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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Barrie (t/a Barrdrum Tractors) v Alex Butter Landscaping Ltd [2004] ScotSC 66 (14 October 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/66.html
Cite as: [2004] ScotSC 66
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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
A432/03
JUDGMENT OF SHERIFF PRINCIPAL
R A DUNLOP QC
in the cause
ALEXANDER WALKER BARRIE trading as BARRDRUM TRACTORS
Pursuer and Respondent
against
ALEX BUTTER LANDSCAPING LIMITED
Defenders and Appellants
__________________
Act: Mr Breakey, Solicitor
Alt: Mr Tavendale, Solicitor
PERTH, 14 October 2004. The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the sheriff's interlocutor of 1 March 2004 complained of; allows the defenders' minute of amendment to be received and form number 15 of process; allows the pursuer to lodge answers thereto, if so advised, within twenty one days from the date hereof; allows parties thereafter a period of twenty one days for adjustment; directs the sheriff clerk to assign a rule 18.3 hearing; finds the defenders liable to the pursuer in the expenses of preparation for and attendance at the proof diet of 1 March 2004; finds no expenses due to or by either party in respect of the appeal; remits to the sheriff to proceed as accords.
NOTE:
[1] This is an appeal by the defenders against the sheriff's interlocutor of 1 March 2004. A proof had been fixed for that date but there was no appearance for the defenders and the sheriff granted decree by default. In a note dated 29 April 2004 he explains that he granted decree by default because he took the view that the defenders had no intention of insisting in their defence to the action.
[2] He reached that view from a consideration of a number of factors. Firstly, he noticed that no productions had been lodged on behalf of the defenders nor was there any list of witnesses. Secondly, the defenders' pleadings had not changed to any material extent since defences were lodged, notwithstanding substantial adjustment on the part of the pursuer. Thirdly, the defence itself was lacking in specification. What his note did not disclose however was that the defenders' agents had withdrawn from acting on 26 February 2004 and that a letter to that effect was in process.
[3] When the agents for the defenders and appellants queried this matter the sheriff helpfully provided a supplementary note in which he said that he was aware of the letter from the defenders' previous agents but that in terms of ordinary cause rule 24.2(1A) there was no obligation upon him to discharge the proof and assign a further peremptory diet since the proof was itself a peremptory diet. He made reference to a decision of Sheriff Principal Macphail in Canmore Housing Association Limited v Scott 2003 SLT (Sh. Ct.) 68 which suggested that a further peremptory diet should have been fixed, but he took the view that, in light of the factors to which he had referred in his first note, there was no requirement to follow that course of action.
[4] The primary submission for the appellants was that the sheriff had misinterpreted the terms of ordinary cause rule 24.2(1A). Reference was made to Trad Hire & Sales Limited v Campbell 2003 SLT (Sh. Ct.) 41 in which the Sheriff Principal (Kerr QC) expresses the view that:
"...the discretion now conferred by OCR 24.2(1A) is one merely to preserve or discharge a previously fixed diet which lies not more than 14 days ahead. If that diet is not discharged ... then the sheriff in considering thereat the matter of the solicitor's withdrawal is bound to have regard to the true purpose and intent of OCR 24 as a whole when deciding what course to adopt. The purpose of OCR 24 is surely to allow the court to ascertain before taking any further step the intention of the party whose solicitor has withdrawn with regard to the action and its future, in other words whether he intends to proceed with it or his defence to it. That is manifest from the whole wording of the rule and the attendant form G10 referred to in it. The rule is moreover mandatory in its terms.... The intention of the party whose previous solicitor has withdrawn can of course readily be ascertained if he appears at the preserved diet by himself or a newly instructed agent. If however there is no appearance ... at that preserved diet then the sheriff's discretion under OCR 16 becomes restricted by the mandatory terms of OCR 24 and the sheriff can only grant decree by default if satisfied by some reliable means that the intention of the absent party in regard to the future of the action is clear. More often than not the sheriff in such a situation will be bound then to initiate the OCR 24.2(1) procedure as being the only sound means available of ascertaining the absent party's intention ... although I would not exclude the possibility that in some circumstances the intention of the absent party could become reliably apparent from some other source even in his absence. I am however clearly of the opinion that the interplay in such a situation of OCR 16 and OCR 24 renders incompetent the pronouncing of any decree by default which does not proceed on a reliable ascertainment of the intention of the party whose solicitor has withdrawn: such a decree by default is not merely an improper exercise of the sheriff's discretion but lies outwith his discretion and so is incompetent."
[5] The solicitor for the appellants submitted that the sheriff had failed to follow this approach and having misdirected himself in this regard his decision should be recalled. In any event he submitted that the information upon which the sheriff had proceeded gave an inaccurate picture of the defenders' intentions and on that ground also his decision should be recalled. The sheriff in his supplementary note had recorded that a partner in the defenders' former firm of solicitors had been present in court when the diet of proof had called. Although he was not appearing in the case the sheriff had enquired of him whether the defenders were aware that they had to be present and had been informed by him that they had been so advised.
[6] The solicitor for the appellants submitted that this information was inaccurate. The defenders' sole director, Mr Butter, was aware that a proof had been fixed for 1 March 2004 but he had no idea what that involved and was unaware that he required to be personally present on that date. The first that he knew about being required to be present was on
26 February 2004 at which time he was on holiday in Oman and was not due to return until after 1 March 2004.
[7] The solicitor for the respondent recognised that, if this information was true, the sheriff had proceeded on an erroneous basis of fact with the consequence that the matter was at large for me and his position that much more difficult. On the other hand he challenged the supposed fact that the defenders did not know until 26 February 2004 that they did not require to be personally present in court.
[8] Both parties agreed that whether or not the defenders knew of the need to be at the proof diet was a material consideration and appeared to accept that if the sheriff's inference with regard to the defenders' intentions was erroneous in fact then he should have observed the peremptory terms of OCR 24. Given parties' acceptance of the materiality of this issue and that the respondent was not willing to accept the ex parte statement of the appellants' position I saw no alternative but to fix a hearing to take evidence on that question.
[9] At that hearing evidence was taken, firstly, from Mr Trodden of McCash & Hunter, the defenders' former solicitors, and, secondly, from Mr Butter the principal and sole director of the defenders. The evidence of Mr Trodden was that this case had been conducted on behalf of the defenders by his now deceased partner, Graeme Cowper who died on 28 December 2003. Prior to that date he, Mr Trodden, had had no involvement with the file but following Mr Cowper's death had taken over the case. He had written to the defenders on 6 January 2004 informing them of the death of his partner and that he had taken over the files and would appreciate a meeting with Mr Butter. In that letter he noted that Mr Butter was obtaining a report from Mr Fleming of Earnvale Tractors and also a full report on the invoices submitted by Barrdrum Tractors and enquired whether this information was now available. He received no response to this letter and his next involvement with the case was on about 15 or 16 February when he received intimation from the pursuer of a list of witnesses and an inventory of productions. On Friday 19 February 2004 he spoke to Jill Stewart, a secretary with the defenders, who advised him that Mr Butter was on holiday in Oman. He asked that Mr Butter contact him as soon as possible. It appears that Mr Butter had phoned on a number of occasions but had been unable to get hold of Mr Trodden until 23 February 2004 when they had had a conversation. Mr Trodden explained that the proof was taking place on 1 March 2004 and that Mr Butter would require to be present. He also informed him that as he was still awaiting information from the defenders he was not in a position to proceed with the proof on 1 March and would need to withdraw from acting. He had then faxed a letter of withdrawal to the company, the pursuer and the court on 26 February 2004. He had examined the files relating to this action and in particular relating to the period of time prior to Mr Cowper's death and testified to the absence of any evidence on file that the defenders had been told that they required to be personally present at the proof. The only reference to the proof had been in a letter of 14 November 2003 when the date had been intimated to the defenders.
[10] Under cross-examination Mr Trodden described his partner Graeme Cowper as a very experienced litigator and meticulous in his work. He expressed the opinion, based on his knowledge of him, that he would have gone over with Mr Butter what was involved in a proof. He was also asked whether any evidence had been found in the file to the effect that Mr Butter had told Mr Cowper that he, Mr Butter, was to be on holiday at the time of the proof. He said that he had found no such evidence but that had Mr Cowper been told he would have expected him to seek a discharge.
[11] In his evidence Mr Butter explained that he had originally consulted his solicitors J & H Mitchell in Pitlochry but they had advised him to go to McCash & Hunter in Perth and he had done so in connection with this action about mid summer 2003. He accepted that he had received the letter of 14 November 2003, in which reference was made to the date of the proof, but he explained that that was a term with which he was unfamiliar and he had no idea what it involved. In particular he was completely unaware that he would be required to attend at that proof diet. He had arranged an appointment with Mr Cowper shortly after receiving this letter but his discussion on that occasion had been regarding the technicalities of the case. He accepted that he had received the letter of 6 January 2004 from Mr Trodden and he had put in hand the taking of the steps requested in that letter. He had gone on his holiday on 10 February 2004. This had been a special visit that had been planned the previous summer and he maintained that he had spoken about his holiday both on his first visit to see Mr Cowper and also his second visit in November 2003. When asked why he had told him about his holiday his answer was that it had simply been part of a personal conversation as a preliminary to the main business discussion. He had been very enthusiastic about the holiday and it was an obvious topic of conversation for him.
[12] Mr Butter said that he first became aware of a requirement to attend court on 1 March when he had been contacted by his staff as a result of which he phoned Mr Trodden during the last few days of February. He maintained that he had discussed with Mr Trodden at length why he had not been aware of the need for him to be at the proof diet and had been told by Mr Trodden that he would deal with the matter and take steps to get the proof stopped until after he had returned from Oman. Under cross-examination he said that he had only been involved in any form of litigation on two prior occasions, in respect of both of which he had represented himself on the advice of his Pitlochry solicitors. In each case he had no legal papers and had just done as his solicitors told him. These instances were quite different from his experience in the present case where he was represented by a solicitor and he presumed that Mr Cowper was going "to put forward his story".
[13] Having heard this evidence parties then concluded their submissions in relation to the appeal. The solicitor for the appellants invited me to accept Mr Butter as credible and reliable when he stated that he was not aware of the need to be personally present in court on 1 March until he was told that in the latter days of February 2004. He accepted that the opinion evidence of Mr Trodden was capable of supporting the inference that Mr Butter had been made aware of the need for him to be personally present but that, in the face of the direct evidence of Mr Butter, it was insufficient in weight to rebut that evidence. A minute of amendment had been tendered from which it was clear that there was a substantial defence to the action. He renewed his primary submission, which in effect adopted the approach set out above in Trad Hire Sales Limited v Campbell, submitting that the sheriff had not discovered by reliable means what were the defenders' intentions in relation to the action and that accordingly he should have observed the provisions of OCR 24. Alternatively he submitted that the defenders had a substantial defence and that it was in the interests of justice that they should be allowed to put forward that defence. Reference in this regard was made to McKelvie v Scottish Steel Scaffolding Co 1938 SC 278 and Hyslop v Flaherty 1933 SC 588.
[14] The solicitor for the respondent invited me to hold that Mr Butter was not a credible witness. He submitted that there were a number of grounds upon which his credibility could be questioned. Firstly, although he professed to know nothing about what was meant by the expression "proof" he maintained that he had never asked for an explanation. Secondly, it was submitted that if Mr Cowper had known that Mr Butter was on holiday at the proof date it was inconceivable that he would not have sought a discharge of that diet. Thirdly, it was submitted that there was an inconsistency between the evidence of Mr Butter and Mr Trodden in regard to the discussion that they had had on the telephone during the latter days of February 2004. According to Mr Trodden there had been no discussion in which Mr Butter had asked why he had not been told of the need for him to be personally present at the proof. He further submitted that the whole circumstances disclosed that the defenders were not truly interested in pursuing their defence and that they were simply trying to stave off the inevitable outcome of the action.
[15] With regard to the defenders' minute of amendment he submitted that there were a number of grounds for criticism of it but ultimately accepted that he could not say that there was no justiciable issue raised by it.
Discussion
[16] Both parties accepted the materiality of Mr Butter's state of awareness in relation to the proof. The essence of the position adopted on behalf of the respondent is that, knowing he required to be personally present, Mr Butter deliberately absented himself from the proof and had no serious intent to defend the action.
[17] Having seen Mr Butter in the witness box I am unable to accept that this was the case. In general he seemed to me a credible and straightforward witness, who was genuinely surprised to discover that he was required personally to be present at the proof. For those familiar with the court process it is perhaps hard to realise the degree of ignorance in the minds of those who are not. While Mr Butter had been involved in two sets of proceedings in England his description of them showed a very poor grasp of what they involved. It did not appear to me that that experience would have assisted him at all in respect of the procedure in the present case. In any event what distinguishes the present proceedings from those in England is that on this occasion he had instructed a solicitor and believed the solicitor would handle everything and "put forward his story" on his behalf. While this displays a certain degree of naivety that explanation rang true.
[18] If it is true one is left to wonder at how that lack of awareness could have come about. In the final analysis there was no direct evidence of what passed between Mr Cowper and Mr Butter other than what is either contained within the file or spoken to by Mr Butter. Although Mr Trodden's evidence about the professional characteristics of Mr Cowper would entitle me to infer that Mr Butter had received an explanation of what was involved in a proof I think that inference is significantly undermined by the direct and essentially credible evidence of Mr Butter to the contrary. In any event I do not think that Mr Trodden's evidence went so far as to suggest that nothing could ever go wrong with Mr Cowper's cases and in saying that I am not thinking in terms of allocating blame. It is one thing for Mr Cowper to have explained what was involved in a proof, if he did, and quite another for Mr Butter to have received and fully understood that explanation. If an explanation was given it must have been given at a meeting between them because it is accepted that there is no reference in the file of the need for Mr Butter to be personally present at the proof.
[19] Furthermore it should not be forgotten that Mr Cowper was not the usual solicitor acting for Mr Butter and indeed had not previously acted for him. For all that one knows certain assumptions might have been made about the extent of Mr Butter's experience that were in fact unfounded. It is of course a matter of speculation whether there was that sort of breakdown in communication but the fact that there is such an evident possibility highlights what I see as the danger of attaching significant weight to an inference when set against the direct and apparently credible account of events given by Mr Butter.
[20] The only feature of Mr Butter's evidence which I found questionable was his evidence regarding his telephone discussion with Mr Trodden during the latter days of February. The difficulty arises from the fact that this evidence was not put to Mr Trodden in cross-examination and I do not have the benefit of his response to it, although in his evidence in chief he simply said that there had been no discussion. Despite this unsatisfactory question mark I am not dissuaded from my generally favourable impression of Mr Butter. In relation to this alleged discussion the evidence of Mr Butter was that Mr Trodden had said that he would take steps to get the proof stopped until after he returned. While certainly not amounting to the taking of such steps, it is interesting to observe that, in his letter of 26 February 2004, Mr Trodden indicated to Mr Butter that the court would no doubt fix a peremptory diet and that if Mr Butter wished to discuss matters further he could do so on his return. Mr Trodden plainly thought that the practical consequence of his withdrawing from acting would be the continuation of the case to a later diet. I appreciate the difficulty of attaching weight to this letter in the absence of any cross-examination of Mr Trodden about it, but in its terms there is some basis of support for at least part of what Mr Butter said had been discussed. In these circumstances I am not persuaded that Mr Butter's credibility is fatally undermined by the apparent but untested contradictions between his evidence and that of Mr Trodden.
[21] In the result I am willing to accept that Mr Butter did not appreciate that he required to be personally present at the proof. It accordingly follows that the sheriff proceeded upon an erroneous view of the circumstances surrounding the defenders' absence. Given that Mr Butter did not know until 26 February that he needed to be at the proof, I do not think that in the circumstances in which he then found himself he could reasonably have been expected to be in Perth on 1 March. While the sheriff was no doubt well founded in his criticisms of the appellants' pleadings a minute of amendment has now been tendered on his behalf which, it is conceded, sets out an arguable defence.
[22] In appeals of this nature the proper approach is that identified in Macphail's Sheriff Court Practice para 14.12 and exemplified in McKelvie v Scottish Steel Scaffolding Co. The over-riding consideration is that the appeal court should seek to do what the ends of justice require. If decree by default has been granted in ignorance of the full circumstances of the failure to appear in my view that is a sufficient basis upon which the appeal court can itself look again at whether the decree should stand. In this case I am satisfied that the sheriff proceeded upon an erroneous basis of fact and, since there appears to be a proper defence to advance, I have reached the view that it is in the interests of justice that the defenders should be reponed.
[23] Before passing from this matter I should refer briefly to the sheriff's view that, as the proof diet was itself a peremptory diet, there was no obligation to discharge the proof and assign a further peremptory diet even in circumstances in which the defenders' solicitor had withdrawn from acting. This view appears to me to be founded on an erroneous interpretation of OCR 24.2(1A) and in that regard I align myself with the opinion expressed by Sheriff Principal Kerr in Trad Hire & Sales Limited v Campbell sup.cit. The sheriff appears to have overlooked this case, referring instead to a decision of Sheriff Principal Macphail in Canmore Housing Association v Scott 2003 SLT (Sh Ct) 68. In that case however there was no question of the court having to consider the provisions of OCR 24 and its relationship to OCR 16. It was no doubt for that reason that neither party to the appeal referred to it and in those circumstances I do not think that I can properly dwell upon it further.
[24] Had the sheriff addressed his mind to the approach set out in Trad Hire & Sales Limited v Campbell it is conceivable that he would have reached the same conclusion. When set in the context, firstly, of the apparent lack of preparation and, secondly, the inadequate specification of the defence, the information given to the sheriff by the defenders' former solicitor (referred to in paragraph [5] above) might have led him to think that there was a reliable basis for concluding that the defenders did not intend seriously to pursue their defence. That is not to say however that, even in such circumstances, his interlocutor would not have been open to review on the ground either that the information given to him, while apparently reliable, was in fact unreliable or that generally it was in the interests of justice that the defenders should be reponed.
[25] In light of the foregoing considerations I prefer to found my decision on the approach that I have set out in paragraph [22]. On that basis I shall recall the sheriff's interlocutor of 1 March 2004. I shall allow the defender's minute of amendment to be received and answered. The amendment procedure can now be followed through before the sheriff.
[26] So far as concerns the question of expenses, a number of possible scenarios were canvassed on both sides. In the circumstances in which I am allowing this appeal the solicitor for the respondent submitted that he should receive the expenses of the discharged proof but that there should be a finding of no expenses to or by either party in respect of the appeal. The position of the solicitor for the appellants did not appear to me to propose a disposal of expenses that was any more favourable to their interest than that suggested by the solicitor for the respondent. In view of the circumstances known to the respondent it was not unreasonable for him to challenge the appellants' assertion that they were unaware that Mr Butter required to attend the proof. While I have accepted that in fact they were unaware it seems to me that that was at least in part attributable to the naivety of Mr Butter. For that reason a finding of no expenses in the appeal seems to me a just solution. So far as the proof is concerned the pursuer and respondent was in no way to blame for the fact that the proof could not proceed and in my view is entitled to his expenses in respect of the preparation for and attendance at that diet. I did not understand the solicitor for the appellants seriously to challenge such an approach.