SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT
KIRKCALDY
B230/05
JUDGMENT OF SHERIFF
PETER J BRAID
In the
cause
THE FIFE COUNCIL
Against
CHRISTOPHER
WATTERS
Kirkcaldy, 27
February 2006
The sheriff, having resumed
consideration of the cause, allows the defences to be amended at the Bar;
thereafter REPELS the defender's first and second pleas in law; SUSTAINS the
pursuers' first plea in law; accordingly, makes an Order under Section 3(2) of
the Civic Government (Scotland) Act 1982 extending for a period of two months
from this date the period within which the pursuers shall reach a final
decision on the application by the defender under section 13 of the said Act
for renewal of a Taxi Driver's licence; RESERVES the question of expenses and
appoints parties to be heard thereon at 10.00am on 9 March 2006.
Note:
[1] The facts in this summary application are not
in dispute and can be briefly stated. In
their capacity as licensing authority for Fife, the
pursuers are required to consider the defender's application for renewal of a
taxi driver's licence, which application was lodged on 17 January 2005.
By virtue of section 3(1) of the Civic Government (Scotland)
Act 1982 ("the Act"), the pursuers required to reach a final decision on that
application within a period of 6 months.
The last date for reaching a decision was therefore 17 July 2005.
For good reason, they were unable to reach a decision by that date and
consequently they lodged the present Summary Application in terms of section
3(2) of the Act, seeking a 6 month
extension of the period within which a decision must be reached. The Summary Application was lodged with the
Sheriff Clerk's office on 1 July 2005,
warranted on 4 July 2005 and
served on 20 July 2005. Thus, it was lodged before, but served after,
the expiry of the 6 month period.
[2] The case called before me for debate on 23rd February 2006. Mr MacDonald,
solicitor, represented the pursuers and Mrs Oliver, solicitor, the defender. At
the outset of the debate, with the pursuers' consent, I allowed the defences to
be amended by the insertion of two pleas in law for the defender, albeit the
second plea was not insisted in. The
sole issue between the parties was that of competency, the parties having
tendered a Joint Minute of Admissions which was to the effect that if the
Application was held to be competent, it was agreed that there was good reason
for extending the period within which a decision required to be reached, and
that the Application would then fall to be granted. In particular, the issue in dispute was
whether the Application was made within the 6 month period, that is, whether it
was made when it was lodged or when it was served.
[3] Section 3(2) of the Act states:-
"On summary application by the licensing authority
within the 6 month period..., the sheriff may, if it appears to him that there is
good reason to do so, extend that period as he thinks fit."
[4] In support of her submission that the crucial
date was that of service, Mrs Oliver drew my attention to a number of
authorities but in doing so she accepted (as did Mr MacDonald) that none of
them was binding on me. The first such
authority was Cunninghame District
Council -v- Payne 1988 SCLR 144; 1988 SLT (Sh Ct) 21, which concerned a number of
applications under section 3(2) of the Act, all heard together. The sheriff at first instance held (see p 146
of the SCRL report) that the words in section 3(2) "on summary
application....within the six-month period" fell to be construed as meaning "on
summary application commenced within the six-month period"; and, further, that
an application was commenced not by the obtaining of a warrant but only by the
citation of the defender. He therefore
dismissed as incompetent those applications which had been served after the 6
month period. Although the case was
appealed to the Sheriff Principal by Mr Payne, that was on a different
point. In reaching his decision, the
sheriff relied upon McGraddie v Clarke
1966 SLT (Sh
Ct) 36,
in which it was held that an action of damages for personal injuries had not
been commenced until it had been served.
Although that had been an ordinary action, Mrs Oliver submitted under
reference to Dobie, Sheriff Court
Practice, p 102, that a summary application of any sort is a civil proceeding
and is therefore an action which must be commenced by initial writ. Thus, a summary application commenced only
upon service. Finally, Mrs Oliver
properly drew my attention to an authority which did not support her position,
namely, Monklands District Council -v-
McGhee 1995 SLT (Sh Ct) 52, also a case under section 3(2), in which Sheriff Principal
Cox held that an application was made when it was presented to court staff and
not when a warrant was granted thereon. She invited me not to follow this decision. The Sheriff Principal had apparently not been
addressed regarding the date of commencement in ordinary actions. Moreover, the issue had been slightly
different, namely whether the date of lodging or the date of warrant was the
crucial one.
[5] Mrs Oliver therefore invited me to sustain
the defender's first plea in law and thereafter to dismiss the Application as
being out of time and, as such, incompetent.
[6] In response, Mr MacDonald invited me to repel
the defender's first plea in law, and instead to sustain the pursuer's first
plea in law and to grant decree by extending the period by two months. He submitted that an application under
section 3(2) was made when it was lodged.
He pointed out that as the Application was a summary application, it was
subject to the Summary Application Rules.
No specific part of the Rules governed applications under the Act.
However, it was instructive to note that Rule 2.6 provides that if no time is
prescribed by the enactment under which an application is presented, an
application must be lodged with the Sheriff Clerk not later than 21 days after
the date on which the decision, order, scheme, determination, refusal or other
act complained of was intimated to the pursuer.
That suggested that where the time is prescribed by the enactment (as
here), the crucial step which had to be taken within the time so prescribed was
also lodging, rather than serving, the application. McGraddie
-v- Clarke was a personal injuries action and had to be viewed in that
context. The rule that an action was
commenced only when served was designed to prevent stale claims. It had no general application and did not
apply to the present case. Although the
precise point in Monklands District
Council -v- McGhee was not the same as that in issue here, it followed from
the Sheriff Principal's reasoning that he could not have considered that the
critical date was that of service. It
had been argued in that case that until the warrant was granted, the
application had no status. Mr MacDonald
accepted that if an application was fatally flawed such that no warrant was
granted, it was not truly an application in terms of the Act but the fact
remained that where an application was valid and a warrant was duly granted,
then an application under section 3(2) was made at the time of lodging. If the making of an application was dependent
on service, a defender would have it in his control to avoid service and
thereby thwart the purpose of the legislation.
Mr MacDonald also referred to Secretary
of State v Josolyne 1990 SLT (Sh Ct) 48, which had been followed in Monklands District Council v McGhee. Josolyne
had concerned an application for disqualification of a company director
which required to be made within two years of the company's insolvency. It was similar to the present case in that
the application had been lodged and warranted before the requisite date, but
had not been served until after that date.
The starting point for the argument there had been, as here, that the
commencement of an ordinary action was service of the initial writ on the
defender and that a summary application, being an action, should be governed by
the same rule. In rejecting that
argument, Sheriff Principal Ireland said:
"... it is
clear... that an application to the court is intended. What must be done within the two year limit...
is that the applicant must make an application to the court. When, as happened in this case, the solicitor
for the Secretary of State presented the initial writ to the Sheriff Clerk at Aberdeen
then, according to the ordinary meaning of the words, he made an application to
the court, and was within the time limit.
Neither the act of the sheriff in making the order for service nor the
service of the initial writ on the respondent can properly be described as the
making of the application to the court.
These are events which are consequential on an application which already
been made."
[7] Mr MacDonald further pointed out that not all
applications to the court depend on service, applications for interim interdict
being one example. Finally, Mr MacDonald
referred to certain obiter comments
of the Sheriff Principal in Cunninghame
District Council -v- Payne (at page 147 of the SCLR report) which were
equally applicable to the present case, namely that the critical matter was
"that the application for the extension should be made to the sheriff before
the period for which an extension is sought expires". The Sheriff Principal had then gone on to
make further remarks to the effect that if the defender's construction in that
case were correct, the time available for applications for extensions would be
materially reduced in "a random and possibly unpredictable fashion". If the defender's submissions in the present
case were correct, the same unpredictable consequences would ensue.
[8] I prefer Mr Macdonald's submissions and I
find the authorities relied on by him to be highly persuasive. Section 3(2) of the Act refers to "[a] summary application by the
licensing authority within the 6 month period...". This requires an application to the
court. I respectfully agree with the
Sheriff Principal in Secretary of State v
Josolyne that an application to the court is made when a summary
application is presented to the sheriff clerk's office. Although not conclusive, it is significant
that the Summary Application Rules refer to the lodging of an application, so
that, unless a particular enactment prescribes otherwise, it is that step which
has to be taken in order to comply with the 21 day time limit which applies to
summary applications in general. It
would be surprising and unsatisfactory if some summary applications were made
timeously if lodged within 21 days,
but others could be made timeously only if served
within a different period. That would
make a nonsense of the summary application regime. It so happens that in this case the period is
6 months, but suppose that a particular application must be made within 28
days. If the defender is correct, that
would result in such an application in practice having to be lodged perhaps
earlier than would have been the case had rule 2.6 applied. Conversely, some applications have to be made
within a much shorter period, such as 7 days.
It is unlikely in the extreme that such applications must not only be
served but lodged within that period.
Of course, each statutory provision must be construed having regard to
its own terms, but these examples do, I think, show that a rule designed to
prevent stale claims should not lightly be applied by analogy to statutory
appeals and applications.
[9] That leads me on to a consideration of Cunninghame District Council -v- Payne,
which is the only case in which the alternative construction of section 3(2)
has been reached. There, the sheriff did
draw an analogy with the rule in McGraddie. However,
McGraddie concerned section
6(1) of the Law Reform (Limitation of Actions etc) Act 1954, which expressly
provided that an action of damages in respect of personal injuries was
time-barred unless the action was "commenced" within three years, and the issue
was the construction to be placed on "commenced". Section 3(2) of the Act does not refer to the
commencement of an application, and with respect to the learned sheriff in Payne, I consider that it is wrong to
construe the words "on summary application...within the 6 month period" as
meaning "on summary application commenced
[emphasis added]...within the 6 month period".
If that gloss is put on the provision, then it is perhaps easier to
justify the application of McGraddie. However, I do not agree that the word
"commenced" should be read into section 3(2).
If any word were to be read into the section, it should be "made", since
in normal usage of language, one speaks of making an application. There is certainly no reason to read in the
word "commenced" rather than "lodged" which would be more consistent with Rule
2.6, but I do not see that the provision need be reformulated at all. In the present case, there has been an
application to the court within six months, and that application occurred when
it was lodged.
[10] The construction which I place on section 3
has the advantage that it makes sense and leads to a coherent and workable
system. Conversely, the defender's
approach would not only materially reduce the time for applications being made
but would potentially lead to a situation whereby it might not be known for
some time after an application had been lodged whether it was competent or not,
and in the context of statutory applications and appeals that is a situation to
be avoided if at all possible.
[11] Accordingly, I have granted the
Application and as requested by Mr Macdonald, I have pronounced an order
extending the period by two months from the date of my interlocutor.
[12] Since I was not addressed on the question of
expenses I have reserved all questions of expenses and set a date for parties
to be heard thereon.
