Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Canmore Housing Association Ltd v. Scott [2003] ScotSC 15 (25 February 2003)
URL: http://www.bailii.org/scot/cases/ScotSC/2003/15.html
Cite as: [2003] ScotSC 15
[New search] [Help]
Canmore Housing Association Ltd v. Scott [2003] ScotSC 15 (25 February 2003)
A1991/02
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
CANMORE HOUSING ASSOCIATION LTD
Pursuers and Appellants
against
SHARMAINE SCOTT
Defender and Respondent
_________________________
Act: Bookless; Archibald Campbell & Harley WS
Alt: No appearance
EDINBURGH, 25 February 2003.
The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of 20 December 2002 complained of; appoints the cause to a further options hearing on 2003 at 10 am; finds the pursuers and appellants liable to the defender and respondent in the expenses of the diet of 20 December 2002 and the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; remits the cause to the Sheriff to proceed as accords.
NOTE
[1] This is an appeal by the pursuers against a decree of dismissal which was pronounced by default upon their failure to be represented at a diet.
[2] The pursuers are the defenders' landlords. In the initial writ they crave payment of rent arrears of £1903.43, declarator that they are entitled to recover possession of the premises, decree of removal and expenses. The defender failed to lodge a notice of intention to defend or a time to pay application, and decree in absence was pronounced on 15 August 2002. The defender, however, applied to be reponed, and on 24 October 2002 Sheriff Bell recalled the decree in absence, made an order for defences and fixed an options hearing for 6 January 2003. That was a final interlocutor which was not subject to appeal (Ordinary Cause Rules 1993, rule 8.1(5)), and at the hearing of the appeal the pursuers abandoned their attempt to challenge it which they had foreshadowed in their note of appeal. The defender lodged defences, but thereafter her solicitor withdrew from acting and on 18 September 2002 the Court fixed a peremptory diet for 6 January 2003, the same date as the options hearing.
[3] When the case was called before Sheriff Scott on 6 January 2003, the defender was present with her mother but the pursuers were not represented. The learned Sheriff correctly noted that the action was similar to many that are raised as summary causes for the recovery of possession of heritable property and are often resolved after continuations and in some cases the assistance of the in-court adviser. He was clearly sympathetic to the defender who had been ill and had had difficulties in obtaining the housing benefit to which she had been entitled. He considered that a continuation would have led to some inconvenience and quite possibly some additional stress for the defender, who seemed very nervous and unhappy. He decided that as the pursuers had failed to appear it was appropriate, in the whole circumstances, to dismiss the action. Taking the view that the whole matter might be resolved without the pursuers' raising a fresh action, he advised the defender to consult the in-court adviser. His interlocutor states:
'The Sheriff, in respect of no appearance by or for the pursuers at today's diet, dismisses the cause and finds no expenses due to or by either party.'
[4] The pursuers have now appealed against the decree of dismissal. At the hearing of the appeal the defender was not represented. The pursuers' solicitor explained that his firm had failed to represent the pursuers at the peremptory diet because it had been erroneously entered in their diary for the following day, 7 January. On 7 January they had discovered their mistake, and had immediately taken steps to appeal. He tendered their apologies to the Court for their error.
[5] The pursuers' solicitor moved me to exercise in their favour the dispensing power conferred by rule 2.1(1) of the Ordinary Cause Rules 1993. In my opinion, however, that would not be appropriate because this is not a case where the pursuers have failed to comply with a provision in the Rules: Wanderers World Ltd v Marco's Leisure Ltd 2000 SLT (Sh Ct) 79 at page 82D. He also cited Price v Fernando 1995 SCLR 23 at pages 25-26, but that case is concerned with the exercise of the dispensing power in relation to a pursuer's failure to lodge a copy of the record timeously for an options hearing. More appositely, he cited passages in Macphail's Sheriff Court Practice (2nd edn) to which I shall refer later.
[6] In my opinion the decree by default must be recalled because the Sheriff did not have before him sufficient material upon which to exercise his discretion to grant it. The granting of decree by default is of course an exercise of judicial discretion. In Chapter 16 of the Ordinary Cause Rules 1993, which applies to this action, rule 16.2(1)(c) provides that where a party fails to appear or be represented at any diet, that party shall be in default; and rule 16(2) provides that where a party is in default the sheriff may grant decree as craved, decree of absolvitor or dismiss the cause, as the case may be, with expenses. In this case the learned Sheriff's interlocutor bears that he dismissed the action 'in respect of no appearance by or for the pursuers at today's diet'. When the case was called, however, the learned Sheriff naturally could not know whether there was an acceptable reason for the absence of representation for the pursuers. He appears to have been understandably so influenced by his sympathy for the defender and by his search for a practical solution to the situation before him that he did not consider whether there was a sufficient reason why decree should pass against the pursuers in respect of their failure to be represented. The appropriate course, in my opinion, would have been to discharge the options hearing and fix a further peremptory diet, with intimation to the pursuers. At that further diet the Sheriff would have been entitled to dismiss the action if the pursuers either failed once more to be represented or failed to tender what the Sheriff in his discretion regarded as an acceptable reason for their default on 6 January 2003.
[7] I consider that when a party fails to appear or to be represented at a diet and the Sheriff is unaware of the reason for the absence, it is usually appropriate to fix a peremptory diet rather than to proceed at once to decree by default. If the Sheriff grants decree by default without being appraised of the relevant facts, there is a risk that an appeal court, to which an explanation has been tendered, may decide that the decree must be recalled in the interests of justice. The action would then have to resume its progress after an interruption that might have been avoided. I do not suggest that a Sheriff should never grant decree by default without giving the party concerned a further opportunity to appear and, as necessary, explain the default: I would respectfully differ from the view expressed by Sheriff Principal Cox, QC, in McGowan v Cartner 1995 SCLR 312 and agree with the view expressed by Sheriff Principal Nicholson, QC, in Wanderers World at page 82B-C. Where, for example, a case has been continued for settlement and neither party appears at the continued diet, it may be appropriate to dismiss the action in terms of rule 16.2(3). Again, where there is no appearance by or on behalf of a defender, and the pursuer's solicitor tenders a letter from the defender's solicitor intimating that the defender is no longer insisting in his defence, it may be appropriate to grant decree as craved in terms of rule 16.2(2). Again, where it is clear that the absent party is deliberately employing delaying tactics, or is totally disregarding the need to comply with regular procedure, the Sheriff may well be justified in pronouncing decree by default. Other examples may no doubt be figured. Unless, however, there is some material before the Sheriff which entitles him to find that there is some good reason for granting decree by default on the ground of a party's failure to appear or to be represented, the prudent course, in my opinion, is that the Sheriff should give the party a further opportunity to appear, and thus give himself an opportunity to reach a reasoned decision, before pronouncing such a decree.
[8] In Saleem v Hamilton District Licensing Board 1993 SC 175 the First Division commended a similar course in similar, although not identical, circumstances. There, a summary application had been dismissed on the failure of the applicants to appear at the first calling. The Court said (at page 179E-F):
'[The Sheriff] cannot normally be expected to know at that stage whether the appellant or his representative had a reasonable excuse for failing to appear and whether the appellant had a statable appeal. In such a situation we consider the procedure outlined in para 26-19 of [the first edition of] Macphail [para 25.20 of the second edition] is not only sensible but will normally be appropriate. As is outlined in that paragraph, after the case is dropped from the roll the pursuer may thereafter lodge a motion to enrol the cause for further procedure and of new to grant warrant to cite the defender. When that motion is heard, then the defender may move for dismissal, while the pursuer may move the Sheriff to grant his motion for further procedure. At that stage the Sheriff should be properly appraised of the relevant facts and in a position to reach a reasoned decision as to whether or not to dismiss the application.'
[9] Having now been appraised of the relevant facts, I must in the exercise of my discretion consider whether the pursuers' default on 6 January 2003 is excusable and the interests of justice in effect call for the case to be allowed to proceed: Wanderers World at page 82C-D. The pursuers' solicitor referred to the following passages from Macphail's Sheriff Court Practice (2nd edn):
'In all cases it is desirable that the sheriff should consider whether the default is that of the party personally or of his solicitor or of an employee of the party or of his solicitor, and if it is not that of the party personally, whether it is in the interests of justice that the party should suffer by the default to the extent that decree should pass against him. In modern practice a failure caused by a party's solicitor or some other person for whom he is responsible is not generally held against the party to the extent that decree passes against him, but he may be required to meet the expense occasioned by the default. (Graham v Wylie & Lochhead Ltd, Second Division, February 17, 1949, unreported, cited in Burke v C Alexander & Partners (Transport) Ltd (1957) 73 Sh Ct Rep 153 at pages 156-157.)' (Page 444, para 14.10.)
'The appeal court will not open up as a matter of course a decree which has been allowed to go by default: it is for the appellant to satisfy the court that the decree should be recalled. (Morrison v Smith (1876) 4 R 9, per Lord Deas at page 11; Winning v Napier, Son & Co Ltd 1963 SC 293.) On the other hand, where decree by default has been pronounced against a defender, the appeal court is most reluctant, in any case in which prima facie there appears to be a proper defence put forward, to allow decree to pass against the defender without investigation of that defence. Even if carelessness on the part of the defender or others for whom he is responsible has delayed the course of the procedure of the action, the court will in such a case always be willing to entertain an application for relief. (McKelvie v Scottish Steel Scaffolding Co 1938 SC 278, per Lord President Normand at page 280, Lord Moncrieff at page 281; Thorniewood United F C Social Club v Hamilton 1982 SLT (Sh Ct) 97; Differ v GKN Kwikform Ltd 1990 SLT (Sh Ct) 49; McGowan v Cartner 1995 SCLR 312.) Similar considerations have applied where decree by default has been pronounced against a pursuer with a prima facie proper claim. (Eriks Allied Polymer Ltd v Hydracrat Ltd, Sheriff Principal Gillies, Hamilton Sheriff Court, December 8, 1982, unreported.) (Page 445, para 14.12.)
[10] It is clear that in the present case the default was that of the pursuers' solicitors. There are no circumstances that would take the case beyond the scope of the general rule that the failure of a party's solicitors is not to be held against the party to the extent that decree should pass against the party. The diary error is similar to that made in Wanderers World which the learned Sheriff Principal described as 'of a relatively minor kind which, as I have seen in other cases, can occur even in the case of otherwise careful and competent solicitors' (page 82K). The solicitors appreciated their error on the following day and lodged this appeal. I would agree with the learned Sheriff that 'lax practice' is not to be condoned, but this was an isolated error, not an example of the repetition of an error of a kind which the same solicitors have committed on other occasions. As to the interests of justice: it appears that the pursuers have a statable case and that the litigation may be brought to a conclusion without undue delay if it is allowed to proceed.
[11] I have therefore decided to recall the decree in absence and appoint the cause to a further options hearing. As I have already recorded, the pursuers' solicitor accepted that they should be liable to the defender in the expenses occasioned by their default. I have therefore found the pursuers liable to the defender in those expenses.