Scottish Court of Session Decisions

Gerrard & Anor v. Sives [2003] ScotCS 148 (22 May 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Johnston Lord Weir	XA98/02 OPINION OF THE COURT delivered by LORD JOHNSTON in APPEAL FOR DEFENDERS From the Sheriffdom of Lothian and Borders at Linlithgow by JAMES and SUSAN GERRARD Pursuers and Respondents; against R.W. SIVES LIMITED Appellants and Defenders; _______

 

 

Act: MacKenzie, Solicitor Advocate; Masons (Pursuers and Respondents)

Alt: Ardrey; Keegan, Walker & Co., S.S.C., Livingston (Appellants and Defenders)

22 May 2003

1. This is an appeal from the interlocutor of the sheriff principal dated 22 May 2002 determining an appeal at the instance of the current appellants from a decision of the sheriff at Linlithgow in an action at the instance of the appellants, inter alia, claiming delivery of a crane and certain monetary payments. The sheriff, having heard a proof, made certain orders in favour of the pursuers and appellants.

2. Although the second ground of appeal before us raised an issue relating to credibility it was not insisted on in substance, and the only issue which accordingly was ventilated before us related to the fact that, in the course of the proof, Mr. Robert Sives who was the Managing Director of the appellants was excluded from the court during the pursuers' evidence. There is no interlocutor to that effect nor any report or note from the sheriff dealing with the matter, which is one of the main problems in the case presented to us. In this respect the sheriff principal states:

"[9] It is not entirely clear whether the sheriff in fact issued a formal ruling on this matter, and certainly nothing is recorded in the interlocutors; and Mr Mackenzie, who as I have noted above was present at the proof, appeared to recollect that the matter might, after some discussion, have been disposed of without any formal ruling. On the other hand, it appeared to be accepted that a renewed motion for Mr Sives to be allowed to be present on the second day of the proof was in fact refused by the sheriff. For present purposes, however, I am prepared to consider this ground of appeal on the basis that the sheriff at least played some part in Mr Sives being required to absent himself from the court while the evidence for the pursuers was being given. I should add, however, that I do not consider that this ground of appeal, as drafted, in fact accurately focuses the true issue in contention. As I have noted above, the ground of appeal is expressed solely in relation to the question whether Mr Sives was entitled to be present in court while Mr Gerard, and any other witnesses for the pursuers, were giving evidence. But there can be no doubt that he was so entitled if he wished. The real question, however, is whether, had he done so, he would then have been entitled himself to give evidence. In the course of the appeal hearing that latter question was the one which came to be considered by parties".

3. The substance of the point argued before us was that the exclusion of Mr. Sives amounted to an irregularity which vitiated the whole proceedings because he should have been allowed to stay in court to hear the evidence being tendered against him, the submission being essentially that the issue in the case being one of credibility, the interest of justice and fairness to the witness in question, Mr. Sives, entitled him to hear the evidence of the pursuers and their witnesses first hand.

4. Much of the debate before us turned upon essential issues of law with regard to the power and, indeed, duty of a judge in relation to excluding from his court a person who is a potential witness while other evidence is being given and we were referred to a number of authorities bearing upon whether a judge was obliged to exclude a potential witness from the hearing on evidence as a general rule of law, or rather had a discretion to deal with the matter as one of an objection by the other party. In particular, reference was made to Dickson on Evidence at page 1599; Hume's Commentaries on Crime at page 379; Tait on the Law of Evidence at page 421 and Macfarlane's Practice at page 159. Reference was also made to Macphail on Evidence and on Sheriff Court Practice.

5. We were also referred to the Evidence (Scotland) Act 1840 section 3, which is in the following terms:

"And be it enacted, That in any Trial before any Judge of the Court of Session or Court of Justiciary, or before any Sheriff or Stewart in Scotland, it shall not be imperative on the Court to reject any Witness against whom it is objected that he or she has, without the Permission of the Court, and without the Consent of the Party objecting, been present in Court during all or any Part of the Proceedings; but it shall be competent for the Court, in its Discretion, to admit the Witness, where it shall appear to the Court that the Presence of the Witness was not the Consequence of culpable Negligence or criminal Intent, and that the Witness has not been unduly instructed or influenced by what took place during his or her Presence, or that Injustice will not be done by his or her Examination".

6. As will be seen from the passage quoted, the sheriff principal reached the conclusion that the sheriff had been involved to some extent in the decision to exclude Mr. Sives, but, we have to say at once that this is not clear to us, at least as regards the extent of his involvement. Mr. Ardrey was not present at the proof but informed us that he had been informed by a source which appeared to be the solicitor acting for the appellants at the time that the sheriff stated, in the course of a discussion, once the objection had been taken by Mr. Mackenzie that "his hands were tied" and that led to the exclusion upon the apparent basis that he was following a general rule that he must obey when the objection was taken.

7. On the other hand Mr. Mackenzie, appearing for the respondents, and who had appeared at the proof, stated that what had happened, so far as he could recollect, was that he had intimated to his opponent his intention to object to the presence of Mr. Sives during the pursuers' evidence. A discussion followed which led to Mr. Sives being excluded, apparently involuntarily, but Mr. Mackenzie demurred to the suggestion that it had been on the direct order of the sheriff; rather he suggested that it had been a decision taken by the solicitor acting for the defenders against an apparent fear that if he did not advise the witness to leave the room he might, in due course, be excluded as a witness when being tendered on behalf of the defenders.

8. We have to say at once that this apparent dichotomy is extremely unsatisfactory and we consider it leaves us with no alternative but to decline to interfere in the matter at this advanced stage for want of a proper factual basis to determine what actually happened.

9. The position adopted by counsel for the appellants was that, even before 1840, there was no general absolute rule that the potential witness must be excluded but rather that the sheriff had a discretion. In any event, he suggested that, subsequent to section 3, there was no general rule and the matter depended upon the sheriff exercising his discretion which, it was submitted, he had done wrongly in this case thus causing unfairness to Mr. Sives and his case. He maintained that the authorities to which we have made reference supported those propositions.

10. Mr. Mackenzie, however, submitted that there was a general rule which the sheriff had been bound to follow and that is what had happened. There was accordingly no irregularity. He submitted that Mr. Sives, although Managing Director and a shareholder of the defenders, was properly regarded as a witness and not a party (Equity and Law Life Assurance Society v. Tritonia Limited 1943 S.C. (H.L.) 88 which meant, he submitted, that Mr. Sives was to be regarded as a witness in terms of section 3. If, accordingly, the sheriff had exercise a discretion he had done so properly in as much as that no unfairness had resulted. There could be no material difference between evidence being relayed to a person and the person actually hearing it when it came to the issue of fairness and preparation.

11. We are bound to observe that at least prior to 1840 there does appear to be some question as to whether there was a general rule requiring exclusion in the appropriate circumstances or merely a discretionary power. But it does seem to us that since 1840 the latter has probably been the position when the appropriate circumstances, narrated in section 3, arise. The section is not happily phrased but certainly it must give a discretionary power to the judge if an objection is taken at least at the time when the person is being tendered as a witness and has previously been in court.

12. Beyond those observations we say no more on the law because we do not determine the case on that basis.

13. It seems to us to be wholly inappropriate for this court to attempt to consider whether or not a fundamental irregularity or unfairness occurred in the currency of the proof when we have no proper factual basis to make an assessment of what happened. This case has a long history. It seems to us to be wholly inappropriate for us to order a fresh proof, with all the expense involved, without having a firm basis for determining that an irregularity occurred, and we can find no such basis. It would have been possible for the appellants, before proceeding to argue before the sheriff principal, at least to ask him to remit the matter back to the sheriff for his recollection to be expressed. We do not consider it would be appropriate for us to do that now after the passage of time that has elapsed, it being highly unlikely the sheriff will have a clear recollection in the absence of any note or interlocutor. The absence of these two elements is, in our opinion, in themselves fatal to the appellants' current position.

14. We would also observe that, assuming the matter was one for the discretion of the sheriff and assuming he actually made a decision, which is not in itself clear, we would have difficulty in determining whether any fundamental unfairness occurred against the background of justice between the parties.

15. We would only add that, against the background of section 3 of the 1840 Act, it seems to contemplate that the objection in question should be taken at the time the person is tendered as a witness, but we do not criticise Mr. Mackenzie for having raised the matter earlier in order to give fair notice to his opposite number as to what he intended to do if the witness stayed in court. That undoubtedly prompted what happened but it is clear to us that the final decision must have rested with the defenders' advisers, albeit that the matter was raised again, apparently, on the second day of the proof, at least according to the sheriff principal.

16. In these circumstances we do not feel able to interfere with the decision of the sheriff principal, albeit we approach the matter on a slightly different basis from him. In these circumstances this appeal will be refused and the interlocutors of the court below affirmed.