Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Marnoch Lord Caplan	XA182/00 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL From the Sheriffdom of North Strathclyde at Paisley in the cause ISOBEL DONNELLY, (A.P.) Pursuer and Respondent; against SAFEWAY STORES plc and OTHERS Defenders and Appellants: _______

 

 

Act: Cubie, Solicitor Advocate; Brodies (Pursuer and Respondent)

Alt: Moore, Solicitor Advocate; MacRoberts (Defenders and Appellants)

18 October 2002

1. This is an appeal by the defenders and appellants against a decision of the sheriff at Paisley to remit the cause to the Court of Session in terms of section 37(1)(b) of the Sheriff Courts (Scotland) Act 1971. That subsection reads as follows:

"37(1) In the case of any ordinary cause brought in the Sheriff Court the sheriff...

(b) may, subject to section 7 of the Sheriff Courts (Scotland) Act 1907, on

the motion of any of the parties to the cause, if he is of the opinion that the importance or difficulty of the cause make it appropriate to do so, remit the cause to the Court of Session."

2. The present action is an action for damages arising out of a claim by the pursuer that she was wrongly the subject of a "citizen's arrest" for shoplifting and that the second and third defenders, who are employees of the first defenders, conspired to "plant" evidence on her in the form of red and white meat and bacon. In the result, the sheriff was persuaded that the case was of "importance" within the meaning of the subsection and thus felt able, in the exercise of his discretion, to remit the cause as sought by the pursuer. It is clear from his Note, however, that one factor which influenced the exercise of his discretion and to which he gave "some weight" was the indication from the pursuer's solicitor that it would be his intention, if the case was remitted, to have it tried by a jury. Indeed, the sheriff went on to say that it seemed to him that the issues raised in the action "would be very appropriate matters for determination by a jury when endeavouring to quantify the damages to which the pursuer might be found entitled."
3. In our opinion, in allowing himself to be influenced by the foregoing consideration anent jury trial the sheriff, at least in this case, misdirected himself; and we say that for three reasons. In the first place, the only authority in favour of the relevancy of such consideration is a dictum of the Lord Justice Clerk (Ross) in the five judge case of Mullan v. Anderson 1993 S.L.T. 835 at p. 840. It is noticeable that the other members of the court made no reference to jury trial as a relevant consideration and, certainly, if it were a primary consideration in favour of a remit, we would have expected to see that specified in terms within the legislation. In the second place, the sheriff fails to note that the record in this case had already closed in the Sheriff Court and that, of consent of both parties, a proof before answer had been allowed. It follows that if the cause were remitted to the Court of Session a jury trial could only be obtained if this were justified in the light of some material amendment to the pursuer's pleadings. We were left in no doubt that any such amendment, let alone its possible consequences in terms of the allowance of issues, would be strongly resisted by the defenders. In short, contrary to what the sheriff appears to have thought, there is absolutely no certainty that, even if remitted, the present case would in the end proceed by way of jury trial. Thirdly, while the sheriff does recognise that there "might be a delay" in the case being resolved if he granted the pursuer's motion, it is clear that he did not have in mind the type of delay which would be entailed by such procedure. What is more, he seems to have taken no account of the fact that the action was raised only one month prior to the expiry of the triennium and that there had been a delay of some eight months between the allowance of proof before answer on 25 January 2001 and 27 September 2001 when the motion to remit was eventually made. This last period of delay was apparently occasioned by the pursuer's failure to pay court dues and the resulting inability of the court to fix a diet of proof in the Sheriff Court. When the sheriff remitted the case to the Court of Session on 27 September 2001 considerably more than four years had already elapsed since the date of the pursuers alleged wrongful detention, namely 20 May 1997.
4. For all the foregoing reasons we are satisfied that the decision as to whether or not this case should be remitted to the Court of Session is at large for this court. In making that decision we are conscious that in Mullan v. Anderson cit. sup. there was a difference of emphasis between the judges regarding the approach which should be adopted to the construction of the subsection in question. However, in our opinion, the present case does not lie, as it were, at the margins. Even supposing the importance of the cause to be made out - a matter which Mr. Moore, solicitor advocate for the appellants, by no means conceded - the only additional factor in favour of a remit which was relied on by Mr. Cubie, solicitor advocate for the respondent, was the attraction, so far as the pursuer was concerned, of a jury trial. As to that aspect we refer to what is said above in the context of misdirection. However, even assuming that consideration to be relevant to the present case, we are quite satisfied that it is more than off-set by the considerable delay which a remit would occasion, following on the delay which has already occurred in the prosecuting of the action. In that connection, it was, of course, the pursuer's decision to raise the action in the Sheriff Court in the first instance. In the result, we shall allow this appeal and remit to the sheriff to proceed as accords.