Scottish Court of Session Decisions

"31(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated ...

34(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award ..."

Counsel also agreed that in Scots law, an "application for setting aside" comprised a petition for judicial review of the arbiters' award.

The Rules of the Court of Session

"Lodging of processes

4.3      A process shall be lodged in every cause commenced by summons or petition when -

(a)    in the case of a summons, the summons is presented for signeting; and

(b)   in the case of a petition, the petition is presented to the Petition Department ...

First order

58.7     On being lodged, the petition shall, without appearing in the Motion Roll, be presented forthwith to the Lord Ordinary in court or in chambers for -

(a)    an order specifying -

(i) such intimation, service and advertisement as may be necessary;

(ii) any documents to be served with the petition;

(iii) a date for the first hearing, being a date not earlier than seven days after the expiry of the period specified for intimation and service; or

(b)   any interim order;

and, having heard counsel or other person having a right of audience, the Lord Ordinary may grant such an order."

Excerpts from the petitioners' affidavits

Affidavit of Claire Baird or Dickson (court runner for Tods Murray LLP)

"...2. I have no specific recollection of the events surrounding this matter. Accordingly my recollection comes from my time recording sheets and my court diary.

3.      In my diary I have an entry on Tuesday 15 August 2006 which says:

"PET Tor Corporate for Jud Rev - lodge petition."

There is a tick next to this indicating that I completed that task on that date. If the petition had been handed back to me I would have marked a "X" next to the entry and I would have made an entry on another date.

4. Moreover in my time recording there is an entry for 15 August which is in the following terms:

"Had counsel sign petition, thereafter lodged and checked counsel's availability for motion."

If the petition had been handed back to me it is likely that the relevant part of my time entry would have been something like, "tried to lodge petition" and there would have been an entry on a later date showing that I had lodged the petition unless, of course, it was dealt with on one of the days when I am not at work.

5. That entry in my time recording means I arranged for counsel to sign the petition. The petition was in fact signed by Euan G. Mackenzie who is an advocate in the same stable (the Ferguson stable) as Alistair Clark. What probably happened was that I asked one of the clerks at the Ferguson stable to get the petition signed and they went in to the Advocates' Library to arrange that while I waited in Parliament Hall. I then lodged the petition and enrolled the motion. I was probably advised by the petition department that counsel would require to appear to move the motion. I may have known from the signature on the petition that Alistair Clark [Advocate] was to be instructed but it is much more likely that I spoke to Michael Simpson [the petitioners' solicitor] (either on my mobile telephone or on my return to the office) and that he asked me to arrange for Alistair Clark to move the motion. Hence I checked Alistair Clark's availability and I probably noted a range of suitable dates. On the time recording sheet Mr Simpson's entry noting that counsel was to appear to move the motion appears after my own entry but that is likely to be because I entered my time for that date (15 August 2006) onto the system first.

6. There are no more entries in my diary in relation to this matter. That means the petition was not returned to me for revision and was accepted in the form it was presented on 15 August 2006.

7. The next entry in my time recording is on 17 August 2006 and it is in the following terms:

" Spoke to Christine at Ad Clerks, put entry in A. Clark's diary and spoke to Pet Dept about the date."

This means that I spoke to Christine Ferguson, the head clerk of the Ferguson stable, about the most suitable date for Mr Clark and made an entry in his diary. I would then have told the Petition Department when counsel was available to move the motion and thereafter the hearing would have been arranged.

8. I would then have advised Mr Simpson about what I had done and he would have dealt with the remaining matters ...'

Affidavit of Michael Simpson (member of Tods Murray LLP at the relevant times)

" ...5. On or around 11 August 2006 I asked my secretary to engross the petition for lodging and I asked for an Inventory of Productions to be prepared. I also prepared a motion to be enrolled for a first order and for service on the persons mentioned in the schedule for service, those persons being [the first respondents] and the three arbiters. On or before 15 August 2006 I handed the petition, the Inventory of Productions and the motion to my firm's court runner, Claire Dickson. I almost certainly did this on 15 August because Mrs Dickson only works Tuesdays, Wednesdays and Thursdays and 15 August was a Tuesday.

6. On 15 August 2006 Mrs Dickson returned and reported that the petition had been lodged and the motion enrolled and advised me that counsel had to appear to move the motion notwithstanding the fact it was simply a motion for a first order for service. I recollect being somewhat surprised that an appearance was required for a purely formal motion. I recall that because there were so many actions in the Court of Session in addition to the Arbitration between these parties their disputes were "notorious" and the Petition Department clerk suggested that we might check when Mr Clark would be free to appear. Consequently I asked her to check (i) Mr Clark's availability, and (ii) the availability of the court and thereafter to arrange for him to appear to move the motion on a suitable date.

7. She did as I asked her. She informed me that the motion would be heard on 24 August 2006. I then dictated a letter of instruction to Mr Clark advising him that the motion for the first order was to be heard on Thursday 24 August 2006 and instructing him to appear. I do not have any specific recollection as to when I dictated the letter to Mr Clark but it is dated 18 August 2006 and it was typed in the early morning of 18 August 2006 by my secretary, Mrs Helen Henderson. I believe it was delivered to Mr Clark's box on Monday 21 August 2006 by my then summer student because Mrs Dickson was not in the office on either 18 or 21 August, those days being Monday and Friday respectively which are days when she does not work.

8. The motion was then heard by Lord Drummond Young on 24 August 2006 and was granted. Mr Clark moved the motion and I attended the hearing. I subsequently sent (on 26 August 2006) a courtesy copy of the petition to [the first respondents'] solicitor, Mr Douglas Russell of Messrs. Simpson & Marwick, solicitors, Edinburgh. By letter dated 7 September 2006 they advised me that they had not authority to accept service and suggested that in order to avoid delay I should simply serve the petition on [the first respondents'] head office. Accordingly I set about arranging to effect service of the petition in Beijing ..."

Affidavit of Gavin McLeod (petitions manager in the Petition Department, the Court of Session)

"2. ... I have no recollection of the actual events which took place in August 2006. I process a number of petitions each day and unless there is something particularly memorable about such a petition I would have no cause to recall what happened with it.

3. The process reveals that there is a petition in process together with a motion for first orders and a subsequent interlocutor granting that motion. The date of enrolment of the motion is stated to be 15 August 2006. There is no way of telling from the process when the motion was actually enrolled. However, I understand that Tods Murrays' court runner, Claire Dickson, states that the motion was enrolled on 15 August 2006 and I am happy to accept that statement. The petition is date-stamped 21 August 2006. The subsequent interlocutor is dated 24 August 2006.

4. Generally in this type of case, once I receive the petition and once I know counsel is available to move the motion I check the petition to ensure that it is procedurally valid and I then pass it to the Keeper to arrange the hearing of the motion. If the motion is granted, then the date for the first hearing is added later, in consultation with the Keeper's office, and by reference to the court diary and counsel's diary. I have no involvement in that aspect.

5. I am aware it is contended that the petition in this case was actually presented on 15 August 2006 notwithstanding (i) the date of the stamp on the petition, and (ii) the date of the interlocutor. I am unable to state whether or not that is the case as I have no specific recollection. It would not be particularly unusual to have such a delay between the petition being presented, the motion enrolled, and the interlocutor being granted and certainly not unusual enough to make this memorable enough to recall specifically. I have no reason to doubt Claire Dickson's recollection of events but equally I cannot confirm them either.

6. I have considered what may have happened in August and it seems to me that there are three possibilities, namely: (i) I may have seen the petition on 15 August 2006, advised Mrs Dickson that a hearing would be required, and returned the petition to her while she arranged a date for the hearing; or (ii) I may have taken the petition on 15 August 2006 and held it in my pending tray with a note stating that I was awaiting a date for the hearing of the motion for first orders; or (iii) I may have seen it for the first time on 21 August 2006. I am unable to say whether one possibility is more or less likely than the others. As far as I am concerned, I have no specific recollection and all three are equally likely possibilities.

7. I have been asked about the date of the motion. As indicated in paragraph 3, I am happy to accept Claire Dickson's position that the motion was enrolled on 15 August 2006. In a case such as this there is no need for me to check the date of enrolment of the motion because there is no need for intimation of it. I would simply check the terms of the motion to see whether any interim orders were sought and if there was a request for interim orders I would then check the caveats. I would also check the reference on the motion in order to log it on our feeing system. In this case the cost of the petition would be chargeable but there would be no charge for the motion because it relates to a procedural step."

Opening submissions for the petitioners

Submissions for the first respondents

Submissions for the petitioners

"petitions for sequestration, presented without the concurrence of the debtor ... shall be competent only within four months of the date of the debtor's notour bankruptcy".

In that case, the petition was lodged in the Petition Department on a date prior to the expiry of the four months. However the first deliverance was not pronounced until a date outwith the four month period. Lord Keith held that the competency of the petition was to be judged by the date of the lodging of the petition within the Petition Department, and observed:

"The petitioner has at that stage brought the petition into court, and it is not within his control precisely when it is placed before the Lord Ordinary. It would be unreasonable and inconvenient to hold that a petition which has been lodged in due time is incompetent because circumstances internal to the court prevent it being brought before the Lord Ordinary for a few days, and I can find nothing in the language of the Act of 1913 to compel this result."

Counsel submitted that similarly, in the present case, the only issue for the court was the date when the petitioners brought the petition into court. That was all that the petitioners could do: the court's machinery thereafter was outwith the petitioners' control. It would be unreasonable and inconvenient to hold that petitioners who had timeously presented a petition and done everything they could to meet the deadline were out of time because of the court's machinery which was outwith their control. There was no reason why the word "lodged" should be construed as meaning not only the presentation of the petition, but also the acceptance and processing of the petition by the Petition Department. There were no words in the Rules of Court making such a construction necessary, and it would be unreasonable and inconvenient for petitioners if such a construction were to be adopted. The critical question was whether the petition was presented on time: cf. Ritchie v Dickie, 1999 S.C.L.R. 939, at pages 941E to 943E. The Rules of Court did not connote any act on the part of staff in the Petition Department. Although Burgh of Millport, petitioners, dealt with a different statutory provision, the ratio was entirely in point, namely that once the petition was placed in the hands of staff in the Petition Department, the case was in court. Counsel submitted that, in the present case, the petition was "lodged" when it had been discussed and then physically left with the staff in the Petition Department. The petition did not require the application of a date-stamp in order to be lodged. The first respondents had not pointed to any authority or rule justifying the proposition that a date-stamp or other procedural step was necessary for lodging: that was simply an assertion on their part.

"... Under [petition] procedure the petition is lodged in court and then in terms of Rule of Court 195 the case will automatically be put before a Lord Ordinary in order that a first order may be pronounced. From the moment the petition is lodged the rest of the procedure follows automatically ... In my opinion, there can be no doubt whatever that under the ordinary meaning of words "an application to the court" must be the date upon which the petition is lodged in court ..."

Counsel adopted Lord Sutherland's dicta. The word "lodged" plainly referred to the positive act carried out by the petitioner. The word did not connote anything done by an officer of the court.

(i) Court runner physically leaving the petition on the counter and for some reason departing: Counsel accepted that it was necessary for the court runner to draw the attention of the Petition Department staff to the petition: but that was all that was necessary.

(ii) Court runner handing over the petition but without payment of the fee fund dues: Counsel accepted that the lodging of the petition entailed the payment of the fee fund dues: but the contingency suggested would not arise in the present case, as the petitioners' agents had the requisite account which could be debited with the appropriate sum (£106). The contingency might arise in the case of a party litigant without the necessary account or money: but that was not the case here.

(iii) Court runner agreeing that the petition should be put in the pending tray to await dates of counsel's availability: Counsel pointed out that in such a situation, the petition would not automatically come before a Lord Ordinary, but in the present case it was a known fact that the petition did come before a Lord Ordinary.

(i) The letter of instruction to counsel dated 18 August 2006 (annexed to Mr Simpson's affidavit) advised counsel that the motion for the first order was to be heard on Thursday 24 August 2006, a date on which the agents understood counsel to be available. The information contained in the letter must have come from the court: thus the court had that information on or before 18 August 2006.

(ii) All the evidence (the documentary productions and the affidavits) were entirely consistent with the petition being lodged on 15 August 2006, despite the fact that the petition bore the later date-stamp. The date-stamp was simply one piece of evidence, with no statutory significance. The date-stamp was clearly outweighed by the remainder of the evidence.

(iii) In relation to the position adopted Mr McLeod, the manager in the Petition Department, counsel submitted that it was somewhat novel for Mr Keen Q.C. to attempt to introduce new evidence verbally, at the bar (see paragraph [44] below) without supporting affidavits or productions. It was questionable whether Mr Keen's additional information should be taken into account. In any event, Mr McLeod's reported preference for the phrase "the motion was presented" rather than "the motion was enrolled" was not significant. The ordinary practice when lodging a petition was to lodge all parts of the process along with the petition, including the Motion Sheet. Thus it was irrelevant whether it was said that the motion was "presented" or whether it was "enrolled". Reference was made to Rule of Court 23.2 (enrolment of motions). Presented, lodged, and enrolled, each referred to the same event, which had occurred on 15 August 2006.

Final submissions for the first respondents

After the adjournment, and following the final submissions for the petitioners (noted in paragraphs [42] and [43] above) senior counsel for the first respondents made some final points.

Discussion

The making of an application for setting aside the arbiters' decision

"There is no doubt that in an ordinary action the date of commencement of the action is the date of citation of the defender. In an ordinary action, however, the court is not involved until such time as the summons is lodged for calling. That being so, the action cannot be commenced by some unilateral action on the part of the pursuer where no formal intimation has been made to the defender and where the court has not been involved. The position, however, is different in petition procedure. Under that procedure the petition is lodged in court and then in terms of Rule of Court 195 the case will automatically be put before a Lord Ordinary in order that a first order may be pronounced. From the moment the petition is lodged the rest of the procedure follows automatically. I therefore find myself in complete agreement with Sheriff Principal Ireland [in Secretary of State for Trade and Industry v Josolyne, 1990 S.L.T. (Sh. Ct.) 48] when he says that the order for service and the service on the respondent are merely events which are consequential on an application which has already been made. Section 7(2) [of the Company Directors Disqualification Act 1986] is concerned, not with the convening of a respondent into the process, nor with the commencement of an action as that is understood in ordinary procedure. What section 7(2) is concerned with is an application to the court and it is the date of that application that is relevant. In my opinion, there can be no doubt whatever that under the ordinary meaning of words "an application to the court" must be the date upon which the petition is lodged in court ..."

Lord Johnston agreed with that approach in a subsequent company director disqualification case, Secretary of State for Trade and Industry v Campleman, 1999 S.L.T. 787.

"On the basis therefore of authority, common sense and the ordinary meaning of words, I consider this petition was 'presented' when it was lodged in the petition department. The petition is accordingly timeously presented for the purpose of seeking recall of the sequestration on a ground which requires presentation within ten weeks of the sequestration."

• A petition is presented at the Petition Department counter, but is for some reason rejected by staff (for example, as being in unacceptable form; or as being unaccompanied by a process), and is handed back to the agents;
• A petition is presented at the counter and is (after discussion) placed by the Court of Session staff in a pending tray to await some event such as information from the agents about the availability of their counsel, or payment of fee fund dues, or some other matter;
• A petition is presented at the counter, and is simply not dealt with, but is left lying unattended to.

In my view therefore a petition cannot be deemed to be lodged until it has been accepted by the court staff and put into the court system such that it begins its journey through Court of Session procedure (cf. the circumstances in Burgh of Millport, petitioners, 1974 S.L.T. (Notes) 23). Rules such as Rule 58.7 envisage an acceptance of the petition by staff and a processing of the application embodied in the petition, including the registering of the petition in the Petition Register and the placing of the petition "forthwith" before a Lord Ordinary for the hearing for a first order: cf. the Commentary on the Rules of the Court of Session by Sheriff N.M.P. Morrison paragraph 58.7.1. Rule 4.3(b), quoted in paragraph [4] above, does not in my view assist the petitioners, as the rule provides that a process must be lodged when the petition is presented; the rule does not define what is required for the lodging of the petition itself.

The circumstances in the present case

"Spoke to Christine at [Advocates'] Clerks, put entry in [counsel's] diary and spoke to [Petition] Dept. about the date."

' ... held [the petition] in [his] pending tray with a note stating that [he] was awaiting a date for the hearing on the motion for first orders ..."

Decision