Scottish Sheriff Court Decisions

[12] Alternatively, if I was not prepared to read the words "of consent" in the way suggested, Counsel submitted that the use of those words in an interlocutor did not render an appeal incompetent. He founded strongly on certain obiter dicta pronounced in McCue v Scottish Daily Record and Sunday Mail Ltd 1998 SC 811, where a Full Bench had expressed the view (at page 824D) that the true objection to an appeal against an interlocutor pronounced of consent was not that such an appeal was incompetent, rather that the court should not normally countenance it. Earlier in that passage the court had disapproved of earlier decisions to the effect that it was not competent to review subsequently a prior interlocutor upon which actings of the parties had followed, although the court had indicated that such actings could lead the court to the conclusion that the prior interlocutor should not be interfered with. Applying this reasoning to the present appeal, Counsel submitted that if it had been appropriate for the words "of consent" to be used to describe the circumstances in which the interlocutor of 30 September 2010 had come to be pronounced, then I had a discretion to allow the appeal to proceed.

[13] Counsel then referred me to a number of other cases, none of which in his submission expressly prohibited me from exercising a discretion to hold that the present appeal was competent. In McLaren v Ferrier (1865) 3 M. 833, actings had followed on an interlocutor pronounced of consent, circumstances which persuaded the court to refuse review. But the court had left open the possibility of timeous objection to such an interlocutor. Paterson v Kidd's Trustees (1896) 23 R. 737 was a case where it was clear that the parties had contracted as to further progress of the litigation. From Pirrie v McNeil 1922 SLT 160 it was evident that an interlocutor "on the motion of the parties" could be appealed; in Marshall v William Sharp and Sons Ltd 1991 SLT 114 the court had gone behind an interlocutor expressed as being "of consent" to discover the substance of the matter, holding that an appeal was not barred; while Anderson v British Coal Corporation 1992 SLT 398 was another case where actings had followed on an interlocutor "of consent", barring the use of the dispensing power to correct what was said to be a mistake. Jongejan v Jongejan 1993 SLT 595, where it was held that an interlocutor pronounced in terms of a joint minute fell to be treated as one pronounced "of consent", predated the decision in McCue; Osborne v British Broadcasting Corporation 2000 SC 89 was a case where again the court had gone to the substance of an agreed interlocutor; and in Vetco Gray UK Ltd v Slessor 2006 SC 398 the court had followed Marshall, holding that concurrence in a course of action agreed by counsel amounted only to a concession on a point of law, which could be withdrawn on appeal.

[14] Next and on the question of discretion, Counsel for the Defenders submitted that had it not been for the use of the words "of consent", there would be no question that the interlocutor in issue would have been appealable without leave. It amounted to an order ad factum praestandum and also to an interim decree for payment of money. The Note of Appeal had been lodged within fourteen days of 30 September 2010. There had been no challenge, nor any hint of challenge to the competency of the appeal until the Sheriff's Note dated 29 October 2010 had become available. In that Note the Sheriff had made no adverse comment on the question of discretion and it was clear that (if asked) he would have granted leave to appeal. The interlocutor of 30 September 2010 was substantive in nature, rather than procedural, but it had not been acted upon. There was no question of unfairness or prejudice in holding the appeal to be competent, nor any question of personal bar.

Arguments for Pursuers

[15] For the Pursuers Counsel submitted that the appeal was not competent and that Part 1 of the motion should be refused. He accepted that an unusual situation had arisen and conceded that he had not considered the matter of competency until the Sheriff's Note of 29 October 2010 became available. His recollection of what had happened on 30 September 2010 was that a number of matters required to be discussed with his opponent that day, including the terms of any inhibition on the dependence which might be granted. He had rehearsed the procedural history to the Sheriff and had said that the parties were agreed as to what was to happen next. His opponent that day, Mr Wood (the solicitor then appearing for the Defenders) then said that he consented to an interlocutor in the terms which had been pronounced; accordingly the Sheriff had been correct to record the interlocutor as being "of consent", at least insofar as the first part of thereof was concerned. Counsel observed that parties ought to be careful about matters to which they consented.

[16] Turning to the authorities, Counsel submitted that McCue was the strongest case relied on by the Defenders but stressed that the comments at page 824D (to which reference had been made) were obiter. A different point had been in issue in that case; it was clear that in the course of being addressed, the court had been referred to other authorities. What was being suggested in the present case was contrary to a whole line of case-law to the effect that an interlocutor pronounced of consent could not be appealed. The present situation had not been brought about by the Pursuers, but by the agents for the Defenders who could have sought to have the interlocutor corrected. It was important to adhere to proper procedure; it would set a dangerous precedent to hold that the appeal was competent. In Brogan v O'Rourke Ltd. 2005 SLT 29 it had been observed that rules of court were designed to serve the interests of justice by ensuring inter alia that cases were dealt with expeditiously, without undue expense and without undue demands on the resources of the court. If I granted Part 1 of the motion, it was likely that such undue demands would arise when other prospective appellants realised that laxity in procedure might be permitted. In short, parties would ignore all the rules.

[17] Turning to the question of discretion, Counsel wondered how that could arise. It would of course be relevant in relation to the application of the dispensing power under OCR, rule 2.1, but the use of that power was confined to breaches of the Rules. No-one had yet asked the Sheriff to use such a power. There was no other general discretion open to the court, although it had an inherent jurisdiction to regulate questions of procedure. The words "of consent" in the interlocutor bound the parties in these proceedings. There would be no dire consequences if I held that this was so; the interlocutor would be opened up by any later competent appeal, although there would be some inconvenience and delay until the next appealable interlocutor was pronounced.

Reply by Defenders

[18] In the course of a brief reply, Counsel for the Defenders observed that it was not said that those appearing before the Sheriff on 30 September 2010 invited him to pronounce an interlocutor "of consent". He acknowledged that the passages in McCue to which he had referred were obiter but they were linked to the ratio of the decision. Brogan was really a case about the dispensing power. In the present case no-one had expected that the interlocutor was one which could not be appealed.

Decision

[19] At the outset I should say that while the Sheriff's interlocutor of 30 September 2010 bears to be in two parts, the first part said to be "of consent" and the other part not so qualified, neither party before me took the point that an interlocutor is regarded as indivisible from the standpoint of any appeal. While the decision of Sheriff Principal Maguire in Jones v Jones 1993 SCLTR 151 was referred to by Counsel for the Defenders, he did not suggest that it affected the decision I had to make on the motion now before me. I shall therefore lay the point to one side.

[20] Dealing then with the principal arguments advanced to me on the question of competency, I think what is important is the substance of the interlocutor of 30 September 2010. The Sheriff had previously decided to order implement of the missives; what he needed to do at the subsequent hearing was to pronounce a decree giving effect to the decision he had already made. Whatever period of time he prescribed for implement, the substance of his decree would not (and could not) change.

[21] What then of the position of the parties? Each knew what would inevitably be the substance of the decree to be pronounced: the Defenders would be ordered to implement the missives. What the parties did not know was what period of time would be allowed for this; in other words, what would be the procedural consequences of the substantive decision.

[22] I am firmly of the view that what the parties really consented to was an interlocutor allowing eight weeks for implement (and, presumably the extent of the inhibition on the dependence although that was not in issue before me). I fail to understand how the Defenders could have truly consented to decree for implement, having unsuccessfully argued against that outcome a few weeks before. Such a change of position would have been unconscionable. So while I do not doubt that at some point at the hearing on 30 September 2010 those representing the Defenders indicated (in some way) agreement to the terms of the interlocutor, I accept the proposition that what in substance they were doing was bowing to the inevitable consequences of an adverse judgement against them. The words "of consent" in the interlocutor must be read in that light; it is unfortunate they were used at all.

[23] Nor am I prepared to hold that by acquiescing in the form of words used, the Defenders must be held to have abandoned or waived their rights of appeal. Not only had they previously sought to appeal immediately (and without leave) against the Sheriff's findings of 5 August 2010 (a course which I held to be incompetent) they lodged a timeous Note of Appeal against the interlocutor of 30 September 2010

directed against the decree arising from the earlier findings. Counsel for the Pursuers frankly admitted that the issue of competency did not even occur to him until after the receipt (in December 2010) of the Sheriff's Note dated 29 October 2010. If the Pursuers had wished to take a point of competency, I would have expected them to have raised the matter immediately after the Note of Appeal was lodged, if necessary by enrolling a motion to dismiss the appeal as incompetent. The Sheriff's Note has given them unexpected ammunition which they now seek to use.

[24] On the question of looking at the substance rather than the form, authority for the approach I propose to take is found in that of Lord Justice-Clerk Ross in Marshall where, although the Sheriff Principal whose interlocutor was under appeal in the Inner House had pronounced that interlocutor as being "of consent", he was held to have erred in using those words. At page 119, the Lord Justice-Clerk contrasts the situation where a case is dropped or an appeal point is not pursued with that where a party consents to a decree passing. Looking behind what the interlocutor in that case said as a matter of form, it was clear that no consent had been given to it. Such an approach was followed more recently in Vetco Gray Ltd. where at para. [14] the Inner House regarded as competent an appeal against an interlocutor which, while not expressly bearing to be "of consent", was one in which the Defender in that case had clearly acquiesced.

[25] But even if I am wrong to read the words "of consent" in the way I have described, I am in no doubt (for the reasons advanced by the Defenders) that the appeal should be countenanced. The dicta in McCue which were relied upon carries with them the authority of a Full Bench. The modern view certainly appears to be that the issue is not one of competency, in which case it can only be a matter of discretion whether an appeal against an interlocutor bearing to be "of consent" can be taken. Nothing in the other authorities to which I was referred (many of which pre-date the decision in McCue) deals with the circumstances in which the current motion is presented. These circumstance (which I have already outlined) appear to be to be very unusual and out of the norm. This is not a case where, for example, parties have expressly agreed (by joint minute or otherwise) that a particular course will follow, in the full knowledge that by doing so each will be barred from disputing what has been agreed; nor is it a case where actings have followed on an interlocutor "of consent" such that one party or other will be prejudiced if their agreement is challenged; nor is it a case where the competency of an appeal has been raised immediately on receipt by the prospective respondents of a Note of Appeal. In my view the discretion which arises at this point should be exercised in favour of the Defenders. I agree that no-one could have expected that the interlocutor in this case would not be the subject of immediate appeal.

[26] I am not attracted by the "floodgates" argument by the Pursuers The normal rule referred to by the court in McCue will still apply and motions such as the present can be avoided if interlocutors are checked immediately upon issue so that any errors can be corrected quickly. In any event the observations in McCue were made in 1998; I am not aware of (nor was I referred to) any flood of litigation since then in which attempts have been made to open up interlocutors expressed "of consent".

Part 2 of the motion: alternative remedies?

[27] In view of my decision on Part 1 of the motion I do not require to reach a concluded view on exactly what I would have done had I refused that Part. But I agree with the observation by Counsel for the Defenders that rules of procedure are intended to oil the progress of a litigation, not to clog it up. With that in mind, parties may take it that I would have ensured, by one or other procedural course, that the Defenders' clear (and long-delayed) wish to appeal against the decisions made on 5 August 2010 will be accommodated as quickly as possible.

Disposal

[28] For the above reasons I shall hold that the appeal is competent and I shall assign a diet for the hearing of the appeal. Parties should forthwith communicate with my secretary at Airdrie Sheriff Court to discuss a suitable date or dates for the hearing of the appeal and to give her as accurate an estimate as possible of the time needed so that an appropriate diet can be fixed.

Expenses

[29] Since the motion was opposed, I have acceded to the normal rule that expenses follow success. Accordingly the expenses of the motion will be granted in favour of the Defenders. In that event, Mr Reid invited me to certify the motion as suitable for the employment of senior counsel, which failing junior counsel only. Certification for counsel (either senior or junior) was opposed by the Pursuers; but if I was satisfied it should be granted, then only the employment of junior counsel should be certified. While I acknowledge the assistance given to the court by Mr Reid, I think the latter course is appropriate in all the circumstances; although the point is somewhat novel, the issue raised by the motion is not so complex or difficult as to justify certification for the appearance of senior counsel.