that he plainly did not do.

Secondly, and even more importantly, we are of opinion that there were simply no circumstances which, as matter of law, entitled the Sheriff to grant the motion. The Sheriff makes it clear in his Note that on the pleadings, as then adjusted, there was no substantive defence pled in respect of the sum for which interim decree was granted. He also makes it clear that in his view there had already been more than adequate time for instructions to be obtained in regard to that sum. However, while these might have been cogent considerations in dealing with a motion for summary decree, they had, in our opinion, little or no relevance to a motion for interim decree when the Defence Agent said - as he is noted as saying - that he thought that "there might be a defence in respect of the contracts for which the pursuers were suing but which did not feature in the defences as adjusted", and in respect of which he, the Defence Agent, still wished to amplify the pleadings. As is stated in Macphail, Sheriff Court Practice, 2nd edition at p. 375, "interim decrees pronounced before the record is closed generally proceed upon an unqualified admission of partial liability." It is clear that no such admission was made in the present case. Counsel for the respondents sought to rely on the use of the word "generally" which, he submitted, indicated that there could be exceptions to the general rule. However, he was unable to cite any authority for such an exception and nor, indeed, was he able to suggest any particular way in which the present case could be treated as exceptional. All he sought to rely on was the unsatisfactory nature of the pleadings as adjusted up to the time the Sheriff made his decision. While, as we have said, that could be very relevant to a motion for summary decree, it does not, in our view, assist in dealing with a motion for interim decree.

On the whole matter we are satisfied that this appeal must be allowed, that the interim decree should be recalled and that the cause should then be remitted back to the Sheriff to proceed as accords.