Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Superdrug Stores Plc v. Network Rail Infrastructure Ltd [2006] ScotCS CSIH_4 (27 January 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_4.html
Cite as: [2006] ScotCS CSIH_4, 2006 SC 365, [2006] CSIH 4

[New search] [Help]

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Osborne

Lord Kirkwood

[2006] CSIH 4

XA90/05

OPINION OF THE LORD PRESIDENT

APPEAL

From the Sheriffdom of Glasgow and Strathkelvin at Glasgow

in the cause

SUPERDRUG STORES PLC

Pursuers and Appellants;

against

NETWORK RAIL INFRASTRUCTURE LTD

Defenders and Respondents:

_______

Act: Keen, Q.C., Nicol, Advocate; Fyfe Ireland WS (Pursuers and Appellants)

Alt: Peoples, Q.C.; MacRoberts, Glasgow (Defenders and Respondents)

27 January 2006

[1] This is an appeal from the sheriff principal who, on 26 July 2005, refused an appeal from the sheriff, who had, on 27 January 2005, dismissed as out of time an application made to him by way of a summary cause in furtherance of section 1(1) of the Tenancy of Shops (Scotland) Act 1949. An appeal lay from the sheriff to the sheriff principal on a point of law (Sheriff Courts (Scotland) Act 1971, section 38(a)), the prescribed mode of appeal being by stated case. An appeal lies from the sheriff principal to this court on a point of law if the sheriff principal certifies the cause as suitable for such an appeal (Sheriff Courts (Scotland) Act 1971, section 38(b)). The sheriff principal has so certified the present cause.

[2 ] I am obliged to Lord Osborne for his narrative of the background circumstances and of the submissions of counsel. Subject to certain matters, to which I subsequently refer, I adopt that narrative. As, however, I have the misfortune to disagree with your Lordships in the result, it is necessary to explain my reasons for doing so.

[3 ] The stated case signed by the sheriff contained 14 questions, each purportedly a question of law. The sheriff principal criticised (in my view with good reason) the form of many of these questions. Some of them he found to be unanswerable and accordingly declined to answer. The eight which he did answer included question [1], which was in the following terms:

"On the facts found in Finding-in-Fact (17) that the Summons was received by the Sheriff Clerk's office and stamped marked 'Lodged' and dated on 16 December 2004, did the sheriff err in law in holding that the pursuers had not applied timeously in terms of the Act?".

These eight also included question [14], which was in the following terms:

""Did the sheriff err in law in deciding that authentication of the summons did not determine the date upon which an application is made to the Sheriff for the purposes of section 1(1) of the Act?".

Both these questions to the sheriff principal answered in the negative. These answers in effect rejected each of what might be described as the primary legal propositions of the parties, namely, (1) that the events of 16 December 2004 of themselves pointed conclusively to the appellants having "applied" to the sheriff on that date (the appellants' contention) and (2) that the appellants could not be said to have so "applied" until the summons was authenticated on 17 December 2004 (the respondents' contention).

[4 ] The sheriff principal answered the six remaining answerable questions in the affirmative. These questions, in a variety of formulations, put in issue whether, in determining the date on which the pursuers had "applied" to the sheriff, it was legitimate to have regard to events both on 16 and on 17 December.

[5 ] Before addressing the sheriff principal's grounds of decision I would make two observations. First, the appellants' sole ground of appeal to this court is in the following terms:

"That the Sheriff Principal erred in law in his determination that the presentation by the pursuers and acceptance of the summons on 16 December 2004 did not amount to a timeous 'application' in terms of the Tenancy of Shops (Scotland) Act 1949".

That formulation is itself contentious. I set out below the sheriff principal's reasoning. While in that reasoning he accepts (and determines) that there was on 16 December "presentation" of the summons by the appellants, I can find no reference to any determination by him that there was "acceptance" of the summons on that date. If by "acceptance" is meant only the circumstance that on that day a clerk in the sheriff clerk's office took into his hands a summary cause summons and then stamped that document "Sheriff Clerk, Glasgow LODGED 16 DEC. 2004" before it was returned to the appellants' representative (Mr. Donnelly), there is no difficulty. If, however, by "acceptance" is meant more, I can find no basis for it as a feature of the sheriff principal's determination.

[6 ] The second observation is this. The sheriff found as a fact that the summons had been taken away by Mr. Donnelly on 16 December. Despite a submission to the contrary made to him by counsel for the appellants, the sheriff principal held that that finding could not be interfered with. Counsel for the appellants had also submitted to the sheriff principal that he should conclude that, although the sheriff had made no finding of fact as to what had happened to the Form E200 when Mr. Donnelly left, the only inference that could be drawn was that it had remained in the sheriff clerk's office. The sheriff principal, having considered the sheriff's account of the evidence led before him and his evaluation of it, was unable to accept that submission. In my view, he was clearly entitled to do so. Accordingly, so far as concerns the whereabouts of the Form E200 between 16 and 17 December (and any inference which might be drawn as to the ability of the sheriff clerk, prior to the latter date, legitimately to rely on that form as a basis for recovering the chargeable fee), the matter is simply not proved one way or the other.

[7 ] The sheriff principal rejected the respondents' contention that it was authentication of the summons which determined the date upon which the application was made to the sheriff. I agree with that conclusion and with the sheriff principal's reasoning which led to it. I find it unnecessary to say anything further on that matter. The sheriff principal continued:

"(52) What is meant by 'apply' in the context of section 1(1) of the [1949] Act? In my opinion, it means the presentation of a procedurally valid summons accompanied by the appropriate fee to the sheriff clerk together with a request, implicit or explicit, that that summons should be processed. These are all matters within the sole control of the applicant and do not depend in any way on anything done by the sheriff clerk. This definition is therefore entirely compatible with the dicta in the cases under the Company Directors Disqualification Act 1986 to which I was referred by counsel for the appellants. I have emphasised the latter part of the definition because it is essential. Unless such a request is made the presentation of the summons is meaningless. Of course, in most cases, the presentation itself will amount to an implicit request to process the summons, but in some cases something more will be required.

(53) Looking to that definition, can it be said that what happened on 16 December in the present case amounted to an application? In my opinion, it can not. It is true that a summons in the appropriate form was presented and that it was accompanied by a form which could be used as the basis for payment of a fee. But the appellants' law agents failed to give any direction to the sheriff clerk that the summons should be processed. Findings 24-26 are vital findings in this context. The person to whom Mrs. Bain spoke in the office of the appellants' solicitors said that 'It was likely that someone would be coming in the next day'. [Finding 24] This demonstrates a degree of uncertainty. It could not, contrary to the submission of counsel for the appellants, amount to a request to Mrs. Bain to fix a hearing before a sheriff for the following day. The sheriff has found (Finding 25) that Mrs. Bain left to the law agents the decision whether the summons should be placed before a sheriff. That decision, whenever it was made, was clearly not communicated to the sheriff clerk until the 17th. Thereafter Mr. Donnelly took the summons away with him [Finding 26] thus reinforcing the impression that no decision as to future procedure had been taken". (The references in square brackets have been added).

At para. (56) the sheriff principal added:

"The fact that a date stamp was imprinted on the summons on 16 December is of no significance. That is all that was done. No steps were taken to institute any further procedure ... ".

[8 ] In my view the sheriff principal's reasoning discloses no error of law. As he emphasised (and as I understand your Lordships accept) the words in italics are, in my view, essential. Counsel for the appellants submitted to us that the sheriff principal's formulation amounted to an error in law. I am unable to accept that submission. I accept that, if a summary cause summons, having been presented, is left in the hands of officials of the court with a view to it being authenticated, whether by the sheriff clerk or by the sheriff, a court could, and probably should, conclude that an application to the sheriff had been made as from the time when it was so left. That might also be so in circumstances where, albeit the summons is removed an unequivocal request is made to fix a hearing before the sheriff. That is because from that point onwards the person seeking to make the application has taken all the steps which he can take to make that application; delay beyond that point is outwith his control. There may, however, be circumstances where notwithstanding "presentation", any future progressing of the summons to authentication remains in the hands of the would-be applicant.

[9 ] In the present case, if the sheriff principal's formulation was sound in law, as in my view it was, it remained only for him, having evaluated the facts as set forth in the stated case, to apply that formulation to them. No error of law is, in my view, disclosed in that exercise. It was no doubt the intention of the appellants' legal representatives that an application be made to the sheriff and that it be made timeously. It may be that, as at 16 December, the uncertainty, so far as they were concerned, was restricted to whether the appellants should seek the normal period of notice, as specified in the Rules, or a shortening of that period. But the outcome of this case cannot turn on the mental state of these representatives; it must turn on what happened procedurally. On the facts found by the sheriff, the sheriff principal was, in my view, entitled to conclude that the legal test as formulated by him had not been satisfied.

[10 ] To some extent at least the appropriate disposal of this case turns on the specialties relative to applications made by way of summary cause. These specialties include that the action is commenced by a summons in one of a number of specially prescribed forms (none of which requires to be signed by the pursuer or his solicitor), that there is no provision in the rules for the "lodging" of that summons (which after authentication is repossessed by the pursuer with an obligation to return it at certain later stages) and that there is kept a register of summary causes. Cases decided in the context of processes governed by different rules are of limited assistance. Like the sheriff principal, I find no incompatibility between my view on this case and dicta in certain other cases - such as Secretary of State for Trade and Industry v Josolyne 1990 S.L.T. (Sh. Ct.) 48, Secretary of State for Trade and Industry v Normand 1994 S.L.T. 1249 and Secretary of State for Trade and Industry v Campleman 1999 S.L.T. 787. These cases were concerned with different forms of process - the first with a summary application, commenced by initial writ, the second and third with a petition to the Court of Session. In particular, it may be noted that in Normand Lord Sutherland, in holding that an application had been made to the court on the date upon which the petition had been lodged in court, proceeded on the basis that under the relative rules "the rest of the procedure follows automatically" as from that moment. That dictum tends to support the view that it is when, and only when, the would-be applicant has taken a step which, without more on his part, sets on course the appropriate judicial process that he can truly be said to have made his application. The sheriff principal was, in my view, entitled to conclude that, as at 16 December, that stage had not been reached.

[11 ] I should add in this connection that some reliance was placed by junior counsel for the appellants on Rule 2.6(2) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 which provides that an application to which that rule applies "shall be lodged with the sheriff clerk" within a prescribed time scale. The rule in question applies to a summary application where the time within which the application, being an appeal under statute or an application in the nature of an appeal, may be made is not otherwise prescribed. That rule, which is to be found in Rules concerned with summary applications within the meaning of section 3(p) of the Sheriff Courts Act 1907, has no application to a summary cause, as now provided for under section 35(1) of the Sheriff Courts Act 1971 and relative Rules. The Summary Cause Rules 2002 do not, at least in the context of the initiation of procedure, make any reference to lodgement as a procedural act.

[12 ] For the above reasons I would have refused this appeal.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Osborne

Lord Kirkwood

[2006] CSIH 4

XA90/05

OPINION OF LORD OSBORNE

APPEAL

From the Sheriffdom of Glasgow and Strathkelvin at Glasgow

in the cause

SUPERDRUG STORES PLC

Pursuers and Appellants;

against

NETWORK RAIL INFRASTRUCTURE LTD

Defenders and Respondents:

_______

Act: Keen, Q.C., Nicol, Advocate; Fyfe Ireland WS (Pursuers and Appellants)

Alt: Peoples, Q.C.; MacRoberts, Glasgow (Defenders and Respondents)

27 January 2006

The background circumstances

[13 ] The appellants are Superdrug Stores plc, a company incorporated under the Companies Acts and having a registered office at Beddington Lane, Croydon, Surrey. By a lease between Railtrack plc and the appellants, dated 18 April and 13 May 1996, the appellants leased from Railtrack plc certain heritable subjects known as and forming Unit 13, The Caledonia Centre, Central Station, Glasgow. The date of entry was 8 January 1996 and the duration of the lease was three years. The duration of the lease was subsequently extended twice, by minutes of extension and variation of lease, dated 14 and 26 January 1999 and 8 and 18 March 2002. In each case the extension period was three years. The present respondents have derived their interest as landlords in the lease in consequence of having been vested in the interest of Railtrack plc following the placing of that company in railway administration. The ish of the lease, following extension, was 7 January 2005.

[14 ] By a notice of termination of tenancy, dated 24 November 2004, the respondents intimated to the appellants that they wished to bring the tenancy to an end at the date of the ish. The appellants received service of that notice on 25 November 2004. They wished the tenancy to continue, but were unable to obtain a renewal of it on terms satisfactory to them. In consequence, the appellants decided to invoke the provisions of section 1(1) of the Tenancy of Shops (Scotland) Act 1949. That enactment provides as follows:

"1(1) If the landlord of any premises consisting of a shop and occupied by a tenant gives or has given to the tenant notice of termination of tenancy taking effect after the passing of this Act, and the tenant is unable to obtain a renewal of his tenancy on terms that are satisfactory to him, he may, at any time before the notice takes effect and not later than the expiry of twenty-one days after the service of the notice or after the passing of this Act, whichever is the later, apply to the sheriff for a renewal of his tenancy."

Section 1(7) of the 1949 Act provides:

"An application under this section shall be made by way of a summary cause within the meaning of the Sheriff Courts (Scotland) Act 1971."

It is a matter of agreement that the 21-day period referred to in section 1(1) of the 1949 Act commenced on 26 November 2004 and expired at midnight on 16 December 2004.

[15 ] At some time during the course of the afternoon of 16 December 2004, a Mr John Donnelly, an employee of Messrs Fyfe Ireland, WS, Edinburgh, the appellants' law agents, travelled to Glasgow Sheriff Court. Once there he tendered to a summary cause clerk the summons in the present action and also a partially completed Form E200 in respect of that summons. A Form E200 may be used to pay court fees, if the firm presenting the initiating writ has made a credit charging arrangement with the office of the sheriff clerk. The summary cause clerk thereafter referred the case to a more senior colleague in the summary cause department. That colleague was a Mrs Caroline Bain. The purpose of the referral was to allow Mrs Bain to check the terms of the summons. That supervisory responsibility fell within her duties in the department. Mrs Bain checked the summons to confirm that the appellants' solicitors had completed it in accordance with the requirements of the Summary Cause Rules. As she did so, she saw that someone in the department had stamped the first page of the summons with the pro forma stamp of the sheriff clerk's office marked "Lodged" and dated 16 December 2004. She concluded that the summons complied with the minimum requirements of the Summary Cause Rules as to the form of the summons and the content of its accompanying statement of claim. Glasgow Sheriff Court had jurisdiction over the intended proceedings. As she read the summons, Mrs Bain noticed from paragraph 2 of the crave and paragraph 10 of the statement of claim that the termination date of the tenancy in question would occur on 7 January 2005. With that in mind, she asked Mr Donnelly if he required a shortened period of notice, because, if so, the summons would require to be placed before a sheriff for that purpose. Mr Donnelly replied that he could not appear before a sheriff. Mr Donnelly then made a telephone call. During the course of that call he passed the telephone to Mrs Bain. She spoke to a male person who she assumed was a qualified solicitor in the office of the appellants' law agents. The gist of her discussion with that person was that she asked him if the appellants' law agents wanted a shortened period of notice, since, if so, they would need someone to appear before a sheriff. There then followed a discussion about whether the law agents could arrange for someone to come to Glasgow Sheriff Court before 4.00pm, that being the time when normal business for the day concluded. After that time only exceptional and emergency applications would be dealt with. The male person to whom Mrs Bain spoke indicated that, if she thought that such a hearing was required, the law agents would be unable to arrange for someone to appear before a sheriff by 4.00pm, but would be able to do so the following day and that it was likely that someone would be coming in the next day. Mrs Bain did not say to the law agents that the summons had to go before a sheriff. She left that decision to the law agents themselves. After the telephone call ended Mr Donnelly took the summons away.

[16 ] On 17 December 2004 a solicitor from the appellants' law agents brought the summons back to the summary cause department of Glasgow Sheriff Court. The summons was then placed before a sheriff to consider the appellants' request to shorten the period of notice. Having heard from the appellants' solicitor, he granted that request to the extent of shortening the period of notice to one of seven days. After that hearing, Mrs Bain completed the administrative features of authenticating the summons. She changed the date on the pro forma stamp on the first page of the summons from 16 to 17 in black ink, and initialled the change. She also completed the section on the stamp relating to "Fee Paid" and, in particular, added "£39", "E200" and the number "480690". The sum of £39 was the correct court fee for the summons. The number "480690" was the number on the form E200 which accompanied the summons. The appellants' law agents had completed the form so far as they were required to do and had dated it 16 December 2004. A colleague of Mrs Bain, a Miss McColligan, had completed the sheriff clerk's part of the form on 17 December 2004. Mrs Bain added in her own hand the return date and the calling date in Box 6 of the summons. To do that she had to cross out the erroneous dates Miss McColligan had entered earlier that day. That same day, the summons was entered in the Register of Summary Causes and given a unique process number SE368/04. Thereafter the summons was returned to the appellants' law agents. Thus 17 December 2004 was the date of the first deliverance of the action. The summons was thereafter served on the respondents, with an allocated return day of 30 December 2004 and a calling date of 6 January 2005.

[17 ] In due course, the respondents lodged answers to the summons. In those answers they averred that the present proceedings had been instituted after the expiry of 21 days after the service of the notice of termination of tenancy. They therefore contended that the action was incompetent. At the allocated calling date of the action on 6 January 2005, when both parties were represented, it became apparent that the facts relevant to the issue of time bar were disputed. In these circumstances both parties' representatives agreed that a preliminary proof restricted to the issue of time bar was required to resolve their dispute on the relevant facts and law. The preliminary proof was assigned to 13 January 2005, but did not commence on that date. It took place over 2 days on 18 and 20 January 2005. Following the preliminary proof, the sheriff made findings in fact, which I have already summarised. He also found in law that the appellants had applied to the sheriff beyond the period of time prescribed in section 1(1) of the Tenancy of Shops (Scotland) Act 1949 and that the action was accordingly barred by the passage of time. On the motion of the respondents, the sheriff dismissed the action upon that ground.

[18 ] Thereafter, the appellants appealed to the sheriff principal, by way of stated case. On 26 July 2005, the sheriff principal refused the appeal. The appellants have now appealed to this Court against that interlocutor. They have stated a single ground of appeal in the following terms:

"(1) That the Sheriff Principal erred in law in his determination that the presentation by the pursuers and acceptance of the summons on 16 December 2004 did not amount to a timeous 'application' in terms of the Tenancy of Shops (Scotland) Act 1949."

It should be explained that among the questions of law for the opinion of the sheriff principal formulated by the sheriff in the stated case was a question (14) in the following terms:

"Did the sheriff err in law in deciding that authentication of the summons did not determine the date upon which an application is made to the sheriff for the purposes of section 1(1) of the Act?"

The respondents have taken a cross-appeal arising out of the decision of the sheriff principal, in which they have stated a single ground of appeal in the following terms:

"(1) The learned Sheriff Principal erred in answering question 14 of the stated case in the negative and deciding that authentication of the summons did not determine the date upon which an application is made to the Sheriff for the purposes of section 1(1) of the Tenancy of Shops (Scotland) Act 1949. (Network Rail Infrastructure Ltd v Superdrug Stores plc, Glasgow Sheriff Court (unreported 15 March 2005) (unreported appeal 29 April 2005); Muir v Muir 1994 S.C.L.R. 182; Secretary of State for Trade & Industry v Campleman 1999 S.L.T. 787; and Borthwick v Bank of Scotland 1985 S.L.T. (Sh. Ct.) 49)"

Submissions for the appellants

[19 ] Senior counsel for the appellants explained that he intended to deal with the appellants' ground of appeal and the respondents' cross-appeal together. His motion was that the appeal should be sustained and that the case should be remitted to the sheriff to proceed as accords with the application under section 1 of the 1949 Act. It was the submission of the appellants that they had applied to the sheriff for a renewal of the tenancy in terms of section 1(1) of the 1949 Act by making an application on 16 December 2004. On that date, a summary cause summons had been presented to the offices of the sheriff clerk, when a date stamp was applied to it bearing that date. That date had subsequently been changed manually to 17 December 2004 following procedure on that latter date in which a sheriff granted a motion to shorten the induciae. The manual change in the date had been effected by the sheriff clerk. It was of importance that the representative of the appellants' solicitors, at the same time as presenting the summons on 16 December 2004, had presented the form E200, that being a form used to pay a court fee where the agent involved had made arrangements for a credit account with the sheriff clerk. The fee involved in this case was £39, and appeared from the details written on the sheriff clerk's stamp. The form E200 had been handed in on 16 December 2004. On 17 December 2004 a solicitor arrived at the Sheriff Court to make a motion before a sheriff for a shortened induciae. At that stage no application was made to the sheriff clerk; the solicitor had been taken before the sheriff. The application had been "authenticated" by the granting of a motion for a shortened induciae by the sheriff. In this case, Box 6 on the summary cause summons form, which, on completion, constituted a warrant for service, had been signed by the sheriff. That was in accordance with rule 4.4(2) of the Summary Cause Rules. In terms of rule 4.4(3) the authenticated summons constituted a warrant for service. Following that, the summons would have been taken away, as authority for service. The sheriff clerk's stamp on the face of the summons vouched presentation of the summons on 16 December 2004. The summons went to the sheriff on 17 December 2004, bearing the stamp showing the date 16 December 2004. Execution of service was effected on 17 December 2004 as appeared from the certified execution on page 11 of the appeal print. The interlocutor of the sheriff of 27 January 2005, by which he dismissed the action, had proceeded upon the basis of the application having been made on 17 December 2004. If that was the date of the application, plainly it was out of time. Under reference to the sheriff's findings in fact, senior counsel emphasised that the summons had been tendered to a summary cause clerk on 16 December 2004 with a partially completed Form E200 as appeared from finding in fact 15. On 17 December 2004 the date on the Sheriff Court stamp was changed from16 to 17 December, since Mrs Bain thought that the date shown ought to conform with the date of the authentication of the summons. Plainly if no representative of the appellants had returned after 16 December 2004 to attend to outstanding matters the summons would have lapsed, if no action had been taken prior to the expiry of the lease. The appellants' position was that on 16 December 2004 by handing in the summons and the Form E200, the appellants had done all that they could do to make an application. Thereafter the sheriff clerk had had a responsibility to react to that application in an appropriate way. There was no finding that the form E200 had been taken away on 16 December 2004. The sheriff principal was correct to observe in paragraph 51 of his opinion that it would be illogical to require that something that was outwith the control of the applicant had to be done before the application could be treated as made. Nothing was said or done on 16 December 2004 to suggest that the summons was not to be progressed. The only matter left undone on that date was the matter of authentication. In this connection reference was made to finding in fact 24, to the effect that the person that Mrs Bain spoke to indicated that, if she thought that a hearing were required, the law agents would be unable to get someone to appear before a sheriff by 4.00pm, but would be able to do that the following day and that it would be likely that someone would be coming in the next day. It was plain that, throughout, the appellants had sought authentication of the summons in an appropriate form. What had been done on 16 December 2004 rendered the Sheriff Court entitled to the appropriate fee. They had the means of enforcing their entitlement by means of the Form E200. The only matter left outstanding on 16 December 2004 was the method of authentication and the issue of the shortening of the induciae.

[20 ] The sheriff principal, in paragraph 52 of his opinion, had expressed the view that the word "apply" in the context of section 1(1) of the 1949 Act meant the presentation of a procedurally valid summons accompanied by the appropriate fee to the sheriff clerk together with a request implicit or explicit that that summons should be processed. That proposition went too far and amounted to an error of law. If a presentation of a summons was made accompanied by the appropriate fee, the applicant presenting such a summons should be taken as intending the natural consequences of the act, that is to say, the processing of it. There did not require to be, in addition, some request that the summons should be processed. In any event, in the circumstances of this case there was no uncertainty as regards the desire of the appellants that the summons ought to be processed; the only uncertainty was as to the particular method of processing. Another way of looking at the situation was to ask whether, on 17 December 2004, a new application had been made. The answer to that question had to be in the negative; there was no finding of the making of a new application on that date. The only matter in issue on that date was how the summons presented the previous day was to be processed. The fact that the sheriff clerk had changed the date on the summons to conform with the date of authentication was a matter completely outwith the control of the applicant. The changed date signified only that the sheriff clerk considered that that was an appropriate date to insert in the summons. The crucial part of the sheriff principal's decision appeared in paragraph 53 of his opinion. He had concluded that what was done on 16 December 2004 did not amount to an application. However, one had to ask how the matter got before the sheriff on 17 December, if there had been no application on 16 December. If no person had come to the Sheriff Court on 17 December 2004 to further the matter, no doubt the summons would, in due course, be held to have been abandoned. However that was not what happened. The only matters left in doubt on 16 December 2004 were how the summons was to be processed and what the induciae were to be. In paragraph 56 of his opinion, the sheriff principal had stated that the date stamp applied to the summons on 16 December 2004 had been "cancelled" on the following day. That was an erroneous view of the facts. The date applied by the stamp on 16 December had been manually altered on 17 December. It was that act which had generated confusion regarding the date of the application. There was no basis for the view that the date of the application for the purposes of section 1(1) of the 1949 Act was the date on which the summons had been authenticated.

[21 ] Junior counsel for the appellants continued the submissions on their behalf with a reference to certain authorities which might be of assistance. The first of these was Secretary of State for Trade & Industry v Josolyne 1990 S.L.T.(Sh. Ct.) 48. That was a case concerned with the operation of section 7(2) of the Company Directors Disqualification Act 1986. Under that sub-section, any application for a disqualification order had to be made, except with leave of the Court, within two years of the date upon which the company of which the person was or had been a director became insolvent. In that particular case the application had been lodged in Court within, but served upon the respondent outwith, the two year period. The respondent had pleaded that the application was time barred. Sheriff Principal R. D. Ireland Q.C. had held that the tempus inspiciendum was the date of the lodging of the application. In that case the application was constituted by the presentation of the initial writ to the sheriff clerk at Aberdeen.

[22 ] The second case relied upon by the appellants was Secretary of State for Trade & Industry v Normand 1994 S.L.T. 1249. It also was a case concerning the application of section 7(2) of the Company Directors Disqualification Act 1986. An application under that Act had been made by petition. The petition had been presented within the two year period but the interlocutor granting a first order for service had not been pronounced until the two year period had expired. In the face of a plea of time bar, the Court had held that, although an ordinary action did not commence until it was served, petition procedure was initiated by the presentation of the petition and section 7(2) of the Act was concerned with that date.

[23 ] Finally, junior counsel relied upon Secretary of State for Trade & Industry v Campleman 1999 S.L.T. 787, yet another case concerned with the application of section 7(2) of the Company Directors Disqualification Act 1986. In that case the Court had held that the application was made for disqualification as soon as the petition was presented. In the circumstances of the present case the application to the Court had been made on 16 December 2004.

[24 ] Further assistance could be got from an examination of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999. Rule 2.6(1) dealt with the time limit for the making of such applications. Under rule 2.6(2) an application to which the rule applied had to be "lodged with the sheriff Clerk" within a specified period. It was plain that the crucial act was lodging with the sheriff clerk. In the present case that had been done on 16 December 2004. It was apparent from finding in fact 18, to the effect that the summons complied with at least the minimum requirements of the Summary Cause Rules as to the form of the summons and the content of its accompanying statement of claim, that the application had indeed been made on the occasion of the presentation of the summons to the sheriff clerk.

[25 ] In answer to questions by the Court, junior counsel accepted that the manuscript content of Box 6 of the form of summons was completed on 17 December 2004. Rule 5.1(1) of the Act of Sederunt (Summary Cause Rules) 2002 provided for the keeping by the sheriff clerk of a Register of Summary Causes. It had been found as a fact that the present summons had been entered in the Register of Summary Causes on 17 December 2004.

Submissions by senior counsel for the respondents

[26 ] Senior counsel for the respondents moved the Court to refuse the appeal and affirm the interlocutors in the Court below. The sheriff had been entitled to conclude that the application had not been made on 16 December 2004. It was accepted that the sheriff had found as a fact that the appellants had applied to the sheriff beyond the period of time prescribed by the Act, but that finding was, in effect, a finding in fact and law. Senior counsel then examined the provisions of section 1 of the 1949 Act and drew attention to section 32 of the Sheriff Courts (Scotland) Act 1971, which conferred power upon the Court of Session by Act of Sederunt to prescribe the procedure and practice to be followed in civil proceedings in the Sheriff Court. Section 32(1)(c) was of importance. The power just mentioned included the power to prescribe the form of any document to be used in, or for the purposes of, any civil proceedings and the manner in which any such document was to be authenticated. Authentication was not the same as presentation. Section 35 of the 1971 Act provided for summary causes. Summary causes were to include, under section 35(1)(d) of the 1971 Act, proceedings which, according to the law and practice existing immediately before the commencement of the Act, might competently be brought in the sheriff's Small Debt Court, or were required to be conducted and disposed of in the summary manner in which proceedings were conducted and disposed of under the Small Debt Acts. Section 1(7) of the 1949 Act had been amended to accommodate the provisions of the 1971 Act just mentioned. Senior counsel then proceeded to examine the Act of Sederunt (Summary Cause Rules) 2002. Chapter 4 dealt with the commencement of action, while chapter 5 dealt with the Register of Summary Causes, service and return of the summons. He pointed out that under rule 4.1(1) a summary cause was to be commenced by summons in the form specified. The summons was to contain a statement of claim, as provided for in rule 4.2. The summons had to be served on the defender, in terms of rule 4.3. In connection with these matters reference was made to Sheriff Court Practice, MacPhail, 2^nd Edition Volume 2, paragraph 30.74, where it was explained that, before the action could be commenced by service of the summons, the summons itself required to be properly authenticated. That gave it official status and enabled the action to be entered in the Register of Summary Causes. Authentication included giving the summons a number. Normally the summons was authenticated in some appropriate manner by the sheriff clerk. If the sheriff clerk refused to authenticate the summons for any reason, the sheriff had to do so, if he thought it appropriate. These provisions had to be contrasted with the making of a summary application, which was a quite different procedure. That was regulated by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999. Under rule 2.4(1) of those rules, such applications were commenced by initial writ. The form of a summary cause summons was regulated by rule 4.1(1) and Appendix 1, form 1 of the Summary Cause Rules 2002.

[27 ] Having examined the foregoing statutory background, senior counsel submitted that mere delivery to the sheriff clerk of a summary cause summons amounted to nothing. Authentication was what made the summons a summons in a live cause, following the payment of the requisite fee. Authentication was regulated by rule 4.4. If there existed a time limit within which proceedings had to be commenced, those responsible had to make sure that arrangements were in place whereby the summons could be authenticated timeously. It was acknowledged that that meant that action on the part of the Sheriff Court staff was required. Authentication was a safeguard provided for by section 32(1)(c) of the 1971 Act. If the foregoing submission was correct, the consequence was that the appellants' application had been out of time because authentication was effected only on 17 December 2004. This aspect of the matter was dealt with in the respondents' cross-appeal. The cases cited on behalf of the appellants did not assist them in this connection. They were not concerned with the same form of procedure as was applicable in the present case.

[28 ] Senior counsel submitted that there were no grounds for interfering with the decisions of the sheriff and the sheriff principal. It would be wholly artificial to look at what had happened on 16 December 2004 only, or to look at the stamping of the summons document on that date and ignore what followed. It was necessary to look at the totality of what had occurred. What the situation amounted to was that a document had been brought to the Court on 16 December 2004; in the light of discussions taking place then, the document had been removed, albeit after being stamped. At that stage there was no authentication of the summons by the sheriff clerk or the sheriff. There was no finding that any arrangement had been made as regards the future of the proceedings. Finding in fact 24 recorded that at 4.00pm on 16 December 2004 matters were left on the basis that "it was likely that someone would be coming in the next day". As appeared from finding in fact 26 the summons was removed from the Court on 16 December 2004. All that added up to the fact that no live application had been made on that date, in the sense of an authenticated summons. The summons was authenticated only on 17 December 2004, as appeared from finding in fact 27. The criticisms advanced on behalf of the appellants of the approach of the sheriff principal were unjustified. The sheriff and the sheriff principal had been entitled to conclude that the removal of the summons document from the Court on 16 December 2004 showed that there existed an uncertainty concerning the making of the application. If the sheriff clerk had been asked at the close of business on 16 December 2004 what had happened in relation to this matter she might have replied "I do not know if an application has been made; time will tell." Finally, it ought to be recognised that two sheriffs had reached a conclusion adverse to the appellants' position. They were experienced in the practice and procedure of the Sheriff Court. That was a factor to be taken into account. In all these circumstances the appeal ought to be refused.

The decision

[29 ] The terms of section 1(1) of the 1949 Act are crucial to a proper determination of the issue arising in this case. In order to achieve the benefit of section 1(1) the tenant requires "... not later than the expiry of twenty-one days after the service of the notice ... (to) apply to the sheriff for a renewal of his tenancy." Section 1(7), of course, provides that an application under section 1 is to be made by way of a summary cause, within the meaning of the Sheriff Courts (Scotland) Act 1971. Thus the event which must occur within the specified period of time is the making of an application to the sheriff. Having regard to the fact that the period of 21 days prescribed by section 1(1) expired at midnight on 16 December 2004, the question therefore is whether what was done on behalf of the appellants on that date amounted to an application to the sheriff.

[30 ] The events which occurred on 16 December 2004 have already been narrated and are set forth in findings in fact 15-18 made by the sheriff. It is acknowledged there that the summons which was presented to the sheriff clerk's office complied with the minimum requirements of the Summary Cause Rules as to the form of summons and the content of its accompanying statement of claim. That summons, upon presentation, was stamped with the stamp of the sheriff clerk's office marked "lodged", associated with the date stamp 16 December 2004. The sequel to the presentation of the summons is the subject of findings in fact 19-26, the substance of which has also been narrated. It is clear from those findings that the sequel to the presentation of the summons was discussion between the sheriff clerk and Mr Donnelly and subsequently a person in the office from which he had come concerning the appropriateness of the shortening of the induciae normal in such a case and the need for a sheriff to make a decision on that matter; also as to the time at which such an application to a sheriff could be made. It appears to me from a consideration of those particular findings in fact that it was plain that those acting for the appellants desired that the summons should be processed in an appropriate way. In my view, the only uncertainty surrounding that matter was as to exactly when a qualified person would be available to appear before a sheriff, with a view to making an application for a shortening of the induciae in the action.

[31 ] The events which occurred on 17 December 2004 are the subject of findings in fact 27-30, the contents of which have also been narrated. The summons was duly authenticated in terms of rule 4.4(2) of the Summary Cause Rules 2002 by the sheriff. Subsequently the summons was entered in the Register of Summary Causes. For reasons which are not clear, Mrs Bain changed the date on the pro forma stamp that had been affixed to the first page of the summons from 16 to 17 December 2004. Further elements of the summons, which were the responsibility of the sheriff clerk, were completed. That was, of course, done on the summons which had been presented on 16 December 2004.

[32 ] I would respectfully agree with what the sheriff principal said in paragraph 52 of his judgment. He there posed the question:

"What then is meant by 'apply' in the context of section 1(1) of the 1949 Act?"

He answered that question thus:

"In my opinion, it means the presentation of a procedurally valid summons accompanied by the appropriate fee to the sheriff clerk together with a request, implicit or explicit, that that summons should be processed. These are all matters within the sole control of the applicant and do not depend in any way on anything done by the sheriff clerk. This definition is therefore entirely compatible with the dicta in the cases under the Company Directors Disqualification Act 1986 to which I was referred by counsel for the appellants. I have emphasised the latter part of the definition because it is essential. Unless such a request is made the presentation of the summons is meaningless. Of course, in most cases the presentation itself will amount to an implicit request to process the summons, but in some cases something more will be required."

I would take issue with nothing said by the sheriff principal in that paragraph. However, in paragraph 53 of his judgment, the sheriff principal continues:

"Looking to that definition, can it be said that what happened on 16 December in the present case amounted to an application? In my opinion, it can not. It is true that a summons in the appropriate form was presented and that it was accompanied by a form which could be used as the basis for payment of a fee. But the appellants' law agents failed to give any direction to the sheriff clerk that the summons should be processed."

The sheriff principal then goes on to refer to the events which I have already described. I find myself unable to agree with the view taken by the sheriff principal in that paragraph. In my opinion, the presentation of a summons in proper form, together with the means of payment of the appropriate fee, carried with it, by necessary implication, a request that the summons should be processed in the ordinary way. To take any other view, it seems to me, would be to imply that those responsible for the presentation of the summons were simply wasting everyone's time. Looking at the matter in a slightly different way, it appears to me that, the presentation of a summons in proper form, together with the means of payment of the appropriate fee, signifies that the presenter intends that the natural consequences of that act should follow, that is to say, the processing of the summons in the ordinary way. To the extent that the sheriff principal has taken a different view, I consider that he has erred in law.

[33 ] It is undoubtedly true that, as described in findings in fact 19-24, there was uncertainty as to precisely how the summons would be processed following presentation, having regard to the need for shortened induciae. However, I cannot accept that that uncertainty detracts in any way from the significance of the original presentation of the summons itself. Nothing that occurred in that connection seems to me to undermine the implied purpose of the presentation of the summons, that purpose being that it should be processed in the ordinary way. In these circumstances, the conclusion which I have reached is that the actions which occurred on 16 December 2004 taken by those acting on behalf of the appellants amounted to the making of an application to the sheriff in terms of section 1(1) of the 1949 Act. It therefore follows that the application was timeously made.

[34 ] I am reinforced in the view that I have formed from my consideration of the facts found in this case by what was said by Sheriff Principal Ireland in Secretary of State for Trade & Industry v Josolyne. That case was, of course, concerned with whether an application for disqualification of a person from acting as a director had been timeously made. The facts were that the application was time barred if the tempus inspiciendum was the date of service on the respondent, but not if it was the date either of the lodging of the application, or of the order for service. At page 49G-J Sheriff Principal Ireland explained his approach, with which I would respectfully agree. He said:

"One difficulty about reasoning by analogy is that it tends to divert attention from the statutory provision which the court is required to construe. The action which is to be taken by the Secretary of State under section 7(1)(a) of the Act is called an 'application', and that word, or the related words 'apply' or 'applicant', is used, if my account is correct, five times in the fasciculus of sections headed 'Disqualification for Unfitness' and five times in section 16, the sidenote of which is 'Application for disqualification order'. In each case it is either expressly stated (as in section 8(1) and section 16(2)) that the application is an application to the court, or it is clear from the immediate context that an application to the court is intended. What must be done within the two year limit under section 7(2) is that the applicant must make an application to the court. When, as happened in this case, the solicitor for the Secretary of State presented the initial writ to the sheriff clerk at Aberdeen then, according to the ordinary meaning of the words, he made an application to the court, and was within the time limit. Neither the act of the sheriff in making the order for service nor the service of the initial writ on the respondent can properly be described as the making of the application to the court. These are events which are consequential on an application which has already been made."

[35 ] It appears to me that the approach taken by Sheriff Principal Ireland is one which ought properly to be followed in this case, which is concerned with the time at which the appellants applied to the sheriff. I consider it proper to take that moment to be the moment when those acting for the appellants presented, in this case, the summons, to the sheriff clerk. That was, of course, effected on 16 December 2004. In my view, the subsequent appearance before the sheriff on 17 December 2004 when he shortened the induciae and authenticated the summons and the subsequent registration of the summary cause in respect of which the summons had been lodged were, as Sheriff Principal Ireland put it, "consequential on an application which has already been made". Having considered the other cases relied upon by the appellants, Secretary of State for Trade & Industry v Normand and Secretary of State for Trade & Industry v Campleman, it is plain that in each case the court followed the decision of Sheriff Principal Ireland in Secretary of State for Trade & Industry v Josolyne.