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Cite as: [2005] CSIH 44, [2005] ScotCS CSIH_44

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Bennett v. The Scottish Downs Syndrome Association & Ors [2005] ScotCS CSIH_44 (03 June 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lady Cosgrove

Lady Paton

[2005CSIH44]

XA4/04, XA5/04 and XA6/04

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

From the Sheriffdom of Grampian, Highland and Islands at Aberdeen

ROBERT ANDERSON BENNETT

Pursuer and Appellant;

against

(FIRST) THE SCOTTISH DOWN'S SYNDROME ASSOCIATION, (SECOND) ABERDEEN CITY COUNCIL and (THIRD) GRAMPIAN POLICE

Defenders and Respondents:

_______

Act: Mundy; Mowat Hall Dick

Alt: Upton; Brechin Tindall Oatts (First Defenders and Respondents): Laing; (Second and Third Defenders and Respondents)

3 June 2005

[1] These three appeals have been taken against decisions of the Sheriff Principal of Grampian Highland and Islands, dated 4 November 2003, refusing appeals from the Sheriff at Aberdeen, who had dismissed the appellant's three actions on account of the appellant having been in default, in respect that he had failed to lodge a certified copy of the records in process not later than two days before the options hearing in these cases, as required by Rule 9.11(2) of the Sheriff Court Ordinary Cause Rules 1993. It was not, nor could it have been, disputed that the pursuer had been in default in that respect. The Sheriff Principal altered the interlocutor of the Sheriff to take account of the fact that the Sheriff had been misled regarding the returning of the initial writs in these actions by the due date, but otherwise adhered to the interlocutor of the Sheriff. He took the view that, the Sheriff having been mistaken about one important element in her reasoning process, the question whether or not decree by default in each case should be granted was at large for him on appeal, as appears from paragraph 31 of his Note. Given that state of affairs, the issue which we had to consider was whether there was any recognisable error in the exercise by the Sheriff Principal of his discretion.

[2] After explaining to us the unhappy background to these actions, which is set forth in the Sheriff Principal's Note, counsel for the appellant formulated two criticisms of the Sheriff Principal's decision. First, it was said that the Sheriff Principal had failed to take into account a relevant matter in the exercise of his discretion, namely the explanation given by the appellant for his failure to lodge the records. That explanation is referred to in paragraph 24 of the Sheriff Principal's Note. He says there:

"In a brief reply, the pursuer suggested that there was no way in which he could have lodged records in the three actions by the dates specified since he had had no legal training."

Secondly, it was submitted that the Sheriff Principal had failed to take into account another relevant matter, in particular, the fact that serious injustice would follow from the dismissal of the appellants' actions on account of the impact of the provisions of section 17 of the Prescription and Limitation (Scotland) Act 1973. The background to that submission was that the incident out of which these actions of damages for personal injuries arose occurred on 18 September 2000. If the appellant had to raise fresh actions, they would be time-barred by virtue of the operation of section 17 of the 1973 Act. The appellant, in that situation, could proceed only if the court were prepared to exercise its power to override the time limit, conferred by section 19A of that Act.

[3] So far as the appellants' first submission is concerned, we have not been persuaded that the Sheriff Principal has ignored the explanation for the failure to lodge records proffered by the appellant, when he appeared in person at the hearing of the appeal before the Sheriff Principal. As we have already indicated, in view of what is said in paragraph 24 of the Sheriff Principal's Note, there can be no doubt that he was aware of the explanation which was proffered for the failure, since that is narrated there. What the Sheriff Principal says in paragraph 31 of his Note regarding this aspect of the matter is this:

"It should also be recalled, as was pointed out by the solicitor for Aberdeen City Council and Grampian Police, that the G5 forms which were sent to the pursuer by the sheriff clerk specifically advised him of the date by which the records were to be lodged. Having failed to lodge them before the Options Hearings, the pursuer might (I do not say that he would) have retrieved the situation by lodging them before the hearing of the appeals or at least offering some explanation for his inability to do so. But no such explanation has been forthcoming, nor have the records been produced notwithstanding that it is plain from the appearance of some of the documents which he has produced that the pursuer has access to word-processing facilities and, moreover, has at least some understanding of the rules which govern actions of this kind."

We do not read this passage as contradicting what the Sheriff Principal said in paragraph 24; we read it as meaning simply that the Sheriff Principal was not satisfied by the explanation that had been forthcoming for the failure to lodge the records.

[4] In any event, it was not suggested to us that the appellant had sought any assistance from any member of the Sheriff Court staff in relation to the requirements for the Options Hearings which were clearly and unambiguously set out in the form G5, which he undoubtedly received prior to those hearings, one of which requirements was for the lodging of records. It was suggested before us that the staff of the Sheriff Court had not been helpful to the appellant. However, nothing was said to the Sheriff Principal in the hearings of the appeals before him about any difficulty that the appellant may have experienced in that regard. In all these circumstances we consider that this ground of criticism of the Sheriff Principal's decision is unsound.

[5] As regards the second ground of criticism of the Sheriff Principal's decision, having perused the terms of his Note and having heard what was said to us today, we are quite clear that the Sheriff Principal was not asked at the appeal hearings before him to consider the particular aspect of the matter, which forms the basis of this criticism. In particular, it was not pointed out to him that dismissal of the appellant's actions was a serious matter on account of the fact that any new action that he might raise would be faced with a plea of time bar in terms of section 17 of the 1973 Act. We do not consider that this was an aspect of the case which it was to be expected that the Sheriff Principal would explore for himself. His function was, of course, to adjudicate upon the submissions made to him by the parties. These being the circumstances, we do not consider that the Sheriff Principal can validly be criticised for making no reference to this aspect of the case in his Note. Accordingly, this basis for criticism of the Sheriff Principal's decision is, in our opinion, also unsound. For all of these reasons the appeals are refused.