SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A1087/04

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	EAST AYRSHIRE COUNCIL
	Pursuers
	against
	ALAN ROBERTSON AND DEBORAH ROBERTSON
	Defenders

 

Act: T E Shaw Esq, of Messrs A C White

Alt: Mrs A Forrest, of East Ayrshrie Council

 

 

 

AYR: 28 July 2006

 

The Sheriff Principal having resumed consideration of the appeal refuses the motion for the second defender (no 7/1 of process) to allow her appeal against the Sheriff's interlocutor of 9 March 2005 to be heard although late; finds the second defender liable to the pursuers in the expenses of the motion before the Sheriff Principal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.

 

NOTE:

 

Background to the appeal

 

1.             This is a motion on behalf of the second defender moving me to exercise my dispensing power to allow her appeal against the Sheriff's interlocutor of 9 March 2005 granting decree to be heard although late. It was accepted that this was an appeal against an extracted interlocutor.

 

2.             In this action the pursuers seek to recover council tax totalling £9,212.98 dating back to 1 April 2002 from Alan Robertson, the first defender and the Deborah Robertson, the second defender jointly and severally. The writ was lodge for warrant in Ayr Sheriff Court on 12 October 2004. Warrant was duly obtained and the action was served by sheriff officers personally on Alan Robertson and the second defender on 5 November 2004. Decree in absence was granted on 9 March 2005 and the decree was extracted on 24 March 2005. Thereafter a charge was executed on the second defender personally by sheriff officers on 10 May 2005.

 

3.             The second defender did not instruct her current solicitors until 9 December 2005.

 

4.             On 23 September 2005 sheriff officers reported to the pursuers that they had effected service of petitions and warrants for sequestration separately upon the first and second defenders. After sundry procedure, both sequestrations were dismissed in Ayr Sheriff Court on 23 November 2005 with an award of expenses in favour of the pursuers as petitioners in the sequestration.

 

5.             Certain correspondence (no 5/3 and 5/4 of process) took place between Messrs Barretts, Solicitors, Kilmarnock on behalf of the first and second defenders and the pursuers on 22 November 2005. These letters were produced. After the second defender's current solicitors had been instructed on 9 December 2005 the pursuers wrote to them on 19 January 2006. These solicitors replied on 23 February 2006 and the pursuers wrote further the second defender's solicitors on 6 March 2006. These letters are 6/1, 6/2 and 6/3 of process.

 

6.             On 9 March 2006 a reponing note was lodged in court on behalf of the second defender. It was warranted on 22 March 2006 and served on the pursuers on 23 March 2006. The reponing note called in court on 20 April 2006. In court the solicitors for the pursuers submitted that the reponing note was incompetent as the decree in absence had become a decree in foro in view of the terms of Rule 7.5 of the Ordinary Cause Rules 1993. The case was continued for one week for investigation. The second defender's principal solicitor then appeared. He was given sight of the extract of the charge which had been served personally on the second defender on 10 May 2005. He then accepted that the reponing note was incompetent in view of the terms of Rule 7.5 of the Ordinary Cause Rules which provides:

 

"... a decree in absence which has not been recalled or brought under review by suspension or by reduction shall become final and shall have effect as a decree in foro contentioso - (a) on the expiry of six months from the date of the decree or from the date of a charge made under it, as the case may be, where the service of the initial writ or of the charge has been personal ..."

 

7.             The reponing note was formally refused on 27 April 2006 with expenses to the pursuers. Having obtained instructions, the second defender's solicitors then lodged the current motion 7/1 of process which is in the following terms:

 

"The defender respectfully moves the Sheriff Principal to allow her appeal against the interlocutor of 9 March 2005 to be heard although late."   A note of appeal was also lodged on behalf of the second defender in which the second defender appealed on the basis that:   "1. The second defender is only liable for the council tax for the matrimonial home occupied by her and her husband, the first defender at 9 Hunters Way, Cumnock KA18 1AL. 2.              The liability for the council tax for the other properties narrated in the initial writ is that of the first defender alone. 3.              It has been accepted by the pursuers at meetings between the parties subsequent to their obtaining decree that the second defender's liability for council tax was only in relation to the matrimonial home and not for other properties. 4.              The pursuers have obtained a decree against the defender for sums which they well knew and accept that she is not due to them but have, that notwithstanding, indicated an intention to enforce such decree against her for the full sums due there under. 5.              The second defender accordingly not being liable to the pursuers for any council tax other than for the matrimonial home, the pursuers have no entitlement to any decree otherwise and for that liability. 6.              The second defender in such circumstances accordingly appeals to the Sheriff Principal against the interlocutor of 9 March 2005."

 

Submissions for the second defender

 

8.             Rule 2.1(1) of the Ordinary Cause Rules 1993 provides: "The Sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit". It was accepted by both parties that this Rule applied both to a Sheriff Principal and a Sheriff. Authority for that proposition was contained in the case of Hardy v Robertson 1985 SLT (Sh Ct) 40.

 

9.             The question of time limit for appeals is dealt with in Rule 31.1 which provides: "Subject to the provisions of any other enactment, an interlocutor which may be appealed against may be appealed within 14 days after the day of the interlocutor unless it has been extracted following a motion under Rule 30.4(2) early extract." Decree in absence was granted in this case on 9 March 2005. The second defender's motion was lodged on 2 May 2006 so it was very much out of time.

 

10.         I was referred to the case of Grier v Wimpey Plant & Transport Ltd 1994 SLT 714 where Lord Justice Clerk Ross, giving the opinion of the court, opined at page 718L:

 

"Perusal of the Ordinary Cause Rules shows that most rules cover a situation where it can be said that if a party wishes to achieve a certain result, then he must comply with the provisions of these rules. If a party wishing to achieve a certain result has failed to comply with the provisions of the rule dealing with that matter, then in terms of the Ordinary Cause Rule 1 the Sheriff may in his discretion relieve the party from the consequences of his failure,. We are not persuaded that Ordinary Cause Rule 1 can only be invoked where there has been a breach of express obligation placed upon a party by the rules. We are also satisfied that Ordinary Cause Rule 1 is widely expressed, and that it is apt to cover not only a failure to comply on the part of a party, but a failure to comply on the part of his solicitor ... In terms of Ordinary Cause Rule 1 relief may be granted to a party when he or his solicitor has failed to comply with the provisions of the rules."   In this case the appellant was not represented until 9 December 2005. Lord Justice Clerk Ross continued at page 219L:

 

"... We agree with counsel for the appellant that Ordinary Cause Rule 1 can be evoked to relieve a party from the consequences of his failure to take any step in terms of the rules which was necessary to make progress in his action."   Accordingly, it was submitted that the dispensing power, which was discretionary, was wide and could allow a party and and/or his solicitor to be excused from the failure to comply with the Ordinary Cause Rules.

 

11.         Solicitor for the second defender accepted that in general there could be no appeal against an extracted interlocutor. It was submitted however that the general rule was subject to the caveat that there can be a competent appeal if the extract of the decree has been improperly or incompetently issued. I was referred to Macphail Sheriff Court Practice paragraph 18.19:

 

"As a general rule, there can be no appeal against an extracted interlocutor, unless interlocutor or the extract has been improperly or incompetently issued"

 

12.         I was referred to the case of Alloa Brewery Co Ltd v Parker 1991 SCLR 70 where an Extra Division held that it was not competent to exercise the dispensing power to allow an appeal to be marked late if the decree had been extracted. Lord Clyde said at page 71B:

 

"A substantial tract of authority was placed before the Sheriff Principal which points to a long established recognition by the court that there can be no appeal against an extracted judgment. The position is so stated by Lord President Inglis in Tennents v Romanes at page 825.   Lord Clyde went on to say at page 72B:   "We were referred to certain cases in the Sheriff Court. In the first of these, Anderson Brown & Co Ltd v Morris, decree had been extracted after a motion to allow a late appeal to proceed had been lodged and the Sheriff Principal Sir Frederick O'Brien, QC held that to be incompetent. He accordingly was able to allow the late appeal and recalled the extract. The later case of Database Publications v McQueen Ltd the same Sheriff Principal held that he had no power to recall a decree on which an ex facie valid extract had proceeded and he refused a motion to allow a note of appeal out of time against an interlocutor which had been extracted. The Sheriff Principal referred to a decision by Sheriff Principal Taylor, QC in a case called John R Stenhouse v Ross Hynd, ... the view is there expressed that the clear tenor of rules 90, 91, and 92(1) is to the effect that an extracted interlocutor is no longer appealable. The appeal before us has not been presented on the ground that the interlocutor sought to be appealed against is invalid. The decision in Anderson Brown can then be distinguished from the present case. It was not argued before us that the interlocutor in the present case was other than ex facie valid. It is satisfactory that the decision which has been reached in the present case is in accord with the cases in the Sheriff Court which reference has been made."

 

13.         I was referred to a number of other cases:

a. Noble v Noble 1990 SLT (Sh Ct) 15 where an application for leave to appeal an interlocutor of 16 May 1989 was lodged on 23 May 1989 but nevertheless an extract of the interlocutor of 16 May 1989 was issued on 31 May 1989. Sheriff Principal McLeod held that the incompetent issuing of the extract of the Sheriff's interlocutor of 16 May 1989 was open to recall

 

b. In Millar v Millar 1992 SLT (Sh Ct) 67 where Sheriff Principal Hay stated at 69L:   "In Alloa Brewery Co Ltd v Parker 1990 SLT (Sh Ct) 57 I held that I could not competently evoke the dispensing power to recall an extract which had been properly issued and obtained in good faith before the motion to allow the appeal to be heard, although late was lodged. That decision was upheld by the Inner House (Extra Division) in a judgment reported at 1991 SCLR 70.   ... as I said in Alloa Brewery, I respectfully agree with the decision in Anderson Brown, and I note that comment by the Sheriff Principal (at page 973) that, whether it is ever open to recall an extract which has been competently issued and obtained in good faith does not arise, and I express no opinion upon it.   In the instant case however, the question is whether the decree issued on 26 July 1991 was competently granted and extracted. In my opinion it was not. It was granted as the result of a series of errors on the part of agents and of the sheriff clerk's department and also, perhaps, of the Sheriff ..."

 

c. Wanderers World Ltd v Marco's Leisure Ltd 1999 SCLR 930, where Sheriff Principal Nicolson said at 933A:   "The leading contemporary authority on the matter is the Inner House decision in the case of Alloa Brewery Co Ltd v Parker 1991 SCLR 70. In that case the primary question before the court was whether the so called dispensing power formerly contained in rule 1 of the 1983 Ordinary Cause Rules and now contained, albeit in somewhat different terms, in rule 2.1 of the 1993 Rules, could be prayed in aid so as to allow a late appeal to be marked after interlocutor in question had been extracted ... I do not consider it necessary to consider that particular point further since the underlying principal which was approved by the court in the Alloa Brewery case is quite simply that there can be no appeal against an extracted judgment. See per Lord Clyde at page 71B; see also Tennents v Romanes 1881 8R 824 per Lord President Inglis at 825 ... However there is also some authority for the proposition that the foregoing rule will not apply where there has been some irregularity in the issuing of the extract."   It was submitted that there was ample authority for the passage in Macphail at para 18.19 to which I have referred.

 

14.         Solicitor for the second defender finally referred to the case of Anderson Brown & Co v Morris 1987 SLT (Sh Ct) 96. He referred to the opinion of Sheriff Principal O'Brien at 97G:

 

"The question I have to decide is whether an extract can competently be issued after a motion to extend the time from marking and appeal has been lodged. There is no doubt that once an appeal has been marked it is not competent to issue an extract. In this case no appeal was marked at the time of the hearing before me on 23 September 1986, the appellant having taken the view that this step would have to wait until his motion to mark it late had been allowed ... I have come to the view that to allow extract after lodging of a motion to allow an appeal to be marked late would defeat the object of Rule 1 in relation to the late marking of appeals ... If the view which I have taken is right, the extract in the present case was issued prematurely, and it is open to me to recall it."   Solicitor for the second defender then emphasised the next passage from Sheriff Principal O'Brien at 97G which, he submitted was the passage upon which he relied in this appeal namely:   "Whether it is ever open to recall an extract which has been competently issued and obtained in good faith does not arise, and I express no opinion upon it."

 

15.            It was submitted that the question arose as to what was the irregularity in this case. I was referred to the note of appeal. The initial writ craves the court to find the defenders jointly and severally liable for a sum of money in respect of council tax for a series of properties within the jurisdiction of the pursuers. The defenders reside at 9 Hunters Way, Cumnock. It was accepted by the second defender that she was jointly and severally liable with her husband for the council tax in respect of the matrimonial home. This is dealt with in condescendence 2 of the initial writ and the sum involved was £4,438.67. However it was not accepted by the second defender that she was liable for the council tax levied in respect of the three other properties as narrated in condescendences 3, 4 and 5 of the initial writ. She claimed that the council tax in respect of these properties was solely the obligation of her husband.

 

16.         This issue had been was raised by solicitor for the second defender in correspondence. I was referred to letter by the pursuers dated 19 January 2006 (no 6/1 of process) reply by the second defender's solicitor dated 23 February 2006 (no 6/3 of process) and letter by pursuers dated 6 March 2006 (no 6/2 of process) as follows:

 

17.         The pursuers in the second and third paragraphs of their letter to the second defender's solicitors of 19 January 2006 wrote:

 

"The extract decree in absence granted against Mrs Robertson and her husband in March 2005 was in relation to council tax due in respect of the premises at 9 Hunters Way, Cumnock, and council tax in respect of 49 Main Street, Auchinleck, 150 Main Street Auchinleck and 21 Townhead Street, Cumnock. The action against Mrs Robertson did not include any liability in relation to the property at 1 The Strand Cumnock.   For the avoidance of doubt your client is responsible for council tax liability. It was accepted by the Authority that Mr Robertson was solely liable in respect of his motor repair business premises at 1 The Strand, Cumnock. In relation to the properties at 21 Townhead Street, Cumnock and Main Street Auchinleck the information held by the Council was that your client and her husband were jointly liable in respect of the council tax for these properties. At the recent meeting referred to in the third paragraph of your letter this Authority agreed to accept Mr Robertson's assertion that he alone was liable for their debt. This is a concession on the part of the Council in respect of Townhead Street and Main Street, Auchinleck no evidence was produced by your client or her husband to confirm that Mr Robertson should only be liable for these properties and your client did not defend the action raised against her in that regard. I trust this clarifies the matter, and apologise for the delay in replying."

 

18.         The second defender's solicitors wrote to the pursuers on 23 February 2006 in the following terms:

"We refer to your letter of 29 January. It appears to us that the decree against our client should be reponed in respect of those parts of the liability constituted by that decree against our client jointly and severally with her husband where you accept that it was the husband only who is responsible. We await your early confirmation that such an application would be of consent by you."

 

19.         That letter produced a response from the pursuers (6/2 of process) dated 6 March 2006 in the following terms:

"Thank you for your letter dated 23 February 2006. Any application to repone the decree against your client would be opposed by the Council. As previously indicated, the Council was prepared to make a concession on the basis that Mr Robertson indicated that he would pay the debt. However, the debt has not been repaid. Furthermore, your client has not provided any documentation or evidence that she should not be liable for the council tax. When the properties were rented out, housing benefit cheques were issued in the name of A & D Properties to your clients home address.   I look forward to receiving your client's proposals for settlement for the sums due within the next seven days failing which further action will be taken for recovery of the debt."

 

20.         It was submitted that the terms of the letter of 6 March 2006 seemed to qualify the terms of the original letter of 19 January 2006. It was submitted that the third paragraph of the letter of 19 January 2006 was an unqualified acceptance by the pursuers that the second defender was not responsible for the council tax liability for at least two of the three properties she does not accept liability for. It was only when the pursuers were asked if they would agree to have the decree reponed to that extent that there was any qualification of that paragraph of their letter.

 

21.         As far as the letter of 6 March 2006 was concerned, there was no indication in the previous letter that the concession was made on the basis that Mr Robertson indicated he would pay the debt. The original letter was unqualified. This latter letter was seeking to introduce a qualification which did not exist in the original letter.

 

22.         A second attempt, it was submitted, was made in the letter of 6 March 2006 to qualify the original letter:

 

"Furthermore, your client has not provided any documentation or evidence to indicate she should not be liable for the council tax."   It was submitted there was nothing in the letter of 19 January 2006 that she was required to do so.

 

23.         It was submitted that, if the second defender's reading of the correspondence was correct, then the extract decree obtained by the pursuers against the second defender quoad the three properties which she disputes had not been obtained in good faith by the pursuers. The basic submission on behalf of the second defender was that there was a lack of good faith in the instant case on the basis of the correspondence from the pursuers in their letters of 19 January 2006 and 6 March 2006. It was submitted that if the second defender's reading of the correspondence was correct, the pursuers were pursuing the second defender in bad faith, and seeking to recover liability from the second defender for three properties for which they accepted she is not responsible. It was accepted that, if I was not with the second defender that the correspondence indicated bad faith on the part of the pursuers, the general rule would require to be applied and I would not be able to exercise my discretion to allow the appeal to be heard although late.

 

24.         It was submitted that from a consideration of the decided cases, to which reference had been made, each exception to the general rule turned on its own facts and circumstances. It was suggested that bad faith in obtaining an extract should constituted an exception to the general rule. It was accepted that, if I consider that the facts of this case did not constitute bad faith on the part of the pursuers, there could be no exception.

 

25.         Solicitor for the second defender further accepted that he could not resist a motion for interim decree in respect of the sum of £4,438.67 which the second defender admitted was her responsibility as it involved the matrimonial home. Quoad ultra I was asked to grant the motion, recall the decree and remit to the Sheriff to proceed as accords against the second defender.

 

Submissions for pursuers

 

26.         Solicitor for the pursuers noted decree was granted on 9 March 2005 and extracted on 24 March 2005. Macphail at para 18.19 stated:

 

"As a general rule, there can be no appeal against an extract interlocutor, unless the interlocutor or the extract has been improperly or incompetently issued."

 

27.         Rule 31.1 provided that an interlocutor may be appealed within 14 days after the date of the interlocutor and rule 30.4 stated the circumstances where a decree is extractable. Rule 7.5 provided:

 

"... a decree in absence which has not been recalled or brought under review by suspension or by reduction shall become final and shall have effect as a decree in foro contenioso - (a) on the expiry of six months from the date of the decree or from the date of a charge made under it, as the case may be, where the service of the initial writ or the charge has been personal ..."

 

28.         I was in particular referred to Alloa Brewery Co Ltd supra at 71B where Lord Clyde said:

 

"A substantial tract of authority was placed before the Sheriff Principal which points to a long established recognition by the court that there can be no appeal against an extracted judgment ... These provisions seem again to reflect the recognition of the principal that extract precludes appeal. The introduction of the dispensing power in Rule 1 should not be seen as importing into the Sheriff Court a power to wave the time limit for appeal after the interlocutor in question has been extracted."

 

29.         It was submitted that this authority endorsed the rules to which reference had been made.

 

30.         It was submitted that there was no argument before the court that the interlocutor in this case was other than ex facie valid and followed the course taken in the Alloa Brewery case. I was also referred to the case of Dateline Publications v McQueen 1990 SLT (Sh Ct) 47 where Sheriff Principal O'Brien stated:

 

"I have, however, come to the conclusion that I have no power to recall a decree upon which an ex facie valid extract has proceeded. Reduction is the appropriate method of removing Court of Session and Sheriff Court decrees in absence which have been extracted ... and decrees in foro may be reduced on grounds such as lapse of the statutory period for appeal through no fault of the aggrieved party, incompetence and irregularity of procedure."

 

31.         It was submitted that in the cases where a motion to allow the appeal to be heard through late had been granted the circumstances were that the extract was issued in error or was in some way incompetent. The case of Anderson Brown & Co fell to be distinguished from the present case. In that case the motion to allow the late hearing of the appeal had been lodged before the issue of the extract. In this case no steps were taken by or on behalf of the second defender to challenge the decree for almost 12 months following extract.

 

32.         It was submitted Noble v Noble could be distinguished as in that case the defender lodged timeously a notice of leave to appeal and the extract was issued in error. In Millar v Millar the defender had lodged a minute which had been overlooked by the court staff. In Wanderers World v Marco's Leisure Ltd what purported to be an appeal was lodged two weeks before the issue of the extract.

 

33.         It was submitted there were no exceptional or unusual circumstances in the present case. I was invited to follow the cases of Alloa Brewery and Database and distinguish the other cases, to which reference had been made, and to refuse the second defender's motion on the grounds that the appeal was incompetent. It was submitted that no proper reason had been put forward to allow the court to depart from the general rule.

 

34.         It was submitted that there was no mistake, oversight or other excusable cause which should persuade me to exercise my dispensing power in favour of the second defender. The decree was granted on 9 March 2005 in absence. The writ had been served on the second defender personally by sheriff officer on 5 November 2004. It was said that the second defender was a bank employee. She and her husband jointly owned the matrimonial home. Her husband was self employed running his own garage business. They let some of their properties to tenants. It was submitted the second defender was a person clearly capable of following instructions as to how to defend the action. I was referred to production 5/1 a letter from sheriff officers to the pursuers dated 10 November 2004 wherein the sheriff said:

 

"We refer to your recent instructions and confirm having effected service of the initial writs upon the defenders as requested ... The defenders advise that they are soon to receive payment from an Abbey Life Insurance policy, the proceeds of which they intend using to settle each of these outstanding debts.   There was no indication to the sheriff officers that the either of the defenders would be defending the action. Solicitors indicated that she had received a telephone call from Alan Robertson following service of the writs in which he advised his critical illness insurance policy with Abbey Life would be paid out soon and this would meet these debts. It was submitted that the first and second defenders had met council tax officers on several occasions. No indication was given by the second defender that her liability extended only to the matrimonial home.

 

35.         As far as the pursuers' letter to the second defender's agent dated 19 January 2006 (6/1 of process) was concerned, on which the second defender's solicitor laid weight I was referred to the second sentence of the third paragraph which stated:

 

"In relation to the properties at 21 Townhead Street, Cumnock and Main Street, Auchinleck the information held by the Council was that your client and her husband were jointly liable in respect of the council tax for these properties."   The third sentence read:   "At the recent meeting referred to in the third paragraph of your letter this Authority agreed to accept Mr Robertson's assertion that he alone was liable for the debt."   This was long after decree had been obtained by the pursuers. It was submitted that the discussions which took place between council tax officers and the appellant at this stage were on a without prejudice basis and had no impact on the decree which the respondents held at the time. The letter stated the acceptance of "Mr Robertson's assertion" was on the basis that Mr Robertson had indicated at the meeting that he would pay that element of the debt. He said at that time the Council had held the decree for some months.

 

36.         It was submitted that the decree was a joint and several one and it was in the option of the Council to accept payment in full from either debtor. The amount claimed in the writ was £9,l212.98. The assessment for the matrimonial home at 9 Hunters Way was issued to "D and A Robertson" and the sums involved dated back to 2002. The sums disputed where contained in condescendences 3, 4 and 5. Condescendence 3 related to 150 Main Street, Auchinleck for £2,152.10, condescendence 4 related to 49 Main Street, Auchinleck for £1,376.69 and condescendence 5 for 21 Townhead Street, Cumnock for £1,245.52. The three disputed sums totalled £4,774.31. The council tax assessments in condescendences 3, 4 and 5 also contained sums outstanding since 2002. The council tax assessments for these properties had been issued to A and D Robertson at 9 Hunters Way, Cumnock. During certain periods of these assessments the properties were rented out to tenants and the Housing Benefit Department issued cheques in the name of A and D Properties. These cheques were sent to the defenders' home address at 9 Hunters Way, Cumnock.

 

37.         At no time during the years of assessment did the second defender challenge the assessments being in her name. It was only now, at this very late stage in the process, that the second defender sought to distance herself from these properties.

 

38.         It was submitted that no documentation had ever been produced by the second defender to show that Alan Robertson was the sole trader of A and D Properties. There was no evidence that the second defender was not a partner of A and D Properties, as the name would tend to suggest. Solicitor for the second defender had suggested that the second defender had not been asked to produce any documentation. That was correct, but given that the second defender's case was that she was not liable for these assessments, it was suggested that it was only reasonable that she explain and vouch the position in relation to the disputed properties, rather than boldly state after years of assessment that she was not liable. It was to be noted from the process that the writ was served on the second defender personally on 5 November 2004 and the charge was served on her personally, also at her home address, on 10 May 2005. She took no steps to challenge the decree. The sequestration petition was served on her personally on by sheriff officer on 21 September 2005. This was confirmed by sheriff officer's letter dated 23 September 2005 (5/2 of process). It was said: "Both Mr & Mrs Robertson dispute this action and intend to instruct their solicitor, Gordon Anderson or Barnets, Grange Place, Kilmarnock to act for them". At the hearing in Ayr Sheriff Court on 29 September 2005 Alan Robertson appeared and made a speech which had been prepared on behalf of himself and his wife. He explained his physical and mental health and the impact of the proceedings on his health. He asked the Sheriff not to award the sequestration as it would be in breach of his human rights. The Sheriff at that time continued the process for four weeks on enquiries into his wife's involvement and to give him the opportunity to repay the sum involved. On 10 November 2005 the Sheriff who sat that day returned the case before the Sheriff who had made the original order and it called before her on 23 November 2005. Correspondence took place between the parties on 22 November 2005 and are 5/3 and 5/4 of process. The sequestrations were in fact dismissed by the Sheriff on 23 November 2005 on the basis that she had made an incompetent interlocutor on 29 September 2005 when she continued the cause for four weeks. Expenses were awarded to the pursuers.

 

39.         Thereafter nothing was done until the reponing note which was withdrawn as incompetent. There was no payment by either Robertson towards the council tax liability since May 2005 apart from £100 by Alan Robertson on 20 January 2006.

 

40.         It was submitted that given (1) the second defender's failure to challenge the council tax assessments over the periods mentioned (2) her failure to defend the action (3) her failure to act timeously in challenging the decree throughout the diligence which followed thereon and (4) her admission that substantial sums were due to the Council, I should not exercise my dispensing power in this case.

 

41.         As far as the merits of the appeal were concerned it was accepted that on the face of it there could be a stateable defence. The second defender maintained that she was not liable for council tax on the three properties. There has been no explanation or vouching of that, or of the constitution of the firm A and D Properties to the effect that it was not a partnership, as the name would suggest. She had given no details of the cheques from the Housing Department sent to A and D Properties. There was no explanation of her failure to challenge the assessment over the years. It was submitted that the Council proceeded on the information available to them at the time and obtained decree. There was no question bad faith on the part of the Council. I should refuse the motion to hear the appeal late.

 

Decision

 

42.         The law applicable to this case has been fully set out in my summary of submissions of parties and is really not in dispute. The decided cases to which I have referred amply vouch the general proposition set out in Macphail at para 18.19:

 

"As a general rule, there can be no appeal against an extracted interlocutor, unless interlocutor or the extract has been improperly or incompetently issued"

 

43.         A number of the cases to which reference has been made deal with situations which involve the improper or the incompetent issue of the extract. As Sheriff Principal Nicolson put it in Wanderers World Ltd v Marco's Leisure Ltd supra at 933A:

 

"... The underlying principle which was approved by the court in the Alloa Brewery case is quite simply that there can be no appeal against an extracted judgment. ... However there is also some authority for the proposition that the foregoing rule will not apply where there has been some irregularity in the issuing of the extract."   The cases on which the pursuers sought to rely as exceptions from the normal rule, namely Noble v Noble, Millar v Millar, Wanderers World v Macro's Leisure Ltd, and Anderson Brown & Co v Morris all relate to an irregularity in the actual issuing of the extract decree. The position of the second defender in this motion was that the documentary evidence produced in court indicated that the pursuers were acting in bad faith in this litigation. The court was invited to conclude on this basis that the extract had not been properly and competently issued and should be recalled.

 

44.         In this writ the pursuers sought a joint and several decree against the first and second defenders on the basis that they were jointly liable for the council tax assessments which had been levied in respect of the matrimonial home at 9 Hunters Way, Cumnock and other properties at 150 Main Street Auchinleck, 49 Main Street, Auchinleck and 21 Townhead Street, Cumnock. The assessments dating back to 2002 issued to D and A Robertson in respect of 9 Hunters Way, and to A and D Robertson in respect of the other three properties had not been disputed. All the assessments had been sent to 9 Hunters Way. The writ was personally served on the second defender on 5 November 2004. Decree in absence was granted on 9 March 2005. The decree was extracted on 24 March 2005. A charge was executed personally on the second defender on 10 May 2005. The extract decree is clearly ex facia valid.

 

45.         The second defender's case, in asking me to use my dispensing power to allow the appeal to be heard although late, is that a perusal of the letter by the pursuers to her solicitors of 19 January 2006 clearly establishes that the pursuers were acting in bad faith in bringing this action in the first instance against the second defender and in continuing now to enforce the extract decree. The second defender attaches weight to the statement in the letter:

 

"At the recent meeting referred to in the third paragraph of your letter this authority agreed to accept Mr Robertson's assertion that he alone was liable for the debt. This is a concession on the part of the Council in respect of Townhead Street and Main Street Auchinleck no evidence was produced by your client or her husband to confirm that Mr Robertson only should be liable for these properties and your client did not defend the action raised against her in that regard."   It was said that this was an unqualified acceptance by the pursuers that the second defender was not responsible for council tax liability for the properties in Townhead Street and Main Street Auchinleck.

 

46.         I do not accept the submission which has been made on behalf of the second defender. It is clear from the initial writ that the pursuers case is that Alan Robertson and the second defender are jointly and severally liable for the payment of council tax in respect of the properties named in the writ. The second defender did not challenge the assessments. The second defender did not enter appearance when the writ was served personally upon her. The second defender did not react when a charge was personally severed upon her. The assessments in respect of the property at 9 Hunters Way, Cumnock were issued to D and A Robertson at 9 Hunters Way, Cumnock. The assessments in respect of 150 Main Street, Auchinleck, 49 Main Street, Auchinleck and 21 Townhead Street, Cumnock were issued to A and D Robertson at 9 Hunters Way, Cumnock. During certain periods of these assessment the properties were rented out to tenants and the Housing Benefit Department issued cheques in the name of A and D Properties. These cheques were sent to the defenders' home address at 9 Hunters Way, Cumnock.

 

47.         The decree had been outstanding after the service of the charge for some considerable time and one can readily understand that steps were taken on behalf of the pursuers to endeavour to obtain payment from the defenders. Eventually the second defender instructed a solicitor. It is against a background of endeavouring to obtain settlement of the outstanding council tax that the letter of 19 January 2006 written by the pursuers to the second defender's solicitors requires to be viewed. That letter makes it clear that the information held by the pursuers was that the second defender and her husband were jointly liable in respect of the council tax for the properties. In the letter the pursuers indicate that at a recent meeting they agreed to accept Mr Robertson's assertion that he alone was liable for the debt. They made it clear that this was a concession on behalf of the Council in respect of Townhead Street and Main Street Auchinleck as no evidence was produced by the defender or her husband to confirm that Mr Robertson only should be liable for these properties. The letter pointed out that the second defender did not defend the action raised against her.

 

48.         When the whole back ground of this case is considered, in my view it cannot be said that the terms of the letter of 19 January 2006 from the pursuers indicate that they had, throughout this action, or indeed at any time, been acting in bad faith. There was no evidence produced to the pursuers, or to the court to the effect that the second defender should not be liable for the council tax. The letter from the pursuers to the defenders dated 6 March 2006 points out that the second defender had not provided any documentation or evidence to indicate she should not be liable for the council tax. It further states that, when the properties were leased, housing benefit cheques were issued in the name of A and D Properties to the second defender's home address. The name of the firm "A and D Properties" would tend to suggest a partnership involving both "Alan" and "Deborah" Roberson. In any event, it would have been a straightforward matter to produce evidence to the pursuers or to the court to the effect that the firm "A and D Properties" was not a partnership but a sole trader enterprise.

 

49.         There is no evidence before me to indicate that there is any substance in the second defender's assertion. There is no information or documentation before me to allow me to take the view that this decree was obtained in bad faith. It was conceded by solicitor for the second defender that, if I was not satisfied on the question of there being bad faith on the part of the pursuers, the general rule required to be applied and there could be no appeal against the extracted interlocutor. It follows that the motion should be refused.

 

50.         In any event, I would only be entitled, in terms of Rule 2.1(1) to grant this motion if I was satisfied that the failure to mark the appeal within 14 days after the date of the interlocutor was shown to be due to mistake, oversight or other excusable cause. I am not satisfied that the failure to mark the appeal was due to any mistake, oversight or other excusable cause. The writ was personally served on the second defender on 7 October 2004. Decree in absence was granted on 9 March 2005. The decree was extracted on 24 March 2005. A charge was executed personally on the second defender on 10 May 2005. At the earliest she instructed a solicitor in November 2005. The assessments included the initial "D" and were sent to what was admitted to be the second defender's home. There is no documentary evidence to negative the presumption that the second defender was involved in the letting business involving the properties at 150 Main Street Auchinleck, 49 Main Street, Auchinleck and 21 Townhead Street, Cumnock. There is no explanation as to why Housing Benefit Department cheques in the name of A and D Properties were sent to the second defender's home address at 9 Hunters Way, Cumnock. Not only does the second defender fail to establish bad faith, but she also in my opinion fails to show that her failure to comply with the Sheriff Court Rules was due to mistake, oversight or other excusable cause.

 

51.         I have further to say that, even if I had taken the view that the question of bad faith on the part of the pursuers had been raised prima facie and that the failure to mark the appeal within 14 days after the date of the interlocutor had been shown to be due to mistake, oversight or other excusable cause, I do not think that I would have been entitled to recall the decree in this case. I refer again to the dicta of Sheriff Principal Nicolson in Wanderers World Ltd v Marco's Leisure Ltd:

 

"... the underlying principle which was approved by the court in the Alloa Brewery case is quite simply that there can be no appeal against an extract judgment ... However there is also some authority for the proposition that the foregoing rule will not apply where there has been some irregularity in the issuing of the extract."   and to the dicta of Sheriff Principal O'Brien in Dateline Publications v McQueen:   "I have, however, come to the conclusion that I have no power to recall a decree upon which an ex facie valid extract has proceeded. Reduction is the appropriate method of removing Court of Session and Sheriff Court decrees in absence which have been extract ... and decrees in foro may be reduced on grounds such as lapse of the statutory period for appeal through no fault of the aggrieved party, incompetence and irregularity of procedure."   All the cases to which I was referred where the decree was recalled, and which I have set out in detail in this note, relate to irregularities in the issuing of the extract and do not involve an examination of the merits of the case. Any consideration of bad faith on the part of the pursuers would relate to the merits.

 

52.         I was not addressed on the question of an action of reduction and accordingly make no comment thereon.

 

53.         I refuse the second defender's motion to allow her appeal to be heard although late. It was agreed by parties that expenses should follow success. I have accordingly awarded the expenses of the hearing before me to the pursuers.