Act: Gill; Anderson Fyfe (Pursuer/Respondent)

Alt: Party; (Second Defender/Appellant)

27 May 2009

[1] In Glasgow Sheriff Court, the pursuers in this action, Lombard North Central Plc sought a decree for payment against the first and second named defenders in the action. The second named defender is the appellant.

[2] The claim was said to rest upon a guarantee, signed by both of the defenders, under which they guaranteed to pay to the pursuers any outstanding amount due, under a lease purchase agreement entered into by the pursuers and Mailstream Packaging Limited, in the event that the latter company was unable to pay.

[3] The pursuers averred in the action that they had called upon Mailstream Packaging Limited to make payment, but that the company was no longer trading. The sum sued for in the action was £3,400 outstanding as at 24 June 2005. The second defender defended the action and, in due course, a proof was held. On 8 March 2007, the sheriff made a series of findings-in-fact following upon the proof. It is appropriate to notice what these are. He found, first, that the parties are as named and designed in the instance; secondly, on or about 7 April 1998, Mailstream Packaging Limited entered into a lease purchase agreement with the pursuers, under which they hired from the pursuers the Mitsubishi Pajero Ex 4x4 motor vehicle, registration M481 YSF; thirdly, the defenders signed a guarantee, dated 7 April 1998, in favour of the pursuers; the defenders guarantee to pay to the pursuers any outstanding amount due under the agreement, in the event that Mailstream Packaging Limited were unable to pay the sum specified therein; fourthly, in terms of said agreement, there was an initial payment due of £1,311.51 representing three instalments; thereafter the agreement specified thirty six payments of £437.17; finally, the agreement specified what is described as a balloon payment of £3,400; fifthly, in or around 2001, Mailstream Packaging Limited ceased trading; sixthly, thereafter the pursuers called upon the defenders to honour said guarantee of payment; the defenders have failed to do so; seventhly, the sum outstanding under said agreement and guarantee is £3,400; eighthly, of this sum, £1,700 is due by the second defender. The sheriff went on to make the following finding-in-fact and law: the defenders, having guaranteed payment to the pursuers of the sum sued for and the same not having been paid, the pursuers are entitled to payment of one half thereof from the second defender. In consequence of that, the sheriff granted a decree against the second defender for £1,700. The appellant went on to appeal to the Sheriff Principal, but on 10 May 2007, he refused that appeal. The appellant has now appealed to this court.

[4] Originally, he lodged grounds of appeal dated 17 December 2007. However, the court appointed the appellant to lodge any proposed changes to these, and he did so, in a document dated 8 October 2008, in which the appellant expresses a range of concerns. These elaborations were allowed to be received today by us. It should be recorded that, at no time have the shorthand notes of the evidence and the proceedings at the proof been extended. Against this background, the respondents moved the court to dismiss the appeal in the situation described. The appellant opposed that motion. In summary, the respondents' submissions were fourfold, firstly, that the sheriff had made findings-in-fact that inevitably led to the finding-in-fact, and law and the pronouncing of the decree which he granted; secondly, without the notes of evidence this court was bound by the sheriff's findings-in-fact; thirdly, while in the grounds of appeal the appellant attacked certain features of the decision as errors of law, in truth, the criticisms related to the handling of the facts of the case; and fourthly, it was suggested that the appellant's failure to obtain and lodge the notes of evidence, was a deliberate decision on his part. In support of these submissions, and in particular the first of them, our attention was drawn to the case of Allardyce v Wallace 1957 SLT 225 in which the then Lord Justice Clerk Thomson indicated that, in a case having its origin in the Sheriff Court, this court was bound by the findings-in-fact and any appeal was limited to questions of law where there was no record of the evidence led. Counsel for the respondent also referred to a number of other cases to the same effect.

[5] The appellant, appearing on his own behalf, made several points in answer. As we understood them, they were focussed on the handling by the sheriff of the evidence at the proof and, in particular, the handling of documentary evidence and with objections which it was said were taken to that evidence. He also founded upon certain written submissions which had been presented to the sheriff, but not communicated to him until some time after the submissions on the evidence were made.

[6] In the light of this, we have come to two conclusions. First, the sheriff's findings-in-fact, which we cannot lawfully review, in the state of affairs that exists, because of the lack of the notes of evidence, do indeed inevitably lead to the finding-in-fact and law made by the sheriff and to the pronouncing of the decree that he granted against the appellant; secondly, we conclude that the appellant's concerns are related to the conduct of the proof and, in particular, to the handling of documentary evidence, to the admission of certain documentary evidence in particular, which it is suggested should not have been admitted. These are matters which we cannot entertain in this court, because we have no record of the evidence led, no record of the particular documents that were used in evidence, no record of any objections that were taken to the use of those documents and no record of how the sheriff handled such objections. It follows from that state of affairs that we are not enabled to review those matters. All that this court can do, is to proceed upon the basis of the sheriff's findings-in-fact and we have indicated our view regarding them. Proceeding in this way, it is inevitable that this appeal should be refused, which is the order we shall make.