Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 126
A175/09	OPINION OF LORD WOOLMAN in the cause DR JANET MARTENS Pursuer; against JAMES AIRD & SONS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Burnett; Andersons LLP

Defender: McShane; Macbeth Currie

7 September 2010

Introduction

[1] On 19 November 2008, decree by default was pronounced against Dr Martens in Cupar Sheriff Court. The decree was for payment of the sum of £27,968, together with expenses. At the time Dr Martens was representing herself in the action, which had been brought against her by James Aird and Sons. She was not present at the hearing at which decree was pronounced. That was because she was in Canada, dealing with the deaths of both her parents.

[2] In this action, Dr Martens seeks to reduce the decree. She contends that it would be unjust to allow it to stand. James Aird and Sons maintain that the decree was pronounced regularly, that Dr Martens is the author of her own misfortune and that decree of reduction should be refused.

Background

[3] Dr Martens came to Scotland from Canada some thirty years ago. She formerly held an academic post, from which she retired on medical grounds in 1993. She continues to suffer from ill health, having been diagnosed with chronic fatigue syndrome.

[4] Until their deaths in 2008, Dr Martens' parents lived in Winnipeg. Her father developed Alzheimer's disease in 2003. He went into a nursing home, where his condition progressively deteriorated. Her mother was 79 years of age at the time of her death. She had advanced Parkinson's disease. She went into hospital in the summer of 2007 and moved to a nursing home in January 2008. It was a different home from that of her husband. Dr Martens' mother was diagnosed with breast cancer in June 2008. It was decided that she was too frail to treat.

[5] Dr Martens lives at 8 The Crescent, Dura Den, Fife. In 2004 she decided to carry out a substantial programme of building works at her house. The works included a new roof, kitchen and bathroom and the installation of a new central heating system. She employed James Aird and Sons to act as the main contractors. They carried out work in June and October of that year. In August 2004, Dr Martens paid £15,000 to account of the contract price.

[6] Dr Martens was dissatisfied with the work, claiming that it was defective in a number of respects. Because of the way in which matters have developed, that contention has never been tested. By letter dated 11 January 2005, she wrote to James Aird and Sons terminating their employment for material breach of contract. The letter listed the alleged defects upon which Dr Martens relied.

[7] James Aird and Sons wished to recover the balance of the sum owed to them. They instructed Steele Eldridge Stewart, solicitors, to pursue the claim on their behalf. The partner in the firm who has dealt with the matter throughout is Hilary Eldridge. On 27 September 2006, she raised an action for payment of £27,968 at Cupar Sheriff Court in the name of her clients. Postal service of the Initial Writ was attempted unsuccessfully on 29 September 2006. Personal service was therefore effected on Dr Martens on 11 October 2006

[8] Dr Martens instructed another firm of Cupar solicitors, Paterson and Bell, to act on her behalf. They lodged a Notice of Intention to Defend on 1 November 2006. The case was then sisted to enable Dr Marten to apply for legal aid. Between then and July 2008, little substantive progress was made with the case in court. There was no hearing at which the legal or factual issues were discussed.

[9] During that period of twenty months, however, there were several events of note. Dr Martens was granted legal aid in April 2007 and detailed defences were lodged in May 2007. The case was sisted again on 28 June 2007 to enable her to obtain an expert report. After it became available a copy was sent to Mrs Eldridge in about August 2007.

[10] Mrs Eldridge said that her clients' aim was to resolve matters extra-judicially. As she put matters in a vivid phrase: "my clients' ears were open to settlement". Various attempts were made to set up a meeting between the parties and it eventually took place at the offices of Steele Eldridge Stewart. The date of the meeting is uncertain, but it was probably about the beginning of 2008. The meeting lasted some time, but it did not result in an agreement. Attempts to fix a further meeting petered out.

[11] There was one other matter of significance in this period. In late 2007 Dr Martens was concerned about the lack of progress being made in the case. She was not satisfied with the explanation she had received from her solicitors. Accordingly, she browsed the internet for information and telephoned the Sheriff Clerk's office to ask about progress. The fact that contact information about Cupar Sheriff Court was readily available at the material time was confirmed by Mrs Eldridge. She gave unchallenged evidence that the court's telephone numbers, fax number and email address were all listed on the internet.

[12] Dr Martens' solicitors withdrew from acting on 31 July 2008. They explained to her that they would make a loss if they continued in the case on the basis of a legal aid certificate. Mrs Eldridge understood that their difficulty was also in part related to an inability to obtain instructions from Dr Martens.

[13] On being informed that Paterson and Bell had withdrawn from acting, the court pronounced an interlocutor on 31 July 2008 ordaining Dr Martens to appear on 27 August 2008. It specified that "if she fails to do so, the action may proceed in her absence and decree as craved with expenses may be granted". Mrs Eldridge then served on Dr Martens both a copy of the interlocutor and the standard notice prescribed for such situations: Form G10 of the Sheriff Courts Ordinary Cause Rules, which states:

The court has been informed that your solicitors have ceased to act for you.

As a result the sheriff has ordered that you appear or be represented on ... within the Sheriff Court at the above address. A copy of the order is attached.

When you appear you will be asked by the sheriff to state whether you intend to proceed with your action [or defences or answers].

NOTE:
IF YOU ARE UNCERTAIN WHAT ACTION TO TAKE you should consult a solicitor. You may also obtain advice from a Citizens Advice Bureau or other advice agency.

Again postal service on Dr Martens failed and personal service was effected on 14 August 2008.

[14] Dr Martens appeared on her own behalf at the hearing on 27 August 2008. She informed the court that she did insist on her defence to the action. She also explained that she had been unsuccessful to date in obtaining alternative representation. The sheriff enquired whether she wished more time for that purpose. Dr Martens confirmed that she did. The hearing was then continued of consent for four weeks.

[15] According to Dr Martens, she also told the Sheriff that she had health problems and that there were urgent health concerns in her family. She did not, however, specify the nature of those problems to the Sheriff.

[16] Both before and after the hearing, Dr Martens made attempts to secure alternative representation, but with little success. Citizens Advice informed her that they did not take construction cases. The Law Society of Scotland told her that they could not nominate a solicitor, but provided her with a list of names whom she then contacted. Many firms informed her that that they were unwilling to take on construction cases on a legal aid basis.

[17] However, Mr Robert Macdonald of Baird & Co, solicitors, indicated that he was prepared to look at the papers, without any guarantee that he would take on the case. As Dr Martens was unable to attend the hearing on 10 September 2008 through ill-health, Mr Macdonald arranged for his colleague Miss Howitt, to appear on behalf of Dr Martens. Miss Howitt informed the court that her firm was reviewing the file and sought a further continuation. The Sheriff continued the hearing until 22 October 2008. That continuation was not opposed by the defenders.

[18] On 9 October 2008, Mr McDonald wrote to inform Dr Martens that his firm was not willing to accept her instructions in the case. The letter continued:

"I would remind you that the case will call again at Cupar Sheriff Court on 22^nd October 2008 and you will require to be present or represented at that time failing which decree may be granted against you."

Baird and Company sent the case papers back to Paterson and Bell.

[19] Less than a week later, Dr Martens learned that her mother had pancreatic cancer and only had a short time to live. The information came by means of a telephone call on 14 October 2008 from her mother's doctor in Canada. Dr Martens asked for time to think. She called back on the same day to ask whether her mother had weeks or months to live. The doctor replied that it was probably weeks, but that one could never be entirely sure. He indicated that her mother was more likely to die in one to two weeks, rather than two to four weeks. He suggested that Dr Martens should come sooner rather than later, if she wanted to see her mother before she died.

[20] Dr Martens decided to visit her mother. Before flying to Canada, she knew that she had to attend to two urgent matters. The first was to obtain a new passport, as she had sent her old passport for renewal a few days before. In the event, the Passport Office accelerated her application and she quickly received a new passport.

[21] The second matter was the litigation with James Aird and Sons. The next court hearing was scheduled to take place just over a week later. Dr Martens telephoned the Sheriff Clerk's office. The member of staff to whom she spoke advised her to explain her position in a letter, which would be placed before the sheriff. Dr Martens was asked in court about the exact words spoken to her. Her best recollection was that the member of staff said that if she wrote to the sheriff setting out all the circumstances, that he would take them into account.

[22] Having received that advice, Dr Martens wrote to the Sheriff detailing the medical condition of her mother and stating that "she only has a matter of a week or two to live". The letter stated that she was going to visit her mother and continued

"I have no idea how much time will be involved in the above circumstances, nor when I will be fit to resume matters. I have a chronic medical condition which will be seriously aggravated by travel and by present family circumstances, and this will complicate the time required.

...

I would be grateful if the court could grant a continuance until such time as I can return, and secure an assessment and report from my GP.

I have no representative or proxy nor any means of access to my post until I return, therefore any correspondence will not reach me or be available for me to respond to."

[23] Dr Martens explained that she wrote the letter because she was "trying to put a stay on things while I sorted out things with my mother". She did not try to engage another solicitor on a private basis as she had been informed that if she did so, she would forfeit her right to legal aid in the action. Dr Martens said that it did not occur to her to contact the solicitors for James Aird and Sons to inform them of the position.

[24] Dr Martens boarded a flight to Canada on 22 October 2008. She had no return flight booked. When she arrived in Winnipeg, she spent the first two nights in a Holiday Inn near to the airport, which was close to her mother's care home. Dr Martens then moved to a bed and breakfast establishment called the River Gate Inn. It had a computer linked to the internet to which guests had access.

[25] On arrival, Dr Martens went straight to see her mother and spent one and a half hours with her. Dr Martens then spent most of the next few days with her. Her mother was extremely thin and looked very ill. The doctors indicated that she had only two weeks to live. Her mother opted not to take opiates, which the doctors had recommended to ease her suffering. While she was in Winnipeg, Dr Martens used the computer at the River Gate Inn to email her two brothers in British Columbia several times.

[26] Dr Martens' mother died on 14 December 2008 and her funeral took place the following week. Dr Martens attended to all the funeral arrangements. She then learned that her father was dangerously ill and he died on 27 December. Again Dr Martens looked after the arrangements for the funeral, which took place on 30 December 2008. She then caught the first available flight back, which departed from Canada on 9 January and arrived in the United Kingdom on Saturday 10 January 2010.

[27] Meantime, there were important developments in the litigation at Cupar Sheriff Court. When the case was called on 22 October, Mrs Eldridge stood up to represent her clients. She looked around to see if there was any appearance for the other party. By that stage, she was able to recognise Dr Martens. Realising that there was no representation, Mrs Eldridge moved for decree by default. At that moment the Clerk of Court passed up Dr Martens' letter to the Sheriff. He read it and then passed it to Mrs Eldridge. Neither the sheriff nor Mrs Eldridge had been aware of Dr Martens' position prior to reading the letter. The Sheriff decided to continue the matter for a further four weeks to a peremptory diet on 19 November 2009.

[28] After the hearing, Mrs Eldridge sent a further Form G10 notice together with the Sheriff's interlocutor to Dr Martens' home address by recorded delivery. When it was returned by the Royal Mail, Mrs Eldridge instructed sheriff officers to personally serve the notice. At the hearing on 19 November 2008 Mrs Eldridge produced the execution of service from the sheriff officers and again moved for decree by default. There being no appearance and no other indication of Dr Martens' position, the Sheriff granted the motion.

[29] Mrs Eldridge explained in her evidence in the present action that she had instructions from her client to resolve the matter. There had been a history of delay and unsurprisingly, they wanted matters brought to a conclusion. The decree was extracted on 4 December 2008.

[30] Dr Martens explained that during the period that she was in Canada, she was wholly caught up in the events involving her parents. That was the reason why she never contacted Cupar Sheriff Court to find out the position in respect of the action. When she returned, she found on her doormat various documents relating to the court action. They included the form citing her to the November hearing, the extract decree, the intimation of the diet of taxation and the taxed account of expenses incurred by James Aird and Sons.

[31] The first working day after Dr Martens' return was Monday 12 January 2009. On that date she telephoned the Sheriff Clerk's office, explained what had happened and asked what could be done. She was told about the possibility of an appeal to the Sheriff Principal. Dr Martens lodged an appeal, at which she represented herself.

[32] A hearing took place before the Sheriff Principal on 19 February 2009. He pointed out the difficulty of appealing a decree that had been extracted. He referred to a number of legal authorities and suggested to Dr Martens that she should consider them. At a further hearing on 25 February 2009, the Sheriff Principal heard argument. He then dismissed the appeal as incompetent. He held that he was bound by the decision in the case of Alloa Brewery Co Ltd v Parker 1991 SCLR 70. The ratio of that case is that it is not competent to appeal a decree by default once it has been extracted. No further appeal was marked against his decision.

Submissions

[33] Mr Burnett appeared on behalf of Dr Martens. He accepted that where other means of review are available and a party has not taken advantage of them, the remedy of reduction will not normally be granted. The party must demonstrate exceptional circumstances where reduction is necessary to produce substantial justice: Forrest v Dunlop (1875) 3 R 15, Adair v Colville & Sons 1926 SC (HL) 51. Counsel submitted that the court should be reluctant to refuse an application for reduction by default where that will result in a substantial defence not being heard: McKelvie v Scottish Steel Scaffolding Co Ltd 1938 SC 278. He founded on the following factors which he said were relevant: (a) there was an absence of culpability on the part of Dr Martens; (b) if the decree stood, it would have very significant financial consequences for her; and (c) it was still possible to litigate the case.

[34] Mr McShane for the defenders said that reduction was not a remedy as of right: Arthur v SMT Sales & Services Co Ltd 1999 SC 109 at 115A-B. It was not normally available if another remedy was available and "must be most carefully applied": Adair per Lord Dunedin at page 56. He also said there was no room for reduction if there had been no miscarriage of justice (ibid at page 58). Counsel also relied on the following propositions drawn from the opinion of Lord Emslie in Sullivan v Sullivan, unreported, 20 March 2003 at para.6:

(1) Reduction of the decree of an inferior court is a remedy to be exercised sparingly, and with caution, particularly where the decree is one affecting status.

(2) A court decree is not ordinarily susceptible to reduction where other competent remedies are available and have not been exhausted.

(3) The remedy of reduction will not normally be granted to relieve a party of his own individual failures or the failures of agents for whose acts and omissions he must bear responsibility.

(4) In the case of a decree in foro, reduction may be entertained only in exceptional circumstances going beyond a mere challenge to the decree on its merits. There are no hard and fast rules as to what may constitute exceptional circumstances, each case requiring to be assessed on its own particular facts and circumstances.

Decision

[35] As this is a decree in foro, the test is whether there are exceptional circumstances which justify reduction being granted. An aspect of this test is to enquire whether there has been a miscarriage of justice. A significant factor in favour of granting reduction is that decree has passed against Dr Martens, without an opportunity for her to present her defence to the claim. However, there are other factors to take into account.

[36] The parties to a litigation seek to vindicate their respective rights. Once they join issue, each must participate in the proceedings. One party cannot unilaterally walk away. If they do so, they face a plain and obvious hazard. Decree may pass against them if they fail to attend a particular hearing. Accordingly, it is of prime importance that they monitor the progress of their case.

[37] Here, Dr Martens was not only aware that there was to be a further hearing in the case, but also that there was a risk that decree might be pronounced by default. That awareness came from (a) the terms of the interlocutor of 31 July 2008, (b) the G10 notice served upon her, (c) her appearance before the sheriff on 27 August 2008, (d) the letter from Baird and Co dated 9 October 2008, and (e) the information she received during her telephone call to the Sheriff Clerk's office on about 14 October 2008. Taken collectively, they all impressed upon Dr Martens the need to be present or represented at any hearing. In my view, it is implicit from the terms of her letter to the Sheriff that she knew that decree might pass against her. Her purpose in writing that letter was to try to stave off that possibility.

[38] The second issue concerns the measures that Dr Martens could have taken to avoid decree by default. In my view there were several straightforward steps open to her. She could have contacted Mrs Eldridge to ask for the forbearance of her clients or suggest further negotiations. In writing to the court, Dr Martens could have given information about where she was going, when she was likely to return, and the name of someone who could act as her proxy in her absence. If she did not know her contact details in advance, it would have been a simple matter for her to send them from Canada after her arrival.

[39] Dr Martens could also have contacted the Sheriff Clerk's office to find out what had happened at the hearing on 22 October 2008. She had already been in touch three times in the course of the litigation: twice by telephone and once by letter. There was no apparent difficulty in making communications from Canada. Dr Martens had access to the internet and had sent emails to her brothers. In my view, simple prudence should have suggested to her that she or someone on her behalf should find out what had happened. As the Sheriff Principal put it in his judgment "the court was entitled to expect that [Dr Martens] would take steps to ascertain what had happened at the hearing on 22 October": James Aird & Sons v Martens 26 February 2009, unreported para.6.

[40] The third issue concerns the procedure by which decree was obtained. In my view there was no flaw in the procedure which was followed. Although there had been no recall of the sist, this did not figure in Dr Martens' thinking at the relevant time. In any event, it was superseded by the procedure ordaining her to appear at a peremptory diet.

[41] I formed the impression that Dr Martens had simply shut her mind to the idea that the court would grant decree by default. She was absent from Scotland for over two months. I asked Mr Burnett what the position would have been if she had been away for two years or longer. He suggested that her position would weaken as time went on, but it is hard to see where to draw any sensible cut-off point.

[42] I am satisfied that exceptional circumstances have not been established. Accordingly, I refuse to grant decree of reduction. Instead I shall sustain the defenders' third and fourth pleas-in-law and grant absolvitor.