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Cite as: [2004] ScotCS 133
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Warwick v. Green [2004] ScotCS 133 (25 May 2004)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lord Hamilton Lord Macfadyen
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XA36/03 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL From the Sheriffdom of Lothian and Borders at Edinburgh by DEAN WARWICK Pursuer and Appellant against ALAN GREEN Defender and Respondent _______ |
Act: Party
Alt: Bennett; HBM Sayers
25 May 2004
[1] We have considered all the submissions which have been made to us. This is a case where the appellant did not appear at the proof on 6 February 2003 which was a proof on quantum only, liability having been admitted. It was, however, for the appellant to establish the full extent of his loss at the proof. A prior motion to sist the case had been refused.[2] At the proof the sheriff had before him a sole and conscience certificate from the appellant's own general practitioner dated 5 February 2003 stating in clear and unequivocal terms that the appellant was fit to attend court and explaining that this differed from advice originally given to the appellant. The appellant agreed that his general practitioner had telephoned him the day before the proof to inform him of the medical opinion which he was expressing to the court in his letter of 5 February. The appellant submitted to us that, in fact, his medical condition was such that he was unable to appear on 6 February. However, no medical report vouching this assertion has ever been produced. The appellant sought to found on a letter from his own general practice in relation to an appeal hearing on 4 June 2003 to the effect that he was unfit to attend that hearing on that day "by reason of possible unstable angina and coronary angiography planned for Thursday 5 June 2003". In our opinion, that letter does not deal with the issue of his fitness to attend court on 6 February. In the circumstances the only medical evidence before the sheriff on 6 February was to the effect that the appellant was fit to attend court.
[3] Counsel for the respondent also founded on the appellant's previous conduct of the litigation, as set out in the sheriff's Note, and referred to repeated failures to take appropriate and necessary steps to proceed with the action. We invited the appellant to address us on these matters and, after hearing what he had to say, we are satisfied that he did knowingly fail, in several respects, to take the appropriate and necessary steps prior to his heart attack in December 2002 to prepare for the proof. In our opinion, the sheriff was entitled to proceed, as he did, on the medical evidence which was before him on 6 February, as well as the other factors which he has set out in his Note, and grant decree of absolvitor.
[4] On the basis that we now have a discretion as to whether or not to grant the relief sought, we are not satisfied that the whole circumstances of the case are such as to justify us in exercising our discretion in favour of the appellant. The appeal is therefore refused.