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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walker v. Tidewater Cyprus Ltd [2003] ScotCS 299 (05 December 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/299.html
Cite as: [2003] ScotCS 299, 2004 SCLR 505
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Walker v. Tidewater Cyprus Ltd [2003] ScotCS 299 (05 December 2003)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Marnoch Lord Weir
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XA66/03 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL From the Sheriffdom of Grampian, Highland and Islands at Aberdeen in the cause FORBES GRANT WALKER Pursuer and Appellant; against TIDEWATER CYPRUS LIMITED Defenders and Respondents: _______ |
Act: L. McNeill; Drummond Miller, W.S. (for Eileen Dommer & Co., Dundee) (Pursuer and Appellant)
Alt: Haldane; Balfour & Manson (for Buirnside Kemp Fraser, Aberdeen) (Defenders and Respondents)
5 December 2003
[1] The pursuer raised an action against the defenders in the Sheriff Court for damages in respect of an alleged breach of contract. On 26 November 2001, having heard parties in debate, the sheriff dismissed the action. The pursuer appealed to the sheriff principal. Having heard the appeal, on 3 April 2003 he pronounced an interlocutor in which, inter alia, he allowed the appeal in part, excluded certain averments of the pursuer from probation, and allowed parties a proof of their respective averments restricted to the question whether or not the defenders had paid wages to the pursuer in respect of a certain period. Having reserved the question of expenses, on 16 April 2003 he found the pursuer liable to the defenders in the whole expenses of the cause to date, including the appeal, and restricted the pursuer's liability to the sum of £750. [2] The pursuer marked an appeal against these interlocutors, as a consequence of which the process was transferred from the Sheriff Court to the Court of Session. It is not in dispute that, having regard to the terms of section 28(1) of the Sheriff Courts (Scotland) Act 1907, the pursuer should have obtained leave from the sheriff principal for his appeal, but failed to do so. The appeal was referred to a Lord Ordinary under Rule 40.12 of the Rules of the Court of Session. He noted that it was not in dispute that the appeal was incompetent. However, having regard to the fact that the agents for the pursuer were maintaining that the cause should be remitted to the sheriff principal, he directed that the appeal should proceed, but on the basis that the issue of competency was brought before the Inner House. [3] We have now heard a motion on behalf of the pursuer and appellant that this court should, in terms of section 32(2) of the Court of Session Act 1988, remit the cause to the sheriff principal with instructions that he should consider whether he should exercise the dispensing power contained in Rule 2.1 of the Ordinary Cause Rules, and, if so, consider whether he should grant leave to the pursuer to appeal to the Court of Session. [4] In making that motion Mr. McNeill founded on the observation of Lord McCluskey in McArthur v. McArthur's Trustee 1997 S.L.T. 926 at page 931 that if a case was appealed, or was sought to be appealed, to the Court of Session, but the appeal was out of time or lacked the necessary leave, it appeared to be open to the court to seek the views of the sheriff on questions of leave or possible relief under the rules, where it considered that it should do so, by making a remit with instructions under section 32(2). Mr. McNeill also founded on the fact that such a remit with instructions had been made by the court in D.T.L. Gas Supplies Limited v. Protan Srl. 1999 S.L.T. 397. [5] However, it has to be borne in mind that no such remit was made in the case of McArthur in which leave had not been obtained and there was no competent granting of relief in terms of the relief provisions in the appropriate rules. In the case of D.T.L. Gas Supplies Limited the facts were special in respect that the sheriff had mistakenly taken the view that leave to appeal was not required. [6] In the present case Mr. McNeill frankly accepted that he and the pursuer's agents had laboured under the mistaken belief that, when the sheriff had dealt with expenses on 16 April 2003, there was a final judgment and that, accordingly, leave to appeal was not required. Mr. McNeill submitted that whether the pursuer's appeal should be resuscitated was a matter for the sheriff principal in deciding whether to exercise the dispensing power, and, if so, whether to grant leave to appeal. [7] We do not consider that it is correct for this court to proceed on the basis that the pursuer is entitled as a matter of course to have the case remitted to the Sheriff Court so that these questions can be considered there. In the present case there was a plain failure on the part of those representing the pursuer to apply for and obtain the leave without which this appeal was incompetent. The present case, unlike that of D.T.L. Gas Supplies Limited, is not one in which the interests of justice are in favour of a remit to the Sheriff Court. [8] In these circumstances the motion for the pursuer is refused, and his appeal dismissed as incompetent.