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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 169
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P2140/07
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OPINION OF LORD
GLENNIE
in the petition of
NETWORK RAIL
INFRASTRUCTURE LIMITED
Petitioner:
for
Judicial Review of
a decree pronounced by the Sheriff of Grampian, Highland
and Islands sitting at Inverness
dated 28 May 2007
________________
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Act: Howie QC, MacRoberts
Alt: Connal QC, solicitor advocate,
McGrigors LLP
19 October 2007
Introduction
[1] In
this petition for judicial review, the petitioner ("Network Rail") seeks
reduction of part of an interlocutor pronounced on 28 May 2007 in proceedings brought against it in
the sheriff court at Inverness. The respondents to the petition are, first,
the sheriff of Grampian, Highland
and Islands ("the sheriff") who granted the interlocutor
in question; and, second, Donald Hugh Robertson ("Mr Robertson"), the pursuer
in the sheriff court action.
[2] There
is little, if any, dispute about the circumstances giving rise to the present
petition. I set them out in the following
four paragraphs substantially as averred in the Petition and admitted in the
Answers.
[3] In
2006, Mr Robertson raised an action, number A161/06, against Network Rail in
the sheriff court at Inverness. In that action Mr Robertson sought decree against
Network Rail in terms of five craves, in three of which (craves 1, 2 and 4) he
sought decrees ad factum praestandum
for the enforcement of duties said to be owed by Network Rail under s.60 of the
Railways Clauses Consolidation (Scotland) Act 1845. In the other craves (craves 3 and 5) he sought
decree for the payment of sums of money.
The relevant crave is crave 1, in terms of which he sought decree
ordaining Network Rail to implement and fulfil its obligations under s.60 to
restore "the works which formed the level crossing at two points lettered 'G'
in blue on the Title Plan to the Land Certificate for Title Number INV2804" within
a period of 90 days from the date of decree, and to maintain the same
thereafter.
[4] Mr
Robertson averred in his initial writ that he had become heritable proprietor
of the farms and lands of Easter and Wester Lovat at Beauly in Inverness-shire,
having acquired first the Easter Lovat farm and then, in 2002, the Wester Lovat
farm. Those two farms had once formed
part of the estates of the Frasers of Lovat. He thus owned the land on either side of the
railway line running north from Inverness.
That railway line had once been crossed by a level crossing between the
Easter and Wester Lovat farms but, when the farms came to be separately owned
in or about 1991, the level crossing had been closed and fenced off at the
behest of one of the landowners. Mr
Robertson, on acquiring both farms, maintained that he had a servitude right of
access across the level crossing and informed Network Rail that he wished the
level crossing restored. He averred that
the level crossing was an "accommodation crossing" and that Network Rail had a
statutory duty under s.60 of the 1845 Act to maintain that crossing for all
time coming. Network Rail contended that
the right to maintenance of the crossing had ceased to exist on the separation
of the lands; and that, in any event, access between the farms could be taken
by a bridge over the railway line. Mr Robertson
responded that the right under s.60, being a statutory right and unaffected by
negative prescription, could not be lost by private transaction.
[5] Network
Rail put in a plea to the relevancy of the averments made by Mr Robertson in
the initial writ; but Mr Robertson had no plea on record to the relevancy or
want of specification of Network Rail's defences. In due course, Network Rail lodged a note
under rule 22 of the sheriff court Ordinary Cause Rules. By interlocutor of 5 February 2007, the matter was remitted to debate on Network
Rail's pleas-in-law, Mr Robertson having offered a proof before answer. No motion for summary decree was lodged by Mr
Robertson nor intimated by him prior to the debate being heard by the sheriff.
[6] At
the debate, which took place on 28
March 2007, the sheriff heard submissions both as to the relevancy
of Mr Robertson's averments on the issue of the restoration and maintenance of
the level crossing and also on a dispute between the parties anent
drainage. During his submissions in
defence of his pleadings, Mr Connal QC, acting for Mr Robertson, moved the sheriff
to grant summary decree in Mr Robertson's favour if his submissions on the
level crossing issue were accepted.
Counsel appearing at the debate for Network Rail is recorded as having
accepted that "the converse of his motion [i.e. his own motion at debate on
behalf of Network Rail to exclude the pursuer's averments from probation] could
be summary decree in favour of the pursuer but that that was not an option"
because other issues had to be explored at proof. On 28 May 2007, having taken the matter to avizandum the sheriff held that there
was no relevant defence to crave 1 and pronounced an interlocutor in which
he: sustained the first plea-in-law for Mr Robertson, a plea in support of
the craves for specific implement (though I think he must have intended to
sustain it only quoad crave 1);
repelled Network Rail's first plea-in-law (a plea to the relevancy); excluded
the 1st -13th answers in Network Rail's defences from
probation (these were the answers addressed to the averments in support of crave
1); pronounced summary decree in favour of Mr Robertson in terms of crave
1 ordaining Network Rail to implement its obligations to restore the crossing
within a period of 90 days and thereafter to maintain the crossing; and quoad ultra allowed parties a proof
before answer at a date to be afterwards fixed.
In coming to his decision, the sheriff distinguished English Court of
Appeal authority on the parallel section of the English Act. He subsequently gave leave to appeal to the
Court of Session against his grant of summary decree.
[7] The
only matter in the above narrative about which parties were not agreed was as
to whether, and if so in what terms, counsel appearing at the debate on behalf
of Network Rail had made any concession about the possibility of the sheriff
granting summary decree. There was some
difference between the parties as to how I should deal with this, in particular
as to whether it was competent for me even to try to resolve this
disagreement. It was, however, agreed
that the issue could not be resolved at a First Hearing; and it was left on the
basis that if I needed to resolve it in order to decide whether Network Rail
were entitled to the relief claimed in the petition, I would have to do so at a
Second Hearing; and to that end I would put the case out By Order for further discussion. In the event, I have not found it necessary
to do this.
[8] Network
Rail wish to appeal the sheriff's interlocutor in so far as it grants summary
decree in terms of crave 1 and excludes their Answers anent that crave from
probation. In an ordinary action, such
an appeal could be taken to the sheriff principal or to the Court of Session. Clearly the sheriff considered that an appeal
to the Court of Session was appropriate.
However, parties are agreed that there is in fact no right of appeal to
the Court of Session in this case. They
are also agreed - and this is at the centre of Network Rail's complaint - that,
in the particular circumstances of the case, Network Rail has no effective
right of appeal to the sheriff principal.
[9] The
reason why there is no appeal to the Court of Session is that Mr Robertson's
claim in the sheriff court is in substance (albeit not in form) an application
under s.61 of the 1845 Act; and that Act restricts the right of appeal from the
decision of a sheriff on an application brought thereunder. In terms of s.60 of the Act, railway
companies are under an obligation to make and at all times thereafter to
maintain works for the accommodation of owners and occupiers of lands adjoining
the railway. These works are known as
"accommodation works" and include such things as gates, bridges, crossings,
fences, ditches, culverts, drains, etc. S.61
provides that any differences between the landowner and the railway company about
the provision or maintenance of any such works shall be determined by the sheriff
or two justices; and such sheriff or justices shall also appoint the time
within which the works shall be commenced and executed by the company. Parties were agreed that the sheriff had
power under s.61 to make an order in terms of crave 1 for the work to be done
within a particular time. Ss.147 and 150
of the Act set out how applications under s.61 (and other relevant sections) are
to be dealt with. They also govern the
position concerning appeals and make it clear that there is no right of appeal
from the sheriff to the Court of Session.
[10] It is convenient at this point to set out in full the terms of
ss.147 and 150 of the Act. They provide
as follows:
"147. Any sheriff to whom any application is
authorized to be made, and before whom any judicial proceeding shall in
consequence take place or become necessary under or by virtue of this or the
special Act, or any Act incorporated therewith, shall and he is hereby
authorized and required summarily to call before him all parties who appear to
him to be interested therein, and to proceed forthwith to hear vivā voce, and
pronounce judgment regarding the matters mentioned in such application or
proceedings, or to do the several matters and things required by this Act to be
done by him, without waiting the ordinary course of the roll of causes before
him, and without written pleadings or a written record or reducing any evidence
which may be led by either of the parties to writing, unless and except where
the said sheriff shall consider that the matters mentioned in such application
or proceedings can with more advantage be decided with written pleadings and
with a written record, in which case he shall proceed to make up a record, and
bring the said matters to a conclusion with all convenient despatch; and the
orders and judgments of the said sheriff when pronounced without a record shall
be final and conclusive, and not subject to review by suspension or advocation,
or to reduction, on any ground whatever.
...
150. In all cases which may come before any
sheriff substitute under this or the special Act, or any Act incorporated
therewith, in which written pleadings shall have been allowed, and a written
record shall have been made up, and where the evidence which has been led by
the parties shall have been reduced to writing, but in no other case whatever,
it shall be competent for any of the parties thereto, within seven days after a
final judgment shall have been pronounced by such sheriff substitute, to appeal
against the same to the sheriff of the county, by lodging a minute of appeal
with the sheriff clerk of such county, or his depute; and the said sheriff
shall thereupon review the proceedings of the said sheriff substitute and whole
process, and, if he think proper, hear the parties vivā voce thereon, and
pronounce judgment; and such judgment shall in no case be subject to review by
suspension ... or to reduction, on any ground whatever."
In some, perhaps most, cases an
application under s.61 will be dealt with informally by what he described as a
process of "sniff it and see": see s.147.
In other words, the sheriff might go onto the land accompanied by interested
parties, look at the site, hear what parties had to say and make a decision
without further procedure. However, the
section also recognises that the sheriff may think that the matters raised in
the application would be better decided with written pleadings and a written
record. In such a case he is required to
make up a record. In the "sniff it and
see" type of process, the decision of the sheriff is final and conclusive, and
not subject to review by any means or on any ground whatever. But in cases where the sheriff decides that
written pleadings and a written record provide a better means of deciding the
application, the terms of s.150 of the Act apply and there is given to a
dissatisfied party, in certain circumstances, a right of appeal to the sheriff
principal though not to the Court of Session.
It is apparent from the fact that he acceded to an application for leave
to appeal to the Court of Session that the sheriff did not have these sections
brought to his attention. Indeed, no-one
appears to have been aware of them. I
was told that an appeal to the Court of Session was taken; and it proceeded as
far as the preparation of an Appeal Print before someone realised that such an
appeal was incompetent.
[11] I have already indicated that parties were agreed in argument
before me that, in the particular circumstances of this case, any effective
right of appeal to the sheriff principal is precluded. The parties were not agreed, however, on
which circumstances led to this result.
For Network Rail, Mr Howie identified the cause of the problem as being
the terms of the interlocutor. Since
there were written pleadings and a written record, he submitted, prima facie there should have been a right
of appeal to the sheriff principal under s.150 of the Act. However, as that section makes plain, such an
appeal can only be taken within seven days after a final judgment has
been pronounced by the sheriff. While
granting summary decree in respect of crave 1, the sheriff allowed a proof
before answer on the other matters in dispute between the parties. His interlocutor was, therefore, not part of
a final judgment in the matter; and no right of appeal arose at that
stage. In practice there will not be a
final judgment in the action until after the expiry of the 90 days within which
the interlocutor requires the work to be done.
In those circumstances the interlocutor has the effect of precluding any
effective appeal to the sheriff principal.
Any appeal would simply be too late.
Since he did not have these provisions of the Act brought to his
attention, and since in purporting to grant leave to appeal to the Court of
Session he evinced an intention to allow his interlocutor to be brought under
review by a superior court, it is clear that the sheriff could not have
intended to preclude such an appeal. It
is in these circumstances that Network Rail petition this Court for reduction
of the decree in part so as to prevent what they say is an injustice.
Submissions
[12] Mr Howie and
Mr Connal were broadly in agreement as to the circumstances in which a
sheriff court decree pronounced in foro
could be reduced. Under reference to
MacPhail, Sheriff Court Practice, at para.18.05, Mr Howie submitted that
reduction was permitted where the sheriff court decree was incompetent or where
the sheriff had departed from the ordinary practice of the court; and where there
was no other form of review available to the aggrieved party. There was reference in case law and
commentaries to a requirement for "exceptional circumstances". Whilst this might be an apt description of
the type of case to which he referred, the expression was more appropriately
used to impose a limit upon the qualification that no other form of review was
available. Reduction might be granted
even if there were some other means of review "in exceptional circumstances". It was not necessary, in that sense, to
consider exceptional circumstances in this case since there was no other
effective right of review. In addition,
Mr Howie accepted that the aggrieved party had to show that the procedural
defect had deprived him of a stateable defence.
The court would not reduce a decree if the same result would plainly
have been reached by a competent or regular procedure. He referred me to Mitchell Construction Company (Scotland) Ltd v Brands Transport and Demolition Ltd 1975 SLT (Notes) 58, in which
Lord Kincraig observed that departure from the ordinary practice of the court
constituted such exceptional circumstances which would justify reduction of a
decree; to Zannetos v Glenford Investment Holdings Ltd 1982
SLT 453 where Lord Ross drew together the relevant authorities; and to Bain v Hugh L S McConnell Ltd 1991 SLT 691 in which the Second Division
referred to those same authorities, and Zannetos,
with approval. Mr Connal, for his
part, preferred to express the test in this way: that intervention by way of reduction of a
decree of the sheriff court was authorised only in "fairly dramatic"
circumstances. It was not justified
simply because the decision on the merits of the case was challenged: Alexander Simpson v David Harley (1830) 8 Shaw 977.
Nor could a complaint be taken in this way against mere procedural
rulings made by the sheriff. Under
reference to Bain v McConnell, he said the search was for
something "pretty dramatic" giving rise to a miscarriage of justice. In the same vein he referred me to Alagon v Secretary of State for the Home Department 1993 SLT 381; to Cameron v Gibson 2006 SC 283 and to certain remarks of my own in Robert Bain v Andrew Robert Bain (13
December 2006, unreported).
[13] Mr Howie submitted that this was a case where the sheriff's
interlocutor was incompetent or, in any event, involved a departure from the
ordinary practice of the court. He took
two discrete points. First, he submitted
that it was incompetent for the sheriff to grant a summary decree. He pointed out that the debate before the sheriff
was a debate on Network Rail's plea to the relevancy of the pursuer's
averments. Network Rail had lodged a
Note in accordance with Chapter 22 of the Ordinary Cause Rules 1993. On the basis of that Note, the sheriff had
appointed the case to debate on the defenders' pleas-in-law. Mr Robertson had no plea to the
relevancy of Network Rail's averments.
At the debate, therefore, whilst it was competent for the pursuer to
move at bar for summary decree in terms of Chapter 17 of the Ordinary
Cause Rules, it was not open to him to seek decree on the basis that the
averments by Network Rail in answer to crave 1 were irrelevant. Still less was it competent for the sheriff
to accede to that motion for summary decree on that basis. This was consistent with well known pleading
practice in the sheriff court and the Court of Session. In terms of Chapter 22, if a party
tabled a preliminary plea but failed to lodge in process a Note of the basis
for that plea within the required time, he was deemed to be no longer insisting
on that preliminary plea and the plea fell to be repelled. It was not open to that party thereafter to
challenge the relevancy of the defences.
The position was a fortiori
where a party had never tabled any preliminary plea at all - he could not be
better off than if he had tabled such a plea and failed to insist upon it. The fact that a motion was made for summary
decree did not overcome the need for a preliminary plea if the basis upon which
summary decree was sought was the irrelevancy of the defences. Reference was made to Henderson v
3052775 Nova Scotia 2006 SC (HL) 85 at para.[15] and to Bain v McConnell at page 696E. If
the grant of summary decree in such circumstances was not incompetent, it was
certainly a departure from ordinary practice in the sheriff court.
[14] Mr Howie's second point focussed on the fact that the terms of
the interlocutor had the effect of emasculating the right of appeal to the
sheriff principal given by the 1845 Act for the reasons set out in para.[11]
above. He submitted that it was
incompetent to grant decree which by its terms precluded a party from availing
itself of the rights of appeal given to it by Parliament. At the very least, to do so would be a
radical departure from the ordinary practice of the sheriff court.
[15] In this case, Mr Howie submitted, it was quite clear that there
was a genuine and arguable point raised by Network Rail in their defences. The sheriff had recognised this in
distinguishing English Court of Appeal authority and purporting to grant leave
to appeal to the Court of Session. In
those circumstances it was clear that the procedural defects referred to above,
whether amounting to incompetency or simply a departure from the ordinary
practice of the sheriff court, had caused a real injustice in that they had
prevented a genuinely arguable point from being considered on appeal.
[16] Addressing the question of whether it was competent for the sheriff
to grant summary decree on relevancy grounds without there being a plea in-law,
Mr Connal drew my attention to Chapter 17 of the Ordinary Cause Rules
1993. He pointed out that, in terms of Rule 17.2,
the pursuer was entitled to apply by motion for summary decree at any time
after a defender had lodged defences, i.e. even before adjusting his own pleading
to include a plea to the relevancy of the defences. He submitted that the chapter dealing with
summary decree cut across ordinary pleading rules. Although summary decree was
not primarily concerned with relevancy, matters of relevancy could be
raised. No particular pleas-in-law were
required. Rule 17.2(2) provides
that, in applying for summary decree, the pursuer may move the sheriff inter alia to pronounce an interlocutor
sustaining or repelling a plea-in-law.
But this was not the only order that the pursuer could seek. He could simply ask for decree in terms of
the craves in the initial writ. This did
not involve any consideration of pleas-in-law.
The only question was whether the decision maker was satisfied that
there was no defence to the action or part of it. In Frew
v Field Packaging (Scotland) Limited
1994 SLT 1193 summary decree was granted, despite the defenders submitting that
the more appropriate course where issues of relevancy were involved was to take
the case to the procedure roll. It was
not for the court to search for defences to the motion for decree. If the defenders had wanted to take the point
that summary decree should not be granted because of the absence of a
preliminary plea, they should have done so.
He referred to Elaine Catherine
Matthews v Scottish Legal Aid Board
& Another 1995 SCLR 184. There was nothing incompetent about the
decree, nor was it a departure from ordinary practice and procedure. He referred to the concession which the sheriff
had recorded. He did not rely upon it
specifically as a concession - its real importance was in highlighting the fact
that no objection was taken by counsel for Network Rail to the procedure which
the sheriff was invited to follow.
[17] In response to Mr Howie's second point, Mr Connal accepted
that Network Rail had no effective right of appeal to the sheriff principal but
argued that this was not a result of the terms of the interlocutor. It should not be assumed that Parliament
intended there to be a right of appeal in a case such as the present. S.147 made it clear that there was to be no
appeal at all in a case where the sheriff did not consider that written
pleadings and a written record were necessary.
That decision was left entirely to the sheriff. S.150 dealt with the position where the sheriff
had formed the view that written pleadings should be allowed and a written
record made up. But it also imposed a
requirement, before any right of appeal was given, that evidence had been led
by the parties and had been reduced to writing.
In no other case was an appeal to the sheriff principal competent. Parliament had not provided for a right of
appeal in a case where there was no evidence and the matter was determined on a
point of law argued at debate. It
followed that the form of the interlocutor did not deprive Network Rail of any
right that it would otherwise have had.
It had no right of appeal to the sheriff principal, not because of the
form of the interlocutor, but because the matter was disposed of without
hearing any evidence.
[18] At an early stage in his submissions, Mr Howie appeared to
accept that it was competent for Mr Robertson to have proceeded in the sheriff
court by way of an ordinary cause notwithstanding that the application under s.61
was a "summary application" within the meaning of s.3(p) of the Sheriff Courts
(Scotland) Act
1907. This was so, he submitted, because
the three craves containing applications under s.61 were accompanied by monetary
craves which were not claims under the Act.
He suggested that the position was analogous to that considered in Halifax Building Society v Arunabha Das Gupta 1994 SC 13. At a later stage in his submissions I pressed
him again on whether Mr Robertson should have proceeded under the Summary
Applications, Statutory Applications and Appeals etc. Rules 1999 ("the Summary
Applications Rules"). Rule 1.4 of those
Rules requires a summary application to be made in this way. Those Rules do not incorporate the Ordinary
Cause Rules, save in one respect, and they do not provide for summary decree or
debate (though under Rule 2.31 the Sheriff can make such order as he thinks fit
for the progress of the summary application).
Mr Howie candidly accepted that he could not take this competency point
since it was not in terms raised in his petition; and he reminded me that it
was not pars iudicis for me to take
the point since it did not relate to the competency of the proceedings in the
Court of Session. Nonetheless, he
pointed out that the petition did refer to the oddity of the procedure in the
sheriff court in that it averred that the application was one under the Act "albeit
raised in the guise of an ordinary action", and he submitted that I could take this
into account in considering what had gone wrong. For his part, Mr Connal submitted, under
reference to Halifax v
Gupta that it was competent to raise an ordinary action where the initial writ
included claims which were not summary applications. He further submitted that no such point could
now be taken since both parties, having proceeded in the sheriff court without objection,
had acquiesced in the form the proceedings had taken. In this connection he referred me to James Comrie v J Gow & Sons 1931 Sh. Ct. Rep. 159,
162 and Cormack v The Crown Estate Commissioners 1983 SLT 179, 182.
Discussion
[19] I have come to the clear view that this is one of those cases where
reduction is not only competent but necessary to prevent injustice. It seems to me that the proceedings have
taken an unfortunate course, for which the sheriff is not to be criticised,
which has resulted in Network Rail being deprived of their statutory right to appeal
his decision to the sheriff principal.
My reasons are as follows.
[20] There was no real issue on the test to be applied as to whether
the court could interfere with an interlocutor of an inferior court by decree
of reduction. The principles are well
set out in Zannetos. One cannot define categorically the cases in
which reduction is competent. Reduction may
be justified if something has gone wrong procedurally and a miscarriage of
justice has occurred as a result. It
will not generally be allowed if the petitioner has failed to use other means
of redress open to him, but there may be exceptional cases where it will be
granted despite this. The pursuer must
have a substantial defence or argument in opposition to the claim made in the
action. These last two points are satisfied
in this case. I address the disputed
issues below.
[21] It is apparent from ss.147 and 150 of the 1845 Act that
applications under the Act are intended to be dealt with "summarily" or, where
that is not possible, at least "with all convenient despatch". In both cases, rights of appeal are limited. In the former case, s.147 not only entitles
but requires the sheriff summarily to call before him all interested parties
and to proceed "forthwith" to hear the parties and pronounce judgment, without
written pleadings or a written record and without reducing to writing any
evidence which may be led by either of the parties. His judgment and interlocutor are to be final
and conclusive and not subject to any review whatsoever on any ground. This was the situation in Thomas Main v Lanarkshire and Dumbartonshire Railway Company (1893) 21 R 323, where
the Inner House held that an appeal to the Court of Session from a decision of
the sheriff (in proceedings without written pleadings) was incompetent. (It may be noted, though it does not affect
the question at issue, that the decision in Main was based upon s.150, though that section was not
brought to the attention of the Court.
Since the proceedings before the sheriff were without written pleadings
and a written record, it might be thought that s.147 was more precisely in
point, but I suspect the Court did not have that section brought under its
attention either.) In the latter case,
there is a limited right of appeal under s.150.
That is an appeal to the sheriff principal and must be exercised within
seven days of final judgment in the action.
[21] One issue argued before me was whether, on a proper
construction of s.150, there is a right of appeal to the sheriff principal in
all cases where the sheriff has determined that written pleadings and a written
record are desirable, as Mr Howie submitted; or whether, as Mr Connal
submitted, it is limited to those cases where evidence has been led and reduced
to writing. I prefer Mr Howie's
submission on this point. S.150 must be
read with s.147, which seeks to distinguish between, on the one hand, the
simple case which merits summary disposal without any right of appeal and, on
the other, the more complex or difficult case where written pleadings and a
written record are appropriate. S.150
deals with rights of appeal in the latter type of case, by providing for a
right of appeal to the Sheriff-Principal in all cases "in which written
pleadings shall have been allowed, and a written record shall have been made
up, and where the evidence which has been led by the parties shall have been
reduced to writing". It seems to me that
Parliament cannot have intended to draw a distinction between cases where
evidence is led and cases where no evidence is led. It would mean that there was a right of
appeal where the facts were disputed but not where they were agreed; appeal on
questions of fact (or mixed fact and law) but not on questions of law
alone. No reason was suggested to me as
to why such a result might have been intended.
I would construe s.150 as allowing a right of appeal where "where the
evidence, if any, which has been led
by the parties shall have been reduced to writing." There would have been a right of appeal to
the sheriff principal in the present case had it not been for the peculiar
circumstances to which I have referred.
[22] Mr Howie had an additional argument to the effect that even if the
leading of evidence were a pre-condition to the existence of a right of appeal,
that evidence did not have to relate to the issue which was to be
appealed. It was sufficient that
evidence be led in relation to other matters, for example in relation to craves
2 and 3. He submitted that the sheriff's
interlocutor, in allowing a proof before answer on all remaining matters,
contemplated that such evidence would be led and therefore that a right of
appeal would arise in due course, albeit not in time to be effective in relation
to the decree in terms of crave 1. I do
not accept this. If, contrary to the
opinion which I have expressed, Parliament did intend that there be no right of
appeal unless evidence was led, it would be subverting that intention to allow
parties to manufacture a right of appeal by leading evidence on issues irrelevant
thereto.
[23] The procedure which was followed in this case had the effect,
in practice, of depriving Network Rail of an effective right of appeal. There were essentially two things that went
wrong. One was the adoption of a
procedure in which the action was dealt with piecemeal, with the result that an
order was made on crave 1 against Network Rail before final judgment and
therefore before any right of appeal was triggered. The other was the fact that the interlocutor
required the work to be done within 90 days, before the time at which final
judgment in the action would be delivered and therefore before the accrual of
the right of appeal. Neither of these things
would matter were it not for the fact that s.150 restricts the right of appeal
to a period of seven days after final judgment.
But against the background that s.150 does just that, they produced a
situation where Network Rail has, through inadvertence of the parties and contrary
to the intention of the sheriff who pronounced the interlocutor, been deprived
of the opportunity to exercise the right of appeal which Parliament intended a
party in its position to have.
[24] How did this happen? In
my opinion it happened in part because, from the start, the wrong procedure was
adopted without either party being aware of the consequences. As I have indicated earlier, an application
under the 1845 Act is intended to be resolved speedily. That is why an application under the Act is
required to be brought as a summary application under the Summary Applications
Rules. Those Rules are in mandatory
terms. In terms of Rule 1.4, an
application to which they apply must be brought as a summary application
under those Rules. It seems to me be arguable - though because of
the way the point developed I may not have had the benefit of full argument on
the point - that it is incompetent to bring such an application in any other
manner - the case of Halifax v Gupta is distinguishable for reasons
canvassed briefly in argument - and it may therefore be that a summary
application cannot be combined with another claim. I see no difficulty in this. Further, although I would not wish to lay
down any general guidance, it is by no means clear to me that the Summary
Application Rules envisage that the proceedings may include a number of separate
applications. No doubt because they are
addressed to providing a framework for summary applications, the Rules do not
appear to envisage that the application will be determined otherwise than at
the end of the process. Since the whole
process is intended to achieve summary disposal, there is no separate procedure
in the Rules for summary decree or debates.
The decision on the application, even if it proceeds by way of written
pleadings and a written record, will be by final judgment. If the procedure envisaged by the Rules is
followed, there is little danger of arriving in the position in which parties
now find themselves. If particular
orders for procedure are made under Rule 2.31, they will be made in the context
of an application commenced under the Rules; and both the parties and the court
are likely to be aware of the implications of any decision that is made.
[25] I have questioned in the preceding paragraph whether the
proceedings in the sheriff court were competent. I accept that in these proceedings it is not pars iudicis to take a point about the
competency of proceedings in the sheriff court.
I also accept that, if the issue before me were to turn on the issue of
competency, there is force in the point made by Mr Connal about
acquiescence. Ultimately, however, it
does not seem to me that it does turn on a strict understanding of whether or
not the sheriff court proceedings were competent or whether any incompetency
has been waived. It is sufficient, in my
opinion, simply to regard what has happened as a procedural mishap, or a series
of procedural mishaps, for which both parties must take some part of the
blame. It has led to injustice, or the
risk of injustice, because it was not seriously in dispute that Network Rail's
defence raises an arguable point of law which might prevail on appeal if that
avenue were not closed to it. I was not
addressed on the merits of that argument and do not express any view on it except
to say, in reliance on the sheriff's own view, that it was deserving of
consideration by a higher Court.
[26] Since I have decided to reduce the decree in part, for similar
reasons I do not need, and do not think it appropriate, to make any decision on
the two competency points argued by Mr Howie.
The construction of Rule 17 of the Ordinary Cause Rules must await
another occasion. Unless it were
necessary for me to decide it, it would be wrong for me to express a view on a
point of sheriff court procedure when I have not had the benefit of any prior
decision on the matter at sheriff court level.
Equally, I would not wish to express a view at this stage as to whether
it was competent for the sheriff to pronounce a decree which, by its terms,
prevented any effective right of appeal.
Such matters are better decided first in the sheriff court as they
arise.
[27] After some discussion, parties were agreed as to the extent to
which I should reduce the interlocutor of the sheriff if I were in favour of
Network Rail. I propose to reduce it to
the extent of deleting the following parts:
(i) the words "Sustains the pursuer's first
plea in law" in lines 1 and 2;
(ii) the whole passage from
"Holds that Answers 1-13 inclusive ..." in line 3 up to and including the words
"... (Vict. C33)" in line 11;
(iii) the passage from "Finds
the defender liable ..." in line 14 to the end of the paragraph.
That leaves the interlocutor intact
in so far as it repels Network Rail's first plea in law and quoad ultra allows a proof before answer
of both parties' averments, together with its assigning the cause to a Diet Roll
for the fixing of a proof. By doing
this, I do not preclude Mr Robertson applying afresh for summary decree, though
in that event it will be for the sheriff to decide, in light of such argument
as may be addressed to him, whether such an application is competent or appropriate
in this case.
Disposal
[28] I shall therefore grant decree of reduction to the extent
indicated.
