SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
A395/02
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
JOHN SMITH
Pursuer and Appellant
against
THE INTERNATIONAL DEVELOPMENT COMPANY
(ABERDEEN) LIMITED
Defenders and Respondents
|
Act:
Party
Alt:
Mr James Steel, solicitor, Raeburn Christie Clark & Wallace
Aberdeen: 26 May 2006
The
sheriff principal, having resumed consideration of the cause, dismisses the
appeal and adheres to the interlocutor of the sheriff dated 31 January
2005; finds the pursuer and appellant liable to the defenders and respondents
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] I explained the background to this case in
my note dated 21 April 2005. At that time the pursuer had marked an appeal
to the Court of Session against my interlocutor dated 30 March 2005.
This appeal was heard on 17
February 2006 when an interlocutor was pronounced in the
following terms:
Edinburgh 17 February
2006
The Lords, having considered the Appeal, and having heard
the pursuer personally and Counsel for the defenders, Allow the Appeal to the
extent of Recalling the interlocutor of the Sheriff Principal dated 30 March
2005, and decern: remit to the Sheriff
Principal to proceed as accords; find the pursuer liable to the defenders in the
expenses of the Appeal and remit the account thereof, when lodged, to the
Auditor of Court to tax and to report.
[2] By interlocutor dated 14 March 2006 I appointed parties to be heard
on the competency of the pursuer's appeal against the interlocutor of the
sheriff dated 31 January 2005
on 28 March 2006. I appended to this interlocutor a note
explaining that the hearing on 28
March 2006 would be confined to the question whether the appeal was
competent, and I referred here to rule 31.4(3) of the Ordinary Cause
Rules.
[3] On 28
March 2006 the pursuer represented himself. He explained that he had consulted a firm of
solicitors in Aberdeen who had
instructed an opinion from counsel.
These solicitors had indicated that, depending upon what counsel
advised, they might be willing to act for the pursuer in the appeal. In this situation he moved me to adjourn the
hearing on the competency of the appeal until a later date. The defenders' solicitor indicated that he was
prepared to leave the decision on this matter to myself, and the result was
that I adjourned the hearing on competency until 19 May 2006.
[4] On 19
May 2006 the pursuer again represented himself and the defenders
were represented by their solicitor. The
pursuer stated that in advance of the hearing he had had advice from both
solicitors and counsel who had been aware that the purpose of the hearing that
day was to consider the question of the competency of the appeal. They had advised him that he should represent
himself at the hearing. He said that he
had sought advice from the sheriff clerk about how he should appeal against the
interlocutor of the sheriff dated 31 January 2005. He had, so he said, been advised to put in an
appeal including the case number and date.
[5] I set out in paragraph [7] of my note dated
21 April 2005 what then seemed to me to be the relevant details of the
pursuer's note of appeal (no. 28 of process).
Since the point is of some importance, I think it may be helpful at this
stage to set out in its entirety the note of appeal as lodged by the pursuer. It reads:
Form A1
NOTE OF APPEAL
SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS
AT ABERDEEN
Court Ref : A395/02
In
the cause
MR
JOHN SMITH, residing at 90
Sheddocksley Drive, Aberdeen
PURSUER
against
THE INTERNATIONAL DEVELOPMENT COMPANY (ABERDEEN) LIMITED,
formerly known as THE INTERNATIONAL DEVELOPMENT COMPANY PLC, a
company incorporated under the Companies Acts and having a place of business
at 9 Queens Road, Aberdeen AB15 4YL
DEFENDER
I
have been informed that on 31st January 2005 absolvitor was granted with
expenses against me in the above action.
I
am writing to inform you that I wish to lodge an appeal to the Sheriff
Principal regarding this decision.
Yours
sincerely,
(Sgd) John Smith
John
Smith
Date: 11th February 2005
[6] The pursuer addressed me at some length on
the merits of the interlocutors of the sheriffs dated respectively 13 December
2004 and 31 January 2005. For present
purposes I do not think that I need to rehearse these particular submissions
since they had nothing to do with the competency of the appeal. But I should say, in case they are thought to
be of significance in the future, that the pursuer helpfully produced a typed
version of his submissions and this has been retained as no. 30 of process
along with copies of three letters which he produced, namely (1) a letter dated
15 December 2004 from Mr David S McDonald, solicitor, to the pursuer, (2) a
letter dated 1 December 2005 with enclosures from Mr Frank Doran MP to the Rt
Hon Tessa Jowell MP, and (3) a letter dated 17 May 2006 from Mr Doran to the
pursuer.
[7] It will be seen from the typed version of
his submissions that the pursuer did at one point purport to address the
question of the competency of his appeal.
The relevant passage reads as follows:
Incompetent Appeal
In relation to this action I appealed a decision at the
Court of Session and the Lords ruled in my favour, referring me back to this
hearing.
The Lords had found in my favour stating that for Justice to be seen to be done I
had to be given the chance to put forward my case.
Lords stated that they preferred if I had attended court
(re above hearings) but stressed that as a party litigant it was impossible for
me to be in two places at once. They
also stated that given a valid reason for not attending I had to be given the
chance to be heard, in the interests
of justice.
Lords stated that it was clear from my submission that I
wished to appeal this decision, despite the fact that it was not submitted
correctly.
It was also pointed out that it was not fair to expect a
party litigant to be aware of the correct appeal procedure and that in the
interests of justice I should be allowed to put forward my case.
[8] In response, the defenders' solicitor
pointed out that no grounds of appeal had been stated in the note of
appeal. He drew attention to rules
31.4(1) and (3) of the Ordinary Cause Rules and Form A1 appended thereto which
includes the words "(state grounds on which appeal is to proceed)". It was thus clear, said the defenders' solicitor,
both from the rules and Form A1 that the grounds of appeal required to be
stated in a note of appeal. It followed
that the pursuer's note of appeal was not in competent form and the appeal
should therefore be dismissed as incompetent.
[8] In a brief reply, the pursuer stated that,
when he had sought advice from the sheriff clerk, he had not been given advice
about the correct form of appeal, nor had he been given any advice on this by
Mr McDonald.
[9] In my opinion the submissions for the
defenders are to be preferred. Rule
31.4(1) provides that an appeal to the sheriff principal shall be marked by
lodging a note of appeal in Form A1.
This provides, inter alia, as
follows:
The pursuer (or
defender or as the case may be)
appeals to the sheriff principal on the following grounds:-
(state grounds on which appeal is to proceed)
It
is thus abundantly clear in my opinion that a note of appeal must incorporate
grounds of appeal, and this I think is reinforced by rule 31.4(3) which
provides that the grounds of appeal in the note of appeal shall consist of
brief specific numbered propositions stating the grounds on which it is
proposed to submit that the appeal should be allowed or as the case may be. In the present case, as noted, the pursuer's
note of appeal, although modelled to some extent on Form A1, contains not even
a hint of any ground upon which it is proposed to submit that the appeal should
be allowed. It follows in my opinion that the appeal is incompetent and should
be dismissed without further ado.
[10] In reaching this conclusion I am conscious
that rule 31.4(5)(a) provides that an appellant may amend the grounds of appeal
at any time up to fourteen days before the date assigned for the hearing of the
appeal. But this particular rule
pre-supposes that there are already grounds of appeal which may be
amended. In this case there are no
grounds of appeal so there is nothing that may be amended in terms of rule
31.4(5)(a) and this rule is accordingly of no assistance to the pursuer in
overcoming what appears to me to be the fundamental incompetency of his
appeal.
[11] In this context it is perhaps worth recalling
that the requirement that a note of appeal should include a statement of the
grounds of appeal is of benefit not only to the respondent but also to the
sheriff principal and his clerk. When a
note of appeal is received in an ordinary action one of the first steps that
has to be taken is to assign a diet for the hearing of the appeal. For this purpose it is necessary to estimate
how much time may be needed to be set aside in the court diary for the hearing
of the appeal and an adequate statement of the grounds of appeal is of
considerable assistance in making this estimate. Likewise, it is of considerable assistance to
the sheriff principal to have such a statement when he is preparing for the
hearing of the appeal itself.
[12] For the sake of completeness, I should
mention that in preparation for this appeal I had occasion to consider four
cases which might have been thought to have had a bearing on the issue in the
present case. These were McAdam v Shell UK Limited 1991 SC 360, City of Glasgow District Council v Secretary
of State for Scotland 1993 SLT 198, Eurocopy
Rentals Limited v Tayside Health Board 1996 SC 410 and the unreported
decision of Sheriff Principal Macphail QC (as he then was) in Smyth v Pearce (Edinburgh, 13 July
2004). I had copies of the reports of
these four cases made available to the pursuer and the defenders' solicitor and
offered them an opportunity to comment upon them - see Brebner v British Coal Corporation 1988 SC 333. Not surprisingly, the pursuer had nothing to
say about them while the defenders' solicitor observed, correctly, that the
present case was to be distinguished from these four cases in that no ground of
appeal at all had been stated by the pursuer in his note of appeal.
[13] I did not understand the pursuer to oppose
the motion for the defenders that he should be found liable for the expenses of
the appeal.
