A4788/05
NOTE BY SHERIFF PRINCIPAL
JAMES A TAYLOR
in the causes
North Lombard North Central
PURSUERS/RESPONDENTS
against
David Stewart
FIRST DEFENDER
and
Anthony Byrne
SECOND DEFENDER/APPELLANT
My Lords,
[1] This was an appeal
at the instance of the second defender, Mr Anthony Byrne. Mr Byrne represented his own
interests. The pursuers were represented
by Mr Munro, solicitor. There was no
appearance on behalf of the first defender.
The defenders were sued as guarantors of certain obligations undertaken
by a company known as Mailstream Packaging Ltd to the pursuers. Evidence was led on 25 October 2006, 4
December 2006, 20 December 2006 and 22 December 2006 at which time
the Sheriff took the case to avizandum.
Mr Byrne had conducted the proof on his own behalf. When the case was at avizandum the pursuers
enrolled a motion seeking to have the crave amended to reflect that it was for
joint and several liability. The Sheriff
refused that motion. There was no appeal
against that decision. When the Sheriff
pronounced his judgment he found in favour of the pursuers but given the terms
of the crave found the second defender liable for one-half of the sum sued for,
namely £1,700. The second defender
appealed that decision to me.
[2] At the outset of the
appeal hearing Mr Byrne moved his motion, 7/2 of process, and asked that the
case be sisted. He had requested
documents from the liquidator and was hopeful that he would receive them
sometime soon. These documents would
establish that Mr Byrne had made payment of the £1,700 to the pursuers. He explained that Mr Brady, a witness whom he
called to give evidence, was unable to produce bank statements prior to the
proof. The bank had indicated that they
would charge £10 per sheet. Since there
were over 200 sheets the cost would be £2,000. That was why they could not be produced. Mr Brady discovered that the original
bank statements were in fact with his accountants. He had discovered this some two weeks
ago. As a consequence he now had the
cheque numbers. The bank will now be
able to produce the cheque. This cheque
would demonstrate that the debt which the pursuers sued for had been paid. It would take some five or six weeks for the
bank to produce the cheque. I should
allow the case to be sisted for this purpose.
[3] Mr Byrne further submitted
that on the last day of proof the defenders had lodged certain documents in
process. The Sheriff had allowed them to
be received. Mr Byrne had been
prejudiced by the allowance of these documents as one of the witnesses whom he
would have wished to put the documents to had concluded his evidence and been
excused by the court. Under reference to
the productions, which are to be found at 5/8/K, 6/1 and 5/4 of process,
Mr Byrne sought to persuade me that the agreement founded upon by the
pursuers (5/1 of process) was a forgery.
To substantiate this he drew my attention to the fact that on 5/8/K of
process, which is a document entitled "Short Proposal Form", it is
stated that the outstanding balance due under the agreement which the pursuers
had with Mailstream Packaging Ltd was £8,700.95. That document, submitted Mr Byrne, was dated 31 March 1998. He then drew my attention
to 6/1 of process which is an HPI Classic Check which disclosed that the
date of the last keeper change was 3 April 1998. He then referred to 5/4 of process which
disclosed the opening balance on the account to be £19,138.12 which reduced to
£18,700.95 on 7
May 1998. This, he submitted, was consistent with the
amount shown on the Short Proposal Form (5/8/K of process). Thus, he submitted, the original agreement
between Mailstream Packaging Ltd and Lombard North Central (5/1 of process)
must be a forgery. It bears to have been
dated 7 April
1998 but, submitted Mr Byrne, it must have
been prior to 31
March 1998.
He acknowledged that the signature on the lease purchase agreement (5/1
of process) was his. Mr Byrne submitted
that there was a second agreement which he had signed and that such agreement
was in place prior to the original agreement upon which the pursuers now
founded. He required the sist in order
that he could obtain the original agreement from the liquidator. He referred me to the second edition of Macphail
at page 286 where it is stated that the whole of a document should be produced
and not just part thereof. Mr Byrne
accepted that effectively what I was being asked to do was sist the cause to
allow further productions to be lodged and to thereafter allow further evidence
to be led. I enquired if he could tell
me what the test was for an appellate court to allow additional evidence. He was not in a position to so address me.
[4] I was then addressed
on part three of Mr Byrne's motion. He
moved the court to order that the shorthand notes of the evidence be
extended. The case should be sisted
pending extension of the notes. The
notes were said to be necessary because the pursuers put written submissions to
the Sheriff. These had not been seen by
Mr Byrne at the time of the proof. He
had now seen them. The notes of evidence
will disclose that the evidence pled did not support the submissions made in
writing. All of the written submissions
had not been addressed orally by Mr Munro at the conclusion of the proof. Mr Byrne accepted that the cost of producing
the notes would probably be in excess of the sum in dispute.
[5] I was informed by Mr
Byrne that he did not insist upon the fourth paragraph of his Note.
[6] Mr Munro, in an
appropriately brief reply, submitted that if the cheque which Mr Brady was
now to produce was of such critical importance then it should have been produced
before now. In so far as producing the
shorthand notes was concerned, Mr Munro informed me that there was nothing
in the written submissions which he had put up to the Sheriff which he had not
addressed in the oral submissions which he made. The written submissions had been his aide memoire when addressing the court. Mr Munro then took me to the case of Cook v Crane 1922 SC 631; Trojan Plant Hire Company Ltd v Durafencing
(Northern) Ltd 1974 SLT (Sh Ct) 3 and various passages in Macphail
Sheriff Court Practice 3rd Edn.
Mr Munro submitted that it was a matter for the discretion of the
Sheriff hearing evidence as to whether productions should be received
late. The interlocutor of 4 December was
deficient in that it did not record that productions had been lodged on that
day. The production 5/8/K was from his
recollection lodged with the court on 4 December 2006. He pointed out that the record of payments
(5/4 of process) disclosed that there was a balance of £18,700.95 due at 7 May 1998. The Short Proposal Form
(5/8/K of process) was an undated document and therefore there was nothing
significant in it disclosing the balance being £18,700.95 also. The Short Proposal Form did not say that at
the outset of the agreement the balance had been £18,700.95. To interpret it otherwise as Mr Byrne did was
just wrong. Even if he was wrong in
that, he submitted that having lodged the document on 4 December and proof
having been continued to 20 and 22 December 2006, Mr Byrne
had ample time to consider the import of the document and address it in the
course of evidence. If there was another
agreement, as Mr Byrne suggested was the case, Mr Byrne would have known about
it since Mr Byrne acknowledged he would require to have signed it. He would have known about it from the outset
of the action. Accordingly the tests set
out in the cases to which he had referred me were not met. In particular he founded on what was said by
Lord Hunter in Cook at page 635 and
by Sheriff Principal Sir Allan G Walker QC in Trojan Plant Hire at page 7.
I should therefore refuse to sist the cause to allow Mr Byrne to lodge
further productions, lead further evidence and have the shorthand notes
extended.
[7] I came to the view
that the motion to sist the action should be refused. It was implicit in the motion and explicitly
accepted by Mr Byrne that were it to be granted I would require thereafter to allow
further evidence. The test was correctly
identified by Mr Munro in the two cases to which he referred me. Lord Hunter in Cook said:-
"It appears to me that cases where either in the
Court of Session or in the Sheriff
Court additional proof
will be allowed to one of the parties after proof has been led will be
extremely few. In all cases where such
indulgence is given to one or other of the parties special cause must be shown
for the indulgence craved."
In Trojan there is a quote
from Lord Justice-Clerk Thomson in Thompson
v Glasgow Corporation 1962 SC (HL) 36:-
"The parties to litigations have to run the risk of
error in preparation and presentment.
There are no second chances in litigation, and it is in the public
interest ut sit finis litium."
Sheriff Principal Sir Allan Walker QC put it thus:-
"Although in my opinion the pursuers have failed to
establish in the light of their own actings that this motion can be justified,
I might nevertheless feel bound to grant the motion, if I were satisfied that,
without the new evidence, there might well be a miscarriage of justice."
[8] From a perusal of
the three productions (5/8/K, 6/1 and 5/4 of process) I was not persuaded that
they pointed to the inevitable conclusion that the document upon which the
pursuers founded in this action was not the proper agreement. The Short Proposal Form (5/8/K of process) is
not dated. It is perfectly possible that
the proposal form refers to the same agreement as the pursuers lodged in
process. If there was another agreement
Mr Byrne acknowledges that he would have signed it. If therefore he thought the pursuers were
relying upon the wrong agreement he ought to have lodged the correct agreement
as a production. The agreement upon
which the pursuers founded is 5/1 of process and was lodged with the court on 5 July 2005. Accordingly Mr Byrne had
ample opportunity to reflect upon its terms.
I was not prepared to sist the case allow him a further opportunity to
do that which he could and should have done some time ago. It was significant that at the diet of appeal
the proposed new productions were still not available.
[9] In so far as the
missing cheque was concerned, again this was a matter which Mr Byrne was
fully aware of many months prior to the proof.
Had proper enquiry been made at an earlier stage the cheque could have
been found. I was not prepared to sist
the case in order that the records of a bank might be obtained and which might,
or might not, support Mr Byrne's position.
Had something been produced to the court which at least, ex facie the document, led one to the
conclusion that a miscarriage of justice would be perpetrated were an
opportunity not given to Mr Byrne to recover the cheque, different
considerations might apply. However I
was invited to proceed on the basis that there might be a miscarriage of
justice depending upon what was recovered from the bank. In my opinion the test was not made.
[10] In the course of Mr
Byrne's submissions I reminded him of the terms of what is said in the third
edition of Macphail Sheriff Court Practice at paragraph 18.63 to the
effect that the obligation is upon the appellant to produce timeously the notes
of evidence upon which he proposes to found.
Although not explicitly stated by Mr Byrne I formed the impression that
he had explored the costs entailed in extending the notes and, perhaps for pragmatic
reasons, had decided not to obtain them.
However, it is not for the court to order production of the Notes of
Evidence which would then have exposed the Scottish Court
Service to the liability for payment. In
any event the purpose for which Mr Byrne sought to make use of the notes seemed
to me to miss the point. I was prepared
to accept that Mr Munro, as an officer of the court, had done as he said and had
covered all the matters referred to in his written submissions when addressing
the court at the conclusion of the evidence.
But even if he had not, the Sheriff had still an obligation to rely upon
the evidence led when making his findings-in-fact. There did not seem to me to be any merit in
this submission. It is not for the court
to fund the extension of notes.
Accordingly I refused the motion.
[11] Mr Byrne then
submitted that he was not prepared for the appeal. He sought leave to appeal my decision to
refuse to discharge the diet of appeal and sist the action. I did not invite Mr Munro to address me on
this. I refused leave. Whether a sist of an action should be granted
is a matter for the discretion of the court.
As a general rule leave should not be granted to appeal a discretionary
decision. To have allowed leave to
appeal would have meant that the appeal could not have proceeded and my
decision thus undermined. The second
defender would have succeeded by the back door.
[12] Mr Byrne then submitted
that he was suffering from ill health.
He was going to the hospital for
check ups. There was a virus within his
system. It had been there for over one
year. I refused Mr Byrne's motion to
adjourn today's hearing. There was no soul and conscience certificate produced.
[13] A short adjournment
was then allowed to Mr Byrne to enable him to gather his thoughts for the
appeal. That adjournment was for 25
minutes.
[14] In support of the
sixth ground of appeal Mr Byrne submitted that the Sheriff had erred in
allowing certain documents into process.
In particular he took exception to 5/1 and 5/6 of process. 5/1 is the lease purchase agreement upon
which the pursuers relied. 5/6 is an Alfa
Agreement History Report. The basis of
the opposition was that in terms of Rule 9.3 all documentation should be
supplied to the defender with the initial writ.
Mr Byrne said that he had never received copies of these
productions prior to the proof commencing.
In particular the Alfa Report should not have been allowed into the
evidence as it was an incomplete document.
Only three of thirteen pages had been supplied. In the course of the evidence Mr Kay, one of
the witnesses for the pursuers, had relied upon information which was contained
in some of the pages which had not been produced. I was referred to the case of Unigate v Scottish Milk Marketing Board
1975 SC (HL) 75 and in particular to the rubric where it was said that it was
unsatisfactory for the court to have to interpret part of a formula without the
court having had sight of the whole formula.
Reference was also made to the speech of Lord Fraser of Tullybelton at
page 106 to much the same effect.
Mr Byrne submitted that he had been given inadequate time to consider
the documents. Had he been aware that
they had been lodged in process in partial form he would then have been able to
take steps to recover the whole document.
He referred me to the case of Murray's Trustees v Wilson 1945 SC 51 where it was said by Lord President Normand that in most
cases when construing a will the whole will should be before the court. Similar considerations applied to 5/1 of
process which is the lease purchase agreement.
Only two pages were before the court and they could not be properly
read. The missing pages would disclose
that he, Mr Byrne, had exercised his right of termination under the lease
purchase agreement. Since that had not
been supplied to the court he was prejudiced and had been deprived of his
defence.
[15] I considered there to
be no merit in this ground of appeal.
5/1 of process was lodged on 5 July 2005 on
the same day as the initial writ was lodged for warranting. 5/6 of process was lodged on 21 February 2006. Evidence did not commence
until 25 October
2006.
Any prudent litigant would check the process prior to a proof. There is no obligation on one party to
furnish the other party with copy productions albeit that is sometimes the
practice. Rule 9.3 which was founded
upon by Mr Byrne does not refer to productions.
In any event it was not clear to me how he had been prejudiced. If he had exercised a right given to him in
terms of the contract one might have expected him to produce the contract. It is normal for the party founding upon a
particular clause to ensure that the clause is before the court. If there were parts of a document which he
wished to rely upon then he could have produced it himself. I was not told the relevance of the missing
parts of the Alfa Report. It was not
said that the documents which were before the court could not be interpreted
without the whole document being there.
Therefore the two cases to which I was referred did not seem to be in
point.
[16] Mr Byrne then turned
his attention to the ninth ground of appeal to the effect that the Sheriff had
not taken into consideration that Mr Byrne had to deal with matters of which he
had no prior notice and therefore the Sheriff had erred in law. This was a reference to the Sheriff having
allowed productions to be lodged in the course of the proof after Mr Kay, a
witness for the pursuers, had concluded his evidence and been excused. Mr Byrne submitted that the document lodged
pointed unequivocally to there having been an agreement entered into prior to 7 April 1998, the date which the copy lease purchase agreement (5/1 of process)
bears to have. There must have been an
earlier agreement. This was a reference
to the point made by Mr Byrne when he sought to have the appeal hearing
discharged and the action sisted. I
refer to paragraph [3] of this Note. Mr
Byrne submitted that the Sheriff had erred in not looking into the issue of
consideration. The pursuers had not been
clear as to which agency the car had been registered with. Was it HPI or was it another? 5/10 of process had been lodged on 20 December 2006. That document refers to
magnetic tapes. It was submitted that sometimes
tapes go astray. It was stated that the
evidence from the pursuers had been all over the place. Yet the Sheriff had taken the documents at
face value to support Mr Kay's evidence.
The Sheriff had erred.
[17] In the course of Mr
Byrne's submission I invited Mr Munro to clarify when certain documents had
been lodged. Unfortunately the
interlocutors are deficient in that they do not record when certain productions
were lodged. In particular 5/7 and 5/8
were lodged in process in the course of the proof, that was not in dispute, but
there is no interlocutor allowing them into process. Mr Munro thought it likely that they had been
introduced into the evidence on 4 December 2006. The documents which had been lodged on 20 December 2006 had been used by him only to test the credibility of a witness and
it was at the conclusion of the cross-examination of the witness that the
documents were formally lodged. It
seemed to me that whether a document was lodged was a matter for the discretion
of the court. There was no material
before me which would suggest that that discretion had been improperly
exercised. At no point was I referred to
the judgment of the Sheriff to show that he had misdirected himself.
[18] Mr Byrne then
advanced his eleventh ground of appeal. The pursuers had failed to provide him with a
copy of the written submission. There
were three points in particular which he said had not been mentioned by Mr
Munro in oral submission but which were contained in the written
submission. On the first page under the
heading "Pursuers' Evidence" it is said that a further inspection of
5/1 of process discloses that a "1" was subsequently changed to a
"2". The second point was
under the heading "Defenders' Evidence" where it was said that the
defenders' position had changed during the course of cross-examination and
evidence in chief. Mr Brady challenged
that. His evidence had been completely
consistent. He had used the termination
right within the agreement. The third
point which he referred to was in the chapter headed "Payment of
£7,381.08". He referred to the Alfa
Report (5/6 of process) which again he said was incomplete.
[19] I considered there to
be no merit in this ground of appeal. I
refer to paragraph [10] of this Note.
Glasgow
December 2007
