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Cite as: [2003] ScotSC 13

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Samson v. Fielding [2003] ScotSC 13 (10 January 2003)

A92/01

JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal

in the cause

PHILIP SAMSON -

Pursuer and Respondent

against

MARK FIELDING -

Defender and Appellant

Act: Dickhoff, Advocate; Iain Smith & Partners WS, Duns

Alt: Godden; McKay & Norwell WS

EDINBURGH, 10 January 2003

The Sheriff Principal, having resumed consideration of the cause, allows the appeal; recalls the interlocutor of 24 July 2002 complained of; finds the defender and appellant liable to the pursuer and respondent in the expenses of and incidental to the diet of proof on 24 July 2002 and in the expenses of the appeal; allows an account thereof to be given in and remits the same to the Auditor of Court at Duns to tax and to report; remits the cause to the Sheriff to fix a diet for proceeding with the proof allowed by his interlocutor of 3 April 2002, and to proceed thereafter as accords.

NOTE

[1] This is an appeal by a defender against a decree by default pronounced by the Sheriff at Duns Sheriff Court. The pursuer sues the defender for payment of £9,724.75 which the pursuer avers is the balance of his account for joinery works which he carried out in terms of a contract between himself and the defender. At the continued options hearing on 3 April 2002 the Sheriff closed the record and allowed parties a proof of their averments, assigning 24 July 2002 as a diet for proceeding with the proof. On that date, however, the Sheriff pronounced decree by default in the following circumstances.

[2] At the calling of the diet of proof on 24 July 2002 the pursuer appeared, represented by his solicitor, with a shorthand-writer and four witnesses in attendance, and was ready to proceed to proof. The defender, however, did not appear, nor any solicitor from the Edinburgh firm whom he had instructed, nor any witnesses in support of his case. A solicitor named Mrs Wilson appeared for the defender and moved the sheriff to discharge the diet of proof. Mrs Wilson practises in Duns and is not a member of that Edinburgh firm of solicitors. She was unable to explain why neither the defender nor a solicitor from that firm had appeared. She said that the defender was a trader and was believed to be in Germany. The pursuer's solicitor opposed Mrs Wilson's motion. The Sheriff adjourned to enable Mrs Wilson to telephone the Edinburgh solicitors and obtain full instructions and any explanations. After the adjournment, however, Mrs Wilson was unable to provide any further information. The pursuer's solicitor moved for decree by default, and the Sheriff granted the motion. The Sheriff points out in his note that if he had been given 'any reasonable colourable explanation' for the failure of the defender and his Edinburgh solicitors to attend, he might well have discharged the proof and made an appropriate award of expenses. He did not consider, however, that he had been provided with adequate material to justify the motion for discharge.

[3] The defender now appeals against the sheriff's interlocutor, which granted decree as craved by default 'in respect of the defender's failure to appear at today's diet', with expenses as taxed. Decree by default may be granted in terms of rule 16.2 of the Ordinary Cause Rules 1993. It provides, so far as material:

'(1) In a cause to which this Chapter [ie Chapter 16] applies, where a party fails - . .

that party shall be in default.

(2) Where a party is in default, the sheriff may grant decree as craved, decree of absolvitor or dismiss the case, as the case may be, with expenses.

(4) In this rule, "diet" includes - . . .

[4] The present case was a cause to which Chapter 16 applied, and the diet of 24 July 1992 was a proof. The rule provides that a party is in default if he fails 'to appear or be represented' at such a diet. The Sheriff's interlocutor bears that he granted decree as craved 'in respect of the defender's failure to appear at today's diet.' It is obvious that the defender had failed to appear. But was he represented? That is an important question, for this reason. Rule 56 of the Ordinary Cause Rules in the original Schedule to the Sheriff Courts (Scotland) Act 1907 was, in part, in terms substantially similar to the parts of rule 16.2(1) and (2) quoted above. As interpreted in a number of cases, rule 56 did not entitle the court to grant decree by default if a party was represented by a solicitor, even if that solicitor was not in a position to proceed with the business before the court. At the hearing of the appeal the parties were agreed that rule 16.2 fell to be interpreted in the same way. The solicitor for the defender and appellant referred to Finlay v Bush 1925 SLT (Sh Ct) 140; Jack v Wardrop 1928 SLT (Sh Ct) 9; Station Garage v Masson 1978 SLT (Sh Ct) 65 and Macphail, Sheriff Court Practice (2nd edn) para 16.47. There may be added to these citations the cases of McLean v Thomas O'Connor Autos 1967 SLT (Sh Ct) 41 and Reid v Russell 1971 SLT (Sh Ct) 15.

[5] The appellant's solicitor submitted that the appellant had been represented by Mrs Wilson, and thus had not been in default. The respondent's counsel, on the other hand, submitted that the appellant had been 'constructively unrepresented'. Mrs Wilson had 'nominally' appeared, but she had had virtually no instructions at all. The appellant's representation had been so defective that it could not have been said to exist. The Sheriff in his note refers to the matter in these terms: 'It was my understanding that Mrs Wilson did not have at that time [ie when she moved for the discharge of the proof] formal instructions to appear in the proof but whether or not that is correct was not determinative of my decision.'

[6] I therefore have to decide whether, at the time when the Sheriff granted decree by default, the appellant was represented by Mrs Wilson. I have reached the view that he was. In my opinion there can be no room in the rules or practice of the court for distinctions between some solicitors who tell the court they appear for a party, and who are 'fully' instructed, and others who tell the court they appear for a party, but who are only 'nominally' or 'informally' instructed. If a solicitor appears at the Bar and states that he or she appears for a particular party, then, in the eyes of the court, he or she represents that party. It would not be possible for the court to conduct its business on any other basis. The presiding Sheriff can hardly be expected to concern himself or herself with inquiring into and adjudicating upon any question whether the solicitor who has said he or she appears for a party is only 'nominally', 'formally' or 'defectively' instructed and, if so, whether the instructions are such that the party is 'constructively' unrepresented. The solicitor represents the party and continues to do so unless and until he or she withdraws or is asked to withdraw. Here, Mrs Wilson did not withdraw. She continued to represent the appellant after the adjournment. Indeed, after the Sheriff had granted decree by default she drafted the note of appeal in her own hand and lodged it later that day (no 10 of process). I therefore have no difficulty in concluding that she represented the appellant when the Sheriff granted decree. At the hearing of the appeal counsel for the respondent advised me that before the Sheriff there had been some discussion of whether Mrs Wilson should withdraw, but in the event she had not done so.

[7] The decisions cited above demonstrate that, since the appellant was represented, the procedure should have taken the following course. The Sheriff should have adjudicated on the appellant's motion to discharge the diet of proof. If he refused it, he should have put the respondent to proof of his claim. Mrs Wilson, had she chosen to continue to represent the appellant, would have been entitled to cross-examine the respondent's witnesses and address the court at the hearing on evidence. The Sheriff thereafter could have granted decree in favour of the respondent to the extent that he had proved his claim, and awarded expenses accordingly (Station Garage, supra; Macphail, para 16.47). Alternatively, and more realistically, after the Sheriff had refused her motion to discharge the proof, Mrs Wilson could have withdrawn from acting. It appears that, in that event, it would have been for the Sheriff to follow the procedure prescribed by rule 24.2(1) and fix a 'specified' or peremptory diet at which the appellant would have been required to state whether or not he intended to proceed. I suggest the resort to rule 24.2(1) with some diffidence because it was not discussed before me and is derived from the observations of Sheriff Principal Nicholson in Gray v Fortune 2000 SLT (Sh Ct) 91, 2000 SCLR 178, which was not cited to me and is concerned with the procedure in the different situation of the intimation of withdrawal by letter.

[8] In any event since, as I have held, the appellant was represented, it follows that the decree by default must be recalled. I should add, however, that it is not remarkable that the Sheriff took the course he did. He was not referred to any authority, and the situation before him was confusing and deeply unsatisfactory. How that situation came about will appear from the following paragraphs.

[9] I shall now assume that my decision is wrong and that in the circumstances before him the Sheriff had a discretion to grant decree by default. If that is so, it is now for the appellant to satisfy me that the decree should be recalled. The appellant's solicitor submitted that that issue should be addressed on the lines indicated in Macphail, para 14.12. The respondent's counsel emphasised that a decree by default should be recalled only in very special circumstances, such as where the party against whom it had passed would suffer very great hardship. She relied on a dictum by Lord Deas in Morrison v Smith (1876) 4 R 9 at page 11. In my opinion there are very special circumstances here, for the following reasons. First, as I shall explain, there was on the part of the appellant no wilful disobedience of any order of the court or any gross carelessness in failing to attend the diet of proof (cf Winning v Napier, Son & Co Ltd 1963 SC 293 at 299 per Lord Guthrie). Secondly, the appellant appears prima facie to have a proper defence to put forward. Thirdly, if the decree were not recalled he would suffer very great hardship because he would be obliged to satisfy it: he is a tradesman and the decree is for £9,724.75 with interest and expenses.

[10] I shall now explain the first and second of these reasons. As to the first: after the decree by default had been pronounced, the appellant dispensed with the services of the solicitors who had been acting for him and instructed the solicitor who appeared for him at the appeal. That solicitor had inspected the previous solicitors' file relating to the case, and he gave me the following history. The defences had not been adjusted. It appeared that no attempt had been made to find witnesses or gather any evidence. On 4 April 2002, the day after the continued options hearing at which proof had been allowed and the diet of 24 July 2002 assigned, the solicitors had written to the appellant to tell him that a proof had been fixed for that date, but they did not explain what a 'proof' was, or where and at what time it would take place, or that he would have to attend. They did not cite any witnesses or make any other preparations for the proof. There were no notes of any telephone calls by the solicitors. According to the appellant, he had telephoned them and they had told him that settlement negotiations were proceeding, but they did not mention the proof. There was no letter in the file instructing Mrs Wilson to appear at the diet of proof. They had failed to provide her with a full and frank explanation of the position. They had not attempted to agree with the respondent's solicitors that the proof should be discharged. They did not write to the appellant until after 24 July 2002, and then only to ask why he had failed to appear. The appellant had gone to Germany in the course of his employment and had returned to find two messages on his answering machine telling him to attend the proof.

[11] As to the second reason: the record discloses that there are issues about whether the respondent's claim is sufficiently vouched by documentation, about how much money the appellant has already paid to the respondent and about the extent to which the respondent was entitled to charge VAT.

[12] I consider, accordingly, that even if the Sheriff had been entitled to grant decree by default, the decree should now be recalled.

[13] The appellant's solicitor conceded that the appellant should be found liable to the respondent in the expenses of and incidental to the diet of proof and in the expenses of the appeal, and I have so found. The respondent's counsel submitted that I should make payment of those expenses a condition precedent of further procedure, but I have not done so because this is not a case where the appellant personally can reasonably be said to have been in default. I was not moved to certify the appeal as suitable for the employment of counsel.