Scottish Sheriff Court Decisions

Act: McAdam; Messrs MacArthur Stewart, Fort William

CAMPBELTOWN, 17 SEPTEMBER 2004

The Sheriff Principal having resumed consideration of the cause Allows the appeal and Recalls the interlocutor of the sheriff dated 25 March 2004 save insofar as it repelled the defenders' first plea-in-law; Finds the pursuers and respondents liable to the defenders and appellants in the expenses of the appeal procedure; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report thereon; in respect of the expenses of and incidental to the debate heard by the sheriff on 12 March 2004 Finds the defenders and appellants liable to the pursuers and respondents in said expenses; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report thereon; Allows to the defenders and appellants a period of twenty-eight days from the date hereof to lodge with the sheriff clerk at Campbeltown a minute of amendment if so advised and under reference to the subjoined note; Remits the cause to the sheriff to proceed as accords.

BA Kerr

NOTE:

By the phrase "proceed as accords" at the end of the foregoing interlocutor I have in mind in light of what is narrated below that a period of four weeks would now be allowed for the defenders to lodge a minute of amendment if so advised along the lines of that tendered to me at the hearing of the appeal and that the case would proceed with any answers that may be lodged to a rule 18.3 hearing for the sheriff then to allow a further debate or a proof as he may think fit; alternatively in the event of no such minute of amendment being lodged the sheriff would if so moved fix a new diet of debate at a fresh options hearing as was suggested to me by the respondents' agent at that hearing of the appeal. I expand upon these matters in the penultimate paragraph of this note below.

In this action the pursuers sue for payment of certain fees and outlays claimed to be due to them in terms of a contract engaging their services in connection with the sale effected in the latter part of 2002 of a property and business known as the Glenegedale House Hotel on Islay. The present appeal is taken against an interlocutor of 25 March 2004 whereby the sheriff, having heard a debate on 12 March 2004 and taken the matter to avizandum, sustained the pursuers' first plea-in-law and granted decree de plano against the defenders for the sum sued for together with interest and the expenses of the cause; to that interlocutor he appended a note of several pages giving the grounds of his judgement. The appeal however is not taken (in terms at least of the note of appeal number 17 of process) against the sheriff's grounds of judgement but instead against the procedural decisions (or absence of appropriate decisions) which led to the matter being debated in terms of the pursuers' first plea-in-law at all on 12 March 2004: in other words the sheriff's interlocutor of 25 March 2004 is not attacked directly as being of itself incorrect in law on the material laid before him but as being procedurally inept, ie a decision which could and should never have been arrived at by the procedural route which had been followed up to that point.

The procedural history of the action, which I gleaned chiefly from what was said to me by parties' procurators (a principal agent for the pursuers from Fort William and a principal agent for the defenders from Wishaw) at the hearing of the appeal as well as by a perusal of the process and which was not greatly in dispute between the parties' procurators before me, is as follows. The action was commenced in the late summer of 2003 and in October 2003 an options hearing was fixed for 19 December 2003. Defences were lodged on 9 October 2003 and on or about 26 November 2003 adjustments to those defences were intimated by letter: an inventory of productions (containing correspondence referred to in the adjustments some of which was incorporated into the defenders' pleadings brevitatis causâ) was said to be sent therewith but for some reason not ascertained neither arrived at the pursuers' agents nor was lodged in this process. The pursuers' agent knew that the inventory had not been sent but the defenders' agent seemed to remain unaware of the potential difficulties concerning his inventory. The record lodged for the options hearing in December 2003 (number 10 of process) contained a preliminary plea for each party. For the pursuers there was a preliminary plea in the following terms: "The defenders' averments being irrelevant et separatim being lacking in specification should not be remitted to probation and decree de plano should be pronounced.". For the defenders there was a plea: "The defenders averments being irrelevant et separatim lacking in specification the action should be dismissed.". On 15 December 2003 there was lodged a rule 22 note for the defenders in support of their preliminary plea seeking dismissal (number 11 of process) but no such note on behalf of the pursuers. At the options hearing on 19 December 2003 the parties were represented by local agents before the resident and normal sheriff at Campbeltown who on pursuers' motion continued the options hearing to 16 January 2004 to allow further adjustment and expressly in his interlocutor appointed the lodging of a fresh record two days prior thereto and appointed parties if insisting on their preliminary pleas to lodge a rule 22 note supporting same three days prior thereto. The fresh record is number 13 of process and was lodged on 14 January 2004 along with a "supplementary rule 22 note for pursuer" (number 14 of process), which it was conceded before me was misnamed since it was the first and only rule 22 note lodged for the pursuers. The new record contained the same preliminary pleas and also averments on both sides which had been expanded somewhat by adjustment. The pursuers' rule 22 note was thus twenty-four hours late and sought to attack a particular averment in a particular sentence concerning an alleged "provisional agreement" which was said in the rule 22 note to lack specification so that it should not be remitted to probation. On 7 January 2004 the defenders had lodged timeously a supplementary rule 22 note of their own (number 12 of process) setting out further grounds in support of their plea for dismissal of the action. On 16 January 2004 at the continued options hearing the parties were represented by the same local agents but this time before a visiting part-time sheriff who closed the record and "in respect that the defenders are insisting on their preliminary pleas" assigned 12 March 2004 as a diet of debate for parties to be heard thereon. On 12 March 2004 parties were represented by their principal agents before the sheriff of Campbeltown who having heard them on the defenders' preliminary plea for dismissal of the action and also, despite objection from the defenders' agent, on the pursuers' plea for decree de plano made avizandum. In his judgement dated 25 March 2004 the sheriff repelled the defenders' preliminary plea and sustained that of the pursuers, thus giving rise to the present appeal. The fuller information which I gleaned from parties' procurators as to what happened on 12 March 2004 (when both had been present) is referred to below.

Against this background I was referred at the hearing of the appeal to two previous decisions of sheriffs principal concerning rule 22 of the Ordinary Cause Rules 1993, one of which is directly in point and the other less so. The first of these was Bell v John Davidson (Pipes) Ltd 1995 SLT (Sh.Ct.) 18, a decision of Sheriff Principal Nicholson dated 21 November 1994, in which he examined certain aspects of the intended operation and effect of rule 22 at a time fairly shortly after the inception (on 1 January 1994) of the Ordinary Cause Rules 1993: at that time rule 22.1 contained only three paragraphs instead of the five now to be found there, whereof those numbered (2) and (3) in 1994 have since become (3) and (4) respectively and the latter has been amended by the insertion of the words "on cause shown". In his judgement the learned sheriff principal held inter alia that in terms of rule 22.1(2) (or (3) as it now is) it was mandatory for the sheriff to repel at the options hearing any preliminary plea which was not supported by a note duly lodged in terms of rule 22.1(1) and that the sheriff in the case before him had erred in not doing so, albeit he had rectified the error belatedly by repelling without hearing argument on them the pleas in question at a debate held on another plea which had been supported by a rule 22 note. He declared that sheriffs should be mindful of the need to repel pleas which are to be deemed to be no longer insisted in at the stage of the options hearing notwithstanding that there may be other pleas which are to go to debate (at page 20D). He also held that rule 22.1(3) (or (4) as it now is) did not permit the introduction of wholly new matter at a proof before answer or debate nor the resurrection of a plea which had fallen at the options hearing under rule 22.1(2) (or (3) as it now is). He said (at page 20FG) that that paragraph of the rule is designed to enable a party to enlarge upon a plea at a debate beyond whatever basis was stated in the original note but is not apt to enable a wholly new plea to be introduced at debate nor to allow resurrection of a plea which was previously departed from by virtue of the deeming provision in the previous paragraph of the rule. Having considered these matters for the purposes of the present appeal I find myself in agreement with those pronouncements. What it comes to is that in order to insist on a preliminary plea at debate or proof before answer a party must lodge a rule 22 note relative to that plea not less than three days prior to the first calling of the case at an options hearing (not three days prior to any continuation of the options hearing unless the plea has only been added at adjustment between the first and subsequent callings for the options hearing: the options hearing is to be viewed as a single entity even if it is continued on one occasion under rule 9.12(5)). If that is not done the opportunity to insist in that plea is lost unless resort be had successfully to the dispensing provisions of rule 2.1 by way of an appropriate motion to the court. If no such dispensation is sought and granted the sheriff is obliged at his own hand to repel the unsupported plea(s) at the point where an interlocutor is pronounced moving the case on from the options hearing stage of procedure to the next stage in its procedural life such as debate or proof. The sheriff does not require to see or hear the other side's procurator moving him to repel the unsupported plea(s): no such motion is strictly necessary (although the wise practitioner may make it in order to ensure that nothing is overlooked) since it is the sheriff's business at the options hearing to take hold of the case himself and see that it is properly in order and ready to move on to debate or proof with all matters properly attended to including the clearing away of superfluous preliminary pleas which have not been insisted in by way of a timeously lodged and appropriately worded note under rule 22. Thereafter the introduction or re-introduction of any preliminary plea will require a successful amendment procedure with the indulgence of the court.

The second judicial decision to which I was referred was Dinardo Partnership Ltd v Thomas Tait & Sons Ltd 1995 SCLR 941, a decision of Sheriff Principal Risk dated 19 July 1995, in which he held that a plea in a case on contract which sought a sist of the cause while the dispute was referred to arbitration was indeed a preliminary plea and so subject to the requirements of Chapter 22 of the Ordinary Cause Rules 1993. He observed however as an obiter dictum in response to a particular submission made on the point that the mischief at which rule 22 had been aimed when introduced in the Ordinary Cause Rules 1993 was not (as had been submitted) "litigation by ambush" but the habitual fixing of debates in many cases which then after a few months delay did not proceed: the position under rule 22 and rule 9.12(3)(c) was now that the sheriff had to satisfy himself that there existed in the case a point of sufficient substance to justify a debate. The learned sheriff principal expressed the view (at page 945E) that "litigation by ambush" had never been a significant problem in the sheriff court and that in any event rule 22.1(3) (or (4) as it now is) conferred an entitlement at debate to argue any additional matter properly covered by the plea on which the case had been sent to debate. While I agree that the chief "mischief" aimed at was the avoidance of vain fixing of debate diets as a matter more or less of course by conferring on the sheriff a power to refuse a motion for debate, I am inclined to think that the Sheriff Court Rules Council also took the opportunity to encourage the giving of some advance notice of the line of argument to be pursued in accordance with a modern spirit in court rules to avoid or minimise surprise maneouvres in court which, apart from any element of perceived unfairness, can often give rise to unnecessary expenditure of time and money on court appearances leading only to amendment procedures when the party taken by surprise suddenly sees that his pleadings may be defective after all and that his opponent has scored a technical point. The modern procedure under rule 22 is designed to give the sheriff information on which to ground a decision on further procedure in the interest of expedition in the case and also to give some notice to the other side of points to be taken so that they can consider their position before incurring the cost of an expensive but unnecessary day in court at debate. Furthermore the idea of an "entitlement" to raise at debate matters additional to those stated in the rule 22 note (if that was ever the intention of the provision referred to by Sheriff Principal Risk, which I rather doubt) is much detracted from by the introduction as from 2 October 2000 into what is now paragraph (4) of rule 22.1 of the words "on cause shown". That alteration means in my view that a party who wishes at debate to expand his argument to comprehend other points beyond those already adumbrated in his rule 22 note in support of the plea under consideration must now satisfy the sheriff that some good reason exists for his failure to include mention of those extra points in the rule 22 note when originally lodged: in other words he must in effect obtain the leave of the court before proceeding down some other unforeshadowed line.

Against the backdrop of all that has been already set out above it will I think be seen, as is apparent to me, that even before 12 March 2004 when the case came to debate before the sheriff a number of things had already happened in course of the prior procedure which ran counter to the letter and also I think the spirit and intent of Chapter 22 of the Ordinary Cause Rules. In the first place by 19 December 2003 when the case first called for an options hearing the pursuers had lodged no rule 22 note in support of their first plea-in-law (the preliminary plea seeking decree de plano) yet the plea was not there and then repelled although their failure to lodge a note deemed them not to be insisting in the plea. Instead the sheriff in continuing the options hearing to 16 January 2004 for further adjustment appointed parties to lodge a rule 22 note three days prior thereto "if they are insisting on their preliminary pleas": from this I can only assume that some representation may have been made to the sheriff by the pursuers' local agent to the effect that the pursuers wished further time not only to adjust but also to organise a rule 22 note or at least consider their position relative to their preliminary plea and whether to insist in it. In any event the sheriff's interlocutor of 19 December 2003 had the effect of relieving the pursuers for the time being of being deemed not to be insisting on their preliminary plea. In the second place by 13 January 2004 the pursuers had still not lodged a rule 22 note but did so a day late on 14 January 2004 (number 14 of process) in terms not in my view supportive of their existing preliminary plea but supportive of a plea not yet on record which according to normal practice would have been along the following lines: "The defenders' averments in the fourth last sentence of answer 2 concerning a provisional agreement between Stephen Brogan and the pursuers being irrelevant et separatim being essentially lacking in specification should be excluded from probation.". It might be suggested that this plea is subsumed within the broader plea already tabled to seek decree de plano but with that I would not agree. My own past experience has been that in such circumstances a specific plea is called for and regarded as less necessary only when in a debate on a full-blown plea for dismissal or decree de plano a secondary motion is made inviting the Lord Ordinary or sheriff, if not with the pleader on his primary motion, at least to exclude from probation certain particularised averments. It is my opinion that on 16 January 2004 the part-time sheriff who sat at Campbeltown that day had no proper option but to repel the pursuers' first plea-in-law, faced as he was with a rule 22 note which was out of time and did not properly or fully support the plea which was on record. From his interlocutor moreover it appears that the only motion before him was that of the defenders for the case to be sent to debate on their preliminary (first) plea for dismissal of the action, a plea fully supported by two timeously lodged rule 22 notes (the latter expanding the points to be made in support of the defenders' first plea beyond those made in the former). There is no hint in the interlocutor or anywhere else nor in anything said to me at the hearing of the appeal that any motions were made to that sheriff on 16 January 2004 seeking any dispensation to rectify the shortcomings in the pursuers' position in respect of their rule 22 note and the effect was that there was by the end of the options hearing at its continued diet no rule 22 note for the pursuers before the court and certainly not one properly supporting the preliminary plea they had on record. In such circumstances the sheriff in sending the case on from its options hearing to a debate on the motion made to him ("in respect that the defenders are insisting on their preliminary pleas Appoints parties to be heard thereon and Assigns 12 March 2004 as a diet of debate") should have repelled the pursuers' preliminary plea in his interlocutor at that time and indeed was obliged to do so in furtherance of his duty to see that the case was put properly in order for its next procedural stage on leaving his hands at the close of the options hearing stage of its life. This the part-time sheriff failed to do with the consequence that the pursuers' first plea seeking decree de plano was still in the record on its arrival before the resident sheriff on 12 March 2004 for the debate when it should not have been.

On 12 March 2004 the defenders' principal agent travelled to Campbeltown for the debate in the expectation that the proceedings would focus on his attempt to persuade the sheriff to sustain his first plea-in-law and dismiss the action. Insofar as the possibility existed of an attack on his averment about a "provisional agreement" as foreshadowed by the pursuers' rule 22 note lodged late on 14 January 2004 he was, he told me, prepared to concede the pursuers' point on that matter if raised. What he did not expect was an attack on his defences as a whole leading to a granting of decree against his clients de plano. In my view these expectations of the defenders' agent were reasonable in the context of modern civil procedure when regard is had to (a) the procedure so far followed in the case as set out above and (b) the terms of the interlocutor of 16 January 2004 sending the case to debate on the defenders' plea(s). It was suggested to me by the pursuers' agent that his lodging and intimation on 8 March 2004 of a list of authorities designed to support an argument in favour of repelling the defences and granting decree de plano should have alerted the defenders' agent to the prospect that such an argument would or at least might be fielded at the debate but I do not regard the lodging/intimating of a list of authorities as a substitute for proper compliance with the rules of court in setting the case up for having a plea so fundamental as that first plea of the pursuers argued and sustained at debate.

The debate proceeded with the defenders' agent making submissions to the sheriff in support of his first plea-in-law for dismissal of the action. The pursuers' agent had the impression that the sheriff was not much taken with these submissions and he had discovered the previous day that the inventory of productions on which the defences relied to a substantial extent (in respect of several documents in the inventory being incorporated into the defenders' pleadings) had not in fact been lodged in process. He therefore, having replied to the submissions made in support of the action being dismissed, carried on to make submissions attacking the relevancy of the defences as currently presented with a view to having them repelled by the sheriff. It came as something of a surprise to the defenders' agent to discover that his inventory of productions had somehow not reached the process to be lodged therein. He raised an objection to argument being heard in support of the pursuers' preliminary plea for decree de plano on the ground that he had been given no notice thereof in any rule 22 note. Some discussion took place around the rules of court and the sheriff retired from the bench to fetch a copy of the second edition of Macphail on Sheriff Court Practice which he then consulted. The sheriff took the view that there was on record a plea in terms covering the matter on which the pursuers' agent wished to present argument and allowed him to proceed. The pursuers' agent had the impression that the objection was withdrawn and proceeded with his argument. The defenders' agent told me that far from withdrawing his objection he had regarded it as having been overruled or not accepted by the sheriff. The sheriff noted the further arguments of parties and made avizandum. Two weeks later his judgement was issued sustaining the pursuers' preliminary plea and granting decree de plano.

My understanding of what occurred in court on 12 March 2004 is drawn from what was said to me by parties' procurators at the hearing of the appeal who were the same agents as had been present at the debate. There was no material discrepancy between what they each recalled of the events of that day, save possibly in respect of their respective impressions concerning the objection taken to the argument being heard on the pursuers' preliminary plea and whether that objection had been withdrawn or overruled: the effect however was the same, namely that the argument was heard and acted upon by the sheriff. It is perhaps of some interest to note that no mention is made in the interlocutor of 12 March 2004 of the objection taken by the defenders' agent and how it was dealt with nor of any cause being shown by the pursuers' agent as to why he should be allowed to raise a matter (namely the relevancy of the defences) not foreshadowed in any rule 22 note lodged on the pursuers' behalf. Given the present wording (since 2 October 2000) of rule 22.1(4) it is I think necessary for a party in the position of the pursuers' agent here to satisfy the sheriff that some sufficient cause exists for his being allowed to raise an additional matter and for the sheriff to record that in some manner in his interlocutor or appended note. In light of the views expressed by Sheriff Principal Nicholson in the case of Bell summarised above it is at the best doubtful whether cause could have been shown here sufficient to justify the presentation of argument on a plea (the pursuers' first plea-in-law) which ought to have been repelled at the end of the options hearing (at its continued diet) and which had only arrived in the record at debate per incuriam. The pursuers' agent frankly admitted before me that he had at no point made any formal motion or presented any "cause shown" to the sheriff to be allowed to proceed into his argument on the relevancy of the defences. No formal motion was necessary in his view and, while he may strictly be right about that, I consider it certainly necessary that the matter be raised and cause be shown to the sheriff's satisfaction. When asked by me what cause could have been shown had the sheriff raised that matter the pursuers' agent told me that he proceeded into his argument seeking decree de plano because he perceived the sheriff's attitude to the argument for dismissal presented for the defenders to be favourable to the pursuers and he had the previous day realised that the productions on which the defences largely rested were missing from the process: in short he saw the tide to be flowing in his favour and so pressed ahead to have the defences repelled, it having struck him that on their present showing the defenders had arguably not stated a defence to the action. All this he said would amount to "cause shown" but I do not agree: the showing of cause for this purpose must surely relate to reasons why some further matter(s) now sought to be raised could not reasonably have been included in the rule 22 note when lodged and why its/their inclusion now can cause no undue prejudice to the opposite party. The sheriff appears when faced with the defenders' agent's objection to have taken the wise step of consulting the second edition of Macphail on Sheriff Court Practice but anything said there about rule 22.1(4) will have taken no account of the present-day requirement to show cause because at the date of that edition (1998) rule 22.1(4) stated simply that at a proof before answer or debate "parties may raise matters in addition to those set out" in the rule 22 note as lodged and did not include the phrase "on cause shown". It is moreover difficult to see how the sheriff could have been properly satisfied in terms of the rule when no sufficient rule 22 note had in fact been timeously lodged.

At all events it appears plain to me that on 12 March 2004 the defenders' agent was taken by surprise by the turn of events in court, that no cause was shown to the sheriff as to why the pursuers' agent should be allowed to raise additional matters and that in the result the sheriff sustained a plea of the pursuers which should not have appeared in the record at all by that date. The question might be asked at this point whether the defenders have suffered any prejudice by reason of these procedural irregularities in having decree de plano pronounced against them given that the sheriff's judgement is not attacked by the appellants as having been incorrect in law. The sheriff's judgement is however to be taken as having been correct only in relation to the material laid before and available to the sheriff: if the procedures followed had been regular and correct both on 12 March 2004 and beforehand it might well be that a judicial decision on whether or not a relevant defence has been stated would have proceeded on a different set of materials, including a set of documents lodged to support averments incorporating them into the defenders' pleadings and/or even an amended set of pleadings. These possibilities are in the present case not in my view merely fanciful or remote: the defenders' agent has an inventory of productions which he thought he had intimated and lodged in November 2003 but which had somehow gone astray and by the time he appeared before me he had with him a three-page minute of amendment which he tendered for my information. The missing inventory of productions has been in process since 18 March 2004 where it is numbered 6.1 of process and contains the documents said in the defenders' pleadings to be incorporated or referred to therein: it is accompanied by two letters which appear to hazard guesses at why it failed to reach the process when originally intended. By 18 March 2004 it was of course too late for the sheriff to take account of productions which were not present at the debate six days previously but I note from the sheriff's judgement that his view of the defenders' position is founded to a material extent on the absence of those documentary productions referred to in the defences as being therein incorporated: he refers to their absence at paragraphs 21 and 31 in that section of his judgement headed "Decision" in terms indicating their absence to be a matter of some importance and in paragraph 33 he comes to the conclusion that he "can see no defence to the pursuers' case disclosed in these pleadings, in particular answers 2 and 3". I find it hard to believe that, had the defenders' agent been made properly aware as the modern rules require of the prospect that the relevancy of his own defences would be under attack on 12 March 2004, he would not have ensured that the documents which formed part of his pleadings were available to the court and taken steps to rectify any omissions in connection with their being lodged and available. Equally it seems to me entirely reasonable to suppose that, had the defenders' agent been faced with a properly framed and timeous rule 22 note setting out the basis on which it was intended to argue on the pursuers' preliminary plea that the defences were irrelevant (along the lines recorded by the sheriff in his judgement and upheld by him), he would have considered his position and might well have sought to amend his pleadings before it was too late along the lines of the minute of amendment tendered for my information at the hearing of the appeal. That he did neither of these things in time must have been due in some degree to his reasonably entertaining no expectation that his pleadings were to be under attack on 12 March 2004.

There remains the question whether in truth there is a defence to this action. On this I express no concluded opinion here because I do not regard myself as having been fully or sufficiently addressed on it. In my present state of knowledge I am not at all convinced that there exists no defence, whether in whole or in part. It was submitted to me in very broad terms that there was no substantive defence and that the sheriff had assessed the position correctly, but this was done under reference to passages in the sheriff's existing judgement. The question which concerns me is whether the court would reach the same conclusion if account were taken of the documents lodged as productions in the defenders' first inventory of productions (insofar as incorporated into the pleadings) and/or if the defenders' were allowed to amend their pleadings along the lines of the minute of amendment tendered to me. For the pursuers it was suggested that even with the proposed minute of amendment the defences would remain "arguably irrelevant" and that I should not in any event be looking at it. In the events which have happened however I do not agree. If I thought that the defenders were in some way in default themselves then I would have to be satisfied that there was very clearly a defence requiring to be tried in order to allow the appeal and repone them. If on the other hand they have lost an opportunity of having their defence properly tested by reason of procedural irregularities which are not of their making (which is the position here as I perceive it) then it is enough in order to allow the appeal that there may be such a defence which requires to be tested. In the present case it appears to me that there may be at least a partial defence in what is set out in the proposed minute of amendment and that the defenders should have a fair opportunity of having the relevancy of that defence adjudicated upon.

I recognise that what the sheriff did at the debate on 12 March 2004 was in accordance with procedures of a type often followed in the past and which were commonplace when he and I learnt the rules of civil procedure as young practitioners: if there was a preliminary plea on record when the case called for debate one had to be prepared to debate it and the terms of the interlocutor sending the case to debate were often treated as being of secondary importance. If one thought it necessary to ascertain the other side's intentions in advance the recognised means of doing so was by telephoning or speaking to their lawyer beforehand to discuss the position. The rules however have now changed and practice in these matters has changed with them: prior procedures by way of notes of the basis for preliminary pleas require to be followed out and adhered to and in addition due attention should be paid to the terms of the interlocutor sending the case to debate.

In the circumstances of this case as discussed above therefore I consider it necessary to allow the appeal and recall the sheriff's interlocutor of 25 March 2004 granting decree de plano with expenses. It is appropriate in my view that the case should be returned in effect to the stage of an options hearing, that being the stage at which the procedural irregularities set in which have given rise to the present unsatisfactory position, but not before a period has been allowed for the defenders to have the opportunity to lodge a minute of amendment if so advised. I think it desirable in the circumstances that any such minute should be lodged with the sheriff clerk at Campbeltown and any amendment procedure following thereon be dealt with by the sheriff there before a date is set for a hearing in terms of rule 18.3 at which a decision can be taken as to further procedure in light of any timeously lodged and appropriately termed note(s) which may have been lodged in support of and giving a basis for any preliminary pleas which may then be on record. In the event of no such minute being lodged within the period allowed (which I shall fix at four weeks from the date of my own interlocutor) then a fresh options hearing can be set for a decision as to whether the case should return to a further debate on the existing pleadings but with the documentary productions now lodged which are referred to therein. It should be noted that in recalling the sheriff's interlocutor of 25 March 2004 I have preserved that part of it which repelled the defenders' first plea-in-law: I regard the defenders as having had their opportunity to attack the relevancy of the pursuers' case at the debate on 12 March 2004 and as having failed therein and the sheriff's decision in that respect has not been appealed against. With respect to the pursuers' first plea-in-law, although the sheriff's interlocutor sustaining it is hereby recalled it is not yet repelled and remains at present on record so as to be available to be insisted in even yet if the pursuers so desire and take the necessary procedural step of timeously lodging a note of the basis for it as they should have done so long ago.

Two matters of expenses were canvassed before me. In the first place I was asked to make some appropriate finding in respect of the expenses of the debate which took place before the sheriff. There were suggestions that the debate had been futile and that it's expenses should become expenses in the cause or alternatively that each party should bear its own expenses. I take the view however that the debate had a clear outcome on the matter which was properly debated at it and adjudicated upon, namely the relevancy of the pursuers' pleadings, and that the repelling by the sheriff of the defenders' first plea-in-law represented success for the pursuers who are entitled therefore to the expenses of that debate. In respect of the pursuers' first plea-in-law the debate then took a procedurally inept course in my opinion for the reasons set out above and thus gave rise to the present appeal. The second matter canvassed was the expenses of the appeal procedure which parties were agreed should follow success. The pursuers sought to have the sheriff's interlocutor of 25 March 2004 granting decree de plano sustained while the defenders sought its recall: the latter has been the result and represents success for the defenders and appellants in whose favour the expenses will accordingly be awarded.

BAK