Scottish Sheriff Court Decisions

Haddington A158/03

The Sheriff Principal, having heard parties on the note of appeal for the defender and appellant (no 14 of process), allows the appeal; recalls the interlocutor of 7 October 2003; on the opposed motion of the defender and appellant made at the Bar allows the closed record (no 11 of process) to be opened up and amended as follows:

(1) by inserting at the beginning of answer 2 the words 'The said contract is referred to for its terms. Quoad ultra denied except in so far as coinciding herewith.'

(2) by inserting at the beginning of answer 3 the words 'The said communications are referred to for their terms. Quoad ultra denied except in so far as coinciding herewith.'

(3) by inserting at the beginning of answer 4 the words 'The said letters are referred to for their terms. Quoad ultra denied except in so far as coinciding herewith.'

(4) by inserting at the beginning of answer 5 the words 'Denied except in so far as coinciding herewith.'

(5) by adding the following pleas-in-law:

'PLEAS-IN-LAW FOR DEFENDER

1. The pursuers' averments being irrelevant et separatim lacking in specification the action should be dismissed.

2. The pursuers' averments so far as material being unfounded in fact, the defenders should be assoilzied.

3. There being no circumstances to justify interim interdict or interdict being granted, the same should be refused.

4. The interdict and interim interdict sought being unnecessarily wide and calculated to prevent the defender properly defending herself in the employment tribunal proceedings involving the pursuers, the same should be refused.

IN RESPECT WHEREOF

Party'

of new closes the record; ex proprio motu by virtue of the dispensing power contained in rule 2.1 of the Ordinary Cause Rules 1993 relieves the defender and appellant of the consequences of failure to comply with rule 18.8(1) of the said Rules and appoints the defender and appellant, if so advised, to lodge a note of the basis for the preliminary plea added by the above amendment with the Sheriff Clerk at Haddington within 28 days of the date hereof; remits the cause to the Sheriff to assign a fresh options hearing and to proceed as accords; finds the expenses of the debate before the Sheriff and of the appeal to be expenses in the cause.

[1] This is an action of interdict which is brought in the sheriff court at Haddington by a local authority against one of their former employees. The pursuers seek to interdict the defender from communicating the terms of an extrajudicial settlement of a dispute between the parties before an employment tribunal. In the present proceedings the defender was originally represented by solicitors who lodged defences on her behalf. Those solicitors ceased to act for her and since then she has represented herself. She lodged a further set of defences and instructed that these should be substituted for the original defences. The original defences had included appropriate denials and pleas-in-law. The new defences, while they made clear that the defender disputed certain of the pursuers' material averments, did not contain any formal denials or pleas-in-law. The pursuers stated a general plea to the relevancy of the defences and lodged a rule 22 note (no 12 of process) in which they pointed to the defender's implied admissions, the absence of pleas-in-law and a number of other matters. At the options hearing the Sheriff appointed a debate on 7 October 2003.

[2] The debate took place before another Sheriff. In his note the Sheriff explains that before hearing either party he raised with the defender the lack of any pleas-in-law. She did not explain their absence but asked the Sheriff to peruse what he describes as a large file of papers. The Sheriff declined to do so. His narrative continues:

[3] The Sheriff's interlocutor makes clear the narrow ground on which he granted decree:

Thus there was no considered judicial determination of the substantive issues of relevancy raised in the pursuers' rule 22 note.

[4] By a letter to the court dated 3 December 2003 the defender has now sought leave to amend by adding a plea-in-law in these terms:

[5] In my opinion the formal defects in the defender's pleadings could with advantage have been considered at the options hearing. It would have been open to the Sheriff to advise the defender of the need to amend her pleadings by the addition of appropriate denials and pleas-in-law. Such amendments could have been readily made because there were models to hand in the original defences lodged by her solicitors. It would have been preferable for the court to encourage the remedying of those formal defects and at debate to decide any issues of relevancy on substantive grounds rather than to pronounce decree against the defender on points of pleading which the average party litigant could not be expected to meet on his or her own initiative. The course which I have recommended is not, of course, incumbent on the Sheriff in terms of rule 9.12, but it is, I think, in accordance with the spirit of the rule, which requires the sheriff to take an active part in focusing the matters truly in dispute. It is also an appropriate exercise of the inherent jurisdiction of the court 'to do justice between the parties' (Newman Shopfitters Ltd v M J Gleeson Group plc 2003 SCLR 235 at 247F, 2003 SLT (Sh Ct) 83 at 90K). It is not, in my view, in the interest of justice for the court to grant decree against a party litigant solely on account of formal defects in his or her pleadings unless, of course, he or she refuses to heed the court's advice.

[6] At the hearing of the appeal the defender, who had already appreciated the need for a plea-in-law, acceded to a proposal from the court that she should seek leave to insert, in addition to the plea stated in her letter, the pleas in the original defences and appropriate formal denials. The solicitor for the pursuers did not consent to the defender's motion for leave to amend. He fairly pointed out that the pursuers had called attention to the shortcomings in the defender's pleadings in their rule 22 note, and that they had advised her more than once in correspondence to obtain advice on court procedure. I accept that the conduct of the pursuers in so doing was entirely responsible. The defender stated that she had wanted to resolve the whole matter and had undertaken not to breach the terms of the agreement between the parties relative to the disclosure of the terms of settlement of the other dispute. She had obtained advice from an office of the Citizens Advice Bureau in Edinburgh but was working full-time and had had difficulty in meeting the skilled adviser concerned who was available only at certain times. I formed the view that the defender had been overwhelmed by the technicality of the procedure and that a benevolent view should be taken of her failure to deal adequately with her pleadings.

[7] I have therefore recalled the Sheriff's interlocutor and allowed the proposed amendments. I have also, in the exercise of the dispensing power, given the defender four weeks to lodge a note of the basis for her reinstated preliminary plea. I have explained to her, however, that she must not assume that the amendments render her pleadings invulnerable to any further attack; and that she would be well advised to seek professional advice as soon as possible.

[8] As to expenses, I consider that in the unusual circumstances of the case the expenses relative to the debate and the appeal should be expenses in the cause. The case should now go back to Haddington Sheriff Court for a fresh options hearing. Any further procedure should take place before a Sheriff other than the Sheriff who presided at the diet of debate. That should be done, certainly not because any criticism of the latter Sheriff is implied, but because it is important to be scrupulous to avoid any perception, however unfounded, of any lack of impartiality