Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER154
CA36/11	OPINION OF LORD GLENNIE in the cause THE ROYAL BANK OF SCOTLAND plc Pursuers; against NIGEL PERCIVAL McKINNON MATHESON Defender: ­­­­­­­­­­­­­­­­­________________

Pursuers: A Clark, QC; McGrigors LLP

Defender: party

[Date of Issue]15 September 2011

Introduction

[1] The pursuer in this action ("the Bank") seeks reduction of a decree in absence pronounced in the Court of Session on 1 March 2011 in action A140/10 brought against it by the defender ("Mr Matheson").

[2] That action was one of two actions raised by Mr Matheson against the Bank. The other action, earlier in date, was commenced in Perth Sheriff Court in about December 2008. Both actions arose out of a complaint by Mr Matheson that the Bank wrongfully withdrew an extension to a loan facility in place between the Bank and a company of which he was a director. In the Sheriff Court action Mr Matheson is suing for psychiatric and other injury allegedly suffered by him personally. In action A140/10 in the Court of Session, Mr Matheson sues as assignee of the company for damages suffered by the company. In both actions the sum sued for is £200,000, together with interest thereon. The Sheriff Court action is still proceeding.

[3] The events leading up to the grant of decree in absence in action A140/10 were in outline as follows. The summons was signetted and served on the Bank on 15 March 2010. At that stage Mr Matheson was represented by MBM Commercial LLP, solicitors practising in Edinburgh, but they ceased to act for him in, I think, September 2010. Thereafter Mr Matheson represented himself. The summons was lodged for calling on 15 February 2011. That was overlooked by McGrigors LLP, the solicitors acting for the Bank. They therefore did not lodge defences on behalf of the Bank. Decree in absence was obtained on 1 March 2011, but neither the Bank nor their solicitors were aware of that. Decree was extracted on 15 March 2011. McGrigors only became aware on the morning of 14 March 2011 that decree in absence had been granted. They sought instructions from the Bank and prepared defences. After some to-ing and fro-ing with the General Department, a motion for recall of the decree in terms of Rule of Court 19.2 was enrolled on 16 March 2011. By that time the decree had already been extracted, though McGrigors were unaware of that until after intimating their motion for recall to Mr Matheson. The motion came before the Lord Ordinary (Uist) on 18 March 2011. He refused it. He may have taken the view that recall under Rule 19.2 was not available after extract. That is a matter upon which there is divergent authority at Outer House level but no guidance from the Inner House. Or he may have taken the view, as others have, that the dispensing power should not be exercised where the circumstances in which decree was allowed to pass could more appropriately be investigated in an action of reduction rather than by the summary process under Rule 19.2.

[4] That route being blocked by the refusal of the Lord Ordinary to recall the decree under Rule 19.2, the Bank commenced the present action on 21 March 2011. The following day Lord Hodge ad interim suspended the decree in absence and interdicted Mr Matheson from instituting any diligence on the basis of it or taking any other steps to enforce it.

[5] This being a commercial action, the matter came before the court at a preliminary hearing in terms of Rule 47.11 on 12 May 2011. At that stage Mr Matheson was contending that the action should be dismissed on the basis that the bank had not set out any relevant grounds justifying reduction of the decree. The Bank, for its part, reserved its position as to the relevancy of Mr Matheson's defences to its action. I appointed the cause to a Procedural Hearing and a Debate (the commercial procedure is sufficiently flexible to allow both to run together) to consider Mr Matheson's contention that the action should be dismissed, any contentions by the Bank as to the relevancy of the defences, and submissions by both parties as to the scope of any proof. At the same time, I appointed parties to intimate and lodge in process notes of argument, and appointed the Bank to intimate and lodge in process Affidavits relating to the question of "mistake", i.e. the circumstances in which decree in absence was allowed to pass and came to be extracted before the hearing of the Bank's motion under Rule 19.2.

The test for reduction of a decree in absence

[6] At the Procedural Hearing and Debate on 24 and 27 June 2011, Mr McBrearty appeared for the Bank and addressed me on the test to be applied in an action for reduction of a decree in absence. In a detailed submission which was not only of great assistance to the court but also very fair to Mr Matheson, who was unrepresented, he referred me to the following cases: Adair v David Colville & Sons Ltd 1926 SC (HL) 51 per Viscount Dunedin at 55-56; Philp v Reid 1927 SC 224; Stewart v Lothians Construction (Edinburgh) Ltd 1972 SLT (Notes) 75; J & C Black (Haulage) v Alltransport International Group Ltd 1980 SC 57; Zannetos v Glenford Investments Holdings Ltd 1982 SLT 453; Halliday v Pattison 1987 SC 259; Gahlan v Saheed 1987 SCLR 668; Gaffney v Compass Yachting Ltd 1987 SCLR 449; Kirkwood v Glasgow DC 1988 SC 169; Bain v Hugh L S McConnell Ltd 1991 SLT 691; Johnstone & Clark (Engineers) Ltd v Lockhart 1995 SLT 440; Robertson's Exr v Robertson 1995 SC 23; Nunn v Nunn 1997 SLT 182; and Sullivan v Sullivan 2004 SLT 118. Some of these cases were concerned with reduction of a decree in foro as opposed to a decree in absence. Those cases were cited with a view to a distinction being drawn between reduction of a decree in foro and reduction of a decree in absence. Mr McBrearty argued that, in broad terms, a lower test required to be met in order to reduce a decree in absence. It was instructive, therefore, to consider first the test for reduction of a decree in foro. Reduction of a decree in foro did not exist as of right but was "to be applied carefully and entertained only in exceptional circumstances going beyond a mere challenge to the decree on its merits": see Adair and Philp. Generally speaking, where other means of review were available (and had not been used, or had met with failure), reduction should not be used as an alternative remedy: Adair. But even this was subject to the overriding concern, in exceptional circumstances, to produce substantial justice or to correct a miscarriage of justice. Each case required to be assessed on its facts: see Bain. An error or omission by a party or his solicitors did not necessarily preclude that party from obtaining reduction of the decree, though such failure would be relevant in a consideration of all the circumstances. As regards the merits of the proposed defence, it was clear that the party seeking to reduce the decree must show that he had an arguable defence, variously described in different cases as a "stateable" or "substantial" defence. The suggestion in Sullivan that the party seeking reduction must demonstrate a likelihood that, on the merits, there would be a materially different outcome to the case if the decree were reduced, did not apply to a case such as this. If necessary, he submitted that it was wrong. It was enough that it could be shown that there was a real issue to be tried.

[7] That being the test for reduction of a decree in foro, Mr McBrearty submitted that it was inconceivable that the test for reduction of a decree in absence should be more onerous. It was well understood that a stricter test applied to decrees in foro: Robertson's Exr (and see also Cameron v Gibson 2006 SC 283 at para.[21]). In Robertson's Exr the court held that there was no precise test to be met in order to reduce a decree in absence; the discretion should be exercised having regard to the whole circumstances of the case. This was applied in Nunn, but there was a suggestion in that case that the party seeking reduction of a decree in absence should include averments to establish that "on the true facts and relevant law the decree ought not to have been granted". Such a test would appear to be more onerous than that which applied in an action to reduce a decree in foro. That could not be right.

[8] Mr Matheson argued that in order to succeed in their action to reduce the decree in the present case, the Bank had to show that they had a defence in that action which would have succeeded had decree in absence not been granted. He submitted that their pleadings did not instruct such a case. The action was therefore irrelevant and should be dismissed.

[9] Having considered the matter in the light of the arguments addressed to me I made an order allowing the parties a proof before answer restricted to the question of "mistake". My reasons, which I set out briefly at the time, were as follows. I was satisfied that the test for reducing a decree in absence is (has to be) less strict than that applicable to an action for reduction of a decree in foro. In the case of a decree in foro, the cases establish that a party seeking reduction must show two things: (i) that there is an arguable defence to the claim or a real question to be determined; and (ii) that the decree came about (or, in some cases, that other possible avenues of redress were lost) in exceptional circumstances. It would make no sense for the test to be any higher where the decree is a decree in absence. The case of Robertson Exr makes it plain that the "exceptional circumstances" test does not apply to reduction of a decree in absence. There is no precise test which requires to be met in order to reduce such a decree. The court must consider all the circumstances of the case and exercise its discretion in the light of those circumstances. Amongst the circumstances which the court will consider is how it came about that decree was allowed to pass in absence or, in some cases, how other means of setting aside or recalling the decree (such as under Rule 19.2) were not used or were unsuccessful. The party seeking to reduce the decree will have to tender a candid account of how this happened: see Nunn. I shall return to this aspect later in this Opinion.

[10] So far as concerns the arguability of the defence which the party seeking to reduce the decree in absence seeks to put in, I did not consider that the cases, properly understood, required that party to do more than show that he had a genuinely arguable defence to the claim. There are, it is true, statements in the judgments in Nunn and Sullivan to the effect that the party seeking to reduce the decree has to go further than this. It may be that there are cases where that is necessary. For example, where the defence turns on the construction of a written document, or on a point of law, it would be a waste of time and expense to reduce the decree on the basis that the point of construction or the point of law was arguable, albeit unlikely to succeed. Equally, in a case, of which Sullivan is perhaps an example, where the decree is technically a decree in absence but the court has already considered evidence, it may be that a party seeking reduction of that decree should be required to go rather further than simply showing that his case is arguable. Every case will turn on its circumstances, but in general, so it seems to me, a party seeking reduction of a decree in absence ought to be required to do no more, so far as the merits of the claim are concerned, than to show that there is something which can fairly be said in answer to the claim. He should not be required to show that he would have been, or would probably have been, successful in his defence. That would be going too far. In a case such as the present, where the issues turn on questions of credibility and reliability of witnesses of fact speaking to issues of what was or was not agreed between the parties at the time of the discussions about the overdraft facility, it would be undesirable to seek to resolve those issues at the stage of an action for reduction of the decree. If that approach were to be applied, it would require there to be a full hearing on the merits of the claim and the defence in the action of reduction, simply in order to decide whether to reduce the decree in absence in the original action and thereby allow, in that action, a full hearing on the merits of the claim and the defence. On that approach, the investigation of the merits in the reduction action would, if reduction were granted, have to be repeated in the underlying action. Such a procedure seems to me to make no sense.

[11] The correct approach, in my view, in a case such as this is simply to ask whether there is shown to be a genuinely arguable defence. If there is, that should be the end of it, and the inquiry should then focus on the question of the "mistake" which led to the decree being allowed to pass in absence and/or which led to the other avenues of redress being lost.

[12] In this case the Bank has put forward a defence which it intends to lodge in Action A140/10 if the decree in absence is reduced. It has supported that proposed defence by affidavit evidence. That defence seems to me to be plainly arguable. Whether or not it will succeed if the decree is reduced is not for me to say at this stage. If I were to reduce the decree in absence, the issues in that action would require to be considered on their merits. In those circumstances, it is undesirable that I should say too much about those merits. Nor does it seem to me that I should at this stage allow the Bank's evidence as to the merits of the defence to be cross-examined or allow Mr Matheson to adduce his own evidence as to the merits. Either the decree is reduced, in which case the evidence will be heard in that action, and the least said about it here the better; or it is not, in which case the decree will stand and the evidence as to the underlying merits of the dispute will be irrelevant.

[13] In consequence, the Bank has satisfied one part of the test for reducing the decree in absence. What remains to be investigated are the circumstances surrounding the "mistake". Accordingly, as already set out, I allowed to parties a proof before answer restricted to the question of "mistake". On this issue the Bank had already submitted Affidavits from Mr James Cormack, the partner handling the matter at McGrigors, Mr David Eynon, a senior solicitor at McGrigors who had the day to day conduct of the matter and Katherine Allan, who worked in the Bank's legal department and had responsibility for the Sheriff Court action raised by Mr Matheson. Mr Cormack had only second-hand knowledge of the events that took place based on what he was told by Mr Eynon, and Mr Matheson accepted that there was no need for him to be cross-examined on the contents of his Affidavit. Mr Matheson did, however, quite reasonably, wish to cross-examine Mr Eynon and Ms Allan. In those circumstances, I made an order appointing the Bank to intimate and lodge in process Supplementary Affidavits from Mr Eynon and Ms Allan setting out in full the evidence that they wished to give on the question of "mistake" and to make Mr Eynon and Ms Allan available for cross-examination on their Affidavits. Parties helpfully prepared bundles of the relevant documents relating to this evidence and the likely lines of cross-examination. In addition, Mr Matheson, who conducted the cross-examination himself in a courteous and restrained manner, helpfully provided the court and Mr Clark, who represented the Bank at this stage of the process, with copies of the questions that he wished to ask. I should say at once that although on occasions Mr Matheson challenged the truthfulness of some of the evidence given by Mr Eynon, I am satisfied that both he and Ms Allan were truthful and candid witnesses and that in general their evidence, which was largely confined to explaining matters which in themselves were undisputed (items of correspondence, steps taken or not taken in process, etc.) could be relied upon. Both candidly owned up to mistakes which they had made.

[14] I propose to go through the various stages at which mistakes may be said to have occurred by reference to the Affidavit evidence and the contemporaneous documents and in light of the points put to the witnesses by Mr Matheson in cross-examination.

The circumstances in which decree was allowed to pass in absence

[15] The first and most significant mistake made by the Bank and McGrigors was their failure to notice that the summons had called on 15 February 2010. This failure has to be seen against the background that McGrigors, in common no doubt with other firms of solicitors, have a system for checking when a summons is lodged for calling. On 1 April 2010, after the summons was served on the Bank, Mr Cormack e-mailed MBN Commercial, the solicitors then acting for Mr Matheson in the Court of Session action, asking them to notify McGrigors when the summons was to be lodged for calling. But McGrigors did not rely on being notified by Mr Matheson's solicitors of the summons being lodged for calling, and in any event they knew by February 2011 (indeed from about September 2010) that MBN were no longer instructed by Mr Matheson in connection with the Sheriff Court action and might have assumed that they were not longer instructed in the Court of Session action. McGrigors had their own system for checking whether a summons had called. In his Affidavit, Mr Eynon said this:

"The case was also added to our internal calling list, which contains a standing list of cases which we use to check if cases in which we are instructed have been lodged for calling. It is the responsibility of a trainee to check the Court of Session rolls every day and, in particular, to check whether any case on our internal list on the Calling List on the Rolls."

Such a system recognises the importance of the summons calling. Once the summons has called, the defender is required to enter an appearance within three days (Rule 17.1) and to lodge defences within seven days after the summons has called (Rule 18.1(2)). Failure timeously to enter appearance and/or to lodge defences entitles the pursuer to apply by motion for decree in absence in terms of Rule 19.1, which the court shall grant if satisfied that it has jurisdiction and that the rules of service have been complied with. That is why McGrigors had a system in place for spotting when a summons called; they knew the potential consequences of not spotting it.

[16] It is also clear that Mr Eynon, at least, was aware in February 2011 that the action would have to call soon if it was not to fall. He notes in his Affidavit that he had made an entry in his diary to check with the court on the date the instance was due to fall. He was fully aware of the importance of the date by which the summons had to call. It is not clear precisely what Mr Eynon thought was the relevant date. Rule 13.13(6) provides that where a summons has not called within a year and a day after the expiry of the period of notice, the instance shall fall. The summons was served on 15 March 2010 and the period of notice was 21 days. Accordingly the instance would fall if the summons did not call by (on my reckoning) 6 April 2011. There are references in the correspondence (see below) suggesting that Mr Eynon thought that the instance would fall if the summons had not been lodged for calling by 14 March 2011, and that within the Bank there was an understanding that it would fall at the end of March 2011 should Mr Matheson fail to progress it. The precise date on which the instance would fall is not important. What is important is that both the Bank and McGrigors were aware of the importance of knowing when the action called; and they were particularly interested in that point in relation to action A140/10, since they must have hoped that the action would not be lodged for calling in time and that the instance would fall.

[17] I should add this. I have already indicated that soon after the summons was served, Mr Cormack e-mailed MBN Commercial asking them to notify McGrigors when it was to be lodged for calling. That, as I understand it, is regarded as good practice between solicitors, if only as a matter of professional courtesy: c.f. in a comparable situation, Semple Cochrane v Hughes 2001 SLT 1121 at para.[9]. But by February 2011 Mr Cormack, Mr Eynon and others at McGrigors were aware that MBN Commercial were no longer acting on behalf of Mr Matheson, and that Mr Matheson was conducting both the Sheriff Court action and the Court of Session action himself. Ms Allan made it clear in her evidence that the Bank also knew that Mr Matheson was representing himself at this stage. By February 2011, therefore, neither McGrigors nor the Bank could have expected to be told by MBN Commercial when the summons was to be lodged for calling; and they had no reason to suppose that Mr Matheson, who is not a lawyer, would have been aware of the etiquette in this respect.

[18] Despite this, Mr Matheson did in fact intimate variously to the Bank and to McGrigors that the summons was about to be, and subsequently had been, lodged for calling.

[19] I take first the position of the Bank. It is clear that there was a considerable volume of correspondence between Mr Matheson and the Bank. That included, but was not limited to, correspondence with Ms Allan who, as I have said, was employed as legal counsel in the legal-litigation division of the RBS Group (a position she had held since 2001) and within the Bank had responsibility at that time for the action raised against the Bank by Mr Matheson in Perth Sheriff Court. The action there had proceeded to debate. There was a debate in November 2009, at which Mr Matheson appeared on his own behalf. As I understand it, that debate was discharged upon Mr Matheson seeking leave to amend. A further debate fixed for 22 March 2010 was, as I understand it, discharged in light of a further minute of amendment presented by Mr Matheson (but which was ultimately refused by the Sheriff). A yet further debate was fixed for 31 January and 1 February 2011. During this process Mr Matheson was for a short time represented by MBN Commercial but they withdrew from acting (for, I think the second time) in September 2010 and Mr Matheson represented himself at the debate at the end of January and beginning of February 2011. I am told that that action is presently at avizandum.

[19] At about the same time, on 4 February 2011, Mr Matheson informed the Bank by e-mail that he had created a website dedicated to his claims against the Bank. Ms Allan explained in her Affidavit that several members of the Bank staff were named on the pages on the website and referred to in derogatory terms. Ms Allan spent a significant amount of time dealing with this and briefing line managers and other people within the Bank on this.

[20] Meanwhile, on 2 February 2011, the day after the end of the debate in the Sheriff Court action, Mr Matheson wrote to Ms Allan. The letter is headed "Without prejudice" but no objection was taken to it being put before the court. That letter referred to what had happened at the debate and went on to refer to correspondence which Mr Matheson had understood to suggest the possibility of some kind of settlement. Towards the end of the letter he said this:

"I am going to instruct solicitors to bring the action in the Court of Session live, but I am also going to try to regenerate the goodwill my business has lost through the Bank's actions ... . I would like to think that there is a way forward ... . I would ask you to reply to me within seven days of this letter ...". [emphasis added]

Ms Allan accepted in cross-examination that she did pick up the point that Mr Matheson was going to bring the Court of Session action "live". She understood that to be a reference to the action being lodged for calling. There was no uncertainty about that. But she did not recall having mentioned that to Mr Eynon. As far as she was concerned, the important point was the indication that Mr Matheson was proposing to re-appoint solicitors. She regarded that as helpful. Further, she had understood Mr Matheson to have been unwell recently and was not certain that he would in fact proceed as indicated. Ultimately her position was that this was a matter on which she would hear from McGrigors in due course if and when the summons was lodged for calling. Group Litigation at the Bank outsourced the day-to-day management of all court actions to external solicitors. It was the responsibility of the external solicitors to deal with all procedural matters, seeking instructions from the Bank's Group Litigation department where necessary. Ms Allan said that she would rely on the external solicitors to update her in relation to any developments in a case, and would not normally chase them for an update unless she had previously been advised that matters were progressing in some way.

[21] Ms Allan replied to Mr Matheson by e-mail on 14 February. On 15 February Mr Matheson wrote again to Ms Allan by e-mail. 15 February 2011 was a Tuesday. Ms Allan was busy that day preparing an urgent report. She only worked part-time for the Bank, working on Mondays, Tuesdays and Thursdays. She generally did not pick up correspondence on other days, though she would occasionally pick up e-mails via her Blackberry. Usually matters would wait until she came in to the office. There is no reason to believe that Mr Matheson was aware that Ms Allan worked only part-time. Ms Allan said in her evidence that she did not think that she had told him of that. Ms Allan picked up Mr Matheson's e-mail of 15 February on 17 February, a Thursday, a day on which she was also dealing with the internal impact within the Bank of Mr Matheson's website and other urgent matters. She said in evidence that she scanned the terms of Mr Matheson's e-mail of 15 February to determine its subject matter. It seemed to her that it was a re-iteration of matters that had been covered in previous correspondence and did not require a response. It is true that much of Mr Matheson's e-mail covered familiar territory. However, towards the end of that e-mail he said this:

"I am aware that we are awaiting a decision in relation to the action in Perth Sheriff Court, but please do not be under the misapprehension that, that may close the matter.

The action in the Court of Session was brought live last week ...". (emphasis added)

Ms Allan said that she did not recall reading the reference to the action in the Court of Session having been "brought live", though had she read it she would have known what it meant (i.e. that the summons had been lodged for calling). She appeared to equivocate over a suggestion made to her by Mr Matheson in cross-examination that it was negligent on her part not to have read it, but she accepted that it was "certainly regrettable". However, she explained that she was not looking out for references to court procedure. Had she noted that reference she would have raised the matter with McGrigors, but since she concluded that the letter did not contain anything requiring a substantive response she did not forward it to McGrigors or discuss it with them. As far as Ms Allan was concerned, if McGrigors had become aware that the action had called she would have expected them to contact her for instructions before entering an appearance and lodging defences. Group Litigation was expected to discuss such matters with the relevant internal business group and obtain approval before instructing the external solicitors to proceed. However, although there had been no developments in the action since it was served, she understood that they were well advanced in their preparations to defend the Court of Session action as a corollary of defending the Sheriff Court action; and had they been informed by McGrigors that the Court of Session action had called, they would have instructed them to "vigorously defend it".

[22] The action appeared on the calling list on the court rolls on 15 February 2011. The reference in Mr Matheson's e-mail of 15 February 2011 to the action having been brought live "last week" must, I think, be a reference to the fact that Mr Nelson would have taken the necessary steps to lodge the summons for calling at the end of the previous week. The appearance of the action on the calling list was overlooked by the trainee in McGrigors when he checked the Rolls on that day. He did not spot it and, as a result, no one at McGrigors was aware at that time that the action had in fact called. Nonetheless, in terms of the relevant Rules of Court, the Bank was required to enter appearance by 18 February 2011 (Rule 17.1) and to lodge defences by 22 February 2011 (Rule 18.1(2)). No appearance was entered and no defences were lodged.

[23] It must have occurred to Mr Matheson at some stage that it would be more convenient, if the Court of Session action was to proceed, for it to be transferred to the Perth Sheriff Court and to run in tandem with the existing Sheriff Court action. On 23 February 2011 he sent a fax to Mr Eynon at McGrigors to this effect. The fax read as follows:

"Dear Mr Eynon,

I am sending you by fax a form of motion which I shall then send to the Court of Session on the timescale laid down in the Rules.

It is unlikely that the Neurosurgery I have to undergone to try and stabilise my neck injury will be completed before the end of the year and as I am experiencing increased loss of movement on the right side of my body, I am requesting the Action which was called on 15 February in the Court of Session, be moved to Perth Sheriff Court.

I found it very difficult to physically get from car parking to the Court of Session two weeks ago and I didn't have quite the same logistical problem at Perth, although nothing is guaranteed with the surgery and it carries certain risks.

Yours sincerely ..." (emphasis added)

Attached to that fax was a form of motion seeking a transfer to the Sheriff Court on those grounds. Mr Eynon did not notice the reference to the action having called on 15 February 2011. In his Affidavit he said that he was under the impression that this was a motion before calling. He e-mailed Mr Matheson confirming safe receipt of that fax and said that he would take instructions from the Bank "and get back to you". He never did get back to Mr Matheson on this topic. When asked about this in cross-examination, Mr Eynon said that the expression "we will get back to you" was "no more than a turn of phrase". However, on being pressed further on this, he accepted that, having raised the expectation that he would get back to Mr Matheson, he should have done so. He could not explain why he did not get back to him.

[24] Meanwhile, Mr Eynon sought to take instructions from the Bank. At 1435 on 23 February 2011 he sent an e-mail to Ms Allan attaching a copy of the fax received from Mr Matheson. He said this:

"As you will see, Mr Matheson is proposing to enrol a pre-calling motion seeking to remit the Court of Session action to the Sheriff Court.

Procedurally, we would expect a Summons to be lodged for calling and defences to be lodged in response before any application is made to remit. Pre-calling motions are usually only enrolled where there is a matter of urgency." (emphasis added)

Having overlooked the reference in Mr Matheson's fax to the action having called, Mr Eynon appears to have proceeded upon a very firm belief that the action had not called. Not only did he misinform the Bank that this was a pre-calling motion, but he also raised questions about the regularity of the procedure adopted by Mr Matheson in an action where the summons had not called; the obvious thing might have been instead to check whether he was right in his basic assumption about the summons not having called. Mr Eynon asked whether the Bank had any views on the proposed transfer to the Sheriff Court. The rest of his e-mail, and the discussion of tactics, proceeded upon the assumption that the action had not been lodged for calling. Ms Allan was not in the office on 23 February 2011, that being a Wednesday, so Mr Eynon forwarded his e-mail to Victoria Banks, another lawyer within Group Legal at the Bank, asking her to look at it in Ms Allan's absence. He pointed out that although Mr Matheson had said in the fax that he intended to enrol the motion the next day, there was in fact no need for him to do so since it was a motion before calling (a repetition of the same error) and the Bank had yet to enter appearance.

[25] It is clear from her response that Ms Banks did not know much about the Court of Session action. She told Mr Eynon that presumed they would not wish the case to be transferred and that they would have to take steps, if necessary, to protect the Bank's position. Mr Eynon replied setting out something of the subject matter and procedural history of the case, explaining (wrongly):

"The claim has not been focussed at all since service of the Summons in March 2010 and the Summons stands to fall if not lodged for calling by 14 March 2011". (emphasis added)

He spoke to Ms Banks on the telephone thereafter. Later that afternoon Ms Banks sent an e-mail to Ms Allan giving her view of the matter. She pointed out (incorrectly, but no doubt based on what Mr Eynon had told her) that

"Mr M's summons will fall at the end of March should he fail to progress it, hence the request to remit." (emphasis added)

She then suggested that the motion was likely to be granted and that objecting would simply incur cost and not affect the result. She thought that under court rules they had until the Friday (25 February 2011) at 12.30pm to object.

[26] As I had said, despite receiving instructions not to oppose the motion to transfer the case to the Perth Sheriff Court, Mr Eynon did not get back in touch with Mr Matheson to tell him that that was the Bank's position. Had he done so and entered into some form of dialogue with Mr Matheson, he might have discovered that the summons had indeed called and that the proposed motion was not a motion before calling; and he might have been alerted to the fact that he ought to take steps promptly either to enter appearance and lodge defences or to reach some agreement with Mr Matheson about transfer to the Sheriff Court.

[27] Mr Matheson appears to have had a change of mind about the future course of the Court of Session action. Rather than apply to have the action transferred to the Sheriff Court, he enrolled a motion for decree in absence against the Bank. Whether his change of mind was prompted by the fact that Mr Eynon had not responded, as promised, to his fax of 23 February 2011 is not clear, and ultimately does not matter - certainly this was the implication behind Mr Matheson's line of cross-examination. The motion for decree in absence was enrolled on Thursday 24 February 2011 and duly appeared on the court Rolls as an unstarred motion the following Monday, 28 February 2011. A colleague who checked the court rolls on 28 February 2011 told Mr Eynon that an unstarred motion in that action had appeared on the Rolls that day. Mr Eynon, however, thought that the timing was in line with his expectations following Mr Matheson's intimation of the motion to remit to the Sheriff Court, which motion had not appeared on any earlier Rolls of Court. He therefore did not take any steps to find out what was the motion that appeared on the Rolls. In fact, in terms of Rule 23.8, a motion before calling, other than one for decree in absence, is not required to be published on the Rolls of Court. Had Mr Eynon been familiar with this provision, he might not have fallen into the error of assuming that the motion which appeared on the Rolls on 28 February 2011 was the motion (before calling, as he wrongly thought) for transfer of the cause to the Sheriff Court. But, as he said in his Supplementary Affidavit, he was not familiar with this Rule at the time. He explained in evidence that he had not had much involvement with motions before calling. He said, and I accept this, that had Mr Matheson not intimated any motion in his fax of 23 February 2011, then, on being advised that an unopposed motion had appeared on the rolls on 28 February 2011, he would immediately have telephoned the General Department to confirm the nature of the motion which had been enrolled. Equally, if Mr Matheson had told him that having intimated his motion to remit, he was not intending to proceed with it, then, on seeing the motion on the Court Rolls on 28 February 2011, he would have contacted the General Department to find out what it was. He would not have let an unknown motion go unchecked. Had he then been advised that the motion which appeared on the Rolls of Court was a motion for decree in absence, he would have drafted opposition to that motion and drafted defences together with a motion to allow the defences to be lodged although late. Had the opposition to the motion been unsuccessful, and had decree in absence been granted, then he would have been alert to the possibility of applying for recall within seven days in terms of Rule 19.2.

[28] As it was, however, neither Mr Eynon nor anyone else at McGrigors checked to see what motion had been enrolled. Decree in absence was granted on 1 March 2011, though this did not become known to the Bank or to McGrigors until some time later.

Steps taken after decree in absence

[29] It was another two weeks before Mr Eynon discovered that decree in absence had been granted. The discovery happened almost by chance. Mr Eynon said that late in the morning of 14 March 2011 he telephoned the General Department in the Court of Session in relation to another action in which the instance was due to fall by reason of the summons not having called. That reminded him that Mr Matheson's Court of Session action would fall later that month if the summons did not call; and he was also aware that he had not heard from Perth Sheriff Court in relation to the action having been remitted to it. He therefore enquired about the status of Mr Matheson's action. That, as I have said, was late in the morning of Monday 14 March 2011. Unknown to him, Mr Matheson had applied on the previous Friday for extract of the decree in absence, and the application was with the Extracts Department on the Monday when Mr Eynon telephoned the General Department. Mr Eynon was told that decree had been granted on 1 March 2011.

[30] Mr Eynon's reaction to the discovery that decree in absence had been granted some two weeks earlier is set out in his supplementary Affidavit:

"I e-mailed the trainee who was carrying out the afternoon court run that day at 12.34 and asked her to obtain a copy of the interlocutor and separately to confirm when the motion for decree in absence was enrolled and to confirm whether a motion to remit the action to Perth had been enrolled. On her return from court later that afternoon she provided me with a copy of the interlocutor, confirmed that the motion had been enrolled on 24 February 2011 and confirmed that the court had no record of any motion to remit the action to Perth."

This is confirmed by an attendance note dated 14 March 2011 which was lodged in process. The attendance note was apparently dictated on about 18 March but was based on manuscript notes taken at the time and I have no reason to doubt that it reflects what happened from Mr Eynon's perspective. That note also records that Mr Eynon ascertained from the General Department that the action "had been lodged for calling" on 15 February 2011 (or at least had appeared on the calling list on that date as Mr Eynon more accurately put in his Supplementary Affidavit). He noted that he advised the General Department that he would check this "and would likely be in touch with the court later that day".

[31] Mr Eynon reviewed the file and at that point appreciated that Mr Matheson's fax of 23 February had made reference to the summons having called. He then realised that Mr Matheson must have enrolled a motion for decree in absence rather than proceed with the motion to remit. He spent some time (perhaps two hours) discussing the matter with his senior colleague before telephoning Ms Allan at the Bank to advise that decree had been granted and that they would seek recall of the decree, at which time they would also need to lodge defences which would require to be approved by Ms Allan. Mr Eynon explained in his evidence that during that period he also consulted the Rules of Court and formed the view that a motion for recall in terms of Rule 19.2 was "the main option". During the course of the afternoon he prepared full defences, taking the view (correctly in my opinion) that full defences rather than skeletal defences would maximise the prospects of succeeding with the motion for recall of the decree (they were outwith the seven days allowed by the Rule, and success in the application would therefore require the court, as a matter of discretion, to exercise its dispensing power under Rule 2.1). Draft defences were e-mailed to Ms Allan at 1650 on that day and Mr Eynon prepared a draft motion for recall.

[32] The following day, a senior colleague, e-mailed Mr Eynon at about 0800 to point out that he should check whether the decree had been extracted. Mr Eynon said in evidence that the prospect of the decree being extracted had not occurred to him on 14 March. I accept this evidence, though it strikes me as surprising - it is, I think, well known amongst practitioners that extract of the decree is a potential obstacle to recall of a decree in absence under Rule 19.2. Had he been alert to the possibility of extraction, his efforts on that day and the next might have shown greater urgency. Mr Eynon says that at no point in his dealings with the General Department on 14 March had there been any suggestion that the decree had been extracted. That comes as no surprise, since it had not been extracted by them. Mr Eynon contacted the General Department first thing (at about 0910) on 15 March to discuss the motion for recall. He records in his file note for that day:

"Being advised to the best of their knowledge no application for extract has been received from Mr Mathieson (sic). DAE [Mr Eynon] enquiring, were we to move for recall with the normal period of notice, would Mr Mathieson still be able to seek extract of decree in the interim. Being advised that he would and that the court would therefore suggest that we seek to dispense with the normal period of notice."

He explained that he contacted the General Department then rather than the Extracts Department because he had spoken to the General Department at all times previously and assumed that there was a centralised system, so that the ordinary section of the General Department would know whether an application for extract had been made. He did not ask them specifically whether there was such a system. The General Department, he said, "did not at any time suggest that I should check the position with the Extracts Desk or indicate that they were not able to answer my queries". He said that it had not occurred to him to enquire, or instruct others to enquire, at the Extracts Desk to see whether extract had been requested or was in process.

[33] Having obtained approval from the Bank and from the partner in charge at McGrigors on the defences and the draft motion, Mr Eynon instructed a trainee to enrol the motion on the morning of 15 March 2011. There were difficulties. First, as I have said, Rule 19.2 permits a defender against whom decree in absence has been granted to apply by motion for recall of that decree within seven days. The Bank's application on 15 March 2011 was more than seven days after the date of decree. The motion did not seek to dispense with the requirement that it be enrolled within seven days, and for that reason (amongst others) it was not accepted by the General Department. It had to be amended. Second, Rule 19.2 requires a defender who enrols a motion for recall to have paid the sum of £25 to the pursuer and to lodge in process a receipt for that sum. Mr Eynon says in his Affidavit that the original motion was not accepted by the General Department, partly because of the failure to seek dispensation (as above) and partly "because we did not yet have a receipt from Mr Matheson for the payment of £25 to be made to Mr Matheson". They did not have a receipt from Mr Matheson because they had not paid that sum to him nor, indeed, had they even attempted to contact him. The need to contact Mr Matheson was, perhaps, implicit in the terms of the Rule which required a receipt from him. It might be thought to be an obvious step to take given the situation in which the Bank found themselves, and, had immediate contact been made on 14 March when it was first discovered that decree had passed and the terms of Rule 19.2 were first considered, it might (though I accept that this is pure speculation) have led to some resolution before extract was granted. The motion was amended to include a motion to dispense with the requirement to lodge the receipt for payment. When the trainee sought to enrol the amended motion, the General Department

"took the view that this was not competent and the motion would require to be placed before a judge in order to decide whether it was possible to seek to dispense with this requirement. Our trainee was advised by the General Department that the preferable course would be to enrol the motion the following day (16 March) when we would be able to lodge some form of proof of posting of the letter to Mr Matheson intimating our motion and enclosing the fee."

In cross-examination Mr Eynon explained that the trainee was also told that a judge could not look at it until Thursday (17 March). This is consistent with his file note, where he records that the trainee was told that there was therefore, in any event, no advantage in enrolling the motion on Tuesday afternoon (15 March) as opposed to Wednesday morning (16 March). He went on to explain that because McGrigors' Edinburgh office did not have a cashroom or the facility to issue a cheque, the cheque for £25 required to be raised in their Glasgow office. Nonetheless, despite this further difficulty, the letter to Mr Matheson was drafted and sent from the Glasgow office together with a cheque for £25 later on 15 March.

[34] Mr Eynon e-mailed Mr Matheson at 5.41pm on 15 March with a copy of the motion and the defences. He said that he would enrol the motion on 16 March. He told Mr Matheson of the deadline for opposing the motion. He had tried to telephone him some 10 minutes earlier but had failed to get through. He left a message on Mr Matheson's phone confirming that he had e-mailed the motion, asking him to confirm receipt. He then tried to telephone him on a couple of occasions the next morning (16 March). On the afternoon of 16 March he received Mr Matheson's faxed opposition to the motion. The opposition relied upon the fact that the decree had been extracted. That was the first time that Mr Eynon became aware that the decree had been extracted. He then carried out certain research and discussed the position with senior counsel. He started to prepare a summons for an action of reduction, having taken the view that the prospects of the court exercising its discretion to grant the motion to recall the decree in absence in terms of Rule 19.2 were "compromised by the extracting, notwithstanding that we did not consider on the authorities reviewed, the fact that the decree had been extracted was fatal to the motion". Mr Eynon telephoned the Extracts Department to check the position. He phoned them on the evening of 16 March and on the morning of 17 March 2011. He did not get an answer. He then telephoned the General Department and, after some misinformation from the computer system suggesting that the decree had been extracted on 1 March 2011, had it confirmed to him that it was in fact extracted on 15 March 2011. Mr Matheson said, and there is no reason to doubt this, that extract was in fact granted at about 4.00pm on 15 March 2011.

[35] As I have said, the motion called before the Lord Ordinary (Uist) on 18 March 2011 and was refused. This action for reduction was commenced promptly. The action was signeted on 21 March 2011.

Discussion

[36] As stated in para.[7] above, the case of Robertson Exr makes it plain that the "exceptional circumstances" test does not apply to reduction of a decree in absence. There is no precise test which requires to be met. The court will consider all the circumstances of the case and exercise its discretion in the light of those circumstances. But that is not to say that there is no guidance. It would not be conducive either to good administration or to the interests of justice if the discretion was so much at large that the result might depend, as was said in another jurisdiction, on the length of the Lord Chancellor's foot. The cases direct the court to consider the culpability of the mistake or mistakes which led to decree being allowed to pass in absence, or which led to the party against whom decree has passed failing to take advantage of some provision in the rules allowing recall of that decree. Mr Clark, in his careful submissions on behalf of the Bank after the evidence had been heard, submitted that it was a relevant factor also that the party holding the decree (Mr Matheson) would not be prejudiced by the decree being reduced, apart, of course, of the prejudice suffered by the loss of what might be described as a windfall resulting from the failures of the Bank or its agents; but he accepted that the absence of prejudice was not fatal to Mr Matheson's opposition to decree of reduction. I accept that absence of prejudice will be a factor. Another factor, though again not decisive, may be the question of whether the Bank has alternative remedies, for example in the form of an action against its solicitors: see, in the context of the exercise of the dispensing power in relation to an application for recall under Rule 19.2, the remarks of Lord Carloway in Semple Cochrane v Hughes at para.[11]. But Mr Clark did not ask me to consider the strength of the Bank's case as a material factor weighing in the balance once it was established that the Bank had an arguable defence to the claim. In other words, he did not suggest that the stronger the defence, the more ready the court should be to grant decree of reduction. I think he was right to take this approach, since if the court were required to enquire into the strength of the defence (beyond the stage of being satisfied that the Bank had an arguable defence) that would give rise to the very difficulties identified in para.[10] above.

[37] I am satisfied that Mr Matheson will suffer no prejudice if the decree is reduced other than the loss of the decree itself. No other prejudice is shown and there is no suggestion that the Bank have acquiesced in the decree or acted in such a way as to give rise to arguments on personal bar. So that is not a factor against reduction. On the other hand, on the detailed evidence led before me, this does seem to be a case where, if decree in absence is allowed to stand, then the Bank will have another remedy, namely a claim against their agents. That is subject to this one point, namely that the Bank also had been told that the summons had called and, it could be argued, might have been expected to pass on that information to their agents at the time of the discussion about the motion to transfer to the Sheriff Court. I express no view as to the strength of this argument. But if for that reason the Bank's case against their agents were to be rendered problematic, that would be because the Bank was itself at fault, and that would not be a factor favouring decree of reduction.

[38] Ultimately the matter comes down to an assessment of the degree of fault involved in allowing decree to pass. The cases make it clear that that reduction will not normally be granted where the decree in absence arose out of the failures of the party or his agent to comply with court procedures. In Sullivan, Lord Emslie summarised the principles applicable to reduction of decrees in foro and in absence. At para.[6](3) he said this:

"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."

He cited as authority for this a number of cases, many of which were not cases of decree in foro. I take this summary of the law to apply equally to decrees in foro and those in absence. As Lord Emslie makes clear, the rule is not inflexible. But it seems to me, consistent with what is there stated, that that will be the norm - the exceptional case may be where there are mitigating circumstances, where the error is to some extent excusable.

[39] With this in mind, I turn to consider the errors here. The fundamental mistake was the failure to appreciate that the summons had called. There were in my view no mitigating factors. McGrigors had a system in place for checking when an action in which they were potentially involved called. That system failed. The appearance of the case on the calling list was overlooked. This was a simple human error on the part of a trainee. It should not have happened. It happened in circumstances where the agents were, according to their own evidence, on the lookout to see when the summons would call, since it was coming up to the time when if it did not call the action would fall. In addition, the Bank was told both that the action was going to be lodged for calling (on 2 February) and that it had called (on 15 March). The Bank did nothing about it. It may be, as Ms Allan said, that they left these matters to their agents to deal with. I can understand that. But at the time of the discussion of Mr Matheson's "before calling" motion to transfer the case to the Sheriff Court, when the fact that the motion was thought to be before calling gave rise to some discussion between the Bank and its agents, one would have thought that someone on the Bank's side might have recalled that Mr Matheson had said in an e-mail that the summons had been lodged for calling. Further, McGrigors were themselves told on 23 February by fax that the action had called on 15 February. I have no reason to doubt Mr Eynon's explanation that he did not notice this because he was concentrating on the suggestion that the action be transferred to the Sheriff Court, but that is an explanation rather than an excuse. The fax was quite clear in its terms. If Mr Eynon had read the fax carefully, as he ought to have done in any event and in particular if he was puzzled about the motion to transfer being lodged before calling, he would have been left in no doubt as to the fact that the summons had called.

[40] Once the fact that the summons had called was overlooked, it might be said that the die was cast. I do not think that that is necessarily so. Mr Eynon told Mr Matheson that he would get back to him in response to his suggestion of transferring the case to Perth. He did not do so, even after he had taken the Bank's instructions on the point. His failure to do so was discourteous. More importantly, if he had gone back to Mr Matheson indicating that the Bank would not oppose the transfer, it is difficult to imagine (though one cannot be sure) that Mr Matheson would have changed tack and enrolled for decree. But in any event it is likely that any correspondence about the transfer would have flushed out that this was not a motion before calling, that the summons had called and that action was required.

[41] Even then decree would probably not have passed but for a further mistake by Mr Eynon. He was told on 28 February that a motion had been enrolled in the action. Because he assumed that it was the motion to transfer, he did not check the terms of the motion. In fact his assumption was unjustified; if he had known the Rules, he would have known that motions before calling do not require to be enrolled. But while his ignorance of a particular provision of the rules was perhaps excusable, that was no reason not to check. It is dangerous in litigation to make assumptions, and he should have never have ignored a motion simply on the basis that he thought he knew what it was.

[42] I was referred to what Lord Carloway had to say in Semple Cochrane v Hughes about it being good practice for motions for decree in absence to be intimated to the other party. I do not dissent from that at all. But Mr Eynon knew that Mr Matheson was unrepresented, and could not have assumed that he would be told by him that a motion for decree had been enrolled. I do not criticise Mr Matheson for his failure to tell Mr Eynon. He had already pointed out to him that the action had called; and Mr Eynon had not got back to him as promised in response to the motion to transfer.

[43] It was only after some two weeks that Mr Eynon became aware that decree in absence had been granted. He then took steps to try to have the decree recalled. During the course of his evidence I was minded to think that he did not act with the urgency which the situation demanded. I was surprised that he did not even think of the possibility that the decree might be extracted. He left matters, on the first afternoon at least, to a trainee to check at the General Department to see precisely what had happened. Even though Rule 19.2 required a receipt for payment to Mr Matheson to be lodged in process, he took no steps to contact Mr Matheson. The first draft of the motion failed to seek the exercise of the court's dispensing power and was refused by the General Department. These are matters on which he might properly be criticised. But I am not persuaded that anything that he could have done but did not do at that stage was likely to have rescued the situation. Application for extract had already been made, and the application under Rule 19.2 was already out of time. Whilst a Lord Ordinary might have exercised his discretion in favour of the Bank under Rule 19.2, by invoking the dispensing power, I do not consider that anything which Mr Eynon did or failed to do was decisive in the motion being unsuccessful.

[44] Having said that, however, I am not persuaded in light of the failures to which I have referred in paras.[39] - [41] that it would not be right for me to exercise my discretion and reduce the decree in absence in action A140/10.

[45] I am conscious that this leaves the Sheriff Court action to continue, at which, if the matter goes to proof, evidence will be led about the same facts as were in issue in action A140/10 in which Mr Matheson has obtained decree. That does not seem to me to cause a problem. The decree in absence does not give rise to a plea of res judicata, and the fact that the Court of Session action has ended in this way has no bearing on the outcome of the action in the Sheriff Court.

Decision

[46] I shall therefore grant decree of absolvitor.