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Cite as: [1998] ScotSC 3
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JAMES PAUL ASSOCIATES v. CAROL ELLIS [1998] ScotSC 3 (2nd December, 1998)
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE
A901/97 JUDGMENT OF SHERIFF R.A. DAVIDSON
in the cause
MESSRS JAMES PAUL ASSOCIATES
PURSUERS
against
CAROL ELLIS
DEFENDER
Act: C.A. Thomson, Messrs. Carltons, Solicitors, Dundee
Alt: Ingham, Messrs. Condies, Solicitors, Perth.
Dundee, 1st. December, 1998
The Sheriff, having resumed consideration of the cause, sustains the fourth plea in law for the defender, holds the action to be incompetent and grants decree of dismissal; appoints parties or their agents to be heard on all questions of expenses arising and assigns
15th. December, 1998 as a hearing therefor.
NOTE
This is, at first sight, an action for payment at the instance of a firm of architects against an individual who is "designed" in the writ as "formerly residing at 185 Waters Drive, Staines, Middlesex and whose presents whereabouts are to the pursuer unknown." The sum sued for is £47,706.59, which is initially said to represent the cost of architectural services supplied to a company called Gordon McBain Distillers Limited and which is said to have had the effect of securing planning permission for a piece of land near Arbroath. The defender is averred to have been a director of the foresaid company at all material times and is further said to be the heritable proprietor of the land in question. It is averred that the services rendered to the company have not been paid for, that the company is now insolvent and that the defender is lucratus to the extent of the services provided. It is also averred that the pursuers were misled as to the true identity of the proprietor of the land concerned.
The Civil Jurisdiction and Judgments Act, 1982, which incorporates into the law of Scotland the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, provides, as does the Convention, that the guiding principle to be followed throughout the countries to which the Convention applies is that a person shall be sued in the courts for the place where he is domiciled. For Scottish purposes, this is to be found stated at Para. 1 of Schedule 8 to the Act. Section 41 provides, in sub-section (2) that, " An individual is domiciled in the United Kingdom if and only if (a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom."
In the present case, the pursuers properly concede that they do not know where the defender resides, though they believe she resides in England. They aver that she has a "beneficial interest" in land near Arbroath and that, accordingly, the courts of this sheriffdom have jurisdiction to determine this cause. The defenders have tabled a plea of "no jurisdiction," and further have stated a general plea to relevancy and specification. When the case called before me at a Continued Options Hearing diet on 16th. July, I focussed on the issue of jurisdiction, perhaps misleading the agents as to the importance of other considerations, and it was against that background that they appeared before me on 25th. August ready to argue that issue but not in a position to deal with other preliminary pleas. I recognise that, with the dubious benefit of hindsight, it would have been preferable and, more to the point, in accordance with direction from the Inner House, had I insisted on all preliminary issues being debated. Be that as it may, the debate on 25th. August concentrated solely on the "no jurisdiction" plea, the fourth plea-in-law for the defender.
Mr. Thomson, for the pursuers, recognised that the starting point for him in submitting that the court did have jurisdiction in this cause was that the onus of demonstrating that rested upon him and that, to discharge that onus, he required to found on the provisions of Schedule 8, para 2(8) which provides:-
" (8) where he is not domiciled in the United Kingdom, in the courts for the place where-
(a) any moveable property belonging to him has been arrested; or
(b) any immoveable property in which he has any beneficial interest is situated."
This, he said, was an exception to the domicile rule and that the pursuers' position was that they were unable to aver that the defender was resident in the United Kingdom or elsewhere and therefore they were entitled to make use of this exception. This had arisen, he advised, against a background of the defender having had a place of residence in England at which service had been attempted by means of recorded delivery postal service and by process server and he was reliant on information from the process servers that the defender had been at the address in Middlesex at which she was said in the instance to have formerly resided but the process servers had been unable to trace her there or elsewhere. That was the background against which he had to rely on para 2(8) as the basis for jurisdiction.
He further accepted on the basis of the facts as I have hereinbefore recorded them that there was no contractual relationship between the parties and therefore no proper basis under para. 2(2) of Schedule 8 on which to found jurisdiction.
It was his submission that there was no requirement on the pursuers to aver positively where the defender was before they could rely on para. 2(8). All that was required was that it could not positively be asserted on behalf of the defender that, by virtue of her place of residence, she was domiciled in the United Kingdom.
In support of this proposition, he submitted that para 2(8) was inconsistent with the terms of the Brussels and Lugano Conventions. It is certainly true that in terms of section 16 of the principal Act, para. 2(8) is a "modification" of the terms of the Convention. The learned authors of "Civil Jurisdiction in Scotland" at para 10.36 thereof state in terms that both the Brussels and Lugano Conventions by Article 3(2) prohibit such a ground of jurisdiction in relation to persons domiciled in a contracting state. The Court of Session had, however, for hundreds of years proceeded on the basis that it had jurisdiction over all proprietors of heritable property in Scotland. He referred me to section 6(d) of the Sheriff Courts (Scotland) Act, 1907 as the location of the present provisions so far as concerned the sheriff court, but the effective words, it seems to me, in that provision, are, " and the action relates to such property or to his interest therein." That would relate to issues arising from the ownership or tenancy of heritage and would not give a ground of jurisdiction in an action for recompense. In any event, section 20(3) of the 1982 Act enacts that section 6 of the 1907 Act "shall cease to have effect to the extent that it determines jurisdiction in relation to any matters to which Schedule 8 applies." Section 6(d) of the 1907 Act is, accordingly, of historical interest only, though, as will be seen, that turns out to be a matter of some importance.
Mr. Thomson advised me that his research had failed to uncover any authority on the application of para.2(8) but he did refer me to para. 1115 of the Stair Memorial Encylopaedia, Volume 12 and to the reference therein to the "mischief rule" which, for the "sure and true interpretation of statutes in general" required four things to be discerned and considered, namely:-
1. What was the common law before the making of the Act ?
2. What was the mischief and defect for which the common law did not provide ?
3. What remedy the parliament hath resolved and appointed to cure the disease of the
commonwealth ?
4. The true reason of the remedy.
And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief, and pro privado commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act, pro bono publico."
In Mr. Thomson's submission, in the present circumstances, para. 8(2)(b) maintained
part of the law of Scotland on jurisdiction which pre-existed the 1982 Act. The mischief, he said, that it was intended to address was the expansion of the ground of jurisdiction of last resort to actions which do not relate to heritage, but where the defender is a Scottish heritable proprietor. I confess to some difficulty in understanding how that can be said to be a mischief, but that was what I understood his submission to be. He then referred me to the text book, "Civil Jurisdiction in Scotland" by Messrs. Anton and Bennett, esp. paras 10-36 to 10-40. At para 10-36, the learned authors state,
" Rule 2(8) applies in relation only to defenders domiciled neither in the United Kingdom nor in any state party to the Brussels or the Lugano Convention." They continue at para 10-37 saying expressly that, " This provision restricts the power of the Court of Session to convene defenders domiciled in other parts of the United Kingdom, both in relation to the jurisdiction conferred by the arrestment of moveables within Scotland and in relation to the general jurisdiction arising from the ownership of heritage." Para 10-39 is also worthy of note insofar as the authors record that " It has long been the rule that any person with a beneficial interest in heritage in Scotland is subject to the jurisdiction of the Court of Session. This common law jurisdiction did not extend (my emphasis) to the sheriff court, though section 6(d) of the 1907 Act conferred jurisdiction upon the sheriff where the defender owned an interest in heritage within the sheriffdom, and the action related to it." As I read the foregoing passages, what the authors are saying is that the sheriff never did have a jurisdiction at common law over persons with beneficial interest in heritage within their sheriffdoms prior to the limited provisions of the 1907 Act as hereinbefore quoted. If that is correct, the entire basis of Mr. Thomson's submission is undermined.
Mr. Thomson went on to argue that it was significant that the 1982 Act by para 2(8) provided a ground of jurisdiction notwithstanding that that ground for jurisdiction was specifically prohibited by the Convention. He submitted that this had been done to maintain the ground of jurisdiction of last resort which pre-existed the 1982 Act. The provision should be interpreted accordingly and applied to this case.
Finally, under reference to para. 1118 of Vol. 12 of Stair and to the judgment in Nimmo v Alexander Cowan & Sons Limited, 1967 SC (HL) 79, therein referred to, he submitted that para 2(8) required a purposive interpretation and that that must be to provide the courts with a ground for jurisdiction on the basis of a beneficial interest in heritage where no other ground of jurisdiction existed. I should accordingly repel the defender's plea.
Mr. Ingham for the defender gave me a somewhat different narration of the history of the case. According to him, when the writ was submitted for a warrant initially, what was averred was that the defender was domiciled in England, by virtue of her residence at the address in Middlesex, and averments relevant to jurisdiction were based on contract. An attempt was apparently made to serve the writ but process servers had been unable to trace the defender. The pursuers had then lodged a minute of amendment seeking leave to amend the instance to the effect that the defender be designed as formerly residing at the Middlesex address but whose present whereabouts were unknown, and they craved warrant to serve by walls of court, which was granted. Decree in absence was obtained. In February, 1998, the pursuers had written directly to the defender at the Middlesex address, at which they claimed she no longer resided, with a copy of the decree threatening her sequestration. She had learned of this and instructed solicitors. As a consequence, a reponing note had been lodged, intimated and granted. The defender's position therein was that she was domiciled in England by virtue of her residence there and that she should be sued there. The pursuers were "trying to get round their problem of not knowing where she was" but it was now admitted that she was residing at the Middlesex address.
The Ordinary Cause Rules require any pursuer to aver the basis upon which he claimed to have jurisdiction in any pending cause and to aver sufficient facts to support that assertion. The onus was on the pursuers. It seemed now to be accepted that the contractual basis was insupportable. The pursuers were now resorting to a contrived argument in an effort to circumvent their practical difficulty.
It was plain from what was said in the textbook, Civil Jurisdiction in Scotland, at para 10-36, that there was no counterpart in the Brussels Convention to jurisdiction founded on the ownership or other beneficial interest in heritage. Such a basis for jurisdiction could accordingly only be apposite in respect of someone domiciled outwith the contracting states and, in particular, outwith the United Kingdom. The defender was not, as a matter of fact, outwith the United Kingdom, but, in any event, for there to be jurisdiction on this basis, the pursuers would have to aver that she was domiciled in a non-contracting state, not merely that they did not know where she was.
Mr. Ingham referred me to the decisions in Ellon Castle Estates Co. Ltd v McDonald 1975 SLT (Nts)66, which decision stresses the need for candour on the part of those responsible for the preparation of pleadings. I was rather inclined to the view that this was a case of the pot calling the kettle black, standing the lack of straightforwardness about where the defender resides, but neither side impressed me with their tactical approach to this litigation.
He further submitted that parliament had made it quite clear what was required of a pursuer in this situation. For para 2(8)(b) to apply, specific averments would require to be made to the effect that the defender was domiciled outwith any contracting state. They had not done so and that was an end of the matter. Any interpretation of the rule which diminished its effective simplicity was to be discouraged. Exceptions to the domicile principle were to be discouraged - see Sheriff Principal R.D. Ireland Q.C. in Courtaulds Clothing Brands Limited v Knowles 1989 SLT (Sh Ct) 84, esp at p86 I. The statutory provisions were to be interpreted restrictively.
There was, in any event, he submitted no mischief to cure by the implement of these statutory provisions. What they did instead was implement international obligations.
I have had little difficulty in reaching the conclusion that Mr. Thomson's submissions are insupportable. The simple fact of the matter is that the sheriff has never had a common law jurisdiction based on beneficial interest of heritable property in the sheriffdom. Such a basis for jurisdiction was exclusive to the Court of Session. Section 6(d) of the Sheriff Courts (Scotland) Act 1907 had given the sheriff jurisdiction to deal with disputes arising out of beneficial interests in land in the sheriffdom insofar as the litigation related to those beneficial interests, but not otherwise. Such jurisdiction as had been conferred by section 6(d) was removed by section 20(3) of the Civil Jurisdiction and Judgments Act, 1982 which replaced section 6(d) and all other bases upon which jurisdiction had formerly been founded with the provisions of Schedule 8.
Para 2(8)(b) of Schedule 8 conferred upon the sheriff court a basis for jurisdiction which it had not formerly enjoyed, but it is plain from what is said in Civil Jurisdiction in Scotland, especially at para. 10.36 where the learned authors state, in relation to rule 2(8) that " There are no analagous grounds of jurisdiction in the Brussels or Lugano Conventions. Indeed, the Conventions by Article 3(2) specifically ban the application of these grounds of jurisdiction in relation to persons domiciled in a Contracting State. The rules of the Convention take precedence," that the rule can only apply where the defender is not domiciled in either the United Kingdom or any other contracting state. The pursuers to not get to that state of affairs simply by asserting that they do not know where the defender is residing. They would require, in my opinion, positively to assert that the defender resided outwith the territory of any Contracting State. The pursuers make no such averments and it follows that there are no relevant averments made to support the proposition that this court has jurisdiction in the cause. While on one view that could be regarded as an issue of relevancy, I do not understand the pursuers to be able to assert as a matter of fact that the defender resides at an address outwith the Contracting States. I shall accordingly sustain the plea of no jurisdiction.
For the avoidance of doubt, I shall assign a hearing on expenses so that all issues relative to expenses can be determined.
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE
Judgment after debate issued by Sheriff R.A. Davidson on 2nd. December, 1998.
in causa
Messrs. James Paul Associates v. Carol Ellis
Act: C.A. Thomson
Merssrs Carltons, Solicitors, Dundee
Alt: Ingham
Messrs. Condies, Solicitors, Perth.
SHERIFF COURT
JUDGMENT RECORD AND CATEGORISATION SHEET
CASE NAME : MESSRS. JAMES PAUL ASSOCIATES v CAROL
ELLIS
CASE NUMBER : A901/97
AUTHOR : SHERIFF R.A.DAVIDSON
DATE SIGNED BY
AUTHOR : 2nd. December, 1998.
DATE RECEIVED BY
MRS. CRANSTON:
DATE PUBLISHED
ON WEB:
SHERIFF'S EDITING COMMENTS:
Was editing necessary ? No.
Judgment has been edited as required : Not required.
CATEGORISATION OF JUDGMENT:
The judgment should be recorded under the following categories:
European Community Law; Procedure:
© 1998 Crown Copyright