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Cite as: [2005] ScotCS CSOH_12, [2005] CSOH 12

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Belhaven Brewery Company Ltd v. Bradbury [2005] ScotCS CSOH_12 (20 January 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 12

OPINION OF

R. F. MACDONALD, Q.C.

(sitting as a Temporary Judge)

in the cause

BELHAVEN BREWERY COMPANY LIMITED

Pursuers

against

ROSS ROBERT BRADBURY

Defender

________________

Pursuer: J. P. Robertson; Drummond Miller, W.S.

Defender: no appearance

20 January 2005

[1] The proof diet in this action called before me on Tuesday 30 November 2004. The pursuers were represented by counsel, Mr J. P. Robertson, but there was no appearance by or on behalf of the defender. Mr Robertson moved for decree by default in terms of Rules of Court 20.1(c) and (2).

[2] In making the motion Mr Robertson began by briefly explaining the nature of the action, which concerned a stair at the rear of the public house. It had been damaged by the defender in 2001, since when the public house had been unable to use the first floor. Interim interdict had been granted and the pursuers had subsequently presented a minute for breach of interdict. The breach of interdict was admitted by the defender. He had failed to appear at two or three hearings, claiming that he was on a cruise ship and unable to attend. The purpose of the present action was to vindicate ownership of the stair. The action had called on the Procedure Roll before Lady Paton in January 2004 on the defender's plea. Her Ladyship had allowed a proof before answer, the date of which was subsequently fixed in March 2004. In July 2004 legal aid for the defender had been withdrawn. In early October 2004 his solicitors had withdrawn from acting and a notice in the usual terms under Rule of Court 30 had been served upon the defender at the address of his mother in Bury St Edmunds following upon the interlocutor of Lord McEwan dated 14 October 2004. The response which the service of that notice had elicited was formal intimation by him on the appropriate form that he was insisting on defending the action and subsequently a faxed letter of 29 November 2004 from the defender to the General Department.

[3] In the form indicating that he was insisting upon his defence to the action, in the space provided for his new solicitor's name and address, the defender had written in capital letters:

"TO BE ARRANGED UPON MY RETURN TO UK AT END OF NOVEMBER 2004, FROM WORKING ABROAD."

[4] The faxed letter, addressed to a member of staff of the General Department, was in the following terms:

"Per our telephone conversation, I regret that I am unable to attend in person the above hearing as suggested by your office, in order to request an extension due to the withdrawal of my solicitor.

Working on a cruise ship, which takes me out of the country for 6-month blocks, I have just recently returned from my last assignment. Only upon telephoning your office late last week did I discover that the hearing arranged by the out-going solicitor had not been rescheduled after their withdrawal, nor had any opportunity been afforded me in which to request sufficient time to locate and instruct a replacement solicitor.

It remains very much my intention to defend against any encroachment upon land to which I am explicitly entitled at the Register of Sasines. I have made every effort to attempt to appear for tomorrow's hearing, but have been unable to overcome difficulties of travelling to Scotland from England at such short notice.

Please accept this fax communiqué in submission to the court of my request for an extension in which to research and install suitable representation in this matter."

[5] Mr Robertson went on to refer me to the decision of the First Division in the case of Munro & Miller (Pakistan) Ltd v Wyvern Structures Ltd 1997 SC 1. At page 3G-I the Lord President (Rodger) stated as follows:

"Rule 20.1(2) shows that the court may grant decree by default if a party fails to attend when a case calls for proof. As the terms of the Rule make clear, the judge has a discretion. He must therefore consider all the circumstances and choose the most appropriate course. On some occasions, as for example where the party fails to attend because agents withdraw from acting on the morning of the proof, it may be appropriate for the judge to ordain him to intimate whether he intends to continue with the action. But in other cases the circumstances will be such as to make it appropriate for the judge to proceed forthwith to grant decree by default."

[6] In view of the absence of the defender at the proof diet and in light of the information presented to me by Mr Robertson I had to decide what course of action I should take, and, in particular, whether I should grant the motion made by Mr Robertson for decree by default. In accordance with Munro & Miller (Pakistan) Ltd v Wyvern Structures Ltd (supra) I had to consider all the circumstances and choose the most appropriate course. The solicitors acting for the defender had previously withdrawn and the defender had intimated to the court that he was insisting on defending the action, although he had not instructed a new solicitor. It was clear from the terms of the letter faxed by the defender to the General Department that he personally was aware of the date of the proof diet. It was also clear from the terms of that letter that the defender was in England. All that he said to explain his prospective non-appearance at the proof diet was that he had made every effort to attempt to appear for the hearing, but had been unable to overcome difficulties of travelling to Scotland from England at such short notice. He did not specify what efforts he had made to attempt to appear at the hearing or what the difficulties were of travelling to Scotland from England at such short notice. He had previously failed to appear at diets at which he had been required to appear.

[7] It seemed to me from a consideration of the above that the defender was in a position to attend the proof diet as he knew of the date in advance and was physically present in Bury St Edmunds. Nothing in his faxed letter provided what I judged to be a justifiable excuse for his non-appearance at the proof diet. Having considered all the circumstances, I decided that the appropriate course of action for me to follow was to grant decree by default with expenses.