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Cite as: [2017] ScotCS CSIH_68

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Clark of Calton

[2017] CSIH 68

XA66/17

OPINION OF LADY CLARK OF CALTON

in the application

for leave to appeal under Court Reform (Scotland) Act 2014 section 113

Appellant

Defender and Appellant: Party

First Respondent: Catto (sol adv); Addleshaw Goddard

Second and Fourth Defenders and Respondents: McSherry (sol adv); DWF

14 November 2017

Summary

[1] The applicant in this case sought leave from this court to appeal against a decision of

the Sheriff Appeal Court made on 12 June 2017 in which the Sheriff Appeal Court refused to

allow an appeal to be received late. The background to that decision is as follows:

“[2] ... On 24April the appellant lodged ground of appeal but these failed to comply

with Rule 6.6(3) in that they did not state whether the appellant considered the

appeal should be appointed to the standard appeal procedure or the accelerated

appeal procedure and the appeal was returned to the appellant.

[3] An appeal requires to be lodged within 28 days of the day after the decision

appealed against is given. Rule 6.3. This means that the time starts to run on the day

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following the decision, in this case 12 April. The appeal must therefore be lodged

within 28 days of that date. Accordingly the ground of appeal required to be lodged

with the Sheriff Appeal Court in Edinburgh by 10 May to comply with the Rules.

The appellant only re-lodged the ground of appeal in correct form on 16 May and

was accordingly late. His explanation being that his ill health had prevented him

from lodging the grounds timeously. The extract decree against the first, second and

fourth defender was issued on 11 May 2017.

[4] Having regard to Alloa Breweries v Porter 1991 SCLR 70 there is generally no

appeal against an extracted judgment. An appeal can only be considered if there is

some impropriety in the issuing of the extract decree. There was no suggestion here

of any impropriety. In the circumstances I was not prepared to allow the appeal to

be received late, the appeal post-dating the issue of extract decree.

[5] As I explained had extract not been issued I should have been sympathetic to the

appellant’s motion for the appeal to have been received late in the circumstances as

he narrated them. His ill health after the return of the defective grounds of appeal by

the court may well have persuaded me to exercise my discretion to allow the appeal

to be received late had extract not been issued. But I took the view that the law was

clear and recognising the need for certainly and finality there was no basis to allow a

late appeal where there was no challenge to the extract having been properly issued.

In all the circumstances I however determined no make no award of expenses in

relation to the appeal.”

The applicant unsuccessfully sought leave from the Sheriff Appeal Court to appeal to this

court.

The Application to this Court

[2] The relevant test to be considered by this court is set out in section 113 of the Courts

Reform (Scotland) Act 2014 (“the 2014 Act”) which states:

“(1) An appeal may be taken to the Court of Session against a decision of the

Sheriff Appeal Court constituting final judgment in civil proceedings, but only—

(a) with the permission of the Sheriff Appeal Court, or

(b) if that Court has refused permission, with the permission of the Court of

Session.

(2) The Sheriff Appeal Court or the Court of Session may grant permission under

subsection (1) only if the Court considers that—

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Session to hear

the appeal....”

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[3] The applicant accepted that the appeal does not raise an important point of principle

or practice but submitted that there was some other compelling reason to hear the appeal

because the applicant had suffered a miscarriage of justice by being denied substantive

justice. The errors of law identified were as follows:

“(2) the Learned Sheriff erred in law in deciding that the applicant failed to lodge

his application to appeal within the 28 day time limited prescribed by statute.

(3) the Learned sheriff erred in law in refusing to exercise the wide discretion

available to him in terms of Rule 2(1) of the Sheriff Appeal Court Rule 2014 and

permit the application to appeal to be received although late.

(4) the Learned Sheriff erred in law in refusing to exercise the wide discretion

available to him in any event under Rule 2(1) as aforesaid.”

[4] I am grateful to the applicant for agreeing to give to the court and parties’

representatives his written notes which formed the basis of his oral submissions. The

applicant gave a well focused submission and drew attention to the conjoined appeals cited

under Hamilton v Glasgow Community and Safety Services 2016 SC (SAC) 5 and Macguire v

Grant and Wilson Property Management Limited [2017] SAC (Civ) 20.

[5] In oral submissions, the applicant accepted that the application was not concerned

with the merits of the dispute and his focus was properly on the decision making and

reasons of the Sheriff Appeal Court which refused to allow the appeal late and thus declined

to hear a substantive appeal. It is not in dispute that the applicant lodged timeously

form 6.2 as a Note of Appeal setting out grounds of appeal. This is not a case where the

grounds of appeal are criticised as inadequate for not complying with the rules. The only

criticism made of the applicant’s attempt to comply with the Rules of Court relating to

appeals is contained in the letter sent on behalf of the Sheriff Appeal Court dated 24 April

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2017. This letter informed the applicant that the Note of Appeal which was received was

being returned and advised

“the note of appeal requires to state within section 4, whether the appellant considers

that the appeal should be appointed to the standard appeal procedure or accelerated

appeal procedure, taking into account Rule 6.6(3).”

The applicant was invited to resend the Note of Appeal duly completed.

[6] The applicant did not dispute that the letter dated 24 April 2017 had been sent and

received at the address he gave for correspondence. He explained that it was not opened by

him until a later date, after extraction, because his partner, who was very concerned about

his ill health, had kept correspondence from him for a period to try to safeguard him. The

applicant said he was ill during this period and had been so diagnosed by his medical

practitioner. He understood that his appeal was lodged and was not expecting any

correspondence. The applicant submitted that immediately he became aware of the

difficulties in relation to the Rules, he had sought to put matters right; the delay was short;

he had followed the advice given to seek leave to appeal late; the Sheriff Appeal Court were

sympathetic to his position; the problem was the extract which he had no reason to know

about. He submitted it was plain from the case law that the court had allowed late appeals

even after extract.

[7] The solicitor advocates for the respondent adhered to their Answers, relied on the

reasoning of the Sheriff Appeal Court in the opinion dated 12 June 2017 and submitted that

there was no error of law and no compelling reason.

Decision and Reasons

[8] Accepting for present purposes that what was said by the applicant was true, I

consider that the applicant made a powerful submission to the effect that because of a minor

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infraction of the Rules, in circumstances where he had no actual knowledge, he was left in a

position where his substantive appeal had not been heard and determined by the Sheriff

Appeal Court.

[9] I accept that there are some restricted circumstances under the law, as it has

developed to date, in which the court has power to grant late leave to appeal even after an

interlocutor has been extracted. The difficulty for the applicant is that the power of the court

is not a matter of open discretion dependent upon all the circumstances of the case. The

scope of exception to the normal rule is limited to circumstances where there is some

incompetence or irregularity. It appears that the Sheriff Appeal Court did have some

sympathy for the positon of the applicant and I also have sympathy for his position.

Nevertheless I am unable to identify any error of law by the Sheriff Appeal Court. In my

opinion, the Sheriff Appeal Court properly identified that there were recognised exceptions

to the general rule that there could be no appeal against an extracted interlocutor and

concluded that the circumstances of the present case did not fall within the exceptions. It is

not in dispute in the present case that the interlocutor of the sheriff was extracted and the

decision making of the Sheriff Appeal Court must be considered against that background.

The general rule which the courts require to apply is that set out by the Inner House in Alloa

Brewery Company Limited v Parker 1991 SCLR 70. In the present case the applicant accepted

that he had not complied with all the relevant rules prior to extract, albeit he submitted there

was only a minor infraction. I accept that the failure was minor but nevertheless the rules

were not complied with. In my opinion the problem did not arise because of any act or

omission on behalf of the sheriff court administration or of the respondents. I cannot find in

any of the case law any support for an exception in the circumstances described by the

appellant. I accept that a litigant, especially perhaps a party litigant, may suffer problems

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and pressures and one may often sympathise with that. Nevertheless if a party chooses to

raise a litigation against other parties, I consider that it is incumbent upon such a litigant to

organise their affairs in such a way that even if illness or other misfortune supervenes, there

is a strategy in place in relation to correspondence about the legal action.

[10] In section 113 of the 2014 Act the words “compelling reason” has a particular legal

meaning. It does not merely mean compelling in the general sense. A starting point for

what may be a compelling reason is an arguable material error of law. I am not persuaded

that the Sheriff Appeal Court did make any error of law in this case and therefore the

application for leave to appeal falls at the first hurdle. Further in relation to the submissions

that there is a collapse of fair procedure, I think it is relevant to take into account that the

action raised by the applicant was dismissed. It is a matter for him whether or not he wishes

to consider re-raising the action. It was not submitted that there were any timebar problems.

[11] Accordingly the application for leave to appeal is refused.