Scottish Sheriff Court Decisions

Edinburgh, 21 January 2009 Sheriff Principal Bowen QC

Act: Cornelius, solicitor for pursuers

Alt: no appearance, defender

The Sheriff Principal, having heard the solicitor for the pursuers and having seen and considered the defender's faxed letter of 20^th January 2009, remits to the Sheriff to proceed as accords; before answer allows parties a proof and assigns 7^th and 8^th May 2009 at 10.00 a.m. within the Sheriff Courthouse, 27 Chambers Street, Edinburgh, as a diet therefor; assigns 28^th April 2009 at 9.30 a.m. within the Sheriff Courthouse, 27 Chambers Street, Edinburgh, as a pre-proof hearing.

(signed) E Bowen

Sheriff Principal of Lothian and Borders at Edinburgh

NOTE TO INTERLOCUTOR OF 21 JANUARY

1. This is an action for recovery of possession of heritable property following the calling up of a standard security on the ground that the defender was in default in punctual payment of interest due under it. The case was raised in 2000. A proof before answer commenced before Sheriff Bell on 26 November 2001. Continued diets of proof in May and September 2002 did not proceed and on 30 September 2002 Sheriff Bell pronounced an interlocutor discharging the diet of proof on joint motion and allowing parties "a proof" on their respective averments on dates to be afterwards fixed.

2. No further procedure appears to have taken place until February 2007. Sheriff Bell retired from office in 30 September 2004. The first recorded step was the fixing of a peremptory diet for 16 March 2007. On that date a fresh proof was granted on the pursuers' unopposed motion and assigned for 20 to 23 August 2007 with 23 July 2007 as a pre-proof hearing.

3. On 23 July 2007 Sheriff McColl discharged the diet of proof on joint motion. In terms of a Note written on that date the Sheriff recorded that an issue had arisen as to whether any continued diet should be described as a proof or as a proof before answer. She further recorded that the defender had lodged a motion seeking absolvitor because of the passage of time which had been allowed to pass without the matter being brought to a conclusion. Further it was indicated that the pursuers intended to apply to the Sheriff Principal for permission to have further proof or proof before answer heard by another Sheriff with the extended notes of the part-heard proof being admitted as the evidence of the witnesses of who had already given evidence.

4. The motion seeking absolvitor appears to have been dropped and the matter was remitted to me, calling eventually on 10 October 2007. On that date I refused a motion by the defender to allow a counter-claim to be lodged and remitted the cause back to Sheriff Bell for completion of the part-heard proof.

5. Since that date two events have occurred. In the first place it was brought to my attention that Sheriff Bell's retirement was on medical grounds and at that stage he had been certified as unfit for further duty. The situation would accordingly appear to be one in which the Sheriff falls to be regarded as medically unfit to continue with the case. Secondly, those acting for the defender have now withdrawn. In that situation the case has been remitted back to me to determine further procedure.

6. The defender did not appear and was not represented at today's hearing and in fairness it has to be observed that this was only intimated to him at the end of last week. To avoid further delay I resolved to give certain directions on matters which I consider to be uncontentious and which will not prejudice his position in relation to future procedure. The first of these relates to the question of whether any future proof falls to be regarded as a proof simpliciter or a proof before answer. In my view there is no doubt about that. The pursuers' preliminary plea has never been disposed of. The interlocutor assigning the original diet correctly described this as a proof before answer. Any subsequent interlocutors referring to "proof" should, strictly speaking, have referred to proof before answer but it is a matter of routine practice where a proof before answer is continued simply to refer to it as a "proof". There is no question that any future diet will be one of proof before answer. The second issue relates to the availability of Sheriff Bell. The simple position is that he is not available for the reason which I have given and any future diet will be assigned to a new Sheriff.

7. The remaining question is a more difficult one. That relates to whether it is possible in the circumstances of the case for the Sheriff who takes the proof to have regard to the notes of the evidence already led before Sheriff Bell and, in effect, to pick the case up from that point on, or whether a direction should be given to the Sheriff to proceed de novo. I am in no doubt that this is not a question which ought to be determined in the absence of the defender or his representatives. Further, it is a question which plainly ought to be decided before the date which is assigned for a diet of proof.

8. There are two distinct questions in respect of this aspect of the matter. The first is whether, having directed that the case should proceed before a Sheriff other than Sheriff Bell, the decision as to the form of that future procedure necessarily rests with the Sheriff Principal. The second question is whether a case may be proceeded with and disposed of by another Sheriff upon the notes of evidence already taken is a course which can be followed other than by consent of parties.

9. In relation to the first issue, I have no doubt that where before a proof has been concluded the Sheriff dies or becomes otherwise unable to continue, an application requires to be made to the Sheriff Principal for directions as to further procedure. There seems to be no reason, however, why such further directions should not give to the Sheriff who is to take over the proof the ultimate decision as to whether it is possible to proceed on the extended notes of the earlier proceedings or whether it is essential to proceed de novo. In some cases it will be clear that questions of credibility arise and it is neither realistic, nor in the interests of justice, to expect the new Sheriff to adjudicate on these without the opportunity of seeing and hearing witnesses (cf Amarnath v A J Drilling Ltd 1993 SCLR 57). In other cases where the evidence led so far has been relatively formal it will be perfectly possible to proceed on the basis of the extended notes. Between these two situations lie a number of other possibilities, and one cannot leave out of the equation the fact that some Sheriffs may be more comfortable about dealing with a case on the basis of the printed word than others. For an appellate court to dictate the form of procedure, without being faced with the immediacy of having to take the proof, has the potential for making an unfair demand on the judge of first instance to whom the matter is remitted.

10. In the 1st edition of Macphail on Sheriff Court Practice (at paragraph 16-39) the view was expressed that a direction could be given that a case be proceeded with and disposed of by another Sheriff upon the notes of evidence already taken "of consent of parties but not otherwise". That position has been departed from in the current (3^rd edition) at paragraph 16-41 where it is stated that: "It is undecided whether that course can be followed otherwise that of consent". This alteration in position arose in the light of a doubt expressed by Sheriff Principal Ireland in Amarnath (supra). For my part I do not consider that the consent of parties ought to be essential to a case being determined wholly or partly on the basis of extended notes of an earlier proof. As I have indicated in some cases the evidence so far led may have been formal in character, and any objection to its use might be quite unreasonable. In such a situation it would appear to be entirely appropriate for the Court to determine that, in the interests of expedition and economy, the notes should be used notwithstanding an objection. At the same time the attitude of a party towards the extended notes will be one of considerable importance in determining whether use of them should be permitted. If any indication is given by a party that questions arising from the demeanour of witnesses may arise the Court should be slow to disregard that, or any other soundly based objection, to the use of the notes.

11. In all these circumstances I have directed that the case proceed to a fresh diet of proof before answer, to be heard by a new Sheriff. I have assigned a diet of proof but have fixed a procedural diet in advance of that. I direct the Sheriff to determine, on that occasion, whether the evidence should be heard de novo or whether the extended notes of the previous diet may be relied. It follows that it is essential that the Sheriff who is assigned to take the proof will require to take the procedural hearing.