SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

2014SCABE44

A1454/03

                                                                               JUDGMENT

by

SHERIFF PRINCIPAL DEREK C W PYLE

in causa

ALOK WANCHOO, residing at 8E Powis Circle, Aberdeen AB24 3YX

Respondent

against

ABERDEEN CITY COUNCIL, a local authority having its principal place of business at Marischal College, Broad Street, Aberdeen AB10 1AB

Appellants

Aberdeen, 9^th May 2014

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal; Finds the Respondent liable in the expenses of the hearings before the sheriff on 4 and 11 December 2013; Finds the Respondent liable in the expenses of the appeal; Remits an account thereof to the auditor of court to tax and to report.

Introduction

[1] This appeal raises a short point about the nature of a motion for interim interdict in the context of a motion for the expenses of the hearing.

[2] The Respondent lodged an initial writ in which he craved interdict and interdict ad interim. He averred that he was the owner of numerous residential and commercial heritable properties in Aberdeen. The Appellants sought recovery from the Respondent of council tax and water and sewerage charges in respect of the properties. For reasons which are now only of peripheral importance the Respondent maintained that the council tax and charges were not due. In October 2013 the Appellants were granted a summary warrant for recovery of same. The Respondent sought interdict ad interim to prevent the Appellants executing diligence on the summary warrant. A caveat being lodged, a hearing of the motion took place before the sheriff on 4 December 2013, when it was continued to a hearing on 11 December. After hearing parties the sheriff indicated that he preferred the submissions of the Appellants. The Respondent’s agent then intimated that he was withdrawing the motion and the initial writ. The Appellants’ agent moved for the expenses of the preparation and conduct of the hearings. The sheriff refused the motion. In his Note, the sheriff explained that he did so because at the point that the motion was made there was no process. The initial writ had been withdrawn. No warrant for service had been granted. There was no process in which he could write an interlocutor. He also questioned whether the appeal was competent, standing that there was no interlocutor, final or otherwise, against which to appeal. He did, however, add that if he had considered that it was competent to make a finding in expenses he would have granted the Appellants’ motion.

Appellants’ Submissions

[3] The Appellants submitted that the right to award expenses is a common law right inherent in every civil court in any cause that comes before it (Maclaren on Expenses, p3, as quoted in Global Santa Fe Drilling (North Sea) Ltd v Lord Advocate [2009[ CSIH 43, para 20 et seq; Macphail, Sheriff Court Practice, 3^rd edition, para 19.03). Reliance was also placed on the decision of Sheriff Robertson in Hawes v Thomas 2012 GWD 10-180 where he had refused the pursuer’s motion for interim interdict, reserved the question of expenses and granted a warrant to cite the defenders. The initial writ was not served. After a year and a day had lapsed the defenders lodged a motion to dismiss the action and for expenses. The first part of the motion was refused as unnecessary, but the sheriff granted the second part. The pursuer had opposed that part on the basis that as a year and a day had lapsed without service the action no longer existed and therefore it was incompetent for a motion to be heard. The sheriff considered that in awarding expenses he was exercising the court’s inherent common law power to award expenses – in that case, of the caveat hearing when interim interdict was refused. Any other result in the instant case was manifestly inequitable and placed the Appellants at an economic disadvantage despite their having exercised their lawful right as the holder of a caveat to oppose the grant of an interim order.

Respondent’s Submissions

[4] The Respondent relied upon Section 27 of the Sheriff Court (Scotland) Act 1907. There was no final judgment or interlocutor. The appeal was therefore incompetent. If the decision of the sheriff was to be treated as an interlocutor, leave to appeal would have been required, which leave had neither been sought nor granted. In any event, on the merits the motion for expenses ought to have been refused.

Decision

[5] The starting point is the passage from Maclaren (p3) quoted in Santa Fe (at para 20):

            “[The] independent right of a judge to award expenses in a cause is a common law right, and was imported form the jus civile… [T]here still exists a common law right inherent in every civil Court to award expenses in any cause that comes before it, and the right may be exercised unless expressly taken away or qualified by statute.”

[6] There can be no doubt that when the initial writ was lodged and a hearing fixed on the motion for interim interdict there was a “cause” before the sheriff. There can also be no doubt that it was an ordinary cause whose procedure is regulated by the First Schedule to the 1907 Act (and now contained in the 1993 Ordinary Cause Rules). In hearing the motion the sheriff was exercising his civil jurisdiction in the tribunal known as the ordinary court. (Macphail, para 5.01) While it is a general rule that the commencement of an ordinary action does not occur until due service of the initial writ, the procedure for interim interdict before service is a qualification to it. (Macphail, para 6.06)

[7] At a hearing of any motion during the course of an action the court will either grant or refuse it or make some other decision, such as to continue consideration of it. But the party moving the motion might decide during the course of the hearing to withdraw it. It is commonplace that in such a circumstance the other party will seek the expenses for his preparation for and attendance at the hearing. There might be many reasons why a party will seek to withdraw his motion. He might, for example, see the way the wind is blowing from remarks made by the court or, having heard the submissions of the other party, he might realise the error of his ways. Whatever the reason may be, a motion for expenses by the other party following upon the withdrawal of a motion during the course of a hearing would never be opposed on the ground that there no longer is a motion before the court. That would be an absurd proposition when the sole purpose of an award of expenses is to compensate the other party for the cost which he has incurred in opposing the motion in the first place.

[8] In my opinion, the difficulty which exercised the sheriff in this case was caused, as the sheriff puts it in his Note, by the Respondent’s solicitor withdrawing the initial writ. In effect what the solicitor did - or ought to have done – was to seek leave to withdraw his motion for interim interdict and for a warrant to cite. Having brought the motion before the court, the Respondent was putting control of procedure in the hands of the court. It was therefore not open to him simply to withdraw his motion; what he required to do was to seek leave of the court to do so. Of course, it is difficult, if not impossible, to envisage a circumstance in which the court would not grant such leave, but it might well be subject to a condition that he be found liable in the expenses in the event that the Appellants so moved. That would have ensured that the motion had not been withdrawn before the court had an opportunity to hear the Appellants’ motion.

[9] By allowing, in my view wrongly, the Respondent to withdraw the initial writ without seeking leave, the sheriff had made a decision which can be properly characterised as a judgment for the purposes of Section 27 of the 1907 Act. That it was a final judgment cannot be in doubt given that there was nothing further to be determined.

[10] If my analysis is correct, the consequence is that the decision of the sheriff is appealable without leave. It also follows that the appeal should be allowed.

[11] The sheriff having refused the motion for expenses after taking into account an irrelevant consideration, the Appellants’ motion for expenses is at large before me. The Appellants’ agent invited me to remit the cause to the sheriff to deal with the motion. I do not consider that it is necessary to do so. The Appellants were successful before the sheriff upon the motion being withdrawn. As a general rule, expenses should follow success. The Respondent’s agent submitted that there should be a finding of no expenses due to or by either party. He said (1) that the sheriff indicated that there should be a crave ad factum praestandum, which resulted in the decision to withdraw the motion and the initial writ, (2) that a further initial writ which included such a crave was subsequently lodged, but the motion for interim interdict was granted only as a temporary measure by a different sheriff who considered that there ought to have been an application for suspension of the summary warrant and that it being incompetent to do so in the sheriff court the Respondent should have  immediately applied for suspension by way of an action in the Court of Session, and (3) that counsel was instructed to prepare a summons for suspension but it was unnecessary to proceed further because the Appellants decided to allow the Respondent to invoke their appeal procedure against the liability for the tax and charges. I have difficulty in understanding this submission. It is of course for a party to know the law. It is plain, at least to me, that an action for interdict was always bound to fail in the absence of proceedings in the Court of Session for reduction and suspension of the summary warrant which was a decree of the court and was ex facie regular (Irvine v Valentine 1793 3 Pat 287). Indeed, the proper course would have been to include in that summons a conclusion for interim suspension and, if necessary, interim interdict and to have enrolled a motion for same to be heard by the Lord Ordinary. In these circumstances, it is inevitable that the Appellants should be able to recover their expenses.