SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
A1718/07
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
KEVAN M SMITH LIMITED
Pursuers and Respondents
against
MR E TEVENDALE
Defender and Appellant
|
Act: Miss
Linda Fyffe, solicitor, Thorntons, Dundee
Alt: Miss
Julie Greig, solicitor, Stronachs, Aberdeen
Aberdeen: 2nd
September 2008
The
sheriff principal, having resumed consideration of the cause, refuses the
motion for the defender, no. 8/1 of process, to be allowed to appeal, although
late, against the interlocutor of the sheriff dated 4th June 2008; finds the defender liable to the pursuers in
the expenses of the hearing on 14th August 2008 and allows an account thereof
to be given in and remits the same, when lodged, to the auditor of court to tax
and to report; quoad ultra remits the
cause to the sheriff to proceed as accords.
Note
[1] In the initial writ in this case the
pursuers craved the court (1) to grant decree against the defender for payment
to them of the sum of £4,321.31, (2) to grant decree against the defender for
payment to them of the sum of £20,000.00, and (3) to find the defender liable
to them in expenses. A notice of
intention to defend was in due course lodged by solicitors on behalf of the
defender. The case then followed the
normal procedure in an ordinary cause, and in particular an options hearing was
assigned to take place on 23rd January
2008.
[2] Rule 9.8(1) of the Ordinary Cause Rules
provides that the parties may adjust their pleadings until fourteen days before
the date of the options hearing, or any continuation of it. In this case the pursuers evidently did
adjust their pleadings. In particular
they adjusted the aggregate sum of £24,321.31 originally sought in terms of
craves 1 and 2 to the sum of £9,608.31.
But it is not in dispute that they never formally amended either of craves
1 and 2 to give effect to this adjustment.
This they could have done without leave of the sheriff in terms of rule
18.1(1) which provides that, in a cause in which all other parties have lodged
defences or answers, the pursuer may, before the closing of the record, alter
any sum sued for by amending the crave of the initial writ, and any
record. It is apparent from an
examination of the initial writ that at no stage in the proceedings were craves
1 and 2 amended in accordance with this provision.
[3] On 14th January 2008 the pursuers lodged a
record of the pleadings as required by rule 9.11(1) which provides that the
pursuer shall, at the end of the period for adjustment referred to in rule 9.8
(1), and before the options hearing, make a copy of the pleadings and any
adjustments and amendments in the form of a record. In this record there are shown two
craves. In terms of crave 1 the pursuers
purportedly sought decree against the defender for payment to them of the sum
of £9,608 81, and in terms of crave 2 they sought to have him found liable to
them in expenses.
[4] At the options hearing on 23rd January 2008 the sheriff on
cause shown continued the hearing until 20th
February 2008. Shortly
afterwards the pursuers adjusted the sum sued for again, this time to the sum
of £12,575.69. But once again they did
not formally amend the craves in either the initial writ or the record which
had been lodged on 14th January 2008. On the other hand, on 15th February 2008 in
anticipation of the continued options hearing they lodged a second copy of the
record as required by rule 9.11(3) which provides that, where the options
hearing has been continued under rule 9.12(5), and further adjustment or
amendment is made to the pleadings, a copy of the pleadings as adjusted or
amended, certified by the pursuer, shall be lodged in process not later than
two days before the options hearing so continued. In this second copy of the record there were
again two craves as in the first record, and in crave 1 the sum sued for was
now stated to be £12,575.69.
[5] At the continued options hearing on 20th February 2008 the sheriff closed
the record, allowed parties a proof of their respective averments and assigned 7th July 2008 for this purpose. He also assigned 25th June 2008 as an "intermediate proof diet"
which I take to be a pre-proof hearing such as is authorised under rule 28A.1(1).
[6] On 7th
May 2008 a letter dated 2nd
May 2008 was received in the sheriff clerk's office from the
defender's solicitors in which they intimated their resignation from acting for
him in terms of rule 24.1(1). By
interlocutor dated 9th May 2008
the sheriff therefore assigned a peremptory diet to take place on 4th June 2008 in terms of rule
24.2(1). As required by the sheriff in
terms of this interlocutor, and in accordance with rule 24.2(3), the pursuers'
solicitors duly intimated the peremptory diet to the defender by recorded
delivery letter at the address given for him in the instance of the initial writ. According to the defender, when the letter
was delivered at this address he no longer resided there. It was said that the property had been rented
out by him and that he had had difficulty in recovering mail from the
tenants. But it was not argued on his
behalf that the peremptory diet had not been properly intimated to him in
accordance with rule 24.2(3).
[7] At the peremptory diet on 4th June 2008 there was no appearance
by or on behalf of the defender. According
to the interlocutor of that date the sheriff on the motion of the pursuers
discharged the diets which had been assigned for 25th June and 7th July 2008
respectively and thereafter granted decree by default against the defender in
terms of craves 1 and 2 "of the initial writ" (sic) and found the
defender liable to the pursuers in the expenses of the cause as taxed. It is not apparent whether either the
solicitor who then appeared for the pursuers (and who it seems was a local
agent instructed by the pursuers' principal solicitors) or the sheriff were
aware of the discrepancy between the terms of the craves in the initial writ
and those in the version of the record which had been lodged in advance of the
continued options hearing. But it was
not argued on behalf of the defender that the sheriff had been at fault in
granting decree in these terms, and this is perhaps not surprising given that there
had never been any formal amendment of the craves in terms of rule 18.1(1).
[8] On 19th
June 2008 the sheriff clerk issued an extract of the interlocutor
dated 4th June 2008 in the
following terms:
The sheriff granted decree by default against the
defender for payment to the pursuers of the undernoted sums.
Sums decerned for (1) £4,321.31 with interest at eight
per cent per annum from 10th October 2007 until payment; (2) £20,000.00 with
interest at eight per cent per annum from 10th October 2007 until payment;
found the defender liable to the pursuers in the expenses of the cause as taxed.
The
extract was evidently received by the pursuers' solicitors on 20th June 2008, and on that same day
they wrote to the sheriff clerk inter
alia as follows:
We refer to the above and return the extract decree for
payment. The decree is incorrect as it
reverts to the original initial writ which had 2 craves for payment. We would refer you to the continued options
record which was lodged in process and which states the sum sued for as
£12,575.69 which is the correct amount.
We would be grateful if you would kindly send us a fresh
extract decree in terms of the crave in the continued options record.
This
letter and the extract decree itself were received in the sheriff clerk's
office on 23rd June 2008.
[9] On 23rd
July 2008 a note of appeal against the interlocutor of 4th June 2008 was lodged on behalf of
the defender by his current solicitors.
This was accompanied by a motion on his behalf in terms of which he
moved the court to allow him to mark an appeal, although late, in terms of rule
2.1 of the Ordinary Cause Rules 1993. The
pursuers lodged a notice of opposition to this motion on 25th July 2008, and on 14th August 2008 I heard parties' solicitors on
the motion.
[10] The first question discussed with whether it
was competent for me to grant the motion given that the interlocutor of 4th June 2008 had already been
extracted before the note of appeal and accompanying motion were lodged. I was referred here to Alloa Brewery Co Ltd -v- Parker 1991 SCLR 70. In that case the sheriff granted decree
against the defenders and this was extracted and a charge served upon
them. Thereafter they marked an appeal
and lodged a motion to allow the appeal to be heard, although presented late. They
sought to persuade the sheriff principal to exercise the dispensing power
contained in what was then rule 1 of the Ordinary Cause Rules. The sheriff principal held that it was not
competent to allow the appeal to proceed after extract had taken place. The defenders appealed to the Court of
Session which affirmed the decision of the sheriff principal, holding that it
was not competent to exercise the dispensing power to allow an appeal to be
marked late against a decree which had been extracted.
[11] This decision is reflected in the statement
in Macphail's Sheriff Court Practice (3rd Edn) at paragraph 18.19 where it is
said: "As a general rule, there can be no appeal against an extracted
interlocutor, unless the interlocutor or the extract has been improperly and incompetently
issued". I understood both parties'
solicitors to accept that this statement was a correct statement of the
law. It was submitted for the defender
that in the present case an appeal would be competent upon the basis, so it was
said, that the extract had not been properly issued, the pursuers having failed
to amend the sum sued for either before or at the time of seeking decree by
default and having as a result obtained an extract decree for payment to them
by the defender of a sum almost double that which they had considered was due
to them as evidenced by their position on record. It was, said the defender's solicitor,
inequitable that the pursuers should be entitled to obtain the benefit of such an
extract decree, and the fact that it did not reflect the pursuers' true
position entitled me to hold that it had been issued irregularly with the
result in turn that I was entitled, if so minded, to exercise the dispensing
power to allow the appeal to be marked late.
Reference was made here to Millar
-v- Millar 1992 SLT (Sh Ct)
69 and Wanderers World Ltd -v- Marco's
Leisure Ltd 2000 SLT (Sh Ct)
79.
[12] In response the pursuers' solicitor submitted
that the decision in Alloa Brewery
was binding on me with the result that I should hold the defender's motion to
be incompetent. She sought to
distinguish the two authorities relied on by the defender's solicitor and
submitted that in the present case, since the sum sued for had never been
formally amended, the decree by default had been competently sought and granted
and the extract had likewise been competently issued thereafter. Reference was made here to Nortech -v- Aeroskip Sports Ltd 1996 SLT
(Sh Ct) 94.
[13] In my opinion the submissions for the
pursuers on this aspect of the matter are to be preferred. As already indicated, it was not argued that
the sheriff had erred in granting decree by default against the defender in
terms of the original craves in the initial writ, and the extract which was
subsequently issued by the sheriff clerk reflected faithfully the terms of this
decree. In these circumstances I do not
consider that either the sheriff's interlocutor or the extract can be said to
have been improperly or incompetently issued, and it follows that I am bound by
the decision in Alloa Brewery and
must refuse the defender's motion as incompetent.
[14] For the sake of completeness here I should
perhaps mention that at one point in her submissions the defender's solicitor
submitted that I would be entitled to grant the defender's motion, not only where
the extract had been improperly issued, but also where it had been obtained in
bad faith. She did not develop this
particular submission and I therefore express no opinion on it beyond observing
that I have not seen or heard anything to suggest that there is any basis upon
which it might be said that the pursuers or their solicitors had acted at any
stage of the proceedings in bad faith.
There may have been a degree of ineptitude on the part of these
solicitors and they may not have been as familiar with the rules, and in
particular rule 18.1(1), as they ought to have been. But that is a different matter altogether.
[15] In other circumstances I might have felt most
uncomfortable at being obliged to refuse the defender's motion given that the
pursuers had obtained an extract decree for payment to them by the defender of a
sum almost twice that which they had eventually maintained was due to them. But I have been reassured in this case by two
considerations. In the first place, the
pursuers' solicitor stated explicitly that the pursuers would only seek to
enforce the extract decree in respect of the sum of £12,575.69 which was the
sum sought in crave 1 in the version of the record produced for the continued
options hearing. And secondly, even if
it had been competent to grant the defender's motion, I should not have been
persuaded that it would have been appropriate to exercise the dispensing power
which is now available under rule 2.1(1) to relieve the defender from the
consequences of his failure to comply with rule 31.1 which, in short, requires
an appeal to be lodged within fourteen days of the date of the interlocutor
against which the appeal is to be taken.
[16] Rule 2.1(1) provides that the sheriff may
relieve a party from the consequences of failure to comply with a provision in
the rules which is shown to be due to mistake, oversight or other excusable
cause, on such conditions as he thinks fit.
So a party seeking to rely on this rule has to overcome two
hurdles. Firstly, he must show that his
failure to comply with the rule in question has been due to mistake, oversight
or other excusable cause, and secondly, if he overcomes this first hurdle, he
must persuade the sheriff in the exercise of his discretion to relieve him from
the consequences of his failure. In this
case, had it been necessary to decide the point, I should have held that the
defender had failed at the first of these hurdles.
[17] In submitting that the defender's failure to
lodge the appeal timeously had been shown to be due to mistake, oversight or
other excusable cause, the defender's solicitor explained that his former
solicitors had written to him on 22nd February
2008 following the fixing of the proof at the continued options
hearing. According to him, he had not
received this letter. These solicitors
had written to him again on 24th April
2008 saying that they would resign from acting for him if they
received no response from him within the following seven days. He had not responded and accordingly on 2nd May 2008 they had written to the
court intimating their withdrawal from acting for him, and had written to him
on the same day to advise him what they had done. For most of March and April this year he had
been working away from home in Inverness. He had received the letter dated 24th April 2008, but not until after 2nd May 2008 when it had been too late
to respond timeously to it. He no longer
resided at the address given for him in the instance. He had rented out the property and had been
having difficulty in recovering mail sent to him at that address. He had also been experiencing difficulties
with Royal Mail as they would not allow his business mail to be delivered to
his new address - why was not clear - which meant that he had continued to use
his former address as the address to which his business mail should be
sent. Intimation to him of the
peremptory diet fixed for 4th June 2008
had been made to him at this address, but he had not received the letter
containing the intimation. He had only
learned that the decree by default had been granted against him when his former
solicitors had written to him on 24th
June 2008 (after the extract had been issued). He had then instructed his current
solicitors. He accepted that on receipt
of the letter dated 24th April 2008
he should have done something to ascertain the position in the proceedings
against him in this court, but he had overlooked doing so until after the
existence of the extract decree had been brought to his attention. This oversight on his part had been
attributable to the fact that he had been working away from home and had been
unable to manage his affairs. In these
circumstances, so it was submitted, his failure to appear at the peremptory
diet and thereafter to appeal timeously had indeed been due to oversight on his
part.
[18] In response the pursuers' solicitor submitted
that the defender had been aware of the proceedings against him and had had a
duty to instruct his then solicitors in connection with these proceedings. She suggested that it was difficult to
understand his explanation that the Royal Mail would not allow his business
mail to be sent to his new address. If
he had been aware that there was a problem with the delivery of his mail, he
should have ensured that he received this somehow. There was no dispute that the peremptory diet
had been properly intimated and that the recorded delivery letter had been
signed for. The defender could have
contacted his former solicitors before they had withdrawn from acting for him
on 2nd May 2008, and having
received the letter of the 24th April
2008 (albeit after 2nd May
2008) he had had ample opportunity to instruct other solicitors
before the peremptory diet or the issue of the extract decree. In the circumstances there had been no mistake
or oversight on his part or other excusable cause which would justify invoking
rule 2.1(1) in this case.
[19] Had it been necessary for me to decide
this aspect of the case, I should have preferred the submissions for the
pursuers. The defender was well aware of
the proceedings against him and yet over a period of at least four months or so
between late February and late June this year he did nothing at all to keep in
touch with his solicitors. Even when he
admittedly received their letter of 24th
April 2008 he still did nothing to retrieve the situation albeit
that he had ample time and opportunity at that stage to do so. It was only after he learned of the existence
of the extract decree that he was eventually moved to do what he ought to have done
many weeks, if not months, previously.
In these circumstances it will not do in my opinion for him to maintain
now that his failure to appeal timeously was due to mistake, oversight or other
excusable cause.
[20] It was accepted that the defender should be
found liable to the pursuers for the expenses of the hearing on 14th August 2008 in the event that
his motion was refused, as it has been.
