Scottish Sheriff Court Decisions

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Cite as: [2004] ScotSC 33

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SHERIFFDOM OF LOTHIAN AND BORDERS

A1993/02
JUDGMENT OF

SHERIFF PRINCIPAL IAIN MACPHAIL QC

in the appeal

in the cause

ALASTAIR and MARIANE RICHARDSON and OTHERS

Pursuers and Respondents

against

LYNDA RIVERS

Defender and Appellant

Act: Braid; Morton Fraser

Alt: Holroyd, Advocate; Lindsays WS

EDINBURGH, 7 May 2004

The Sheriff Principal, having resumed consideration of the cause, on the opposed motion of the pursuers and respondents, made at the Bar, remits the cause to Sheriff J M S Horsburgh QC and requests that the Sheriff write a note relative to the amendment to the grounds of appeal, no 13 of process; reserves meantime all questions of expenses.

NOTE/

NOTE

Introduction

[1] This is an action for payment of £50,000. It is brought against the heritable proprietor of a flat in a tenement in Edinburgh by the heritable proprietors of other flats in the tenement. They aver that they are liable to pay for works required in a statutory notice served by the local authority which are necessary as a consequence of an unauthorised conversion of the defender's flat. Shortly before the diet of proof the pursuers lodged a minute of abandonment (no 11 of process) consenting to decree of absolvitor in terms of rule 23.2(1)(a) of the Ordinary Cause Rules 1993. They also lodged a motion (no 7/3 of process) in these terms:

'The pursuers move the Court to grant decree in terms of minute of abandonment no 11 of process and to fix a hearing on the expenses of said abandonment.'

The motion was opposed and was called before Sheriff J M S Horsburgh, QC, on 19 February 2004. The Sheriff pronounced an interlocutor in the following terms:

'The Sheriff, having heard parties' solicitors, grants the pursuers' motion no 7/3 of process, allows the minute of abandonment to be received and form no 11 of process, interpones authority thereto and in terms thereof abandons the cause and assoilzies the defender from the crave of the initial writ; discharges the diet of proof previously assigned for 11 and 12 March 2004; finds no expenses due to or by either party.'

[2] The defender appealed against that interlocutor by lodging a note of appeal (no 12 of process). The essence of the grounds of appeal in that note was that while the pursuers' motion had been for decree in terms of the minute of abandonment and to fix a hearing on the expenses of the abandonment, the Sheriff had erroneously allowed the hearing of the motion to proceed to a hearing on expenses for which the defender's solicitor was not prepared. The Sheriff should have fixed a hearing on expenses. That fundamental ground was then elaborated in six numbered paragraphs. It was said that the Sheriff had reached a decision on the question of expenses without having all the facts before him, and having allowed the pursuers to refer to various authorities and prejudicial documents and to lodge late inventories of productions which the defender's solicitor had had no opportunity to study and take instructions upon. The matter had been complex, and the Sheriff had known that the defender's solicitor was not fully prepared. That had been unfair and unreasonable. Those, shortly stated, were the grounds in the note of appeal. The note did not contend that the Sheriff's decision to find no expenses due to or by either party was wrong, nor did it refer to any material or any facts and circumstances which might provide a basis for such a contention.

[3] In conformity with rule 31.4(2)(d) the note also requested that the Sheriff write a note setting out the reasons for his decision. The Sheriff accordingly provided a note dated 11 March 2004. In the note he states, correctly, that the grounds of appeal are directed only towards the proposition that he acted unreasonably and unfairly in hearing argument about expenses, and raise no challenge to the decision he reached on the merits. He explains that he therefore does not propose to narrate the substance of the submission made on behalf of the pursuers in support of their motion for a finding of no expense to or by either party. He specifies five headings under which the pursuers' argument was presented, but he does not elaborate upon them. He also gives what he describes as a short account of the response by the defender's solicitor. He concludes:

'In my view these circumstances did not point to any prejudice to the defender or any need to defer hearing argument upon, and deciding, the motion made at the Bar on behalf of the pursuer in relation to expenses.'

[4] The date assigned for the hearing of the appeal was 27 April 2004. On 13 April 2004 the defender lodged a document headed 'Amendment to grounds of appeal for the defender and appellant' (no 13 of process). She was entitled to do so by virtue of rule 31.4(5) which provides:

'(5) An appellant -

(a) may amend the grounds of appeal at any time up to 14 days before the date assigned for the hearing of the appeal; and

(b) shall at the same time send or deliver a copy of such amendment to every other party.'

The rule does not require the appellant to request that the Sheriff write a further note; and the amended grounds do not contain any such request.

[5] The amended grounds of appeal delete the six numbered paragraphs of the original note of appeal, which ran to just over two pages, and substitute material which runs to nine pages. Unlike the original note, the amended grounds challenge the Sheriff's decision on the merits, contending that expenses should have been awarded in favour of the defender (page 8, paragraph 14). In maintaining, more elaborately than in the original note, that the Sheriff should not have entertained the pursuers' motion for expenses, the amended grounds criticise and contradict material in the Sheriff's note of 11 March 2004. In support of the contention that no Sheriff acting reasonably would have determined the motion there and then, various facts and circumstances are set out in 18 numbered sub-paragraphs within paragraph 7 on pages 4 to 6. In challenging the Sheriff's decision on the merits the amended grounds refer to submissions said to have been made by the defender (paragraph 16, pages 8-9) and state what the defender's 'marshalled submissions' would have been (paragraph 13, containing three sub-paragraphs and six sub-sub-paragraphs, on pages 7-8).

[6] My appeals clerk drew the amended grounds to my attention. On 22 April 2004 I sent the appeals clerk a memorandum which included the following:

'The amendment to the grounds of appeal has been timeously lodged, and I do not appear to have any discretion to refuse to entertain the amendment. However, the amendment is very extensive indeed. I would invite the Sheriff to write a further note, for two reasons. First, the amendment not only contains new material but also makes various criticisms and statements which appear to contradict material in his note of 11 March. In fairness to the Sheriff he should have an opportunity to comment. Secondly, it would be very difficult for me to deal with the various allegations and comments in the amended grounds without the benefit of the Sheriff's assistance. I would therefore esteem it as a favour if the Sheriff would give me the benefit of his further views.

'There is no provision in the Rules for the writing of a further note by the Sheriff when an amendment to grounds of appeal is lodged, but there is nothing, I think, to prevent me from requesting such a note or to prevent the Sheriff from providing one.

'It would obviously be quite unreasonable to ask the Sheriff to provide a note in time for the hearing of the appeal on Tuesday 27 April. In any event the parties would require time to consider any note that the Sheriff produced. All that I should like to know before the hearing on Tuesday is whether the Sheriff is willing to write a further note. If he is, then subject to anything the appellant wishes to say I shall consider discharging the hearing, either ex proprio motu or on a motion made at the Bar by the respondents, and fixing a fresh diet.'

Thereafter Sheriff Horsburgh kindly intimated that he would be willing to write a further note.

Submissions

[7] At the opening of the appeal on 27 April 2004 it became apparent that the terms of my memorandum to the appeals clerk had come to the attention of the parties. Counsel for the defender stated that the defender was opposed to the making of any request to the Sheriff to write a further note, and that the parties had agreed that the hearing should be restricted to a debate on the question whether such a request should be made. I have to confess that it had never crossed my mind that a request for a note would be a contentious matter. It was not suggested, however, that the fact that I had already expressed a view debarred me from hearing argument on the point; and I therefore did my best to set aside that view and attend to the parties' submissions as impartially as I could.

[8] The pursuers' solicitor moved me to request a note. He submitted that a note was required for two reasons. First, the amended grounds now challenged the Sheriff's decision on the merits. Secondly, what was said in the amended grounds about what had been stated to the Sheriff was disputed. The pursuers' position was that what was said on page 3, sub-paragraph (IV), simply had not happened; and the Sheriff should have an opportunity to comment specifically on that matter. Nothing in rule 31.4 forbade the making of a request for a further note. Such a request could be made in the exercise of the Sheriff Principal's common law powers on appeal (Macphail, Sheriff Court Practice (2nd ed), vol 1, p 604, para 18.86(6)) or in the exercise of the inherent jurisdiction of the court (Newman Shopfitters Ltd v M J Gleeson Group plc 2003 SLT (Sh Ct) 83, para 25). Hoggan v McKeachie 1960 SSC 461 was also cited.

[9] Counsel for the defender made five submissions.

(1) Rule 31.4(2)(d) defined and delimited the circumstances in which a sheriff might be requested to write a note. The Rules were secondary legislation, to be interpreted in the same way as primary legislation (Bennion, Statutory Interpretation (4th ed), p 216, sec 60; Trayner's Latin Maxims (4th ed) s v 'Expressio unius est exclusio alterius'). A request for a second note had the potential to create unfairness, or the semblance of unfairness, in contravention of article 6 of the European Convention on Human Rights. Procedure should be governed by clear rules which were accessible to litigants. Could further amendment of the grounds of appeal be permitted? Would the respondent be allowed to cross-appeal? Reference was made to Rippin Group Ltd v ITP Interpipe SA 1995 SC 302 at 303H-304C.

(2) Nothing in the rules prior to the 1993 Rules provided authority for a request for a second note. Hoggan was distinguishable. Reference was made to Mackenzie v Mackenzie 1951 SC 163 at 166; Davidson & Syme WS v Booth 1971 SLT (Notes) 11; Kennedy v Kennedy 1992 SLT (Sh Ct) 39; Royal Bank of Scotland v Malcolm (No 1) 1998 SLT 331; and Kennedy v Macrae 1946 SLT 198. It would be necessary to identify a power preserved by the opening words of section 5 of the Sheriff Courts (Scotland) Act 1907.

(3) If there had been any pre-1993 practice of seeking a second note, such a course was now inconsistent with rule 31.4.

(4) The inherent jurisdiction did not provide a justification for asking for a second note. Reference was made to Esso Petroleum Co Ltd v Hall Russell & Co Ltd (No 2) 1995 SLT 127 at 129K. There was no need for a second note: the absence of a second note would not preclude the appeal's taking place. A second note could prejudice the appellant: reference was made to Sheriff Court Practice, vol 1, pp 27-28, para 2.07.

(5) Esto this Court had jurisdiction to request a second note, it should not do so in the exercise of its discretion. Such a request would give rise to delay and expense. Reference was also made to the first group of submissions above. The purpose of the note required by rule 31.4(2)(d) was to enable the sheriff to give reasons for his decision, not to comment on the grounds of appeal. He should give all his reasons at once.

[10] The pursuers' solicitor submitted in reply that a second note would be requested not by the appellant but by the court. It would be in effect a first note on the Sheriff's decision on the merits. Fairness required that there should be a second note. There was no scope for a cross-appeal, and none was contemplated: any cross-appeal should have been lodged before the hearing of the appeal (rule 31.4(6)(a)). It was difficult to see how an appeal on the merits could proceed without a further note. It had not been demonstrated that the defender would be prejudiced thereby. There was no reason for any significant delay. The Sheriff should now be given an opportunity to refer to the authorities cited to him and to explain his reasons.

[11] Counsel for the defender observed that it would not be necessary for the appeal court to investigate the merits: if satisfied that there had been some procedural irregularity, it could send the matter back to another sheriff.

Discussion

[12] It is well settled that in an appeal the Sheriff Principal may remit the cause to the Sheriff to take such further steps in the process as may be necessary in the interests of justice (Sheriff Court Practice, vol 1, p 604, para 18.86(6)). In my opinion it is clearly necessary in the interests of justice to have a further note from the Sheriff in this case. The amended grounds of appeal contain much new matter, as I have noted in paragraph 5 above. They also make comments and criticisms relative to the Sheriff's original note upon which it is only fair that he should have an opportunity of expressing observations. It is also clear from the submissions at the hearing that certain assertions of fact in the amended grounds are disputed (see paragraph 8 above). In addition, the Sheriff did not state in his original note the reasons for his decision on the merits, in view of the way in which the original note of appeal was framed. Now that it is clear that that decision is to be challenged, it is only sensible that the appeal court and the parties should have the advantage of the Sheriff's explanation of his reasons.

[13] I am unable to see how a request for a further note would be anything other than wholly consistent with proper practice. Rule 31.4 is not exhaustive and does not forbid such a course. It is not remarkable that there is no indication of such a course in the practice of the sheriff courts prior to the 1993 Rules, because there was then no rule requiring the request of any note at all. There is no question of any contravention of the defender's human rights to access to justice or to a fair hearing by an independent and impartial tribunal. In the wholly unlikely event of the Sheriff's producing a note tainted by prejudice, the defender's counsel would be rightly entitled to expose any such prejudice and make forceful criticisms of the note before the appeal court. There is no scope for a timeous cross-appeal. There is no reason to suppose that the Sheriff would delay in producing the note.

Result

[14] I have therefore decided to remit the cause to the Sheriff with a request for a further note. When that note is available, the appeal will be further heard. I have reserved meantime all questions of expenses.

[15] In the event that any further inventories of productions are to be tendered at the next hearing, I would request that inventories of documents should not consist of loose bundles. It is preferable that documents should be securely fastened together or contained in a ring binder or lever arch file. Each document should of course be clearly numbered.