Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Welding v Wilson & Ors [2004] ScotSC 86 (22 December 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/86.html
Cite as: [2004] ScotSC 86

[New search] [Help]

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT DINGWALL

A168/03

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		BARBARA WELDING
		Pursuer and Respondent
		against
		RICHARD HANNAY WILSON, MIRANDA CHRISTINE WILSON AND JULIAN HUMPHREY SPENCER COOK
		Defenders and Appellants

Act: Miss Gillian Shaw, solicitor, Ledingham Chalmers, Inverness

Alt: Mr R Macdonald, solicitor instructed by Shepherd and Wedderburn, Edinburgh

Dingwall: 21^st December 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 3 August 2004; finds the defenders and appellants liable to the pursuer and respondent in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In this case the pursuer and respondent craved the court to order the rectification of a plan annexed and signed as relative to a disposition which she had granted in favour of the defenders and appellants in 1996. For present purposes it is unnecessary to examine the details of the claim. What does matter is the procedural history of the case. This was agreed in terms of a joint minute of agreement which was produced at the hearing of the appeal. Although this had not been signed, it was confirmed that it accurately reflected what had happened.

[2] By interlocutor dated 28 May 2004 Sheriff MacFadyen assigned a diet of debate to take place on 22 July 2004. On 20 July 2004 the pursuer's agent intimated to the defenders' agent by fax that the action was to be abandoned. In this fax the pursuer's agent enquired whether the defenders would insist on expenses. After the fax had been received by the defenders' agent there was a telephone conversation in the course of which the two agents discussed the issue of expenses. The defenders' agent advised that instructions were being sought on the issue of expenses but indicated that it was likely that the defenders would seek expenses in the event of abandonment.

[3] On 21 July 2004 the pursuer's agent intimated to the defenders' agent by fax both a minute of abandonment and an accompanying motion. The minute of abandonment (no. 12 of process) reads:

Shaw for the pursuer stated and hereby states to the court that the pursuer abandons the cause and consents to decree of absolvitor in terms of rule 23.2(1)(a) of the Ordinary Cause Rules

The motion is no. 7/4 of process, and it reads:

Shaw for the pursuer respectfully moves the court to grant decree of absolvitor in terms of the minute of abandonment.

Document attached with motion:

Minute of abandonment

[4] At some stage on 21 July 2004 the parties' respective agents discussed the issue of expenses in relation to the diet of debate on 22 July 2004. The pursuer's agent indicated to the defenders' agent that, if a motion for expenses was made at that diet, the motion would not be opposed.

[5] On 22 July 2004 Mr Stewart of Messrs Ferguson, MacSween & Stewart, solicitors, appeared as a local agent for both parties at the diet of debate. By that time the minute of abandonment and accompanying motion had not yet been received by the sheriff clerk. Mr Stewart advised the presiding sheriff, Sheriff Booker-Milburn, that a minute of abandonment and accompanying motion had been forwarded to the court by the pursuer's principal agent.

[6] According to paragraphs 11, 12 and 13 of the joint minute of agreement, the debate was discharged to allow the minute of abandonment to be received and the action was continued until 12 August 2004 for consideration of the pursuer's motion. No motion for expenses was made on behalf of the defenders and the sheriff reserved the question of expenses at the hearing on 22 July 2004.

[7] This last assertion appears to have been based upon the terms of a letter dated 23 July 2004 which Mr Stewart sent to both parties' agents in which he stated, inter alia:

Unfortunately, the minute of abandonment and relative motion had not been received by the court. In the circumstances, we moved that the debate be discharged and for a continuation to allow the minute of abandonment to be received. The sheriff discharged the debate, reserving meantime the question of expenses. He also continued consideration of the pursuer's motion 7/3 of process. The case will next continue (sic) on 12 August 2004 at 10.00 am.

[8] The motion, no. 7/3 of process, related to a minute of amendment for the pursuer. It had been lodged in court on 13 July 2004. For present purposes nothing more need be said about it. It was not strictly correct to say that the sheriff had reserved the question of expenses (unless perhaps by implication) since Sheriff Booker-Milburn's interlocutor dated 22 July 2004 in fact reads:

The sheriff, on joint motion, discharges the diet of debate fixed for today and continues the cause on the roll until 12 August 2004 for a minute of abandonment to be lodged.

[9] The parties' agents did not discuss the issue of expenses in relation to any subsequent hearing. No opposition to the pursuer's motion, no. 7/4 of process, was lodged by the defenders' agent. This motion and the minute of abandonment were lodged in court on 30 July 2004, and on 3 August 2004 Sheriff Sutherland pronounced an interlocutor in the following terms:

The sheriff, on the unopposed motion of the pursuer (no. 7/4 of process) and having seen and considered the minute of abandonment (no. 12 of process), assoilzies the defenders from the craves of the initial writ and finds no expenses due to or by either party.

[10] It is this last interlocutor which is the subject of the present appeal. On 20 September 2004 I granted the defenders' opposed motion and allowed their note of appeal to be received although late. This is no. 13 of process and reads:

The Defenders appeal to the Sheriff Principal on the following grounds:-

The Sheriff erred in finding no expenses due to or by either party in the interlocutor of 3 August 2004 as the issue of expenses had not been referred to in the Pursuer's Motion.

Expenses had been reserved at the discharged Diet of Debate on 22 July and consideration of same was to be held over until the Continued Hearing fixed for 13 (sic) August 2004.

The Defenders had intimated their intention to the Pursuer that expenses would be sought on both 22 July and at the Continued Hearing on 13 (sic) August and it was conceded that any such Motion would not be opposed by the Pursuer.

[11] In response to the note of appeal Sheriff Sutherland helpfully wrote a note in the following terms:

On 3 August 2004 I was presented with a Motion of the Pursuer (No. 7/4 of Process) and having been advised that the Motion was unopposed considered the Motion to grant decree of Absolvitor in terms of the Minute of Abandonment (No. 12 of Process). The Motion and Minute made no mention of expenses and accordingly I found no expenses due to or by either party.

I had not been involved in earlier proceedings in this case and note in her Note of Appeal that the Pursuer (sic) indicates that expenses had been reserved at the diet of Debate on 22 July and consideration of same was to be held over until the continued hearing fixed for 13 August 2004. At the time of consideration of the Motion, I had before me the Interlocutor sheets and noted that on 22 July the diet of Debate had been discharged and continued until 12 August for a Minute of Abandonment to be lodged, no mention being made of reserved expenses. Given that the court was aware of a Minute of Abandonment being lodged and that the Defenders had not opposed the Motion, I granted same with no award of expenses due to either party.

Clearly I have no knowledge of the Defenders' third ground of appeal not having conducted the hearing on 22 July 2004.

[12] Opening the appeal, the defenders' solicitor accepted that, from a procedural point of view, there had been nothing wrong in Sheriff Sutherland having granted his interlocutor dated 3 August 2004 since the procedure set out in Chapter 15 (Motions) of the Ordinary Cause Rules had been followed. The pursuer's motion, no. 7/4 of process, had been duly intimated and timeously lodged in court and the sheriff had been presented with an unopposed motion which he had been obliged to deal with without further ado unless he had had a particular reason to fix a hearing on the motion. Nonetheless it was submitted that, in light of what had happened in court on 22 July 2004, the sheriff had erred in pronouncing his interlocutor dated 3 August 2004 without the parties having addressed him on the question of expenses, it having been the intention and understanding of the parties that the pursuer's motion, no. 7/4 of process, would be dealt with on 12 August 2004. Reference was made here to my own decision in the case of Rennie v Norquoy (Kirkwall, 18 May 2004, unreported) in which I had held that the sheriff in that case had fallen into error in disposing of the question of expenses without having given parties an opportunity to be heard thereon.

[13] In response, the pursuer's solicitor drew attention to the passage in Macphail's Sheriff Court Practice (2nd Edn) at paragraph 14.20 where it is said: "The minute (of abandonment) should be accompanied by a motion which should ask the court to grant decree in terms of the minute. If the minute does not contain an offer to pay the defender's expenses and the defender wishes to have an award of expenses in his favour, he should lodge a notice of opposition to the motion and the sheriff will decide the matter". In light of this passage it was submitted that in the present case, if the defenders had wished to seek an award of expenses against the pursuer, they should have lodged a notice of opposition to the pursuer's motion, no. 7/4 of process. Since they had not done so, and it having been accepted that from a procedural point of view there had been no error on the part of the sheriff in having pronounced his interlocutor dated 3 August 2004, the sheriff had acted properly in granting this interlocutor and had not erred in law. It had not been the understanding of the pursuer's agents that the question of expenses had been expressly reserved to the hearing which had been fixed for 12 August 2004 by Sheriff Booker-Milburn in terms of his interlocutor dated 22 July 2004, and in any event the mere fact that expenses had been reserved did not give parties an automatic right to be heard thereon.

[14] As Sheriff Sutherland records in his note, when he dealt with this matter on 3 August 2004 he had before him the pursuer's motion, no. 7/4 of process, which invited the court to grant decree of absolvitor in terms of the minute of abandonment. The sheriff correctly noted that neither the motion nor the minute of abandonment made any mention of the question of expenses, and further no notice of opposition to the motion had been lodged on behalf of the defenders. The sheriff also had before him the interlocutor sheets and was able to see for himself that on 22 July 2004 Sheriff Booker-Milburn had discharged diet of debate fixed for that day and had continued the cause until 12 August 2004 for a minute of abandonment to be lodged. Nothing was said in Sheriff Booker-Milburn's interlocutor about expenses being reserved, and it does not seem to me that Sheriff Sutherland should somehow have divined that the purpose of the hearing on 12 August 2004 was to consider the question of expenses. If Sheriff Booker-Milburn was not to dispose finally of the action on 22 July 2004, in order to keep it alive he had either to sist it or alternatively to continue it to a specified date. In all these circumstances, and in particular in view of the fact that the pursuer's motion, no. 7/4 of process, had not been opposed, I do not consider that Sheriff Sutherland can be said to have erred in law in having pronounced his interlocutor dated 3 August 2004. In my opinion, if the defenders had wished to seek an award of expenses against the pursuer they should have lodged a notice of opposition to the motion, no. 7/4 of process. Not having done so, they ran the risk that the sheriff would deal with the pursuer's motion in the same way as any other unopposed motion with the result that they would lose the opportunity to address the court on the matter of expenses on 12 August 2004. And in the event this is exactly what happened. In short, in my opinion it was the defenders' agents who fell into error, and not the sheriff.

[15] In reaching this conclusion I do not feel myself embarrassed by anything that I said in Rennie v Norquoy. Here I need only point out that the circumstances of that case were readily distinguishable from those of the present case.

[16] (In passing, I should perhaps observe that, although the defenders' solicitor accepted that the pursuer's motion, no. 7/4 of process, had been timeously lodged in court, I do not think that this was strictly true. The motion was intimated to the defenders' agents by fax on 21 July 2004 and in terms of rule 15.1(2) it ought therefore to have been lodged with the sheriff clerk not later than 26 July 2004. In fact it was not lodged until 30 July 2004. I pointed this out to the defenders' solicitor but, understandably in the circumstances, he did not seek to argue that the sheriff had erred in granting the motion after it had been lodged late).

[17] The defenders' solicitor went on to argue that, on the assumption that their agents had been at fault in not having lodged a notice of opposition to the pursuer's motion, I should exercise my dispensing power in terms of rule 2.1 of the Ordinary Cause Rules to relieve them from the consequences of this error, it having been shown to have been to mistake, oversight or other excusable cause. Thereafter it was submitted that I should recall the interlocutor of the sheriff dated 3 August 2004 and deal now with the question of expenses. As to this, it was submitted under reference to Bookless Brothers v Gudmundsson 1921 1 SLT 329 that the general rule was that, where a pursuer abandoned an action, he should be found liable for his opponent's expenses. There was nothing in the present case, so it was argued, to suggest that there should be a departure from this general rule and accordingly the defenders should be found entitled to the whole expenses of the cause, including the expenses of the appeal.

[18] In response, the pursuer's solicitor drew attention to the fact that in their note of appeal the defenders appeared to have relied solely on the proposition that the sheriff had erred in law in pronouncing his interlocutor dated 3 August 2004. There was no suggestion in the grounds of appeal that the court might be invited to exercise the dispensing power in favour of the defenders and accordingly they were not now entitled to argue that there had been a mistake, oversight or other excusable cause such as would justify my exercising the dispensing power so as to recall the sheriff's interlocutor and consider the question of expenses. Moreover, even if this argument were open to them, it should be rejected since the entire responsibility for the sequence of events which had unfolded lay at the door of the defenders. In any event, whatever the outcome of the appeal, they should at least be found liable to the pursuer in the expenses of the appeal itself.

[19] In other circumstances I think that I should have had some sympathy with the view that the defenders ought to have been found entitled to the expenses of the action, at least when it was before the sheriff. Whatever the outcome of the appeal, I think that I should have been most reluctant to do anything other than find the pursuer entitled to the expenses of this. But the difficulty here for the defenders is that they gave no notice at all in their grounds of appeal that they would be inviting the court to recall the interlocutor of the sheriff dated 3 August 2004 on the basis of an exercise of the dispensing power under rule 2.1. In a brief reply to the submissions of the pursuer's solicitor, the defenders' solicitor submitted under reference to Macphail at paragraph 18.78 that his motion to myself to exercise the dispensing power in favour of the defenders had been competent notwithstanding that it had not been foreshadowed in the grounds of appeal. Even on the assumption that this submission was well founded, the fact remains that in terms of rule 2.1 I have a discretion to determine whether or not to grant relief to the defenders. If I refuse to grant this relief, they will be penalised to the extent that they will lose the award of expenses which might otherwise have been granted in their favour. By the same token, it may be said that the pursuer will gain a windfall benefit to the extent that she will avoid an award of expenses which she might have expected would be made against her, she having abandoned the action. At the same time, it may be said too that the defenders have been the authors of their own misfortune in not having lodged a notice of opposition to the pursuer's motion, no. 7/4 of process, and further that it would not be fair to the pursuer to allow the defenders to obtain an award of expenses against her on the back of an argument of which no notice had been given in the grounds of appeal. In this context it should not be forgotten that in terms of rule 31.4(5)(a) the defenders could have amended their grounds of appeal at any time up to fourteen days before the date assigned for the hearing of the appeal (namely 15 December 2004). In other words, after I had on 20 September 2004 allowed their note of appeal to be received although late they had had over two months during which they would have been entitled to amend their grounds of appeal (having already had almost seven weeks to think about these grounds following the date of Sheriff Sutherland's interlocutor). And even within the fourteen days immediately preceding the hearing of the appeal itself they might have applied to the court in terms of rule 31.4(7) in effect to be allowed to amend their grounds of appeal. Yet it was only during the hearing of the appeal itself that notice was given for the first time of the argument based on rule 2.1. In all the circumstances I am not persuaded that this would be an appropriate case in which to grant relief to the defenders in terms of rule 2.1 and I have therefore adhered to the interlocutor of the sheriff dated 3 August 2004.

[20] There was no dispute that, if the appeal was unsuccessful, the defenders should be found liable to the pursuer for the expenses of this.