Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

F206/12

JUDGMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

Silvia Donaldson

Pursuer

against

John Donaldson

Defender

and

Fiona McKinnon

Curatrix Ad Litem

Glasgow, 13 March 2014.

The sheriff principal, having resumed consideration of the defender's opposed motion, No 7/6 of process, Refuses same; Finds no expenses due to or by any party; and Remits to the sheriff to proceed as accords.

NOTE:-

[1] For the defender, Mr Gordon invited the court to exercise its dispensing power in terms of rule 2.1 of the ordinary cause rules 1993, as amended, and that by allowing the defender to lodge a late note of appeal designed to challenge the sheriff's interlocutor dated 20 December 2013.

[2] The interlocutor dated 20 December 2013 followed a diet of proof which commenced on 16 December 2013. It was explained that in addition to issuing his interlocutor on 20 December, the sheriff also explained his reasoning by way of an oral determination. A copy transcript of that determination is with the process.

[3] A full judgment was subsequently issued by the sheriff on 27 January 2014.

[4] In effect, Mr Gordon, on behalf of the defender, was inviting the court to excuse the passage of time between the expiry of the 14 day period following 20 December 2013 and the tendering of a note of appeal on 21 February 2014. Mr Gordon's precise reasoning for seeking to invoke the court's dispensing power was somewhat opaque. However, broadly speaking, he founded upon the confusion which was said to arise from the terms of the interlocutor dated 20 December 2013. Mr Gordon maintained that, at the very least, it was unclear as to whether that interlocutor constituted a final interlocutor. After all, its terms provided for "a hearing after service" on 1 April 2014. By definition, submitted Mr Gordon, it could not, therefore, be regarded as final since further procedure was clearly envisaged by the sheriff.

[5] At all odds, in due course, on 7 February 2014, the defender's motion, No 7/5 of process, was lodged. That motion moved the court to grant leave to appeal against the sheriff's interlocutor of 20 December 2013. The motion was heard by the sheriff on 14 February 2014 and it was refused on the grounds that leave to appeal was not required. In the note to his interlocutor, the sheriff recorded his agreement with the position adopted on behalf of the pursuer and the curator to the effect that the earlier decision, after proof, of 20 December 2013 ought to be viewed as final.

[6] Following upon the refusal of leave to appeal, the present motion, No 7/6 of process, was lodged a week later. That motion was opposed both by the agent for the pursuer and by the curator ad litem. The principal ground of opposition was founded upon the contention that when issuing his oral determination on 20 December 2013, the sheriff had made it plain that the associated interlocutor was to be regarded as a final interlocutor. There was a suggestion that Mr Gordon, the defender's agent, had not been present on 20 December aforesaid. However, the court's interlocutor from that date records that he was, indeed, present along with his client. In any event, whether Mr Gordon was present or not, Ms Wray for the pursuer and the curator ad litem both submitted that an experienced family practitioner such as Mr Gordon ought to have appreciated that the interlocutor of 20 December 2013 was, indeed, final for appeal purposes and that he should have been immediately alert to the time constraints imposed by the court should his client wish to challenge the sheriff's determination by way of an appeal to the sheriff principal.

[7] The delay involved in the presentation of the initial motion for leave to appeal was criticised as was the further passage of time between 14 February 2014, when leave was refused by the sheriff and the production of a note of appeal along with the motion, No 7/6 of process, presently under consideration.

[8] In the course of parties' submissions, discussion focused to a significant degree upon the actual nature of the interlocutor from 20 December 2013. It was noted that the specific allowance of a further hearing on 1 April 2014 might tend to detract from the proposition that the interlocutor was, indeed, final. Trite reference was made to Lord Macphail's work on Sheriff Court Practice. However no specific passages therein were highlighted.

[9] In order to determine the merits of the motion, I have required to consider what amounts to a "final judgment". The answer is to be found at page 639 in the third edition of Macphail. The 1907 Act defines a final judgment as an interlocutor which by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that the expenses found due may not have been modified, taxed or decerned for. (See paragraph 18.33 in Macphail).

[10] It is, in my view, plain from a reading of the sheriff's interlocutor dated 20 December 2013 that it disposed of the subject-matter of the cause. It dealt with a residence order, a specific issue order and a contact order. Those three orders reflected disposals covering the real issues in controversy. The fact that judgment may not have been pronounced "on every question raised" was, in my opinion, neither here nor there as was the assignation of a hearing on 1 April of this year. As the sheriff explained in the note to his interlocutor dated 14 February 2014, the further hearing was simply designed to "fine tune" the details of the post-relocation framework in regard to the operation of contact.

[11] I also accept the submission advanced on behalf of the pursuer and by the curator ad litem to the effect that, on 20 December 2013, the sheriff had flagged up the fact that his interlocutor from that date was to be regarded as final. However, whether the matter is viewed subjectively or objectively, I am satisfied that the interlocutor of 20 December was a final interlocutor. The question then arises as to whether the delay involved in presenting a note of appeal designed to challenge that interlocutor can be excused or overlooked through the court's exercise of its dispensing power.

[12] The nature and circumstances of this litigation cannot be underestimated in that context. The pursuer's agent and the curator both sought to stress the expeditious nature of the approach taken by the sheriff and I accept that as a valid consideration when it comes to reflecting upon the passage of time. The defender's agent allowed approximately 7 weeks to pass before actually presenting grounds of appeal seeking the recall of the December interlocutor. Whilst Mr Gordon pointed to what he characterised as "confusion", on mature reflection, it seems to me that he ought not to have been confused about the fundamental need to lodge an appeal within 14 days from 20 December 2013. Esto there was confusion in his mind, his experience ought to have told him to err on the side of caution and to take timeous steps to preserve his client's position quoad any appeal. With regard to the motion for leave to appeal, that in itself was initiated some 6 or 7 weeks after 20 December 2013 and no proper explanation for that delay was provided to the court.

[13] Accordingly, in the whole circumstances, I have concluded that the motion to allow a late note of appeal should be refused. I was not satisfied that the circumstances alluded to by Mr Gordon justified the court in exercising its dispensing power in favour of his client. Whilst that is sufficient to determine the matter, I note, in passing, the final sentence within the purported note of appeal. It states that:

"The Defender therefore moves the Sheriff Principal to recall the sheriff's interlocutor and to dismiss the action."

It seems to me that, on any view of matters, dismissal of the action would be wholly contrary to the overall interests of justice particularly where the interests of a child are concerned.

[14] Given that the parties are legally aided I have, like the sheriff, found no expenses due to or by any party.