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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anglo-Dutch Petroleum International Inc & Anor v. Ramco Energy Plc& Anor [2005] ScotCS CSOH_176 (06 December 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_176.html
Cite as: [2005] CSOH 176, [2005] ScotCS CSOH_176, 2006 SCLR 647
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Anglo-Dutch Petroleum International Inc & Anor v. Ramco Energy Plc& Anor [2005] ScotCS CSOH_176 (06 December 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 176 |
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OPINION OF LORD BRODIE in the commercial cause (FIRST) ANGLO-DUTCH PETROLEUM INTERNATIONAL INC and (SECOND) ANGLO-DUTCH (TENGE) LLC Pursuers; against (FIRST) RAMCO ENERGY PLC and (SECOND) RAMCO OIL LTD Defender:
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Pursuers: Davidson, Q.C.; McClure Naismith
Defenders: Ledingham Chalmers
6 December 2005
Introduction
[1] In this action the pursuers seek: first, declarator that the defenders are liable jointly severally to make payment to the pursuers of certain sums and interest, all in terms of a decree dated 1 April 2004 of the District Court, 61st Judicial District of Harris County, Texas, United States of America and that they are entitled to enforce that award; and, second, payment. [2] The summons in the action was signetted on 15 November 2004. When it passed the signet the summons included a warrant for diligence, as is provided for by RCS 13.2 (5). The warrant was in these terms: "This summons is warrant for inhibition and warrant on the dependence". That may readily be taken to be the result of clerical error. As is apparent on consideration of article 4 of condescendence, the pursuers seek arrestment and inhibition on the dependence of the action and have averments to explain the circumstances upon which they rely in support of their position. RCS 13.2 (1) requires a summons to be in Form 13.2-A. Form 13.2-A includes the form for a warrant for diligence. It provides that a warrant for arrestment and inhibition on the dependence should be in the following form: "This summons is warrant for arrestment and inhibition on the dependence of the action." Thus, while the warrant included in the summons in the present action might be apt insofar as relating to inhibition on the dependence, on no view could it be so regarded insofar as comprehending the distinct diligence of arrestment. As a result of the decisions in Karl Construction Ltd v Palisade Properties Plc 2002 SC 270 and Advocate General for Scotland v Taylor 2003 SLT 1340 it has become necessary to obtain judicial authority for diligence on the dependence. RCS 13.6A provides:"13.6A
.-(1) Before the calling of a summons, the pursuer may apply by motion for authority for -
(a) arrestment to found jurisdiction; or
(b) diligence by -
(i) inhibition on the dependence of the action;
(ii) arrestment on the dependence of the action where there is a conclusion for the payment of money;
(iii) arrestment in rem; or
(iv) dismantling a ship, where a warrant in the appropriate form in Form 13.2 A has been inserted in the summons.
(2) Where a Lord Ordinary pronounces an interlocutor granting a motion under paragraph (1) -
(a) he shall record his interlocutor by signing the warrant in the summons; and (b) the signed warrant shall be sufficient authority for execution of the arrestment to found jurisdiction or, as the case may be, the diligence."
The submission on behalf of the defenders
[5] Mr Keen moved for recall of the arrestments. He drew my attention to the terms of RCS 13.5 (3), which provides that a summons shall be signetted and registered by a clerk of session. Signetting was not a judicial act: Walls' Trs v Drynan (1888) 15 R 359, Lord President Inglis at 362. That was not altered by the terms of RCS 13.6A. There was no power in the court to amend a warrant which had passed the signet but even if the court had such power there had been no amendment here. Mr Keen acknowledged the warrant in the principal summons now included the words "to arrest", inserted in manuscript, and that Lord Clarke had been advised by the pursuers' counsel on 5 December 2005 that the insertion of these words by the solicitor who had signed the summons had followed on a conversation between the pursuers' agents' Parliament House clerk and the clerk of court working with me on 15 and 16 November 2004 ("my clerk") but none of that could have any effect (even if, contrary to Mr Keen's submission "to arrest on the dependence", as opposed to "for arrestment on the dependence of the action", was a competent formulation). Authority for diligence could not be inferred from an unrecorded conversation between a Parliament House clerk and a clerk of court. Once the summons had passed the signet with the warrant in the form which had been adopted here, for authority to arrest on the dependence it would be necessary for the pursuers to make a motion after calling, in terms of RCS 13.8A.The pursuers' counsel's narrative of relevant events and submissions on behalf of the pursuers
[6] Mr Davidson reminded me of the time that had passed during which no attempt had been made on behalf of the defenders to recall the arrestments. He drew my attention to the terms of the record. He then turned to what he understood to be the factual background. Mr Davidson advised that this account was supported by affidavits which were available to be lodged. Mr Keen, for his part, was content that Mr Davidson simply provide an account of events. I have no personal recollection of the events described. In listening to what Mr Davidson had to say I had some difficulty in understanding what the participants (and I include myself) thought was being done. However, Mr Keen explicitly disavowed any suggestion that those acting for the pursuers had acted in bad faith and it did not occur to me to doubt but that the pursuers' agents would be scrupulously accurate in the information that they provided to Mr Davidson. I therefore thought it appropriate to set aside, for the purposes of the motion, any consideration as to how likely it was that my clerk and I had acted in the way that we were said to have acted. Accordingly, I simply accepted, without any qualification, what Mr Davidson told me as being an accurate account of what had in fact happened. [7] Mr Davidson's account of what occurred was as follows. The summons was drafted with the warrant in the terms to which I have referred. It was presented at the General Department and signetted on 15 November 2004. On the same date counsel was instructed to appear in support of the necessary application under RCS 13.6A. The summons was put before me in chambers. I signed below the warrant as is provided by RCS 13.6A (2) (a), having indicated through the clerk of court to the pursuers' agents' Parliament House clerk that I did not require to hear counsel. The principal summons was sent to messengers at arms with instructions to serve it on the defenders and to execute arrestments. The messengers at arms returned the summons, pointing out the terms of the warrant. The pursuers' agents' Parliament House clerk was instructed to take the summons back to court with a view to it being put before me with the request that the pursuers' agents be allowed to amend the summons by inserting the words "to arrest" in the warrant and so correct the error that had been made in the summons. The pursuers' agents' Parliament House clerk carried out his instructions. He passed a note to my clerk explaining the matter along with the principal summons. When he returned (presumably to the court in which I was sitting) my clerk advised him that he had discussed the matter with me and that I authorised the change being made to the summons. I had indicated that I had not noticed that a reference to arrestment had been omitted from the warrant and that I had meant to authorise both arrestment and inhibition on the dependence. The pursuers' agents' Parliament House clerk then returned to the office and reported to the solicitor who had signed the summons. He then added the words "to arrest" to the warrant in manuscript and appended his initials by way of authentication. The principal summons with the addition to the warrant of the words "to arrest" was returned to the messengers at arms with a covering letter explaining what occurred and arrestments were thereafter executed on 17 November 2004. Personal service of the summons was effected on the defenders on 16 November. While it appeared that the defenders were handed a copy of the summons which did not include the words "to arrest", Mr Davidson did not know whether or not they may also have been provided with a copy of the summons with the added words. He suggested that there might be advantage in exploring matters by some sort of enquiry, whether by ordering the production of affidavits or otherwise. [8] It was Mr Davidson's submission that after a summons had passed the signet, the court had power to do what was expedient in relation to that summons. Regard should be had to the reality of the situation. One should not allow oneself to become "boxed in by the magic of the signet". What had happened was that on the morning of 16 November 2004 it had become apparent that there was a problem in relation to the wording of the warrant insofar as it related to arrestment. The pursuers' agents had then approached the court and obtained its authority to effect an alteration. An alteration was effected by the solicitor who had originally signed the summons by adding the words "to arrest" to the warrant. The summons was then served on both defenders and arrestments thereafter executed. The executions of arrestment are ex facie regular. A record was made up in terms which reflected the alteration to the warrant. No issue had been taken by the defenders in the course of a period of a year. As at 16 November it had appeared that something had gone wrong. On the previous day the pursuers had applied to the court by motion, in terms of RCS 13.6A, for authority to effect diligence. It was clear from the pursuers' averments that they sought warrant to arrest. The Lord Ordinary may be taken to have intended, when he considered the application made to him on 15 November, that the pursuers should have the authority that they sought. When the difficulty came to light the pursuers had approached the Lord Ordinary again and he had sanctioned the addition of the words "to arrest" to the warrant. What had occurred on 16 November should be regarded as a continuation of the application which had been made by motion on 15 November. The defenders had done nothing in the matter since the execution of the arrestments. The pursuers had relied on the arrestments being effective. The defenders should be taken to have acquiesced in what were ex facie valid arrestments. The arrestments should, in any event, not be recalled. Throughout these arrestments have had the authority of the court.Discussion and decision
[9] During the course of his submissions Mr Davidson observed that it is always difficult to judge oneself. That no doubt is true. I do not, however, consider that that is what I have to do here. Rather, what appeared to me to be appropriate was to take the pursuers' account of what had happened at its highest and then determine whether, having regard to the terms of the Rules of Court, that had had the effect contended for by the pursuers. I understand counsel for the respective parties to agree with that approach. I therefore take it that Mr Davidson was right to say that the reality of the situation was that on 15 and 16 November 2004 those involved, the pursuers' representatives and the court in the persons of my clerk and myself, were at one in understanding that the pursuers were seeking authority to arrest on the dependence and that, having regard to their averments, a prima facie case for granting that authority had been made out. The problem, that had not been noticed by anyone until the summons was sent to the messengers at arms on 16 November, was that the words "for arrestment" did not appear in the warrant by reason of what was simply a clerical error. Mr Davidson described that a technical matter. Technical or not I have no difficulty in concluding that the omission from the warrant was critical and that nothing that is said to have happened after the summons passed the signet altered that. It is, as Mr Keen submitted, a matter of competency. In order for messengers at arms to arrest on the dependence of an action it is necessary to obtain the authority of the court. Generally speaking, the Rules of Court provide that application for that authority is by way of motion: before calling, in terms of RCS 13.6A; after calling, in terms of RCS 13.8A. As at 16 November 2004 the summons had not called. An application had been made in terms of RCS 13.6A on 15 November, the summons having previously passed the signet, as it was required to do. As at that date there was a warrant inserted in the summons but it was not a warrant in the appropriate form for arrestment. Accordingly, having regard to the terms of RCS 13.6A (1), it was not competent to grant authority for arrestment, although I take it that at the relevant time that is what I thought I was doing. Had the clerical error in the warrant been noticed, having regard to the terms of RCS 24.1, it would be my opinion that it could not be cured by amendment but, in any event, the error was not noticed on 15 November and no motion to amend was made. Mr Davidson submitted that what occurred on 16 November might be regarded as a continuation of the application by way of motion that had been made on 15 November. He did not submit that it might be regarded as an application to amend the summons. [10] Mr Davidson suggested that what happened on 16 November was of the nature of a continuation or renewal of the motion that had been made on the day before and that therefore it was sufficient that I confirmed that I had indeed intended that the pursuers should have authority to arrest on the dependence as well as to inhibit on the dependence. The difficulty about proceeding in that way is that it is to ignore what was emphasised by Mr Keen in the course of his submissions. The signetting of a summons is not a judicial act and therefore it is not something that a judge can alter or adjust or amend or otherwise innovate upon. A warrant can only be said to have been inserted in a summons if, as at the time of signetting, it appears in the summons. As I have already indicated, I do not consider that the court's powers of amendment extend to permitting the insertion of a warrant which has not been included in the summons, as signetted, although in this case I did not understand Mr Davidson to suggest that the question of amendment arose. Accordingly, as far as arrestment on the dependence is concerned, at no time had "a warrant in the appropriate form in Form 13.2-A ... been inserted in the summons." It therefore was not competent for the pursuers to apply or for the court to grant authority for arrestment on the dependence. Thus, whatever it was that those involved (including myself) thought they were doing on 16 November they did not, because they could not, grant the pursuers authority to arrest. The matter does not end there. Mr Keen pointed to the absence of any record, whether in an interlocutor sheet, motion sheet, minute of proceedings or elsewhere of what it was that had occurred. Something as important as the authorisation of diligence could not, he said, rest simply on an unrecorded conversation between a Parliament House clerk and a clerk of court. That, I think, has to be right. RCS 4.3 requires a process to be lodged when a summons is presented for signetting but RCS 13.6A (2) provides that where a Lord Ordinary pronounces an interlocutor granting a motion for authority for, inter alia, diligence by arrestment on the dependence, he shall record his interlocutor by signing the warrant in the summons and the signed warrant shall then be sufficient authority for execution of the diligence. What I signed was a warrant in the terms: "This summons is warrant for inhibition and warrant on the dependence". That does not record an interlocutor granting authority for arrestment on the dependence. It therefore does not provide authority for arrestment on the dependence. In terms of RCS 4.15 (6) an interlocutor may, on cause shown, be corrected or altered at any time before extract by the Lord Ordinary who signed it, but it was not suggested, nor, I think, could it be suggested, that that had happened here. [11] Mr Davidson encouraged me to look to the reality of what had occurred. The court had intended to grant authority for arrestment on the dependence. That may be, but Mr Davidson was unable to point to any procedural provision by reference to which that intention may have been given effect. Diligence is stricti iuris. There is a need to observe the formalities if the authority of the court is to be invoked. That did not occur here. [12] I am accordingly of the view that the purported arrestments were without warrant and therefore must be recalled. I so ordered. I was asked for and granted leave to appeal.Postscript
[13] As I trust that I have made clear, I made the decision here on the assumption that Mr Davidson's account of events, as understood by me and recorded above, was accurate. No inference adverse to anyone involved should be drawn from my recording that my regular clerk and I have, subsequent to the decision on this motion, taken the opportunity to discuss what was said to have occurred, to examine the process and to reflect. My clerk has no better recollection of what may have happened than I have. We therefore cannot rely on our memories as to what we did or did not do on 15 and 16 November 2004. However, we do find the conduct which has been attributed to us somewhat surprising in that it has no basis whatsoever in the Rules of Court. We have noted that 15 November 2004 was a Monday. My clerk was on leave that day. No motion appears in the motion sheet for either 15 or 16 November. That does at least raise a question over the part of Mr Davidson's account that relates to my indicating that I did not need to hear counsel on 15 November. What seems more likely is that the summons would have been placed in my bag for the purpose of my considering the question of authority for diligence on the basis of the averments in the summons and that I only saw the summons on the evening of 15 November when I read it and signed the warrant, no doubt having failed to notice the clerical error. If that was the case the first opportunity for my clerk to become involved was on 16 November. It would not accord with his practice to agree to any procedural step without a record of what had been done. For example, if it had been intended to make amendment to a summons, it would have been his practice (and he would suggest his invariable practice) to mark the amendment on the principal summons and to draft an interlocutor for signature by the Lord Ordinary. However, it is to be acknowledged that misunderstandings and indeed mistakes occur and neither my clerk nor I would suggest that any purpose is to be served by further inquiry into what may have occurred here.