Scottish Sheriff Court Decisions

Greenock 15 October 2002

The Sheriff Principal, at Paisley, having heard parties' procurators on the opposed motion for the defenders (number 7/5 of process) to allow an appeal to be marked late, Refuses same; Finds the defenders liable to the pursuers in the expenses occasioned by the said motion; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report; thereafter Remits to the Sheriff to proceed as accords.

BA KERR

NOTE:

In this action the sheriff on 5 July 2002 at the diet of proof granted decree as craved by default and dismissed the counterclaim, all with expenses, when the defenders (a limited company) failed to appear by a competent representative (the only person coming forward before the court on their behalf being a Mr Taylor, their contracts manager). On 6 August 2002 an extract of that decree was issued by the sheriff clerk at Greenock and the first question arising for decision today is whether or not the existence of that extract bars any right of appeal (in accordance with the decision in Alloa Brewery Co Ltd v Parker 1991 SCLR 70) so that the motion now before me seeking to have an appeal proceed although late must be refused. I have decided that in the circumstances here pertaining the existence of the extract renders any appeal incompetent and the consequent refusal of the motion means that no further questions arise for consideration.

The relevant history is as follows. On 5 July 2002 the sheriff when granting decree by default informed Mr Taylor (so I was told at the hearing of the motion) that the defenders if they wished to appeal would have to observe relevant time limits which existed governing appeals and should obtain assistance from the sheriff clerk for the purpose of marking an appeal if so minded. Thereafter nothing was heard until a signed letter arrived at Greenock Sheriff Court dated 18 July 2002 (the thirteenth day) on the defenders' notepaper addressed to the sheriff clerk, referring to the hearing on 5 July, requesting a copy of the judgement and stating inter alia "that it is our intention to appeal the decision made upon the hearing" on grounds to the effect that the defenders should have been allowed to represent themselves on 5 July. The sheriff clerk duly issued that day a certified copy of the interlocutor of 5 July. On 30 July 2002 there was received at Greenock Sheriff Court a note of appeal on Form A1 dated 29 July 2002 which was unsigned and had attached a document in typescript headed "draft grounds of appeal" which was also unsigned. The terminology employed in the draft grounds of appeal tends to suggest that the author of the document was not a qualified Scottish solicitor or advocate. The A1 form and its accompanying document were returned by the sheriff clerk to the defenders under cover of a compliment slip bearing no date but bearing the legend "Appeal - time limit = 14 days". By letter dated 2 August 2002 the pursuers' solicitors wrote to the sheriff clerk at Greenock in normal form asking for an extract of the sheriff's decree: they said simply "We refer to the above matter and look forward to receiving extract decree in the above matter in early course". In response to that request the sheriff clerk on 6 August 2002 issued an extract of the decree granted on 5 July 2002 against which the defenders now seek to lodge a late appeal.

At the hearing of the motion today three bases were advanced whereon I might legitimately hold the extract issued in this case not to constitute a bar to the proposed appeal. I deal with these in turn below (although not in the order in which they were presented).

In the first place it was suggested that the extract was not competently issued because the defenders were wrongly named in it by virtue of having a letter "s" added to the word "Demolition", the true name of the defenders being "GT Demolition Ltd" and there being no such entity in existence as "GT Demolitions Ltd". Whether that assertion be true as matter of fact and whether if so the efficacy of the extract will be affected as an instrument on which to do diligence are matters on which I express here no opinion. I am however not in doubt that the extract dated 6 August 2002 was competently issued as to its form by the sheriff clerk in the context of the present action as it has been pursued all along. The defenders in the action have been named throughout as "GT Demolitions Ltd" from the outset on all court documents in the process and the extract ultimately issued appropriately repeats their name in that form to the letter. In this connection I was referred to Nortech v Aeroskip Sports Ltd 1996 SLT (Sh.Ct.) 94.

In the second place it was submitted that the interlocutor of 5 July 2002 was itself incompetent in that the sheriff was obliged when faced with an unrepresented defender at the diet of proof to follow out the procedure enjoined by chapter 24 of the Ordinary Cause Rules. I am however clearly of opinion that he was not so obliged. Rule 24 is apt to deal with the situation where a solicitor withdraws from acting in an ordinary cause by letter sent to the sheriff clerk and has in my view no application in normal circumstances to a situation in which a party fails to appear (or be properly represented) at a diet which is peremptory, such as a diet of proof. In an ordinary cause when that latter situation arises the question what should happen next is normally entirely one for the discretion of the sheriff who may do various things (including granting decree by default or discharging the diet and continuing the cause) depending on the circumstances as presented to him. Such a decision may be challengeable in a properly constituted appeal as an improper exercise of the sheriff's discretion but it is not normally incompetent. The situation in the present action, where an extract has followed on a decree competently pronounced on 5 July 2002, does not fall within the ratio of my own recent decision in Trad Hire & Sales Ltd v Campbell dated 18 July 2002 at Greenock Sheriff Court (so far reported only briefly in 2002 GWD 25-782) where, abnormally, a decree was granted without due regard to the proper application of rule 24 in the circumstances there prevailing.

In the third and most important place it was contended that the present case was distinguishable from Alloa Brewery Co Ltd v Parker (as various other reported decisions had been distinguished) because the extract here had been improperly issued by a sheriff clerk who had notice of the defenders' intention and indeed of their efforts to mark an appeal albeit late. In Alloa Brewery Co Ltd v Parker the Court of Session affirmed the straightforward proposition that extract precludes appeal and that exercise of the dispensing power in the sheriff court rules to allow an appeal to be marked late is not competent if the decree has been extracted. The motion to allow the appeal to proceed although late was lodged only after the decree had been extracted. Reference was made to the need for some finality in litigation. I was referred to several cases in which the Alloa Brewery case had been distinguished on various grounds in various circumstances. In Anderson Brown & Co v Morris 1987 SLT (Sh.Ct.) 96 an extract which had been issued after the lodging of a motion to allow an appeal to be marked late was held to have been prematurely issued and so did not bar an appeal. In Noble v Noble 1990 SLT (Sh.Ct.) 15 an extract was recalled which had been issued in error after a motion had been lodged but not yet heard for leave of the sheriff to appeal. In Millar v Millar 1992 SLT (Sh.Ct.) 69 the decree upon which the extract proceeded had itself been incompetently granted so that an appeal was allowed to be marked late. In Gaunt v Marco's Leisure Ltd 1995 SCLR 966 an extract was issued automatically by the sheriff clerk even although neither party had been informed of the sheriff's decision on the return of the case from avizandum and was held to have been incompetently and improperly issued: an appeal was allowed to proceed late. In Wanderers World Ltd v Marco's Leisure Ltd 2000 SLT (Sh.Ct.) 79 it was held that an extract issued subsequently to the timeous lodging of a note of appeal (issued by oversight on the part of the sheriff clerk) had been issued irregularly and, despite a challenge to the adequacy of the note of appeal (see further below), an appeal was allowed to proceed. In Trad Hire & Sales Ltd v Campbell 2002 GWD 25-782 I held a decree by default to have been incompetently granted because the true import of ordinary cause rule 24 had been overlooked and that the subsequent extract was accordingly itself incompetent: I therefore allowed the appeal to proceed and granted it.

Among these decisions to which I was referred in which Alloa Brewery was distinguished none in my view come close to the circumstances of the present case save perhaps for Wanderers World Ltd v Marco's Leisure Ltd where the note of appeal, although timeously lodged, had been presented not by a solicitor but by a person referred to as "the principal" of a limited company. It was challenged as defective on this ground but the sheriff clerk had accepted it as valid along with the court dues and caused the sheriff to write a note to her interlocutor on the basis of it. The sheriff clerk had then overlooked it and issued an extract of the decree but the sheriff principal held the extract to have been improperly issued despite the irregularity of the note of appeal in the circumstances of its having been received and acted upon. It was submitted to me that Wanderers World Ltd demonstrated that something less than a fully regular note of appeal was sufficient to render the issue of an extract incompetent and that I should so hold in the present case. In my opinion however it requires the lodging either of a properly constituted note of appeal within the appeal days (normally fourteen in most sheriff court actions) or of a properly constituted motion to allow an appeal to be marked late prior to extract or of something which can be accepted as tantamount thereto in order to prevent the issue by the sheriff clerk of an extract decree. In Wanderers World Ltd the sheriff principal viewed the timeously lodged note of appeal as sufficient despite its irregularity but I do not consider that anything sufficient had been lodged here to prevent an extract being properly issued. It is not in my view enough for that purpose for the sheriff to have received, as he had in the present case, (first) a mere intimation by letter within the fourteen days of an intention to appeal and (secondly) an unsigned note of appeal after the fourteenth day without any accompanying motion for the appeal to be allowed to proceed although late. These documents lodged with the sheriff clerk at Greenock were not tantamount in my view to a properly constituted note of appeal timeously lodged nor to a properly constituted motion to allow a late appeal to be marked. No doubt the sheriff clerk must be taken to have known that someone was trying to organise an appeal but how long on the basis of these documents was he to wait before issuing an extract to see whether the potential appellant would get an appeal correctly organised? The applicable rules surely have the object of achieving some finality to litigation and matters cannot be left open-ended. In the present case the pursuers' agents sent a letter requesting an extract, as they were fully entitled to do, on the twenty-eighth day after decree had passed and I take the view that the sheriff clerk had no basis at that time whereon he could properly refuse to act on that request for the issue of an extract. The extract in my opinion was thus properly issued in accordance with correct procedures.

For these reasons I regard the present case as not distinguishable from Alloa Brewery Co Ltd v Parker and the extract issued on 6 August 2002 precludes any appeal as incompetent. It follows that the motion now before me must be refused and also that the expenses occasioned by it should be awarded (as was not disputed) in favour of the pursuers and against the defenders.

BA KERR