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Cite as: [2004] ScotCS 144

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Overwaele v. Hacking And Paterson & Anor [2004] ScotCS 144 (22 April 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY SMITH

in the cause

M. VAN OVERWAELE

Pursuer;

against

HACKING & PATERSON and C. RUSSELL & WILLIAM DUNCAN Co.

Defenders:

________________

Pursuer: Sheldon, then party, then Edward, Solicitor Advocate; Maclay, Murray & Spens.

Defenders: McCormack; Drummond Miller.

22 April 2004

[1] This action called before me on Thursday 22 April 2004, on the procedure roll, having originally been appointed to the procedure roll by interlocutor of 17 September 2003 on the motion of the defenders. The pursuer was, at that time, representing herself and she lodged a motion to reclaim that interlocutor. That motion was withdrawn in terms of her letter dated 14 October 2003, to the court. Neither party having sought to fix a date for the procedure roll hearing, the case was then put on the "warning list" and a hearing was allocated for Friday 23 January 2004. Unfortunately, the court did not intimate that date to the pursuer. A letter of apology dated 24 February 2004 was sent to her and she was advised, in terms of that letter to arrange a suitable date with the defender's agents for the procedure roll hearing. She was also advised:

"If no date is fixed it will be put out early in the next court term commencing 20 April."

The defenders' agents had sent to the pursuer, in advance of the hearing that had been fixed for 23 January 2004, a copy of the defenders' note of argument.

No date was fixed by agreement of the parties and the Keeper of the Rolls, accordingly, fixed 22 April 2004 as the date for the procedure roll hearing. He wrote to the pursuer by letter dated 25 March 2004 advising her of that fact. She wrote back by letter dated 16 April 2004 having, in the meantime, spoken to the Assistant Keeper on the telephone asking for the hearing of 22 April to be discharged and put on hold until she was able to instruct a solicitor. She repeated that request by letter dated 20 April 2004.

[2] At the start of the hearing on 22 April, Mr Sheldon, advocate, appeared on behalf of the pursuer. He made a motion for discharge of the hearing. He had only been instructed the previous evening, had first met with the pursuer that morning and was not confident that he was sufficiently familiar with the case or that he fully understood the pursuer's position. His instructing agents had, he said, been instructed by the pursuer in the last few weeks. There was a degree of confusion on the part of the pursuer. There had been some misunderstanding on her part as to the nature of the hearing that was due to take place. Although she accepted having had notice of the hearing she had not appreciated its purpose. Further, Mr Sheldon had not seen the defenders' note of argument although the pursuer did acknowledge having received it when it was sent to her by the defenders' agents in January. She had, however, become confused, thought that it was going to be incorporated into the Closed Record and had returned it. It was also apparent that the pursuer had had difficulty with a number of different agents although it was acknowledged that the present agents had been instructed by her a number of weeks previously.

[3] The motion was opposed on behalf of the defenders. Counsel for the defenders relied on the fact that the pursuer's agents had been instructed a number of weeks earlier, that a copy of the note of argument had been sent to her in January, and that she had also been sent copies of European cases that the defenders proposed to rely on, shortly after that. Those instructed by her should, if properly instructed by her, have been able to "get a grip" on the case in the time available. It was said that the history of the present litigation was that it had, in effect, started life as a small claim for a few hundred pounds by the defenders. The defenders were successful at proof and successful on appeal. Decree for the principal sum and expenses followed and led to a charge been served. On 24 January 2000, warrant to cite was granted, a date of sequestration of 3 February 2000 followed and sequestration was awarded on 17 February 2000. A petition for recall of sequestration was lodged on 24 March 2000 on the basis of lack of proper intimation of the application for sequestration. That petition was dismissed by Lord Hardie. Reference was made to his opinion which forms no. 7/3 of process. In that opinion Lord Hardie made reference to the pursuer's agents having withdrawn from acting for her. That was, it was said, a regular pattern. A reclaiming motion followed and reference was made to the opinion of the Extra Division dated 8 August 2001, which forms no.7/4 of process. It was evident again that the pursuer had had problems with solicitors acting for her and also that Bankruptcy Act orders had had to be made to force the pursuer to co-operate with her trustee in sequestration. It was reasonable to conclude, he said, that the pursuer's position was untenable and repeatedly caused friction between her and professional persons with whom she was involved, including her own agents. If the diet of procedure roll were to be discharged it was inevitable that her relationship with her present agents would cease and the whole scenario of difficulty and delay would just start up again. The defenders could not accept that the pursuer was unaware of the purpose of the hearing.

[4] I was not persuaded that it was appropriate to grant the motion for discharge of the diet. On the information before me, the pursuer had had ample notice of the date of the hearing, of the note of the arguments that the defenders proposed to put forward and of the European authorities on which they proposed to rely. Further, contrary to what might have been thought to have been suggested in her letters of 16 and 20 April 2004, she did have agents acting for her as the date of the hearing was approaching. They had been instructed by her some weeks in advance of it. The defenders' criticisms of the pursuer and their apprehension that she was simply seeking to indulge in delaying tactics seemed to me to be well founded. I indicated that I was not prepared to grant the motion for discharge. It did, however, seem reasonable that Mr Sheldon be given the chance to consult further with the pursuer. I, accordingly, indicated that I would give him the remainder of the morning and over the lunch break to do so and not call the case again until the afternoon. That would also give him time to consider the terms of the defenders' note of argument.

[5] At 2.10 p.m., Mr Sheldon addressed me again. He indicated that he had spoken to the pursuer and he now had a different motion to make which was for leave to amend. I asked him what amendments he proposed and he drew my attention to article 2 of condescendence. He indicated that the pursuer had a belief that the debt due by her when she was sequestrated was under the statutory limit and that she had produced some material in support of that belief. In response to questioning as to what that material was he indicated that it was a breakdown that had been typed up by the pursuer and showed the total sum due to be £1,420. She had indicated that she had "evidence" to support that breakdown which, on further inquiry, appeared to amount to no more than her own affidavit that that was the figure. It was indicated that the difference between the sum in respect of which she was sequestrated and her figure of £1,420 arose from the failure to take account of payments made by her by cheque prior to sequestration. That indication was then corrected so as to refer to a failure to take account of her having made a single payment of £100 to account and the defenders' statement only allowing for £80 having been paid to account. That explanation did not, however, explain how the total sum due was only £1,420, since, ultimately, it seemed to amount to nothing more than an assertion that the account in respect of which she had been sequestrated was overstated by £20. There was some suggestion that there was an error in the interest figure but it was not said what, numerically, that error was. It was difficult to avoid gaining the impression that Mr Sheldon was having extreme difficulty in obtaining a clear account from the pursuer.

[6] The motion to amend was opposed. Mr McCormack pointed out that the pursuer did not found on any incompetency or any erroneous calculation in the earlier petition for recall that was presented and it was clear that what she was doing now was simply adopting a delaying tactic.

[7] I was not persuaded that it was appropriate to grant the motion to amend. No specific amendment was proposed. It seemed highly doubtful as to whether material did in fact exist to support the line of amendment that was proposed and no explanation at all was given as to why it came so late in the day, particularly when no suggestion of error in the account had been made in her original petition for recall of sequestration. In any event, an overcharge of £20 would only have reduced the account to some £1,553. I indicated that the motion for leave to amend was refused and Mr Sheldon then sought leave to withdraw, which I allowed him to do.

[8] The pursuer then spoke on her own behalf and began to ask for the diet to be discharged. She then asked for time to speak with her solicitor which I allowed her to do.

[9] At 2.40 p.m., Mr Edward, solicitor advocate, appeared on behalf of the pursuer. He indicated that he had been instructed the previous week. It had been his understanding that there was a prospect of the hearing being discharged and it was only yesterday that he had ascertained that the diet of debate was proceeding. However, he had nothing to add to what had been said on the pursuer's behalf by Mr Sheldon and would offer no opposition to the motion which he understood that counsel for the defenders was about to make. Mr McCormack then made a motion for dismissal of the action by repelling the pursuer's five pleas-in-law and, sustaining the defenders' first plea in law. He also made a motion for the expenses of the action insofar as not already dealt with. His motion was not opposed. I, accordingly, pronounced the interlocutors of 22 April 2004.

[10] As regards the pursuer and reclaimer's grounds of appeal:

1(a) I was aware of the pursuer's requests for discharge of the hearing, as narrated above.

(b) As narrated above, when I was addressed on the motion for discharge of the diet, I was told that the pursuer had instructed the solicitors then acting for her a few weeks earlier. Mr Edward indicated that he personally had been instructed the previous week. Although he said that he understood there was a prospect of the hearing being discharged, he did not suggest that that understanding had been prompted by anything said or done by the defenders. Any such understanding can only have come from the pursuer herself but there was no suggestion of anyone having indicated to her that the hearing would not go ahead.

(c) As regards the motion for leave to amend, I would respectfully refer Your Lordships to the above narrative. The pursuer seems to seek to assert that the debt due was below the statutory minimum for sequestration of £1,500 but putting the indications that were given to me at their highest, the debt claimed by the defenders still exceeded that sum.

2 As I have already indicated, the respondents' motion for dismissal and expenses was consented to on behalf of the pursuer by the solicitor advocate then acting for her.