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Cite as: [2003] ScotSC 28

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MacLeod v. Russell [2003] ScotSC 28 (15 April 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

A796/01

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		GRAHAM MacLEOD
		Pursuer and Respondent
		against
		MALCOLM MacAULAY RUSSELL
		Defender and Appellant

Act: Robert McDonald, solicitor, Stronachs, Inverness

Alt: Party

Inverness: 15th April 2003

The Sheriff Principal, having resumed consideration of the cause, allows the defender to appeal late against the interlocutor of the sheriff dated 29^th May 2002, recalls this interlocutor, the extract thereof issued by the sheriff clerk on 18^th June 2002 and the subsequent interlocutor of the sheriff dated 11^th December 2002; finds the pursuer liable to the defender in the expenses of the appeal and allows an account thereof to be given in and remits the same when lodged to the auditor of court to tax and to report; quoad ultra remits to the sheriff to proceed as accords.

Note

I have already explained the circumstances of this case in the note appended to my interlocutor dated 13^th February 2003. By that interlocutor I appointed parties to be heard on a later date, and the hearing has now taken place. The pursuer was again represented by his solicitor, and the defender appeared on his own behalf.

The pursuer's solicitor accepted that the pronouncement by the sheriff of his interlocutor dated 29^th May 2002 and the subsequent issue by the sheriff clerk on 18^th June 2002 of an extract of this interlocutor were acts of a public authority to which section 6 of the Human Rights Act 1998 applied. But he submitted that it could not be said that the court had acted contrary to article 6(1) of the European Convention on Human Rights because, when decree by default had
been granted on 29^th May 2002, the pursuer through his agents had misrepresented to the court that intimation to the defender of the diet that day had been properly given to him. In these circumstances the court had had no option but to act as it had. Reference was made to Jon Gaunt v Marco's Leisure Limited 1995 SCLR 966, and it was pointed out that in that case the sheriff clerk had issued an extract of the sheriff's interlocutor improperly and without having been requested to do so by either party. Accordingly that case had been one in which a public authority had been acting in a way incompatible with a person's right to a fair hearing under article 6(1). But in the present case the court, in acting as it had, had interfered with the defender's rights under article 6(1) only because of the actions of the pursuer's agents. Accordingly the provisions of article 6(1) did not assist the defender. It was in effect a question of causation. The sheriff here had acted in a perfectly proper manner which had not interfered with the defender's right to a fair hearing and which had been in accordance with rules which existed to protect him. The pursuer's agents had withheld from the court information to the effect that intimation of the peremptory diet on 29^th May 2002 had not been given to the defender. In this situation it had been the pursuer through his agents who had caused the sheriff to grant decree in a manner which had deprived the defender of an opportunity to make representations to the court. Thus it was the pursuer through his agents, and not the sheriff, who had deprived the defender of his right to a fair and public hearing. Article 6(1) therefore had no effect on the previous line of authorities to which reference had been made and I should act in accordance with these and find that an appeal by the defender would be incompetent.

The defender submitted that there had been a contravention in the circumstances of this case of article 6(1) irrespective of the intent of the pursuer, his agents or the sheriff. He contended that article 6(1) should be applied so as to grant relief to him. He confirmed that, if his motion to be permitted to appeal late were allowed, then he would indeed wish to proceed with the appeal. The pursuer's solicitor accepted that, if I were prepared to grant the motion, then I should without further ado recall the interlocutors of the sheriff dated 29^th May and 11^th December 2002 respectively and also the extract of the former interlocutor which had been issued by the sheriff clerk on 18^th June 2002.

In my opinion there has indeed been a breach in this case of the defender's right under article 6(1) to a fair and public hearing, and it is nothing to the point that this breach may have occurred as a result of fault on the part of the pursuer through his agents rather than the sheriff or the sheriff clerk. It was not argued that section 6(2), and in particular paragraph (b) thereof, had any application in this case. The effect of sections 6(1) and 6(3)(a) of the 1998 Act is thus that it is unlawful for me in my appellate capacity to act in a way which is incompatible with a Convention right and, if I were to affirm the interlocutor of the sheriff dated 29^th May 2002, I think that that is exactly what I should be doing. In the circumstances I consider that I am obliged, notwithstanding the authorities to which I referred in my previous note (all of which were of course decided before the 1998 Act came into force), to recall this interlocutor, the extract thereof dated 18^th June 2002 and the subsequent interlocutor dated 11^th December 2002 and to remit to the sheriff to proceed as accords so that the defender may be afforded his right to a fair and public hearing of the case.

In my previous note I touched only very briefly on the circumstances in which the interlocutor came to be pronounced by the sheriff at the peremptory diet on 29^th May 2002. It may be of assistance to record the explanation of these circumstances which was tendered by the pursuer's solicitor. A copy of the sheriff's interlocutor of 1^st May 2002 fixing the peremptory diet was received by the pursuer's principal agents on 8^th May 2002. On 10^th May 2002 they wrote to the defender by first class recorded delivery post and stated that they acted for the pursuer in the case and intimated to him (the defender) the sheriff's interlocutor of 1^st May 2002. It is not clear whether a copy of the interlocutor was in fact enclosed with this letter. On the same day the agents wrote to the sheriff clerk enclosing a copy of the letter sent to the defender and the first class recorded delivery slip. Whether their having proceeded in this way was sufficient to satisfy the terms of rule 24.2(3) of the Ordinary Cause Rules was not addressed by the pursuer's solicitor at either of the hearings before me. At all events, the letter sent to the defender was returned to the agents marked "no answer". They therefore sought to intimate the interlocutor of 1^st May 2002 once again by recorded delivery and this too was returned to them marked "no answer" on 20^th May 2002. At that time the solicitor principally dealing with the matter on behalf of the pursuer had been admitted to hospital and in the event she was detained there longer than expected. Thus when the case called before the sheriff at the peremptory diet on 29^th May 2002 there had initially been no representation on behalf of the pursuer. A solicitor in court who had previously appeared as a local agent for the principal agents telephoned one of their partners in Aberdeen who gave instructions to the effect that, if service upon the defender had been effected and there was no appearance by him or on his behalf, then a motion should be made for decree by default against him. This partner had not had the file in front of him when he had given this instruction and he had been unaware that the second intimation to the defender had been returned by the post office on 20^th May 2002. Perhaps surprisingly, upon her return to business after leaving hospital the solicitor principally dealing with the matter, despite finding a note in the file of what had happened on 29^th May 2002, proceeded to obtain an extract from the sheriff clerk of the interlocutor granted that day. She thereafter wrote to the defender as indicated in my previous note.

I should perhaps emphasise that this account is based upon what I was told by the pursuer's solicitor and the contents of a letter which was written by his firm to the Law Society of Scotland after a complaint had been lodged by the defender. It was not suggested that there had been any fault on the part of the sheriff or the local agent who had appeared for the pursuer on 29^th May 2002.

The pursuer's solicitor stated that he did not oppose an award of expenses to the defender in the event of success on the latter's part in the appeal.