SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

 

F366/06

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

 

in the cause

 

KASHIF MAHMOOD

Pursuer and Respondent

 

against

 

AMINA EJAZ or MAHMOOD

Defender and Appellant

 

__________________

 

 

Act: Mrs Scott, Advocate instructed by Stevenson & Marshall, Solicitors, Dunfermline

Alt: Ms Wylie, Advocate, instructed by Malcolm Jack & Matheson, Solicitors, Dunfermline

 

 

DUNFERMLINE, 29 June 2007. The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 21 September 2006 complained of; finds the defender and appellant liable as an assisted person to the pursuer and respondent in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report; refuses in hoc statu the appellant's motion to modify her liability for said expenses.

 

 

 

 

 

NOTE:

[1] This is an appeal against an undefended decree of divorce. It is unnecessary to enter upon a detailed examination of the reasons for the defender and appellant having allowed decree to pass against her in absence. Suffice it to say that she had consulted English solicitors, who plainly did not understand the procedures of the Scottish courts and who failed to take the necessary steps to see that appearance was entered.

 

[2] In her note of appeal it is maintained that the appellant has a good claim for financial provision on divorce and that unless the decree is recalled that claim will be lost. The primary thrust of the appeal is that the ends of justice favour allowing the appellant to pursue her claim notwithstanding any fault or carelessness on the part of her solicitors and that accordingly the appeal should be allowed.

 

[3] The respondent accepts that the appellant has a stateable case for payment of a capital sum but contends that it is not open to the appellate court to allow an appeal unless it can be shown that the sheriff has erred. This argument is advanced under reference to the decisions of Sheriff Principal Nicholson in Stroud v Stroud 1994 SLT (Sh.Ct) 7 and McFarlane v McFarlane 1995 SCLR 794, in both of which he rejected the argument that an appeal might be allowed on grounds similar to those which might be advanced in support of a reponing note.

 

[4] At the time of the decision in Stroud v Stroud the relevant rules of court excluded actions of divorce and separation from those in which the defender could apply to be reponed (rule 28). Nevertheless in terms of rule 59B the sheriff had a discretion to allow a defender who had not lodged a notice of intention to defend or defences "(a) to appear and be heard at a diet of proof; (b) to lodge defences and to lead evidence at any time before decree of divorce ... has been pronounced; or (c) to appeal within 14 days of the decree of divorce or of separation."

 

[5] In Stroud v Stroud the sheriff principal expressed the view that an appeal according to this procedure permitted the appellate court to have regard to "reponing considerations" but that it should be distinguished from what he described as a conventional section 27 appeal which ought to proceed solely on the basis of seeking to show some error in the approach or decision of the sheriff. He refused to follow therefore the suggestion made in the first edition of Macphail Sheriff Court Practice (para 18-02) that an appeal might be allowed on the ground that "as a matter of justice" the decision of the sheriff required to be corrected.

 

[6] The sheriff principal also refused to follow the decision of his predecessor in Bangs v Bangs (Sheriff Principal O'Brien unreported 13 December 1984) and distinguished the Inner House decision in Reid v Reid 1960 SLT notes 16, both of which were apparently at odds with his conclusion. The ground upon which he distinguished the latter case was the fact that it pre-dated the introduction of the then rule 59B which in his view permitted a form of appeal in which "reponing note considerations" could be advanced and considered.

 

[7] By the time of the decision in McFarlane v McFarlane the 1993 rules were in force. Rule 8.1 of those rules effectively repeated the provisions of the former rule 28 in preventing the defender in certain family actions from applying to be reponed. Rule 59B however was repealed without any equivalent provision being substituted. The sheriff principal referred to the fact that, when the 1993 Rules were introduced, a table of destinations had been published which, in relation to rule 59B, stated "Omitted and new provision substituted in rules for family actions." In fact no such provision was made.

 

[8] The sheriff principal affirmed what he had said in Stroud v Stroud. He emphasised the exclusion of actions of divorce and other family actions from the ambit of rule 8.1 and relied on the opinion of Sheriff Principal Mowat in Norris v Norris 1992 SCLR 395 (notes) (which involved an appeal against a decree of divorce granted under the simplified procedure) that the grounds of appeal should be the same as in any other ordinary action, namely "that the sheriff's decision was incompetent or ultra vires; that there was lack of jurisdiction; that the sheriff had exercised his discretion in a wholly unreasonable manner, or that he had not had material before him to justify the decision which he had made." Sheriff Principal Nicholson concluded therefore that it was not open to him to invent a reponing procedure when none existed and that an appeal against a decree of divorce could only succeed if it could be shown that there was an error or misdirection in the sheriff's judgment.

 

[9] In opening the appeal, counsel for the appellant submitted that the ratio of the decision in Stroud was that an appeal was not open given the existence of rule 59B but that once that rule was repealed the position reverted to that represented by the decisions of Reid v Reid and Bangs v Bangs. The decision in McFarlane relied upon the decision in Stroud but it was pointed out that these cases were decided under different regimes of rules. So far as concerned the observations of the sheriff principal in Norris counsel pointed out that the decision in that case represented the minority view among differing views of sheriffs principal, the majority view being found in the cases of Hunter v Hunter 1993 SCLR 785 and Colville v Colville 1995 SLT (Sh.Ct) 23.

 

[10] Counsel submitted that an appeal could be allowed on the basis of equitable considerations whenever there was a substantial case on the merits which had not been heard. The general principle was to be found in the line of authority dealing with decree by default, starting with Hyslop v Flaherty 1933 SC 588 and McKelvie v Scottish Steel Scaffolding 1938 SC 278 and endorsed in more recent times in cases such as Fernandez v Fernandez 2007 CSIH 6, Niven v Holmes 1979 SLT (Sh Ct) 15, Thorniewood United FC Social Club v Hamilton 1982 SLT (Sh Ct) 97, Differ v GKN Kwikform Ltd 1990 SLT (Sh Ct) 49, Coatbridge Health Studios Ltd v Alexander George & Co (Investments) Ltd 1991 SC 342 and my own decision in Barrie v Alex Butter Landscaping Ltd unreported 14 October 2004. It was submitted that, if the decision in McFarlane was correct, logic would suggest that an appeal against a decree by default on equitable grounds ought not to be allowed.

 

[11] In responding to these submissions counsel for the respondent submitted that the decision in McFarlane was correct and that, since the rules of court did not provide for reponing in cases of this sort, reponing considerations should not be taken into account in any appeal. It was submitted that the proper and only remedy available to the appellant was an action of reduction in the Court of Session.

 

[12] Referring to rule 8.1, counsel pointed out that the distinguishing feature of those cases which were excluded from its ambit was that, with one exception, they were all cases in which evidence was required to be heard by the sheriff before decree could be granted. The exception was an action for an order under section 11 of the Children (Scotland) Act 1995, but even in that case the court could not make an order without first being satisfied that it was right to do so and therefore there required to be some consideration of the merits of the application.

 

[13] Counsel for the respondent then traced the development of the rules to which I have already referred. So far as concerned the rules of the Court of Session, she pointed out that at the time of the decision in Reid v Reid the rules (rule 177) made similar provision to that stipulated in rule 59B of the sheriff court rules and it must be assumed that the court's decision in that case was made in reliance upon that rule rather than on any inherent equitable jurisdiction. She also drew attention to the fact that, under the current rules of the Court of Session (rule 19.2), a decree in absence could not be reclaimed but that a defender could apply by motion for recall of a decree in absence within seven days after the decree. There was no exclusion of family actions from the scope of that provision.

 

[14] So far as concerned the argument for the appellant that one ought to approach a decree in absence in exactly the same way as a decree by default, counsel for the respondent pointed out that provision for decree by default was specifically made by the rules of court. It required an exercise of discretion and could be opened up by the appellate court on the basis of information which was not necessarily available to the sheriff. While it might not be possible to criticise the sheriff's decision on the basis of the information then known to him nevertheless it could be said that his decision was wrong when one had regard to the complete picture presented to the appellate court. Thus, in the situation of a decree of default, one was still looking to see whether the decision of the sheriff was "wrong".

 

Discussion

 

[15] The central proposition for the appellant in this case is that the approach taken by the appellate court in relation to appeals against a decree by default ought also to be taken in relation to a decree in absence in cases such as the present. As appears clear from the authorities to which counsel for the appellant referred, the tests to be applied by the sheriff in disposing of a motion for decree by default, and by the sheriff principal on an appeal against such a decree, are well established (see generally Macphail Sheriff Court Practice 3^rd edn. paras. 14.09 - 14.12). As the matter was expressed in Fernandez v Fernandez, the guiding principle is that the court should seek to do justice between the parties in the circumstances of the case. In McKelvie v Scottish Steel Scaffolding Lord Moncrieff stated that he "would be most reluctant, in any case in which prima facie there appeared to be a proper defence put forward, to allow decree to pass against a defender without investigation of that defence" and this consideration has come to be seen as an important one in the exercise of discretion which the court requires to undertake. It is important to emphasise however that it is but one factor to be taken into account and there is no rule that a defender must be allowed an opportunity to vindicate a prima facie defence.

 

[16] This approach has many similarities to the approach which is required of the sheriff in the consideration of a reponing note. That approach was authoritatively set out by the court in Forbes v Johnstone 1995 SC 220 in which the Lord President (Hope), delivering the opinion of the court, said (at page 225A):

 

"What the rules now in force ... require is that the defender must set forth in the reponing note his proposed defence and he must explain his failure to appear. They also require the sheriff to consider the note before he decides whether or not to recall the decree. It is unlikely that the sheriff would be willing in the exercise of his discretion to recall the decree unless he is satisfied that the proposed defence is a stateable one. As for the explanation, it is not a requirement of the rules that he must be satisfied that it provides a reasonable excuse for the non appearance. The sheriff in the present case has pointed out that defenders may fail to enter appearance timeously for various reasons, some of which may be inexcusable. But it might result in an injustice if a defender who had a perfectly sound defence were to be denied the opportunity of entering the process simply because the explanation for his non appearance was not a reasonable one. As the matter is at the sheriff's discretion he is entitled, in such a case, to take account of all the circumstances and to balance one consideration against another in deciding whether to allow the reponing note."

 

[17] In Consultants & Technologies North Sea Ltd v Scott 1986 SLT 685 (IH) the court expressed the view that the observations made by Lord Moncrieff in McKelvie v Scottish Steel Scaffolding to which I have already referred, although relating to a decree by default, were equally applicable to the court's decision on a reponing note. Although certain aspects of this case were criticised in Forbes v Johnstone, there appears to be no dissent from this expression of opinion and indeed it is consistent with the court's concern in that case that injustice might result if a defender having a sound defence were to be denied the opportunity of advancing that defence.

 

[18] I think it is clear therefore that the question whether there is a stateable defence is a relevant and weighty consideration common to the disposal of both a motion for decree by default and a reponing note and that in each case the underlying concern for the court is to do what the ends of justice require.

 

[19] In my opinion this has important consequences for this appeal since it seems to me that, in excluding certain actions such as the present from the ambit of the provisions of rule 8.1, there is a clear intention that a decree in absence in such cases should not be recalled merely because there is a stateable defence and that it would be in the interests of justice that that defence should be heard. This intention is reinforced by the absence from the 1993 rules of any provision similar to that contained in the former rule 59B. Given that the excluded actions all concern issues of status, or something akin to that, one can understand why that might be so.

 

[20] While the provisions of rule 8.1 do not of course directly address the question of the grounds upon which an appeal might proceed, it is hard to see why the appellate court should be able to take account of reponing considerations when these have been expressly excluded from consideration by the sheriff. Certainly counsel were unable to suggest any good reason why such should be the case.

 

[21] Although initially attracted by the appellant's submission that there was no logical basis for treating the present case differently from an appeal against a decree by default, I have come to the view that that submission is not well founded and that there is a clear distinction to be drawn between the two. In considering whether to grant decree by default, whether in terms of rule 16.2 or rule 33.37, the sheriff is exercising a discretion in which his decision will turn upon what the ends of justice require. Accordingly in any appeal that is the central issue for determination. Likewise an appeal against the refusal of a reponing note brings under review an exercise of discretion where similar considerations apply. In the case of an action excluded from reponing however such considerations do not apply. The decree in question does not reflect the application of any discretion exercised on equitable grounds but rather an application of the law to facts which the sheriff has found established after considering evidence (or, in relation to an order under section 11 of the Children (Scotland) Act 1995, after such inquiry as the sheriff thinks fit). It seems to me therefore that the authorities on which counsel for the appellant relied, which, with two exceptions, were all concerned with the approach of the appellate court in respect of a decree by default, cannot be taken as supporting the existence in the sheriff principal of an overriding power in the interests of justice to correct any final interlocutor of the sheriff.

 

[22] The only authority referred to and binding on me which might be thought to support a contrary point of view is Reid v Reid, a case in which the circumstances were described by the court as "highly special". The report of the case is extremely brief and it is impossible to be clear about the basis upon which the court recalled the decree in absence. It seems clear however that at the time at which that decision was made the rules of the Court of Session made special provision to allow a defender to appear or to appeal in an action in which no appearance had been entered and in these circumstances I am unable to conclude that it supports the contentions advanced by counsel for the appellant.

 

[23] It follows that in my opinion the appeal must be refused. I reach that conclusion with a measure of regret since there may be cases in which an injustice might arise from the want of an opportunity in this court to recall a decree in absence on grounds of reponing considerations. While the appellant may have recourse to an action of reduction in the Court of Session that is a lengthy and costly process and it might be preferable were there some provision in the sheriff court to obviate the necessity of such a process. Having said that, I recognise that there may be wider considerations than those discussed in the present appeal and of course I am unaware of the reasons behind the omission from the 1993 rules of an equivalent to the former rule 59B. Perhaps the whole issue is worthy of fresh consideration by the Rules Council.

 

[24] Parties were agreed that, in the event that the appeal was refused, expenses should follow success. Counsel for the appellant explained that the appellant was in receipt of legal aid with a nil contribution and sought modification of her liability for these expenses. She acknowledged however that this might not be appropriate at this stage until it was seen whether the appellant's former English solicitors were willing to accept the consequences of their own failings in the case. That seems to me to be the proper course and I have refused the motion for modification in hoc statu.