Scottish Sheriff Court Decisions

(A57/07)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

JOHN GRANT curator ad litem to Laura Berry

Pursuer and Respondent

against

MARCUS BARNETT

Act: Ennis, Advocate, instructed by Iain Smith & partners, WS

Alt: Knight, Solicitor, Wilson Terris & Co, SSC

EDINBURGH,      October 2010

The Sheriff Principal, having resumed consideration of the cause, sustains the appeal; recalls the sheriff's interlocutor complained of dated 20 April 2010; finds no expenses due to or by either party in relation to the expenses occasioned by the appeal; remits to the sheriff to proceed as accords under certification that if the defender and appellant fails to pay the expenses decerned for in terms of the sheriff's interlocutor of 5 February 2010 the sheriff may grant decree by default of new.

(signed) E Bowen

NOTE:

1. This is an action in which decree for payment of a capital sum is sought under the provisions of section 28 of the Family Law (Scotland) Act 2006. Following the raising of the action the pursuer became ill, and the cause has been taken over on her behalf by a curator ad litem. The appeal is by the defender against the granting of decree by default at a pre-proof hearing on 20 April 2010.

2. In his Note the sheriff sets out the history of the case which he describes as "long and unfortunate". For present purposes it is sufficient to note that the action was raised prior to June 2007 and there was a preliminary proof which commenced on 27 September 2007 and concluded on 3 July 2008. After an abortive diet of proof set down on 9 November 2009 a fresh diet of proof was assigned, following procedure which I shall outline later, for 10 May with a pre-proof hearing on 20 April 2010. Part of the delay at the earlier stages of the action was caused by the ill health of the pursuer.

3. Apart from setting out the history of the case, the sheriff confined himself in his Note to posing the question of whether he was entitled to grant decree by default. There can be no doubt about that. Ordinary Cause Rule 28A.1(5) provides that a pre-proof hearing "shall be a diet" in accordance with, and for the purposes of, inter alia, OCR 16.2. The defender was in default by failing to appear at the diet, and in consequence it was open to the sheriff, in terms of OCR 16.2, to grant decree as craved with expenses.

4. The true question is not whether it was open to the sheriff to grant decree, but whether the granting of decree in the particular circumstances constituted a proper exercise of a discretionary power. Counsel for the pursuer, in the course of her submissions, urged me to hold that there was no proper basis for interfering with the sheriff's exercise of discretion. She argued that the sheriff had balanced the position of the parties with due regard to the interests of justice and had arrived at a decision "within the range of reasonable decisions". I have to say that it is not immediately clear to me that the sheriff did approach the matter on any basis other than by reaching a view that he could grant decree by default and then proceeding to do so. The case is therefore one in which I am minded to approach the matter on the basis that the sheriff has not exercised his discretion at all; but even if I am wrong in that I am wholly satisfied that, had the sheriff had placed before him certain information which was presented to me, the decision to grant decree would not have been a reasonable one.

5. In his submissions Mr Knight, solicitor for the defender and appellant indicated that the defender's former agents had withdrawn from acting on 27 October 2009. A peremptory diet was assigned for 3 November 2009. The defender was personally present on that occasion, and a diet of proof set down for 9 to 13 November was discharged. The matter was continued on the question of expenses until 1 December when the defender was again personally present. The interlocutor pronounced on that date sets out the dates for the new diet of proof and assigned 20 April as a pre proof hearing. A motion for expenses was continued until 12 January 2010.

6. Mr Knight indicated that there was, in fact, an agent present on 1 December 2009. According to Mr Knight that agent informed the court that her firm was not fully instructed on the defender's behalf, and she was only there to "assist him". Whatever the status of that agent might have been her handwritten note, which Mr Knight produced, contained no reference to the pre-proof hearing. Equally when Mr Knight was first approached by that agent's firm by letter dated 25 March 2010 nothing had been said to him about a pre-proof hearing although the date of the proof itself was intimated. In that situation Mr Knight contended that there was real doubt as to whether the defender himself would have been aware of the pre-proof hearing and it could not be said that his failure to attend was deliberate.

7. Mr Knight also observed that the defender was represented at the hearing on expenses on 12 January 2010 and this was recorded in the interlocutor of that date. Accordingly, the situation on 20 April was that the defender had been represented at the diet immediately prior to that date and it would have been reasonable on the basis of that for the sheriff to have appointed a further peremptory diet for which there was sufficient time before the proof was due to commence on 10 May. I have a certain sympathy with that view.

8. It is, however, intervening events, which were not brought to the attention of the sheriff, which lead me to the conclusion that the situation was not one in which decree of default should have been granted. On 15 April 2010 Mr Knight wrote to the pursuer's agents. He began his letter by stating that he been approached by the defender. He stated that his firm had "indicated to Mr Barnett that we will have to carefully consider the position particularly as we understand a diet of proof has been assigned for 10 to 14 May". His letter went on to state: "Following the withdrawal of the defender's previous agents Messrs Bannerman Burke agreed to recover a full set of papers and these were then passed to counsel for her to consider matters on behalf of the defender. That consideration of those papers remains ongoing. If we accept instructions here we will be instructing (Ms L) Advocate, to represent the defender's interests". The letter went on to seek clarification as to whether the pursuer was sufficiently capax to give evidence in the case and made what might be regarded as a tentative step towards settlement.

9. This letter was not responded to. Indeed it is not in dispute that on the day in which decree was granted Mr Knight telephoned the pursuer's agents to be told that the letter had been "deliberately ignored". Mr Knight was also informed that decree by default had been pronounced.

10. It may very well be, as counsel for the defender said, that Mr Knight's firm had not disclosed that they were formally instructed and in that situation it was not strictly necessary for the pursuer's agents to inform the court, when no-one appeared on the defender's behalf on 20 April, that there had been any communication from "fresh" agents. But it would have been sensible to do so since failure to inform the court of this development ran the risk of precisely what has now transpired, namely a motion for recall of the decree granted by default. On any view failure to respond to Mr Knight's letter was a blatant professional discourtesy. Had there been a reply with reference made to the pre-proof hearing it is almost inconceivable that he would have failed to bring the defender's position to the attention of the court. It has to be borne in mind that, whatever the position of instructing agents may have been, advice was apparently awaited from counsel.

11. A number of cases were cited to me in the course of submissions, and various dicta were referred to in relation to the circumstances in which a decree by default should be granted. However as Lord Justice Clerk Alness observed in Hyslop v Flaherty 1933 SC 588 at 590 there is no general rule in a matter such as this, other than, as indicated in McKelvie v Scottish Steel Scaffolding & Co 1938 SC 278 the court will generally be reluctant to pronounce a decree by default against a defender who has a substantial defence.

12. The circumstances disclosed in this case are that, apart from part of the period subsequent to 27 October 2009 when his agents withdrew, it is difficult to attribute delay in the progress of this litigation to any fault on the part of the defender. He had been represented when the case called on 12 January 2010. He had been taking steps to instruct agents for the proof in May and had been awaiting advice from counsel. Those agents had been in contact with the pursuer's agents, a matter which had been withheld from the court. There is a defence to the action at least on the question of quantum. In these circumstances I consider it proper that decree by default should be recalled.

13. One further matter remains. That is, that a decree for expenses arising from the preliminary proof was pronounced on 5 February 2010 and remains unsatisfied. There is, so far as I can see, no good reason why these expenses should not be paid before there is further significant procedure in the case. Whilst I have recalled the sheriff's decree and remitted the matter to him to proceed as accords it should be made clear that if the defender and appellant fails to pay the expenses previously decerned for within a timescale to be determined by the sheriff, decree by default may be granted of new.

14. In relation to the expenses of the appeal I consider that there is something to be said for both sides. To a degree the necessity for this appeal comes about because of the defender's failure to have regard to the need to appear at the pre-proof hearing which was clearly identified in the interlocutor of 1 December 2009. On the other hard there are substantial grounds for taking the view that the appeal could have been avoided if Mr Knight had received a response to his letter of 15 April 2010. In these circumstances I consider that the appropriate course is to find no expenses due to or by either party in respect of the appeal proceedings. I make no award in respect of the proceedings before the sheriff which have not been otherwise dealt with; in due course these can be dealt with by the sheriff as expenses in the cause.