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Hutton v. Coal Authority [2003] ScotCS 200 (17 July 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Hamilton

Lord Caplan

XA126/02

OPINION OF THE COURT

delivered by LORD HAMILTON

SPECIAL CASE

for

OPINION OF THE COURT OF SESSION

under

Section 1(7) of the Scottish Land Court Act 1993 and Rule 88 of the Scottish Land Court Rules 1992

MRS. SYLVIA HUTTON

Appellant;

against

THE COAL AUTHORITY

Respondents;

_______

Act: L. McNeill; Bonar Mackenzie (Appellant)

Alt: R.N. Thomson; Anderson Strathern (Respondents)

17 July 2003

[1] In July 2000 the appellant presented an application to the Scottish Land Court ("the Land Court") in which she sought a declaratory order that as from 10 July 1998, the date of death of her husband, she was by virtue of a bequest by him to her the tenant of Lassodie Mill Farm, Kelty, Fife. The respondent is the landlord of that holding.

[2] The respondent resisted the application on various grounds. After sundry procedure the Land Court, on 27 July 2001, made an order which included the following terms:

"ORDAIN the Applicant, Mrs. Sylvia Hutton to find caution in the sum of ONE THOUSAND FIVE HUNDRED POUNDS (£1,500); ORDAIN the Applicant to lodge the said sum of One Thousand Five Hundred Pounds with the Principal Clerk, One Grosvenor Crescent, Edinburgh, EH12 5ER or to lodge with the said Principal Clerk some form of guarantee or security for the said amount which is acceptable to the Court within a period of four weeks form the date of intimation hereof; ... ".

[3] The appellant failed to find caution within the period specified. On 8 October 2001 the Land Court pronounced the following order:

"The Land Court, having heard agents for the parties, REFUSE the Applicant's motion for an extension of time in which to find caution; REFUSE the Application; ASSOILZIE the Respondent from the crave of the Application ... ".

The Land Court with this order issued a Note giving reasons for its decision.

[4] The appellant subsequently requested the Land Court to state, under section 1(7) of the Land Court Act 1993, a special case on certain questions which affect the Land Court's order of 8 October 2001. The Land Court duly did so. Three questions have been stated for the opinion of this court, though in substance all relate to the same issue, namely, whether the Land Court was entitled, the appellant having failed to find caution timeously, to refuse the application and assoilzie the respondent from its crave. The appellant's contention before this court was that the Land Court was not entitled to make such an order, the sanction available to that court on such failure not, it was contended, extending beyond dismissal of the application with expenses.

[5] It is clear that this contention was not advanced before the Land Court. That omission is doubly unfortunate in the present case where this court has not only been denied the advantage of having the Land Court's view on this contention but has also been denied any material from the Land Court as to any previously established practice before it in disposing of a failure by a party timeously to find caution for expenses, having been ordained to do so.

[6] The Land Court was first established by section 3 of the Small Landholders (Scotland) Act 1911. It was continued in being by the consolidating provisions contained in section 1 of the Scottish Land Court Act 1993. Paragraph 12(b) of Schedule 1 to the 1993 Act empowers the Land Court to "make rules with reference to proceedings before it". This is in substance a re-enactment of section 3(12) of the 1911 Act which made it lawful for the Land Court "from time to time to make rules for conducting the business of the Court".

[7] A set of rules was first promulgated by the Land Court in 1912 (Statutory Rules and Orders 1912 No. 1750). These rules have been amended or replaced from time to time thereafter. The rules current at the time of the Land Court's decision in the present case were The Scottish Land Court Rules 1992 (as amended). These rules, which extend to 107 in number, make provision under various headings for the conduct of the business of the Land Court. These provisions, while replicating in some respects procedural arrangements familiar in the Court of Session and in the Sheriff Court, also in other respects make quite different arrangements, reflecting no doubt the specialist jurisdiction and function of the Land Court. Under the heading "ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC." (interposed between a group of rules headed "PLEADINGS" and a group of rules headed "HEARING") appear Rules 41 to 49. Rule 47 provides:

"If any Applicant or Respondent fails to lodge any statement or pleading or to produce any writing, plan, book, or excerpt from a book or other document or article, which the Court have ordered to be lodged or produced, or to obey any Order of Court

(a) where the Applicant is the party in default, the Application may be in

respect thereof dismissed, with expenses

(b) where the Respondent is the party in default, any pleas, objections or

claims stated by him may be in respect thereof repelled, with expenses or

found liable in expenses occasioned by such default".

The word "Order" is defined by Rule 1(e) so as to "include decree, award and determination in any proceedings before the Court". Rule 47 has appeared in this form since the first promulgation of rules by the Land Court in 1912.

[8] Rule 107 appears as a single rule under the last heading entitled "GENERAL". It provides:

"In matters of procedure or evidence which are not provided for by statute or by these Rules the Court shall have regard to the general practice of courts of law so far as applicable and appropriate to the conduct of its business".

A rule in these terms (originally numbered 120) has appeared in the Land Court Rules since 1912.

[9] The current Rules of the Court of Session are those promulgated in 1994, as subsequently amended. These include Rule 33.10, which provides:

"Where a party fails to find caution or give other security (such a party being in this rule referred to as 'the party in default'), any other party may apply by motion -

(a) where the party in default is a pursuer, for decree of absolvitor; or

(b) where the party in default is a defender or a third party, for decree by

default or for such other finding or order as the court thinks fit".

A rule in such terms does not appear to have been contained in the Rules of the Court of Session prior to 1994. However, that rule reflects a practice which has been established in the Court of Session for more than a century, namely, that the disposal of the court on failure by a pursuer ordained to find caution for expenses to find such caution is (or at least ordinarily is) the pronouncement of decree of absolvitor (Gray v. Ireland (1884) 11 R. 1104; Teulon v. Seaton (1885) 12 R. 1179; Cunningham v. Skinner (1902) 4 F. 1124, especially per Lord Young at page 1129). None of these authorities provides any rationale for the practice. However, the author of McLaren - Court of Session Practice, in describing decrees of absolvitor, says at page 1092:

"A decree of absolvitor is a decree in favour of the defender after a consideration of the merits of a cause, or in respect of the failure of the pursuer to conform to a peremptory statutory enactment, or obtemper a peremptory order of Court. Accordingly, where a pursuer has been ordained to find caution for expenses, or to sist a mandatary, and has failed to do so, the decree is one of absolvitor ... ".

The practice of granting absolvitor appears, by at least 1911, to have been followed by the Court of Session in the related matter of failure to sist a mandatary, where a pursuer had been ordained but failed to do so (Train v. Little 1911 S.C. 736, cited by McLaren in the passage quoted). It appears from the report in that case that, in the course of the hearing in the First Division, there was some doubt as to whether dismissal instead of absolvitor was the appropriate rule. Lord President Dunedin, however, said:

"My only doubt after the discussion was whether the Lord Ordinary's interlocutor should have been one of dismissal instead of absolvitor. In looking into the authorities and inquiring into the practice of the Court, I am satisfied that decree of absolvitor is properly granted. The principle that has governed the practice requires that persons who sue before the Court must do so under the recognised rules of the Court; and if they are not prepared to comply with these rules, the party whom they sue is entitled to have done with the action altogether".

Accordingly, the practice of the Court of Session of granting absolvitor rather than dismissal in such cases appears to have been founded either on the peremptory nature of the order which has not been obtempered or possibly on the principle that persons who sue before the Court must do so under its recognised rules.

[11] The granting of a decree of absolvitor has the effect of res iudicata, with the result that the pursuer (or applicant) cannot again raise fresh proceedings in relation to the same subject-matter, at least upon the same grounds. It is not self-evident that the denial of the right to vindicate in a fresh action (or application) what may be a wholly valid claim is in every case in accordance with the interests of justice or consistent with the fundamental right of access to a court of law. There may be some circumstances where mere dismissal would have the result simply of exposing court process to abuse but there may be others where a serious injustice might be done - for example, where a pursuer (or applicant) having raised proceedings becomes bankrupt, is ordained (if his trustee is unwilling to sist himself) to find caution and is unable to do so. He cannot, at least in Land Court proceedings, readily avoid the sanction of such failure being visited on him since he cannot abandon or withdraw his application, except with the leave of the Land Court and on such conditions as that Court may think just (Land Court Rules 1992 Rule 25); these conditions may include the payment of expenses which, ex hypothesi, the applicant is not then in a position to meet.

[12] In these circumstances, despite what appears to be a well established practice in the Court of Session and the Sheriff Court, we would be slow to hold that it was an obvious or implicit procedural rule of any court that the sanction of absolvitor should be applied on any failure to obtemper an order to find caution for a respondent's expenses. If a party abuses court process by bringing fresh proceedings vexatiously in respect of a claim which has repeatedly been dismissed, he may be at risk of an order under the Vexatious Actions (Scotland) Act 1898 being made against him or of some other order being made disabling him from continuing such abuse.

[13] Accordingly, we approach the construction of the Land Court Rules without any presumption that absolvitor is the necessary judicial sanction for failure to obtemper an order to find caution for a respondent's expenses. We accept that the express provisions made in the Rules are not exhaustive of the powers of the Land Court to regulate procedure before it. As Mr. Thomson drew to our attention, the power to sist proceedings (not a matter expressly dealt with in the Rules) has been recognised as an inherent aspect of the Land Court's function as a court of law (Matheson v. Board of Agriculture 1917 S.C. 145). Rule 107 itself envisages that procedural or evidential matters not provided for by statute or by the Rules themselves may arise and will require to be dealt with.

[14] However, Rule 47 in terms deals with failures by a party to comply with orders made by the Court. It deals expressly with failures to comply with an order (made under Rule 35) to lodge a statement or pleading or an order (made under Rule 42(1)) to produce a document or article. It then in unqualified terms refers to a failure "to obey any Order of Court". In respect of each and all of such failures the Court may impose the prescribed sanctions. In the case of failure by an Applicant, the most severe sanction provided for in terms of the Rule is dismissal of the Application with expenses. Mr. Thomson accepted before us that, if failure to find caution for expenses within a period fixed by the court fell within the scope of "any Order of Court" within the meaning of Rule 47, the yet more severe sanction of absolvitor was under these Rules precluded. However, his submission was that the words "any Order of Court" should be construed eiusdem generis or of the same "rank" as the words preceding them and, so construed, covered only relatively minor failures in obeying court orders.

[15] We are unable to accept Mr. Thomson's construction of the Rules. We doubt whether his reliance on the canon "eiusdem generis" is technically sound; there is no genus. There are only two constituents of the class, namely, failure (1) to lodge any statement or pleading or to produce any document or article ordered (dealt with comprehensively) and (2) to obey any Order of Court. In any event, we are not persuaded that there can be discerned from the specific failures a class which would be exclusive of a failure to obey an order to find caution. Failure to obey an order to find caution for expenses is, in our view, as much a "procedural" failure as failure to obey an order to lodge a pleading or to produce a document. If Mr. Thomson's submission in relation to "words of rank" is to be construed to the effect that failures to comply with orders made under Rules 35 or 42(1) are of their nature less serious than a failure to comply with an order to find caution for expenses, we are unable to accept it. Failures of the former kind might be as prejudicial to an opposing party's interests as failure to find caution; in some circumstances they might be more prejudicial. Nor in this context can any useful distinction be drawn, in our view, between wilful and non-wilful failures.

[16] As noticed earlier, "Order" includes "decree, award and determination in any proceedings". While in the context of Rule 47, which assumes that the proceedings are still to some extent at least in dependence, "Order" may require to be read as not including a final order, the definition does suggest, prima facie, a wide-ranging scope for "Order". Moreover, "any Order" (our emphasis) is in terms comprehensive and not suggestive of any restriction.

[17] The practice in the Court of Session of granting absolvitor on failure by a pursuer to find caution was established only over time and after discussion and consideration (see Teulon v. Seaton). In the related field of failure to sist a mandatary, there appears to have been sufficient doubt even as at 1911 to cause the Lord President to make enquiry (Train v. Little).

[18] The present Land Court Rules have been, so far as concerns provisions material for present purposes, in the same terms since their first promulgation in 1912. The meaning of those provisions today must be their meaning when they were first promulgated. It cannot be assumed that, when procedural arrangements were first put in place, any practice established in ordinary courts of law was automatically to be adopted in the Land Court. Rule 56 of the Sheriff Court Ordinary Rules (as set forth in the First Schedule to the Sheriff Courts (Scotland) Act 1907) expressly envisages absolvitor as a possible sanction for various failures in a defended action, including failure to implement timeously an order made by the sheriff; by contrast Rule 47 of the Land Court Rules (which with Rule 51 broadly covers the same subject-matter) makes no such provision. Rule 47 appears within a group of rules primarily concerned with procedure between when Answers are ordered (if they are) and a substantive hearing taking place. That is the stage at which, ordinarily, as in this case, any order to find caution would be made and the consequences of any failure to do so would be determined. If there is a justification for the Land Court adopting the current Court of Session and Sheriff Court Rules and practice in relation to failure to find caution for expenses, the Land Court Rules can no doubt be amended to that effect.

[19] For these reasons we are unable to accept that "any Order of Court" in Rule 47 of the Land Court Rules does not extend to an order to find caution for expenses (or an order to sist a mandatary). If that be so, it is not disputed that the sanction available to the Land Court on the appellant's failure to find caution as ordained was restricted to dismissing her application with expenses. The three questions posed, accordingly, in our view, fall to be answered in the affirmative. These questions are:

"(1) Was the procedural position that arose in the Circumstances ...

provided for by Rule 47 in the Scottish Land Court Rules 1992?

(2) In the Circumstances, did the Scottish Land Court err in law by, in its

Order of 8 October 2001, 'REFUSING the Application and ASSOILZING the Respondents from the crave of the Application'?

(3) In the Circumstances was the Scottish Land Court bound in law to

'DISMISS the Application' by its Order of 8 October 2001 as opposed to 'REFUSING the Application and ASSOILZING the Respondents from the crave of the Application'?"

[20] We would add that Mr. McNeill opened his submissions by presenting an argument under reference to section 11 of the Agricultural Holdings (Scotland) Act 1991. But that argument was, in the end, hardly pressed and is, in our view, without merit. We find it unnecessary to say anything further about it.