Scottish Sheriff Court Decisions

DUMFRIES SHERIFF COURT
Sheriff Principal B A Lockhart	SC29/12   JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in causa   JOHNSTONE & CLARK HEATING LIMITED Pursuers and Respondents   against   MR J HALE Defender and Appellant

 

Act: A Bryce, Solicitor, Dumfries

 

Alt: Party

 

 

_____________________________________________________________________________

DUMFRIES: 15 May 2013

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutors of 6 September 2012 and 15 November 2012 complained of; finds the Defender and Appellant liable to the Pursuers and Respondents in the expenses of the appeal and refers the matter to the Sheriff Clerk for assessment of the expenses of the Pursuers and Respondents in connection with the appeal.

 

 

Note:

Background to the Appeal

 

[1] In this Summary Cause the Pursuers and Respondents aver that they carried out works and provided services on the instruction of the Defender for which they issued an invoice amounting to £5820.55 on 11 February 2010. The Defender failed to make payment of that sum and the Pursuers elected to raise proceedings on a Summary Cause scale for the restricted sum of £5000.

 

[2] When the cause called in court on 28 June 2012 the Defender appeared personally and lodged with the Sheriff Clerk a single sheet of paper stating; "Johnstone & Clarke vs Jonathan Hale - Invoice Summary and Counter Claim the total sum counter claimed was £12,587.73." A proof was assigned for 6 September 2012. The Defender did not attend the diet of proof. No-one appeared on his behalf. No reason was submitted to the court for his absence. Having regard to Summary Cause Rules 22.1, the Sheriff granted decree by default and dismissed the counter claim. The Sheriff found the Pursuers entitled to expenses as assessed.

 

[3] The case next called before the Sheriff on 15 November 2012 following the diet of assessment. On this occasion the Sheriff was informed by the Clerk of Court that the Defender had telephoned to say that he was unwell and unable to attend. On 15 November 2012 the Sheriff reports that she was moved to approve the assessed expenses and grant decree in terms thereof. She was informed on that occasion that the diet of assessment had originally been fixed for 24 October 2012. The Defender attended on that date. He sought and was granted an adjournment to obtain legal advice until 7 November 2012. On that occasion he appeared personally and without representation. The assessment of the Pursuers account of expenses was undertaken at that time. There was discussion about abatement. The Defender expressed to the Sheriff Clerk Depute unhappiness with two of the decisions taken by him. The case was put out to call for approval of the account of expenses on 15 November 2012. He did not attend. The Pursuer's agent urged the Sheriff to grant decree. He had not lodged any note of objections to the account of expenses. Such a note should have been lodged within 7 days of the diet of assessment (i.e. 14 November 2012). The Pursuer's solicitor drew the Sheriffs attention to the nature of the Defenders issues with the account, being the retention of the fees for attendance at the first calling and preparing for proof. These were charged in line with chapter IV part III. It was accordingly proper that these items be allowed by the Sheriff Clerk.

 

[4] The Sheriff records that the Sheriff Clerk advised her that he had told the defender to raise his objections, if he wished, before the court on 15 November 2012. He knew that his attendance was required on that date. The Sheriff reports that, in all the circumstances, and having regard to her power to dispose of objections in a summary manner, she granted the pursuers motion for decree.

 

[5] The Sheriff exercised her discretion on 6 September 2012 and 15 November 2012 on the basis of the information before her as set out above.

 

[6] In his request for a Stated Case, the defender stated his reasons for appealing the Sheriff's judgement to be:-

"(1) My defence and counter claim was not heard on 6 September 2012, due to the fact that I was unable to attend court due to illness.

(2) The pursuer has been in liquidation since January 2012, so John Henderson & Sons should have been taking instructions from the official receivers since that time, and not an ex-officer of the company (Mr William Martin).

(3) Under Clause 9A.3 of the Ordinary Cause Rules the pursuer should have provided me with copies of witnesses and evidence that would be relied on in the proof hearing- this was not done.

(4) The pursuer has been pursuing the wrong defendant. This contract (for the heating system), is intrinsically linked to the property of Springbank, Kirkton. I am not the sole owner of the property. The property is owned by myself, and my wife Mrs Patricia Hale, so any claim should have been against Mr J Hale and Mrs P Hale.

(5) There are fraudulent invoices included in the invoices that have been claimed, and I request additional time for the police to perform criminal investigations."

 

The Sheriff, in her Stated Case, states that grounds 2, 4 and 5 should have been aired at the calling date. No defence on these grounds was placed before the court.

 

[7] Following the lodging of the Note of Appeal on 29 November 2012 the Sheriff stated a case which was forwarded to the Sheriff Principal. Messrs Lindsays, Solicitors, Edinburgh initially became involved on behalf of the defender on 21 March 2013. However, they withdrew from acting for the defender on 5 April 2013.

 

[8] The defender made an application to the Sheriff Principal on 13 April 2013 to discharge the appeal hearing fixed for 7 May 2013. He stated that he had been unable to obtain alternative legal advice. He stated in his letter:

"Unfortunately I have not been able to obtain alternative legal advice in the three weeks that have elapsed since Mr Penman (without notice or reason) withdrew from acting for me. I am in discussions with Brodies at the moment, but I will need more time to instruct them. Brodies have asked for a written report on the state of the defective central heating system, and a written report from my doctor describing the reasons that my depression symptoms caused me to miss the proof hearing on 6 September last year. It will take some time to organise these items. I am working in Edinburgh at the moment, which means I have a 12 hour day (including the 3.5 hour commute). I am suffering greatly from stress and depression at the moment, and I am attending weekly doctor appointments for treatment. I am quite simply unable to meet the dates that I have been set, and I feel that I will be denied access to justice if the Sheriff will not allow me more time to instruct representation. Please ask the Sheriff to consider the circumstances I have outlined above as a matter of urgency."

 

The Sheriff Principal instructed his secretary to write to the defender on 1 May 2013 on the following terms;

"You have had since 28 June 2012 to be provided with legal advice in connection with this case generally, and since 15 November 2012 to be provided with legal advice regarding this appeal. The Sheriff Principal does not consider it appropriate that you be granted any further time. The appeal will accordingly proceed at 1.30pm in Dumfries Sheriff Court on 7 May 2013."

 

[9] The defender appeared personally before me on 7 May 2013 in Dumfries Sheriff Court. The pursuers were represented by Mr A Bryce, Solicitor, Dumfries.

 

Submissions for the Defender and Appellant

 

[10] The defender commented on his five grounds of appeal as follows;

(1) He claimed he was unable to attend court due to illness. He stated that clinical depression was a de-habilitating illness. He claimed he was not being allowed access to justice. He claimed his rights under Article 13 of the European Convention and Human Rights had been infringed. He was a disabled person. He felt that he should have had the chance to air his defence. The fact that he had this illness was the reason for not attending on 6 September 2012. He had no experience of the Scottish Legal System, he believed that the case should have been continued, despite his absence.

(2) John Henderson & Sons should have been taking instructions from the official receiver, not an ex-officer of the company, William Martin. The defender stated that at the diet of assessment on 24 October 2012 Mr Bryce stated to the Sheriff Clerk that he was taking instructions direct from William Martin and not the official liquidator of the insolvent pursuers.

(3) The pursuer had not provided him with copies of witnesses and evidence that be relied on at the proof hearing under Clause 9(A)3. He did not enlarge on this.

(4) The pursuer sued the wrong defender. He owned the property jointly with his wife. She ought to have been sued as well as him.

(5) Invoices on which the pursuers relied were fraudulent. This was an essential part of his defence and counter claim which should have been considered. He conceded that he had not made any official report to the police. He had been hoping the police would deal with this before the court case. He claimed that almost £2000 of the outstanding invoices relate to work which was not carried out. He claimed that he had twenty pages of e mail correspondence going back over a year which raised these issues with the pursuers.

The defender tabled a bundle of documents which he stated which had been placed before the Sheriff at the first calling. He stated;

"My recollection is that I gave a copy to the bench and a copy to the pursuers."

 

He repeated that he believed that he had not been allowed access to justice. There were many issues which should be considered by the court. His inexperience and lack of knowledge should not preclude him from having access to justice. I was requested to give weight to his medical condition, for which he was receiving treatment. His defence and his counter claim raised legitimate issues which should be canvassed. I was asked to allow the appeal and fix a hearing.

 

Submissions for the Pursuers and Respondents

 

[11] Solicitor for the pursuers had lodged written submissions and made further oral submissions at the appeal hearing. He commented on the grounds of appeal as follows:-

(1) Defence and counter claim were not heard due to the fact the defender was unable to attend court due to illness. It was submitted the defender had taken no steps to advise the court of any illness. There had been no communication with the Sheriff Clerk at all. At no time was any soul and conscience certificate produced relating to the defenders inability to attend court on 6 September 2012.

(2) It was conceded the pursuers had been in liquidation since January 2012. The position of John Henderson & Sons, the firm of which Mr Bryce was a partner, was that they did indeed take instructions from the official receiver, Alison Anderson of Armstrong Watson, Chartered Accountants, Dumfries. However, on matters of fact they did require to obtain information from the person who had been the pursuers' Managing Director, William Martin.

(3) Clause 9(A)3 relates to the Ordinary Cause Rules. This was a summary cause. There was no obligation on the pursuers to produce copies of witnesses and evidence that would be relied on at the Summary Cause Proof Hearing to the defender.

(4) The allegation that the pursuers were pursuing the wrong defender. While it might have been the case that the pursuer owned the property jointly with his wife, the pursuers' position was that all the dealings in relation to the heating system work were carried out solely with the defender. All correspondence and invoices were addressed to him and all instructions were given by him.

(5) The invoices were fraudulent. The writ was served on the defender on 25 April 2012. The police have not been advised of any alleged fraud. No officer of the pursuers company has received intimation of any police investigation.

 

[12] It was submitted that, having regard to the terms of Rule 22.1 of the Summary Cause Rules, the Sheriff, at the proof diet on 6 September 2012 was entitled to exercise her discretion and grant decree on the motion of the pursuers. No representation for or on behalf of the defender in relation to the reason for his absence at the diet of proof had been provided to the court prior to submission of his Note of Appeal on 29 November 2012. At no time had a soul and conscience certificate been produced. It was further submitted that any right of appeal open to the defender lay only on a point of law. No point of law had been placed before the court.

 

[13] It was submitted that the Sheriff was entitled to exercise his discretion in the manner in which he did. I was asked to refuse the appeal.

 

Decision

 

[14] I have no hesitation in refusing this appeal. I deal with the five grounds of appeal as follows:-

(1) Defender claims he was unable to attend court on 6 September 2012 due to illness. No steps were taken by him to intimate his illness to the court. He claims he has a de-habilitating illness and that certain rights accrue to him in terms of Article 13 of the European Convention on Human Rights. There is no evidence of any description available to me of the nature and extent of that illness, and in particular of his state of health as at 6 September 2012. He has had more than ample opportunity to produce appropriate medical evidence regarding his absence from court.

(2) It is clear from the part of the pursuers' solicitor file which was read to me in court that John Henderson & Sons are receiving instructions from the official receiver Alison Anderson of Armstrong Watson, Chartered Accountants, Dumfries. One would expect them to refer to the former Managing Director, William Martin, on matters of detail regarding the facts of the case.

(3) This has no application as Clause 9(A).3 relates to ordinary cause procedure. This is a Summary Cause.

(4) The fact that the defender is not the sole owner of the property is irrelevant. The pursuers' case is that the instructions were received solely from the defender.

(5) The defenders case is that the invoices were fraudulent. He would have been given the opportunity to prove this if the defender had attended at the diet of proof. He chose not to do so. Before me on 7 May 2013 he requested time to allow the police to carry out criminal investigation. However he did not seek to report the matter to the police when the case was originally served upon him in April 2012. He has done nothing in over a year to pursue the issue with the police.

 

15] The Sheriff's decisions to grant decree for the sum sued for on 6 September 2012 and to approve the Sheriff Clerks assessment of expenses on 15 November 2012 were both discretionary matters. She was clearly entitled to exercise her discretion on both of these occasions in favour of the pursuers. There is in my view no merit in any of the grounds of appeal put forward by the defender at the appeal. He has been given access to justice. He has not taken the opportunity to produce any evidence to support his claim that his absence was due to a medical reason or to have the police to investigate his allegations of fraud. He claims he lodged a bundle of documents with the Sheriff when the case first called. However only the one document stating to be his "invoice summary and counter claim" was in the papers. Solicitor for the respondents produced a file note in which those representing the pursers in court reported; "we attach a copy of the document the defender produced claiming to be the defence and counter claim." In these circumstances there appears to me to be no reason why I should accept the defenders "recollection" that he gave a copy of the bundle of documents to the bench and to the pursuers. In any event this issue is of little importance as the principal reason for the Sheriff exercising her discretion and the principal reason for my refusing the appeal, is that the defender has produced no evidence at all to substantiate his medical condition on 6 September 2012 which prevented him attending court.

 

[16] In these circumstances the appeal is refused. I have awarded the expenses of the appeal to the pursuers and appellants.