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Cite as: [2004] ScotSC 50

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North Lanarkshire Council v. John Sexton [2004] ScotSC 50 (03 August 2004) SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

SA40/04

	JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC
	in the cause
	NORTH LANARKSHIRE COUNCIL
	Pursuers and Respondents
	against
	JOHN SEXTON
	Defender and Appellant

Act: Ms Cassidy, North Lanarkshire Council

Alt: Mr Sexton, personally present

AIRDRIE: 3 August 2004

The Sheriff Principal, having resumed consideration of the appeal answers the first question in the stated case in the affirmative and the second question in the negative; recalls the interlocutor of the Sheriff of 4 May 2004; finds the pursuers liable to the defender in the expenses of the appeal as assessed by the Sheriff Clerk; remits the cause to the Sheriff to proceed as accords.

NOTE:

This is an action of furthcoming. The Council obtained summary warrants from a Sheriff to enforce payment by Mr Sexton of sums which they calculated were due by him for community charge for each of the years from 1989/90 to 1992/93. Surcharges were levied on these sums because of non-payment. The total sum due was claimed to be £1,053.19. Mr Sexton did not pay. The Council later learned that he had an account with the Nationwide Building Society in Glasgow. On 30 July 2001 a sheriff officer arrested the sum of £531.37 in the hands of that branch of the Building Society. The present action was raised to obtain an order that the Building Society pays that amount to the Council and for an order for the expenses of the action. Mr Sexton opposed that. He gave notice of his defence which was that he did not owe any sum to the Council.

The Sheriff pointed out that Mr Sexton had made no attempt to have either the warrants or the arrestment recalled. Summary Cause Rule 8.3(3) provides that, when it appears that any defence is not soundly based in law in whole or in part, the Sheriff may grant decree in favour of (the pursuer). The Sheriff held that the defence was not soundly based in law and granted decree for payment of the sum arrested with expenses. Against that decision Mr Sexton appealed. The questions for this court are:

1. Did I err in finding that the appellant's defence was not soundly based in law?

2. Was I entitled in all the circumstances to grant decree as craved?

Mr Sexton made a number of points which could not have led to this appeal succeeding. However he made other points which may have some merit. He said that for parts of the periods in question (a) he was in prison and was exempt from liability for community charge, (b) he had been bankrupt - the Council should have made a claim in his bankruptcy, and (c) at other times he was on benefit and was entitled to a reduction in the amounts due. He said that the Council had reduced the sums claimed because he had been on benefit but had not dealt with the other points which he had made. The agent for the Council accepted that the sums due had been reduced because he was on benefit but said that the Council had tried many times to get Mr Sexton to provide the information necessary to determine whether the other points which he made were valid. He had been warned many times of the possible consequences of not providing that information. This action had been raised as a last resort.

The issue is whether these points could provide a competent defence to an action of furthcoming. If they could, Mr Sexton should not have been deprived of the opportunity to advance them.

It is long established that it is not competent in an action of furthcoming to raise a defence that the sum arrested is not due where that action follows on a decree in an action. That is because the defence will or should have been advanced in the context of the action in which decree was granted. However there is support for the view that, where enforcement is based not on a court decree but on, for example, a bond containing the debtor's consent to execution (i.e. to enforcement) the enforcement procedure may be challengeable on the basis that the sum concerned is not due. The principle behind that approach appears to be that the debtor will not have had any other opportunity to state objections to the debt.

In Graham Stewart on Diligence the following passage appears at page 236:

"The common debtor may also state objections to the validity of the arrestment. Whether he can state objections to the debt due to the arrester depends on the warrant for the arrestment. If the arrestment proceeds on the dependence of an action, or on a decree, and the defender appeared in the action, he cannot plead in the furthcoming any defence to the arrester's debt though such was omitted in the original action. If he did not appear, it would not be enough to plead these defences in the furthcoming; his course is to suspend the decree, and for this purpose on stating his grounds the furthcoming may be sisted. On the other hand, if the arrestment is on a decree of registration of a bond or bill, so that the common debtor had no opportunity of opposing the decree, he is entitled to state all defences which would have been competent to an action for payment."

In Donaldson v Ord (1855) 17D 1053 Lord Justice Clerk Hope said (at page 1066) that when an action of furthcoming proceeds on the basis of a final decree the debtor, if he appears, has no competent defence available to him. But had the arrestment been based on "any bond by the common debtor, against which the latter might state defences (for an arrestment does not make the creditor's right better against the common debtor than it was in itself)" it appears that the court would have held that there were competent defences available to the debtor directed to the creditor's right as well as to the validity of the arrestment.
The procedure for obtaining a summary warrant does not require notification to the person in respect of whom the warrant is sought. That person has no opportunity to challenge his or her liability for the sum for which the warrant is sought. In that respect a summary warrant is similar to a bond which has been registered and which contains the debtor's consent to execution. If in the case of the latter an action seeking suspension of the enforcement procedure and interdict preventing further enforcement is not the only available remedy, it is at least arguable that that is also so in relation to the enforcement of a summary warrant.
In these circumstances I am of opinion that the Sheriff went too far too fast when he granted decree. Mr Sexton should have an opportunity to demonstrate that he is not due to pay the Council part or all of the sum which was arrested in the hands of the Building Society. I have therefore answered the first question in the stated case in the affirmative and the second in the negative. However he must realise that, if he is to have any chance of success, it is essential that he produce clear evidence of the dates when he was in prison and of the dates between which he was sequestrated so that the Council can have an opportunity to investigate his assertions and so that the court has a proper basis for reaching a decision. If he fails to provide the necessary information promptly, he should not be surprised if decree of furthcoming is granted once again, together with a more substantial award of expenses.

I have found Mr Sexton entitled to the expenses of the appeal as assessed by the Sheriff Clerk.