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Cite as: 2005 SCLR 157, [2004] ScotCS 60

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Strain v. Byers & Anor [2004] ScotCS 60 (09 March 2004)

OUTER HOUSE, COURT OF SESSION

PD921/03

OPINION OF LORD McCLUSKEY

in the cause

JOHN STRAIN

Pursuer;

against

IAN BYERS AND ANOTHER

Defenders:

________________

Pursuer: Absent; Thompsons

Defenders: Higgins; Brechin Tindall Oatts (for first defender)

9 March 2004

[1] This is an action in which the pursuer claims damages jointly and severally from both defenders, in respect of an accident occurring in January 2001. The summons passed the signet on 30 October 2003. Neither defender entered appearance; and the pursuer enrolled for decree in absence. Decree in absence was granted by the Lord Ordinary on 23 December 2003 "against defenders for payment, jointly and severally, to the pursuer in terms of the conclusions of the summons". There was also an award of expenses. The conclusions included the conclusion for payment of a sum of damages of £20,000 sterling.

[2] The decree against both defenders was duly extracted on 19 January 2004. However, it then emerged that the failure by the defenders to enter appearance and defend the action, was caused by administrative errors. The second defender moved the Court to recall the decree, insofar as it was granted against the second defenders. It will be observed that the period that elapsed after the granting of the decree, and indeed after the extracting of the decree, exceeded seven days. There was no interlocutor superseding extract of the decree. That motion was granted by the Lord Ordinary on Friday, 6 February 2004. The Lord Ordinary did not write any note, opinion or put any entry in the minute of proceedings in relation to his interlocutor of 6 February recalling that decree in absence.

[3] The matter came before me today on a motion on behalf of the first defender which reads as follows:

"On behalf of the 1^st Defender in respect that the Decree in Absence against the 2^nd Defender was recalled on Friday, 6^th February 2004, to allow the Defences to be received and for the Decree in Absence against the 1^st Defender to be recalled. The Summons was sent by 1^st Class Recorded Delivery Post to the 1^st Defender personally at his business address on the 4^th November, 2003. On 12^th November 2003 the 1^st Defender's Insurance Brokers passed the Summons to the Insurers. Unfortunately, due to an oversight the Insurers did not pass the Summons onto their Solicitors until 6^th February 2004."

[4] When counsel moved this unopposed motion on behalf of the first defender, the Court raised the question as to whether it was competent to invoke the provisions in the rules for recall of decree after the decree has been extracted. The relevant rule is Rule 19.2 which permits a defender, not later than seven days after the date of the decree in absence against him, to apply by motion for recall of the decree and to allow defences to be received, all upon certain specified conditions. (The rule also extends that period where extract of the decree has been superseded; that provision has no application here.) The first defender has complied with the provision and the specified conditions in the sense that he has now tendered defences, has paid the appropriate sum to the pursuer and has lodged the receipt for that sum in process. Although the motion is unopposed, the Court has to be satisfied that it can competently be granted.

[5] Miss Higgins who appeared for the first defender submitted that the first defender was entitled to invoke Rule 19.2 by applying to the Court for relief under Rule 2.1 and 2.2 in respect of the delay, beyond seven days, in invoking the rule. That rule was applicable in the present case and in terms of Rule 2.1(2), the effect would be to allow the Court to proceed as if the failure to comply with the provision had not occurred.

[6] Miss Higgins pointed out that Rule 19.2 enabled a defender to seek recall as of right. There appeared, she said, to be a possible conflict between that provision and the provision in Rule of Court, which allows the Court to authorise immediate extract. If a Court authorised immediate extract, the result would be that a defender would lose his right under Rule 19.2 to be reponed. She also pointed to the fact that Rule 38.9 provided that the issue of an extract was not to be a bar to review by way of reclaiming motion. Although that provision was not applicable here, it was a parallel situation and it expressed the principle that an extract decree did not always need to be reduced, and proceedings could continue despite its existence. She also drew the Court's attention to provisions in Maclaren on Court of Session Practice and to other textbooks effectively repeating what Maclaren provides. The references to Maclaren are at pages 369-70, and pages 952 to 954.

[7] She dealt separately with the question as to whether or not the Court should exercise its discretion under Rule 2.1. This was a case in which the pursuer had no objection to the motion and did not oppose it. The circumstances were as outlined in the motion quoted earlier. By proceeding under Rule 19.2, the further delay and expense would be avoided.

[8] I am satisfied that the provisions of Rule 2.1 apply here and that the non-compliance by this defender, with the provisions of Rule 19.2, is due to circumstances covered by Rule 2.1. In relation to the matter of competency, I have been persuaded, albeit with some hesitation, to the view that the extracting of a decree in absence in a case of the present kind is effectively a step on the way to using diligence and enforcing the decree. If a pursuer in possession of an extracted decree were to use that decree in order to obtain diligence, or otherwise to enforce it, then the defender who considered that the decree should not have been granted, would be entitled to stop the use of the diligence, or to attempt to do so, by means of process of suspension and interdict. That of course would cause considerable delay and expense, perhaps to both parties and certainly to the defender. I think from the examples that Miss Higgins has drawn to my attention, there are several situations in which a decree might be extracted but despite that, the process would live on, in the sense that steps could be taken in it, whether by way of reclaiming or otherwise, to determine the rights of parties. Accordingly, I am prepared to view extract in the case of this kind, where there is no opposition by the pursuer, as being no more than a step on the way to possible use of diligence or other enforcement of the decree; and having regard to the fact that no further step has been taken, and none is apparently in contemplation, there is no absolute bar to the application of Rule 19.2, coupled with the dispensing power of the Court under Rule 2.1.

[9] There is one other consideration which is powerful. The decree passed against both defenders jointly and severally. The second defender, as I have already noted, successfully invoked Rule 19.2 with the result that the decree in absence against the second defender, was in fact recalled on 6 February. It would plainly be unjust if the present decree against the first defender were to stand. So for all these reasons, I have been persuaded that it is competent to invoke Rule 19.2 even at this late stage and despite the obtaining by the pursuer of an extract of the decree. I shall accordingly grant the motion.