SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
SA700/06
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
EXPERNO LIMITED
Pursuers and Appellants
against
MARK BANKS
Defender and Respondent
|
Act:
Mr M G Ferrier, authorised lay representative
Alt:
Mr Scott Banks, solicitor, Banks Devlin & Co, Paisley
Aberdeen: 14th June 2007
The
sheriff principal, having resumed consideration of the cause, answers the
question of law in the stated case in the negative, allows the appeal and
recalls the decree pronounced by the sheriff on 9 February 2007; finds the
defender and respondent liable to the pursuers and appellants in the expenses
of the hearing before the sheriff on 9 February 2007 and of the appeal as the
same may be fixed by the sheriff clerk in terms of rule 21.6(9) of the Small
Claim Rules 2002; quoad ultra remits the cause to the sheriff to proceed as
accords.
Note
[1] On 5
January 2006 at Arbroath Sheriff Court
the pursuers and appellants raised an action (SA1/06) by way of a small claim
against the defender and respondent for payment of the sum of £750. The details of the claim in short were that
the defender had leased a property in Aberdeen
from the pursuers and that as at 31
December 2005 there was a balance of unpaid rent due. This exceeded the sum of £750 but the sum
sued for was restricted to this amount.
[2] On 18
April 2006 at Arbroath Sheriff Court
the pursuers raised a second action (SA86/06) against the defender by way of a
small claim for payment of the sum of £750.
The details of this claim were again that the pursuers had leased the
property in Aberdeen to the
defender. But on this occasion it was
said that he had left the property without settling his liabilities under the
lease agreement, that these liabilities were principally administration fees
and cleaning costs and that the sum sued for was restricted to £750.
[3] On 24
April 2006 there was a hearing before the sheriff at Arbroath. It appears that the purpose of this hearing
was to consider a minute for recall of decree in terms of rule 22.1 of the
Small Claim Rules 2002 in the action SA1/06, decree in absence having
previously been granted against the defender.
On that occasion the pursuers were represented, as they have been
throughout the proceedings, by an authorised lay representative, namely Mr M G
Ferrier. The defender was represented by
a local agent who appeared on behalf of his principal agent in Paisley. It seems that in the course of this hearing
Mr Ferrier indicated to the sheriff that the pursuers would be seeking payment
to them by the defender of the administration fees and cleaning costs which had
been claimed in the action SA86/06. This
was evidently reported by the local agent to the defender's principal agent,
and this explains why in the note of defence in the action SA1/06 which was
lodged on 2 May 2006 the defender not only asserted that all rent due by him to
the pursuers had been paid (which was all that had been claimed) but also added
a second paragraph in which he denied liability for payment of the
administration fees and cleaning costs.
[4] A supplementary note of defence was lodged
on behalf of the defender in the action SA1/06 on 4 May 2006. In
this it was said in short that the court at Arbroath did not have jurisdiction
in the matter and that the action should have been raised in Aberdeen
Sheriff Court.
[5] On 9
May 2006 a document signed by Mr Ferrier was lodged in the court at
Arbroath on behalf of the pursuers. It
purported to be their response to the two notes of defence which had been
lodged on behalf of the defender in the action SA1/06. In paragraph 3 of this document it was
admitted that all rent due by the defender had been paid by him prior to
termination of the lease. In paragraphs
4 and 5 details were given of the pursuers' claims for administration fees and
cleaning costs respectively. It appears that Mr Ferrier thought it necessary to
add these two paragraphs in light of the second paragraph in the original note
of defence.
[6] A note of defence in the action SA86/06 was
lodged at the court on 18 May 2006. In this the defender, inter alia, denied any liability for payment of the administration
fees and cleaning costs.
[7] A response signed by Mr Ferrier to this
last note of defence had previously been lodged by the pursuers at the court on
17 May 2006. I can only assume from the fact that the
response was lodged before the note of defence itself that a copy of the latter
must have been sent to Mr Ferrier before the principal was lodged at
court. For present purposes the
important point to notice is that paragraphs 3 and 4 in this response referred
to the administration fees and cleaning costs respectively and were in
identical terms to paragraphs 4 and 5 in the pursuers' response which had
previously been lodged in the action SA1/06 on 9 May 2006.
[8] There was a preliminary hearing in the
action SA86/06 on 29 May 2006. On that date the sheriff fixed a further
hearing on 16 June 2006
which was the date which had previously been fixed for the hearing of the
action SA1/06. It was thus that both
actions were called before the sheriff at Arbroath on 16 June 2006.
The pursuers were represented by Mr Ferrier and the defender by his
principal agent.
[9] The action SA1/06 was called first. Notwithstanding the terms of the pursuers'
response which had been lodged on 9 May 2006 it appears that the summons in the
action SA1/06 had not formally been amended in terms of rule 12.1 to incorporate
the claims for administration fees and cleaning costs. Technically therefore all that was sought in
this action was payment of the sum of £750 in respect of unpaid rent. I was informed that Mr Ferrier had advised
the sheriff that he was no longer pursuing this claim, that the defender's agent
had then moved that decree of absolvitor should be granted in favour of the
defender and that Mr Ferrier had consented to this. The sheriff therefore absolved the defender
in the action SA1/06 and granted decree for payment of expenses of £75 against
the pursuers.
[10] The action SA86/06 was then called. The defender's agent apparently invited the
sheriff to dismiss this action on the basis that it ought to have been raised,
not at Arbroath, but at Aberdeen,
the defender being resident in the sheriff court district of Aberdeen. Mr Ferrier proposed that, rather than dismiss
the action, the sheriff should transfer it to Aberdeen,
and this the sheriff did in terms of his interlocutor dated 16 June 2006.
[11] Upon its transfer to Aberdeen,
the action SA86/06 was given a new number (SA700/06) but for the present I
shall continue to refer to it by its original number.
[12] Various procedural steps ensued in the
action, the details of which are not of significance. Eventually the action was called before the
sheriff at Aberdeen on 9 February 2007 for a hearing. What happened then is narrated in the stated
case as follows:
3. There was no evidence
heard as the defender raised a preliminary matter. He stated that the matter
was res judicata.
4. The defender's agent
maintained that on 16 June 2006 at Arbroath Sheriff Court decree of absolvitor
had been granted with expenses in favour of the defender in an action under
case reference SAl/06 in which the same parties and the same issues had come
before the court there. He referred me to Inventory for Productions for
defender and in particular production 6. This bears to be a copy extract decree
of absolvitor in an action between the same parties under reference SAl/06. He
invited me to dismiss the action with expenses in favour of the defender.
5. In response to
questioning by me Mr Ferrier agreed that the parties in the actions were the
same as were the issues. He submitted that as no evidence had yet been heard in
the present action I should not grant dismissal as moved for by the defender's
solicitor. He agreed that the defender's production was a copy extract decree
of absolvitor.
6. Based on that information
and as there was no suggestion that the decree of absolvitor granted at Arbroath on 16 June 2006 was under appeal I deemed the matters
raised in the present action to be res
judicata and accordingly granted the defender's motion for dismissal with
expenses.
[13] The single question of law in the stated
case reads:
Based
on the information made available to me was I entitled to dismiss the action on
the Defender's plea of res judicata?
[14] In both the note of
appeal and his submissions at the hearing of the appeal itself Mr Ferrier
maintained that the sheriff should not have sustained the defender's plea of res
judicata since the sheriff at Arbroath had exceeded his jurisdiction in
pronouncing decree of absolvitor in the action SA1/06 and since in any event
the subject-matter and media concludendi of the two actions were not the
same. It was submitted that the present
appeal should therefore be allowed and the decree pronounced by the sheriff on 9
February 2007
recalled.
[15] The defender's solicitor
submitted that on the basis of the information given to the sheriff at the
hearing on 9 February 2007 as recorded in the stated case the question
of law should be answered in the affirmative and the appeal dismissed. In any event he submitted that the
subject-matter of the two actions had been the same with the result that the
sheriff had been correct to sustain the defender's plea of res judicata.
[16] In response Mr Ferrier
challenged the statement in the first sentence of paragraph 5 of the stated
case to the effect that he had agreed that the parties in the two actions were
the same as were the issues. According
to him, what had happened at the hearing before the sheriff was that he had
made a short statement at the outset after which the defender's solicitor had
addressed the sheriff at some length on the legal technicalities of the
case. Thereafter the sheriff had held up
the extract of the decree of absolvitor which had been pronounced by the
sheriff at Arbroath on 16 June 2006 and had asked him (Mr Ferrier) whether he
accepted that that was indeed the decree which the sheriff had granted at Arbroath. Mr Ferrier had done so and the sheriff had
then explained that he could not look beyond the extract.
[17] The defender's solicitor
explained that the narrative of events in the stated case coincided with his
own recollection of what had transpired at the hearing on 9
February 2007. In normal circumstances I think that I should
have been bound to accept this narrative as accurate. But its accuracy had
previously been challenged by Mr Ferrier in the adjustments which he had
proposed to the sheriff's draft stated case.
In these adjustments he had stated that he had not agreed that the
issues in the two actions were the same, and he had gone on to draw attention
to the differences between them. In the
stated case the sheriff records that he refused this proposed adjustment "as it
did not accord with my recollection of what took place at the original hearing
of the case on 9 February 2007".
[18] I have come to the
conclusion, albeit with some hesitation, that I cannot be confident that in
paragraph 5 of the stated case the sheriff has correctly recorded Mr Ferrier as
having agreed that the parties in the two actions were the same as were the
issues. I say this for three reasons in
particular. In the first place, in
paragraph 2 of the draft stated case the sheriff recorded that the defender had
represented himself at the hearing on 9 February 2007 and in paragraph 4 he recorded the
submissions which are now said to have been made by the defender's agent as
having been made by the defender. It is not
in dispute that at the hearing before sheriff the defender was represented by
his solicitor (as is now recorded in the stated case as a result of an
adjustment to this effect proposed by the defender), and I think it is
legitimate to ask to what extent the sheriff's recollection of the events of
the hearing can be relied upon if, when he came to draft his stated case, he
initially appeared to think that the defender had represented himself.
[19] This in turn has an
important bearing on the reason given by the sheriff for having rejected the
adjustment to the stated case proposed by Mr Ferrier. Had I been in the position of the sheriff I
think that, given the significance of the point, I should probably have questioned
Mr Ferrier closely to make sure precisely what he was agreeing about the issues
in the two actions and I should then have made a specific note of the
concession which he had made. If the
sheriff had done this and had then stated that he had rejected the adjustment
because it did not accord with his note of what had been said, I do not think
that there would have been any room for argument on the point. But, since his own recollection has already
been shown to have been at fault, I am doubtful whether the sheriff's reason
for refusing the adjustment can be considered to be altogether sound.
[20] In the third place I am
bound to say that it seems to me to be inherently improbable that Mr Ferrier
would have conceded at the hearing before the sheriff that the issues in the
two actions had been the same. I can readily understand that he would have
conceded that the defender's production was an extract of the decree of
absolvitor pronounced by the sheriff at Arbroath on 16 June 2006. But it is I think perfectly clear that in
the view of Mr Ferrier the focus of the action SA1/06 was the recovery of
unpaid rent whereas the focus of the action SA86/06 was the recovery of
administration fees and cleaning costs. If the issues in the two actions had
been the same, it would not have made sense for him at the hearing at Arbroath
on 16 June 2006
to have consented to decree of absolvitor in the action SA1/06 and at the same
time sought the transfer to Aberdeen of the action SA86/06. So I am at a loss to understand why at the
hearing before the sheriff on 9 February 2007 he should have agreed that the issues in
the two actions were the same.
[21] I did not understand the
defender's solicitor to dispute the contention of Mr Ferrier (founded on
Macphail's Sheriff Court Practice at paragraphs 2.107 and 2.108) that for a
plea of res judicata to succeed both the subject-matter and the media
concludendi of the two actions must be the same. The sheriff thus had to be satisfied that
both the subject-matter and the media concludendi of the two actions
SA1/06 and SA86/06 were the same and I do not consider that the concession made
by Mr Ferrier (if indeed it was made as narrated in paragraph 5 of the stated
case) was by itself apt to support this conclusion. On the contrary, I think that before
sustaining the plea the sheriff would have had to confirm with Mr Ferrier that,
in making his concession, he was acknowledging that both the subject-matter and
the media concludendi of the two actions were the same.
[22] Turning to the
defender's alternative submission, I have already explained what the two
actions were originally about and the circumstances in which they came to be
disposed of by the sheriff at Arbroath on 16 June 2006. In
my opinion it is perfectly clear that the subject-matter of the two actions was
indeed different. In short the action SA1/06 was about unpaid rent whereas the
action SA86/06 was about administration fees and cleaning costs. Indeed, if there had been any substance in
the defender's plea, one would have expected his solicitor to have advanced it
before the sheriff at Arbroath on 16 June 2006 as soon as decree of absolvitor had been
granted in the action SA1/06.
[23] On the whole matter I am
persuaded that the sheriff ought not to have sustained the defender's plea of res
judicata. I have therefore recalled
his decree and remitted the cause to him to proceed as accords. In this context I should mention that the
defender's agent drew attention to rule 23.3(4)(c) and suggested that it would
not be competent for me to remit the cause to the sheriff. If the purpose of the remit had been to have
further evidence led I think that this would have been correct. But in this case the purpose of the remit is
to have evidence led, not further evidence.
[24] Mr Ferrier submitted
that I should find the pursuers entitled to expenses and I am satisfied that
this would be appropriate.
[24] For the sake of
completeness, I should perhaps record that, given that he had consented to it,
I was not impressed by Mr Ferrier's submission that the defender's plea of res
judicata ought to have been repelled on the basis that the sheriff at
Arbroath had exceeded his jurisdiction in granting decree of absolvitor in the
action SA1/06.
