Scottish Sheriff Court Decisions

Sheriffdom of Tayside, Central and Fife at Stirling

 

A201/10

 

Judgment

 

of

 

Sheriff A. Wyllie Robertson

 

in the case

 

 

Roy and Deborah Hawes

Pursuers

against

 

Louis and Jennifer Thomas

Defenders

For the pursuer:

HBJ Claims Solutions, Solicitors, Glasgow

 

For the defenders:

Party

 

 

Stirling, 16 January 2012

The sheriff, having resumed consideration of the defenders' motion (7/1), refuses part (1) of the motion as unnecessary; grants part (2) thereof; finds the pursuers liable to the defenders in the expenses of the caveat hearing on 2 September 2010 and this motion, as taxed; and decerns; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report.

 

 

 

Sheriff A. Wyllie Robertson

Note

[1]   The defenders have enrolled a motion seeking (1) dismissal of the action and (2) expenses against the pursuers. The pursuers submit that the defenders' motion is incompetent.

[2]   The background and relevant procedural chronology of events are as follows:

(1)   the pursuers and defenders are neighbours;

(2)   a dispute arose about the operation of a servitude right of access which the pursuers have over property belonging to, amongst others, the defenders;

(3)   on 31 August 2010 the pursuers lodged an Initial Writ and sought a hearing before service to move for interim interdict against the defenders;

(4)   the defenders had lodged a caveat;

(5)   a caveat hearing took place on 2 September 2010 at which the defenders' solicitor opposed the pursuers' motion;

(6)   after hearing submissions, the sheriff refused to grant interim interdict, reserved the question of expenses of the hearing and granted a warrant to cite the defenders in usual form;

(7)   the pursuers did not serve the Initial Writ on the defenders;

(8)   more than a year and a day have now elapsed since the warrant was granted on 2 September 2010;

(9)   the only procedural step since then is the present motion which the defenders enrolled on 2 December 2011.

[3]   I heard submissions from parties on 10 January 2012. The first defender, Mr. Thomas, represented himself. He said that he was also representing his wife, the second defender. Miss Taylor, solicitor for the pursuer, took no issue with that, so, for present purposes, neither will I.

Submission for the defenders

[4]   From the covering letter accompanying the defenders' motion and from what Mr. Thomas told me, following the hearing on 2 September 2010 he was advised by his solicitor not to lodge a motion for expenses until the warrant had expired. The reasons were practical and tactical. The pursuers could have served the Initial Writ at any time within a year and a day from 2 September 2010. Any motion the defenders had enrolled for expenses would not probably thereafter be entertained until the action had been concluded. Although Mr Thomas was confident of successfully defending the action, he did not wish to provoke service of the action by seeking expenses and thereby expose himself to significant legal costs which, even if successful, he would not fully recover from the pursuers.

Submission for the pursuers

[5]   Miss Taylor, in submitting that the motion was incompetent, referred to Macphail: Sheriff Court Practice (third edition) para 6.10 which states that the warrant of citation 'remains effective for a year and a day'. She referred to one of the footnote cases cited in Macphail as authority for the proposition, Diaz v Diaz 1999 SCLR 329 at page 333C-D. The defenders' motion comes too late and is incompetent.

[6]   I asked Miss Taylor if she considered whether it was material that in this case it is the defenders who are enrolling this motion, rather than the pursuers. She suggested that the rule about the effectiveness of the warrant was intended to protect a defender so that he did not have an action held over for more than a year and day, but she suggested that this protection equally applies to a pursuer. She referred to Macphail at para 6.06:

The second function of due service of the initial writ is that, as a general rule, it marks the commencement of the action. The principal qualifications of that general rule are that the court has power to grant an interim interdict before service, and that arrestments on the dependence or to found jurisdiction may be used before service. Such qualifications apart, an action does not commence until the defender is cited, or until that is deemed to have been achieved. ... Citation is "a sine qua non before effective action is allowed". Until it has been accomplished, or is deemed to have been accomplished, no step can be taken in the action, except that a further warrant to cite may be granted on the pursuer's motion: no other motion may be entertained, and decree in absence will not be pronounced. If no steps are taken in the action for a year and a day after the last day on which the notice of intention to defend may be lodged, the instance falls: that is, the initial writ is at an end and has no existence whatever.

Response from the defenders

[7]   In a brief response, Mr. Thomas noted that the sheriff, having reserved expenses, would have anticipated that they would be dealt with at some point in the future. He submitted that from the passages in Macphail that he had consulted (paras 19.05; 19.06; and 19.16) the sheriff has a discretion in relation to expenses, that the reservation of expenses in the interlocutor of 2 September 2010 should therefore take precedence over 'the year and a day' rule, that the court had a duty to hear parties on the question of expenses and, as expenses normally follow success, they should be awarded in favour of the defenders because they had been successful in resisting the pursuers' motion for interim interdict.

Discussion:

(1) Competency

[8]   The rule that a warrant to cite remains effective for a year and a day is well established and of long-standing: Macphail para 6.10; Hodgson V Hodgson's Trustees 1984 SLT 97 at 98; Diaz v Diaz 1999 SCLR 329. Similarly, when an action has been served and no notice of intention to defend lodged, the rule is also well established and of long-standing that a pursuer must lodge a minute for decree within a year and a day of the last date on which a notice of intention to defend could have been lodged, otherwise the action will fall absolutely: Macphail para 7.07; McKidd v Manson (1882) 9 R 790; McCulloch v McCulloch 1990 SLT (Sh Ct) 63, 1990 SCLR 155; Royal Bank Of Scotland v Mason 1994 SCLR 558; Cringean v McNeill 1996 SLT (Sh Ct) 137.

[9]   In this case the pursuers argue that because the action was never served on the defender and more than a year and a day have elapsed since the warrant to cite was granted, it is incompetent for the defenders now to enrol a motion for expenses because, effectively, the action no longer exists. It seems to me that this submission is misconceived.

[10]     The defenders' motion does not rely upon or emanate from the warrant to cite but upon the fact that before commencing any action the pursuers sought to obtain an interim interdict against the defenders and, because a caveat had been lodged, the defenders were entitled to make representations to the court before considering whether interim interdict should be granted. Accordingly, the defenders were brought to the court, not by the pursuers serving an action after obtaining a warrant to cite, but because, having lodged a caveat, the pursuers sought interim interdict against them before that stage had been reached.

[11]     At the caveat hearing on 2 September 2010 the defenders successfully opposed the pursuers' motion. It was only after that hearing had been concluded that the warrant to cite was granted. The sheriff reserved the question of expenses of the caveat hearing.

[12]     It is also well established, and was touched upon by Mr. Thomas in his address, that 'in an ordinary action the court has an inherent discretionary, common law power, which it may exercise in every case that comes before it unless the power is expressly taken away or qualified by statute, to determine whether to make an award of expenses and, if making an award, to determine by whom, on what basis and to what extent expenses are to be paid': Macphail para 19.03.

[13]     It is conceivable that the pursuers, having failed to obtain interim interdict, could well have elected not to ask for a warrant to cite. The sheriff in exercise of the court's inherent common law power could competently, then or later, deal with any motion for the expenses of the caveat hearing. The power to do so is not dependent upon a warrant to cite and so cannot be restrained or restricted by any rule of law pertaining to the warrant to cite. I am unaware of any statute qualifying or restricting the court's inherent common law power to deal with the expenses of a caveat hearing other than, perhaps, the operation of prescription, but it is yet too soon for any such period to apply.

[14]     For these reasons, I cannot sustain the pursuers' submission that the defenders' motion is incompetent.

(2) Merits

[15]     Turning to the merits of the defenders' motion, Miss Taylor, who was appearing as local agent for the pursuers' principal solicitor, had not been provided with any argument to present against the merits of the motion for expenses, her instructions being entirely directed to the issue of competency. Perhaps, on one view, that is unsurprising, because, having been unsuccessful, it is difficult to see what submission could have been made against the normal rule that expenses follow success. Accordingly, the defenders having successfully opposed the granting of interim interdict, and the pursuers having unsuccessfully opposed the competency of the defenders' motion, the pursuers are liable to the defenders for the expenses of both the caveat hearing and this motion.

[16]     The defenders' motion also sought dismissal of the action. There is certainly no action now to dismiss because the action was never served and a year and a day have now elapsed since the warrant to cite was granted. Arguably, because of the lack of service, there never was any action at all. On any view, it is unnecessary to grant decree of dismissal.