SHERIFFDOM OF GRAMPIAN HIGHLAND AND
SA700/06
JUDGEMENTof 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,
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
[2] On
[3] On
[4] A supplementary note of defence was lodged
on behalf of the defender in the action SA1/06 on
[5] On
[6] A note of defence in the action SA86/06 was
lodged at the court on
[7] A response signed by Mr Ferrier to this
last note of defence had previously been lodged by the pursuers at the court on
[8] There was a preliminary hearing in the
action SA86/06 on
[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
[11] Upon its transfer to
[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
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
[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
[15] The defender's solicitor
submitted that on the basis of the information given to the sheriff at the
hearing on
[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
[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
[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
[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
[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
[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.