Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_11.html
Cite as: [2018] CSIH 11, [2018] ScotCS CSIH_11

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

STATEMENT OF REASONS

[2018] CSIH 11

P1151/17

issued by LADY DORRIAN, the LORD JUSTICE CLERK

in the Petition to the Nobile Officium

DEREK COONEY

Appellant

against

THE SHERIFF CLERK, GLASGOW and GLASGOW CITY COUNCIL

Respondents

Appellant: Party

Respondents: No Appearance

20 February 2018

[1] Prior to the hearing the petitioner objected to the Lord Justice Clerk chairing the

hearing on the basis of cases in which she was allegedly involved many years ago. Having

heard that submission, the Lord Justice Clerk declined to recuse herself.

[2] The petitioner is a vexatious litigant. He sought to raise proceedings in the Sheriff

Court to suspend a charge for payment following upon a summary warrant obtained by

Glasgow City Council in respect of alleged unpaid amounts of council tax, and diligence

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thereon in the form of an earnings arrestment of his pension credits. The petitioner contends

that no sums are due. On 19 October 2017 he was granted leave to bring proceedings, and

lodged an initial writ on 23 October 2017 in the Sheriff Court at Glasgow. He has been given

leave to present a petition to the Nobile Officium based on the procedure which thereafter

followed.

[3] In the petition he asserts (a) that the sheriff clerk refused to warrant his writ on the

basis that it would have to go before a sheriff; (b) that the writ was returned to him by the

sheriff clerk by letter dated 24 October 2017, “stating that the sheriff ordered that I put up

£1,000 caution”. It is claimed that the sheriff had no power to do so. The appellant states

that he then called at the office of the sheriff clerk asserting that the writ was in proper form,

contrary to what had been stated in the letter returning it. He asked for a hearing but the

sheriff refused to grant a hearing or pronounce an interlocutor. It is maintained that the

sheriff’s refusal to grant a hearing or pronounce an interlocutor is not competent. The

appellant also raised matters relating to the underlying merits of his claim, but these were

not matters to which the petition before us related and were thus irrelevant.

[4] The summary warrant upon which the diligence in question proceeded is one to

which the Act of Sederunt (Summary Suspension) 1993 applies, and may thus be the subject

of summary suspension. The procedure is by way of Summary Application. This is clear

from the Act of Sederunt, which refers throughout to the summary nature of the procedure,

and from section 3(p) of the Sheriff Court (Scotland) Act 1907 which provides that:

“‘Summary application’ means and includes all applications of a summary nature

brought under the common law jurisdiction of the sheriff principal, and all

applications, whether by appeal or otherwise, brought under any Act of Parliament

which provides, or, according to any practice in the sheriff court, which allows, that

the same shall be disposed of in a summary manner, but which does not more

particularly define in what form the same shall be heard, tried, and determined.”

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[5] However, before the sheriff could make any order for summary suspension, the

applicant must produce caution or other sufficient security, in terms of para 3(1) of the Act

of Sederunt which provides that:

“On sufficient caution being found or other security given for –

(a) the sum charged for with interest and expenses, and

(b) a further sum to be fixed by the Sheriff in respect of expenses to be incurred

in the suspension process,

the sheriff may sist diligence, order intimation and answers, and proceed to dispose

of the cause in a summary manner.”

[6] The finding of caution, or giving of other security, is therefore a necessary condition

of the sisting of diligence, in the absence of which the sheriff has no discretion to do so

(Cowie v Martalo 2011 GWD 32-676, Sheriff Principal Lockhart at paras 4 and 18, citing

Macphail, Sheriff Court Practice, para 24.21; cf Cooney v Kirkpatrick 1989 SC 61).

[7] Whilst it may be the case that “where an ex parte application to sist diligence is

made, the sheriff should appoint an early hearing thereon, however he disposes of the

application” (Macphail (supra), para 24.21), the same does not necessarily follow in respect

of the finding of caution, in circumstances where the sheriff has no option but to require

caution; the amount is to an extent fixed under reference to the sum charged for with

interest and expenses; and the sheriff is required to fix a further reasonable amount in

respect of expenses. Otherwise, the approval of some other method of security, if it is to be

offered, may be addressed in terms of OCR27.4 in the usual way. Even if it had been the

case that the sheriff had made an order for caution, it would not follow that he had acted

incompetently in doing so. However, the sheriff has not in this case made an order for

caution. The letter sent to the appellant was an indication that the sheriff had assessed

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caution in the second part at £1,000, and that further information was required to calculate

what would be the appropriate final sum, but it was not an order for caution.

[8] The appellant’s writ seeking a sist of diligence, was returned to him with an

explanation that it was not in proper form, and with an indication of what was required to

address that point. At the same time he was advised that before an order could be made, it

was necessary to lodge caution, consisting of 2 parts, one relating to the sum charged for,

interest and expenses; the second relating to expenses which may be incurred in the

suspension process. The sheriff had fixed the sum regarding the latter at £1,000. However,

he had been unable to determine the former in the absence of further information. Rather

than re-submit his writ, the appellant immediately sought leave to present this petition. In

these circumstances there is no application before the Sheriff Court, nor has there been an

order of the sheriff requiring an interlocutor to be issued. The petitioner was correctly

advised that the application requires to be in the form of a Summary Application. There has

been no order for caution, and hence no requirement for an interlocutor. There is no merit

in the petition which must be refused. If the petitioner wishes to proceed with his claim the

solution lies in his own hands.