Scottish Court of Session Decisions

[1] The motion for the respondents in this appeal from the Sheriff Court at Inverness is to dispense with the provisions of Rule of Court 23.3(3) and to refuse the appeal as incompetent. The motion was marked as opposed, the reason for opposition being that the appeal was not incompetent.

[2] The appeal concerns an action in which the respondents craved the court to grant two declarators, first, that they are the joint tenants of an agricultural holding within the meaning of the Agricultural Holdings (Scotland) Act 1991 entered into with Vastlands Properties Limited ("Vastlands") in October 1990, and secondly, that they have a right of access over a private road to that holding. The respondents further crave interdict against the first defender from interfering in any way with their peaceable possession of the holding and of their use and enjoyment of it and the access to it. It is averred that the second defenders are a now dissolved company but one which bears to be the disponee named in a disposition by Vastlands of the lands which are the subject of the agricultural tenancy, dated and recorded in 1993. The first defender is the proprietor of another area of ground disponed to him in 1998 by Nationwide Building Society upon repossession of that ground from Vastlands. Both the Crown as ultimus haeres and Vastlands were called as further defenders but neither has entered appearance in the action.

[3] The first order in the action was made on 21 September 2000 when the initial writ was ordered to be lodged by 10 October 2000 and defences by 17 October 2000. Thereafter sundry procedure took place including periods for adjustment of the writ and the defences. Defences were lodged for each of the appellants. On 11 January 2001 the sheriff heard parties on a motion for summary decree in terms of each of the three craves. On 30 January 2001 the sheriff granted summary decree as sought. Thereafter the defenders appealed to the sheriff principal. Having heard parties, the sheriff principal by interlocutor and note dated 9 April 2001 determined that the decision of the sheriff to grant summary decree in terms of the declaratory craves was correct and that in respect of that part of the matter, the appeal must fail. However he was persuaded that the sheriff was not entitled to conclude that summary decree for interdict could properly be granted at that stage. He recalled the sheriff's interlocutor to that extent and remitted the cause to the sheriff to proceed as accords. In his note the sheriff principal records that the second defenders had wholly failed to deal with averments that they had neither title nor interest to defend the action and that the first defender had not disclosed what title and interest, if any, he claimed to have in relation to the land of which the respondents averred that they are the tenants. In addition, he stated that no attempt had been made by either of the defenders to adjust or amend their pleadings prior to the appeal or to offer to do so during the appeal. Nor did they suggest that there were other inquiries to be made or documents yet to be produced to amplify, extend or establish their defences.

[4] No leave to appeal was sought from the sheriff principal nor indeed was any motion seeking leave to appeal from the sheriff principal marked prior to the appeal to this court being marked by the agents for the appellants on 12 April 2001. On 31 May 2001 this court, on the motion of the appellants, appointed parties to lodge grounds of appeal within 28 days.

[5] No issue arises with respect to the respondents' motion to dispense with the provisions of Rule of Court 23.3(3) and we shall therefore grant it. Furthermore, it was conceded for the appellants that the interlocutor of the sheriff principal was not a final one and that, that being so, an appeal without leave of the sheriff principal was incompetent since the interlocutor was one which, under section 28 of the Sheriff Courts (Scotland) Act 1907, was appealable only with leave. For these reasons the ground of opposition to the motion as marked was not insisted in. Standing the terms of the interlocutor of the sheriff principal, this concession was unsurprising. It is perhaps unfortunate, however, that in the circumstances the opportunity to apply the provisions of Rule of Court 40.12.4 and 5 was not taken at the outset when the sheriff court process was transmitted to the Court of Session.

[6] Mr Tyre for the appellants has, however, invited us to exercise the power given to this court in terms of section 32(2) of the Court of Session Act 1988 and to remit the cause to the sheriff principal in order that he may entertain an application on the part of the appellants for leave to appeal out of time and thereafter, if so advised, to determine whether or not to grant leave. Reference was made to DTL Gas Supplies Ltd. v. Protan Srl 1998 SLT 397 and McArthur v. McArthur's Tr. 1997 SLT 926. The error in failing to obtain leave was excusable in that the sheriff's interlocutor had been a final one. It was said that, before marking the appeal, appellants' agents had spoken to the sheriff clerk who had not suggested that leave to appeal was required. There may be a defence to the action yet to be heard in a matter concerning the bona fides of the respondents in relation to the copy document upon which their claim to a joint tenancy is founded. Finally, he said, it was more realistic to deal with the issue of summary decree by way of appeal at this stage in the action rather than, as it may be, after pronouncement of a final interlocutor in the sheriff court.

[7] Mr Tyre accepted that the exercise of the power in terms of section 32(2) of the 1988 Act is one for the discretion of this court, looking to the circumstances of the case. In our opinion, nothing said by Mr. Tyre persuades us that we should exercise it. We take note of what was said by the sheriff principal as to the opportunities for and the absence of any offer to amend or add to the defences. But, in particular, no colourable excuse has been provided for the failure to seek leave to appeal to this court after the sheriff principal's interlocutor was pronounced and before the appeal was marked. That interlocutor was clearly not a final one. The present circumstances are wholly different from those that obtained in the case of DTL Gas Supplies Ltd v. Protan Srl. Accordingly the appeal is refused as incompetent.