Scottish Sheriff Court Decisions

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URL: http://www.bailii.org/scot/cases/ScotSC/2007/71.html
Cite as: [2007] ScotSC 71

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A3239/05

NOTE BY SHERIFF PRINCIPAL

JAMES A TAYLOR

in the cause

Arthur Gemmell

APPELLANT

against

MWB Argyll Street Ltd

RESPONDENT

My Lords,

[1] This case called before me for an appeal hearing on 24 April 2007. The pursuer and appellant represented himself. Mrs Wolffe, Advocate, appeared for the defenders and respondents.

[2] The main ground of the action at Mr Gemmell's instance is that damage was occasioned to his property by building works taking place on an adjoining property. The building works complained of were preparatory to the construction of the Radisson Hotel, Glasgow. The employers in the contract were the defenders. As explained by Mr Gemmell, the principal complaint which he had was that Blyth & Blyth Consulting Engineers, who had been instructed by the defenders, carried out work of an exploratory nature which destabilised the property of which Mr Gemmell was a part owner. The cost of making good the damage was the sum first sued for. The learned Sheriff dismissed the action as irrelevant. I refused the appeal. Mr Gemmell has now marked an appeal to your Lordships. He has advanced two grounds of appeal. The first ground is:-

"The sheriff principal insisted on proceeding with the appeal despite the pursuer's motion to have the appeal discharged to a later date."

The second ground is:-

"The sheriff principal ignored the appellant's plea that he was unprepared for the hearing due to ill-health and the defenders being allowed to consider the new evidence that came to light. During the hearing it was appallingly obvious that the pursuer was unprepared."

[3] Mr Gemmell moved me to discharge the hearing because, he submitted, he had been unable to prepare for the appeal due to his ill-health. He informed me that he had become unwell in 30 January 2007 during the debate before Sheriff Noble whose decision was under appeal. Noting Mr Gemmell's distress the learned Sheriff offered to adjourn the debate but that was not deemed necessary. Subsequent to the debate, Mr Gemmell had been in hospital on two occasions each of one week's duration for blood tests. He had an operation in March of this year which had taken him longer to get over than anticipated. He was taking antibiotics. He had a further consultation with his surgeon on 26 April 2007. He was in considerable discomfort or pain. If I refused the motion he would require more comfort breaks than might normally be the case. I enquired of Mr Gemmell if he wished to tell me the nature of the operation but stressed that he should feel under no obligation to answer my enquiry. He told me that it was an operation on his gall bladder.

[4] Furthermore, in support of the motion to adjourn, he informed me that new evidence had come to light to the effect that in 1999 the damage which had been sustained to his property had not been accidental. He required more time to ingather the necessary evidence and then amend his pleadings.

[5] In reply Mrs Wolffe suggested that if new evidence had come to Mr Gemmell's attention his remedy was to raise a new action. A motion to amend his pleadings to introduce a further ground of action had been refused on 20 November 2006. In so far as discharging the diet on the basis that Mr Gemmell was unwell, she submitted that I should refuse the motion and allow the case to proceed albeit having more frequent breaks than might be expected. She highlighted the fact that the motion for the discharge was only made at the bar of the court. This had necessitated her clients in additional expense in that she had been instructed, solicitors were present and the preparation had been undertaken for the appeal hearing. Any suggestion that the appeal hearing might not proceed had only been raised by Mr Gemmell following receipt by him of the respondents' bundle of authorities. She further drew to my attention that the grounds of appeal extended to two pages yet no list of authorities had been lodged. This, she suggested, did not foreshadow detailed submissions being made by Mr Gemmell. She pointed out that the case was of some antiquity and although this present action had only started in May 2005 the dispute between the parties had been ongoing since June 2001. Mr Gemmell was intimately familiar with all the relevant facts in the case. She pointed out that there had been a hearing on the pursuer's motion for interim interdict before Sheriff Kearney when the learned Sheriff recalled the interim interdict previously granted. On 17 June 2005 the pursuer moved that the case be sisted. Sheriff Kearney refused that motion. Mr Gemmell had represented his own interests before the learned Sheriff. Mr Gemmell appealed that decision to Sheriff Principal Stewart, QC, when again Mr Gemmell represented himself. Sheriff Principal Stewart, QC, refused the appeal. A diet of debate had then been assigned for 13 February 2006 which diet had been discharged on the pursuer's motion. On 31 March 2006 Mr Gemmell had again moved that the action be sisted which motion had been refused. A further diet of debate had been assigned for 14 August 2006 at 10.00 am. The pursuer moved that this diet be discharged and notwithstanding opposition the motion for discharge was allowed and a further diet assigned for 4 September 2006. On 4 September 2006 the learned Sheriff had ex proprio motu discharged the diet of debate and of new assigned 20, 21 and 22 November 2006 as a three day diet of debate. Mr Gemmell had again represented his interests at the debate. From this history she submitted that it was clear that Mr Gemmell knew intimately the case which he wished to advance. Mr Gemmell had tried in the past to delay it coming before the court for any substantive hearing. The respondents had been trying to get the case to a hearing where they could move for dismissal but had been thwarted at every turn by Mr Gemmell.

[6] I afforded Mr Gemmell an opportunity to respond. He indicated that the bundle of authorities had arrived after he canvassed with the defenders' solicitors the possibility that the appeal hearing should be discharged. My note then states that Mr Gemmell said that he would go along with my decision if I decided to refuse the motion.

[7] Given Mr Gemmell's final comment which I have just narrated, I am a little surprised by the terms of the grounds of appeal. In any event I came to the view that we should start the appeal. If it became apparent that Mr Gemmell was disadvantaged in any respect and such disadvantage could not be compensated for by adjournments I would have been prepared to consider a later motion to adjourn. I was conscious of the fact that this action had been ongoing for some two years, that if I had to discharge the appeal I would inevitably have to find Mr Gemmell liable in expenses given the late intimation of the motion and that in the interests of justice we had to proceed. I was not prepared to discharge the hearing to allow further evidence to be ingathered with the inevitable amendment procedure. I was not told why the new evidence was only now available.

[8] Mr Gemmell was granted two adjournments in the course of the morning to enable him to gather his thoughts. I did not form the impression that he was unprepared. He was very articulate. He took me through a considerable number of productions displaying his intimate knowledge of the case most adequately. He summarised his position thus: if he engaged a tradesman to carry out work to his property and in the course of carrying out that work the tradesman damaged his neighbour's property then under the law of Scotland he, Mr Gemmell, was liable to his neighbour for making good the damage occasioned by the tradesman always providing that Mr Gemmell carried the requisite insurance cover. He put his proposition in a slightly different form later in his submission: since the respondents benefited from the work carried out by Blyth & Blyth, they must pay the damage occasioned by Blyth & Blyth's operations. No matter how much time Mr Gemmell had to prepare for the appeal I doubt very much if he would have been able to persuade me that either of these propositions properly represented the Law of Scotland. His difficulty was not any lack of preparation but the basis of his action. I had read the learned Sheriff's judgment in advance of the hearing. Mr Gemmell at no time referred me to it. The issue is dealt with by the learned Sheriff in paragraph 21 of his Note. When giving my judgment ex tempore I indicated to Mr Gemmell that the normal course is for a party whose property has been damaged by the negligent actings of others to sue the allegedly negligent party. If he had evidence that the engineers who caused the damage had been negligent his remedy might be to sue them.

[9] Mr Gemmell took all morning to make his submissions. He did not strike me as a man who was underprepared. At all times he was courteous and respectful to the bench. It was only when he started to attack the integrity of Semple Fraser, the defenders' solicitors, that he overstepped the mark. I indicated to Mrs Wolffe that I did not require her to address me.

[10] Given that the grounds of appeal are directed solely at my refusal to grant the motion for an adjournment I have not narrated at length Mr Gemmell's submissions. In my opinion they were irrelevant covering matters such as a) stilicide, in respect of which there was no record following the refusal of the minute of amendment on 20 November 2006, b) having the hotel building removed for which he had no crave and c) an attack on the integrity of Semple Fraser. At one time I was addressed on what Mr Gemmell referred to as common sense in that there was a moral obligation on the respondents to make good damage caused by their agent or contractor. I must also record that Mr Gemmell accepted that Sheriff Noble was entitled to criticise Mr Gemmell's pleadings in the manner in which he had done. Mr Gemmell was of the opinion that all of the information was there if one just looked for it. He also took exception to the fact that correspondence from his own engineers had not been adequately dealt with by Blyth & Blyth. Accordingly I refused the appeal.

[10] There was no opposition to the motion by Mrs Wolffe for the expenses of the appeal procedure.