Pursuer/Appellant:  Party

Defenders/Respondents:  P Milligan; Brodies LLP

10 July 2014

The appellant’s claim for damages for injuries allegedly sustained during a road traffic accident in 2006, liability for which was admitted by the respondents, was rejected by the sheriff on the basis that the appellant had failed to prove that he had suffered any loss, injury or damage as a result of the accident.  In advancing his appeal against that decision the appellant relied on numerous documents before the court, variously referred to as “grounds of appeal”, “note of argument” or “answers”.  Certain correspondence was also referred to.  From these documents it seems possible to identify a number of separate areas of complaint, albeit that it is difficult to see the relevance of much of the content and they lack specification.  These areas are that:

• The respondents had “no title to defend the action”
• that Mr David Stihler, the solicitor representing them had no authority to do so
• That the appellant was wrongly prevented from answering a minute of amendment for the respondents dated 26 October 2012
• That he was wrongly prevented from amending his own pleadings on 10 May 2013 and
• That he was wrongly refused an adjournment of the proof on 3 June 2013, not allowed to lodge late productions, and was thus denied the opportunity to lead evidence at that proof

Although these areas of complaint are able to be identified, it is much more difficult to identify anything which might properly be identified as a ground of appeal in law relating to any of these aspects of the case.  The grounds of appeal certainly do not comply with the requirements of Rule of Court 40.18(1); they do not consist of brief numbered propositions of law stating grounds which, if correct as a matter of law, should result in the appeal being granted.

            The action has a protracted history, having been raised in August 2009, at the end of which year it was sisted for medical evidence to be obtained.  It remained sisted for almost a year.  It was again sisted for about a year in 2011.  On 19 March 2009 the respondent company changed its name from Cardrow Insurance Limited to its present designation.  They admit to being the motor insurers of the driver of the vehicle which struck the rear of the appellant’s vehicle in the accident in question.  They instructed underwriting services to deal with the claim on their behalf and those underwriters instructed Mr Stihler, then working for DLA Piper.  Following a change of underwriters, Mr Stihler continued to be instructed.  In May 2013 he commenced work for Brodies LLP and the agency was transferred to that firm. Mr Stihler continues to be instructed.  The issue of the respondents’ title to defend and Mr Stihler’s capacity to act was raised before Sheriff Baird on 26 October 2012 during a motion relating to the respondents’ minute of amendment, the terms of which need not concern us.  The sheriff asked Mr Stihler to confirm (a) that he was the principal agent acting for the respondents; (b) that he was in receipt of instructions regarding the case; and (c) that, in the event of the appellant being successful, his clients were in a position to satisfy any payment.  Mr Stihler answered all three questions in the affirmative and the sheriff proceeded to explain to the appellant that the respondents were properly convened in the process.  That explanation was entirely correct and no relevant issue arises regarding it.  Mr Stihler is not a party to the action, he is the solicitor for the respondents and no relevant issue arises in respect of the capacity in which he acts.  Nothing more need be said about this aspect of the appeal which has no merit.

            At the hearing on 26 October 2012, the appellant sought leave to answer the minute of amendment.  The sheriff refused that motion because the answers were not in proper form.  They were unfocused and sought to add florid, and irrelevant, averments relating to the issue of the identity of the respondents.  This was a matter within the discretion of the sheriff, and it cannot be said that he had no proper basis for exercising that discretion as he did. In any event, the sheriff, in proceeding to fix a diet of proof, allowed the appellant 3 weeks from the date of his interlocutor to make further averments, including averments to increase the sum sued for, having, as the interlocutor in terms records, explained the appropriate procedure for doing so, and having fully explained all further and future procedure to him.  The pursuer made no effort to amend and leave to appeal was not sought.  The proof, originally fixed for 10 May 2013, required to be discharged as a result of industrial action, and a fresh proof was fixed for 8 June 2013.  On 10 May, the appellant again sought to amend, by deleting the sum sued for but without offering to substitute a different sum, again seeking to insert florid and irrelevant averments about the identity of the respondents.  The minute includes numerous averments which are scandalous, alleging fraud and deceit on the part of several named individuals.  In several other respects it was contrary to the pursuer’s own averments, for example by appearing to challenge his own medical evidence.  The motion was refused on the basis that ample opportunity had been given for timeous amendment, that 7 months had elapsed since the sheriff himself had given the appellant procedural advice, that the proposed amendment contained irrelevant and scandalous averments, and that it did nothing to clarify the issues between the parties.  Not surprisingly, the sheriff refused the motion, as he was entitled in his discretion to do, and the appellant has not presented any argument capable of persuading us that he erred in doing so.  The reasoning which led to the decisions made by Sheriff Baird are set out in a note which he has prepared for the benefit of this court, and they cannot be criticised.  The appellant appears to be under the impression that he has a “right” to amend his pleadings.  That is not the case: amendment may only be allowed at the discretion of the court, which will consider all factors, including the proposed terms of the amendment, the stage at which the amendment is sought, the effect of the amendment on progress of the case, the possibility for prejudice to other parties and, vitally, whether the amendment helps to focus the issue between the parties.  Again, there is no merit in that aspect of the appeal which relates to decisions made by Sheriff Baird.

            Leave to appeal from the sheriff’s decision was not sought.  Despite the detailed explanations given by the sheriff on 26 October 2012 the appellant was given further indulgence by the court when the proof was discharged on the basis that he had been given papers by his former solicitor only a very short time prior to the proof date of 8 January 2013.  He had not sought to amend prior to that hearing and did not do so on that day.  A further proof was fixed for 3 June 2013.  At that proof, the appellant sought a further discharge of proof, to enable him to appeal against the prior interlocutor of Sheriff Baird, to whom application had not been made, with the consequence that no leave to appeal had been granted, and any application would now be incompetent as out of time.  The appellant did not have a “right” to appeal against Sheriff Baird’s decision, the obtaining of leave being a necessary step before such an appeal could be entertained.  The sheriff refused to discharge the proof to allow a late application to be made to Sheriff Baird.  The appellant further sought discharge of the proof to enable him to copy some 2000 pages of late productions, including medical records.  He sought leave to lodge such productions.  He had not, however, cited any medical witnesses, and he had not instructed any expert to analyse the records.  It was not evident how he proposed to introduce the documents into the evidence.  Unsurprisingly, given the history of the case, which involved two lengthy sists, three discharged proofs at the motion of the appellant, and many opportunities to amend or lodge appropriate documentation, the sheriff refused said motions, which would, of necessity, have involved a further discharge of proof.  Leave to appeal against these decisions was also refused.

            These preliminary decisions made at the proof all related to matters entirely within the discretion of the sheriff, and as with the attack on the discretionary decisions of Sheriff Baird, the appellant’s appeal does not come anywhere near to meeting the test which applies before such decisions may be interfered with on appeal – tests which are not addressed in his written grounds and were not addressed in oral submission.  The reasons for the decisions made by Sheriff Reid are set out in detail in the note attached to his interlocutor and in our view they cannot be criticised.  One of the appellant’s complaints is that Sheriff Reid, at the proof, would not allow evidence relating to the title of the respondents or the capacity of Mr Stihler, but these were points of no merit and of no relevance.  In his oral submissions, the appellant concentrated on these, particularly on his concerns about the title of the respondents.  It was disappointing, to say the least, that he seemed unable or unwilling to accept that the fact of the respondents’ change of name did not imply that something sinister had occurred, was not prejudicial to him or, importantly, that given the terms of (a) a letter from Brodies LLP, to the court, dated 13 January 2014, and (b) a letter to Brodies LLP from Cardrow Insurance Ltd dated 9 January 2014, that he need have no concern at all about the matter.

            Other than as already noted the points advanced by the appellant would appear to relate to trivial procedural points or to be disagreement with the decisions of various sheriffs, or disagreement with evidence from witnesses led for the respondents.

            Contrary to his written submission that he was not allowed to lead any evidence, the appellant himself gave evidence before the court.  It does not appear that he had cited any other witnesses to give evidence and he did not seek to call any other witnesses.  The sheriff comprehensively rejected the appellant’s evidence and concluded that no loss had been established.  Nothing said by the appellant in writing or in oral submission demonstrates that that was not a decision that the sheriff was, on the evidence before him, entitled to reach.

            We have, in these circumstances, been unable, in any of the material placed before the court by the appellant, to identify any point of any merit and the appeal will be refused.