Scottish Sheriff Court Decisions

2014SCLER54

SHERIFFDOM OF GRAMPIAN, HIGHLANDS AND ISLANDS AT LERWICK

Judgment

Of

Sheriff Philip Mann

In Summary Cause number SC9/13

BBM Solicitors, a firm having its principal place of business at Unit 5B, Wick Business Park, Wick, Caithness, KW1 4QR

Pursuers

Against

Malcolm Younger, Fairview, Lower Sound, Lerwick ZE1 0RL

Defender

Lerwick 15 October 2014

The sheriff, having resumed consideration of the cause, recalls the decree granted in the pursuers’ favour on 22 July 2014; appoints 14 November 2014 at  10:00am within the Sheriff Court House, King Erik Street, Lerwick as a diet of hearing to be held in terms of summary cause rules 8.2(3) to (7) and 8.3; ex proprio motu ordains the defender to lodge within 21 days of today’s date, that is in advance of the said diet of hearing, a written note of his defence giving fair notice of that defence to the pursuer; Ordains the sheriff clerk to intimate this interlocutor to the parties forthwith; meantime reserves the question of the expenses of the hearing on 14 October 2014.

Sheriff Philip Mann

Note

1.         Introduction

1.1       This is a summary cause in which the pursuers, a firm of solicitors, seek payment of their fees in respect of professional services rendered to the defender in his defence of an ordinary action in this court.  I know that the defender’s defence to the ordinary action was unsuccessful.

1.2       The defender has never lodged a form of response in terms of rule 8.1(1) of the summary cause rules but in advance of the calling date the parties entered into a joint incidental application seeking to discharge the hearing (being the calling date) fixed for 12 November 2013 and to sist the cause to allow the parties to enter into a minute of agreement in settlement of the outstanding sum.  The incidental application called on 12 November 2013 when it was granted.

1.3       On 28 May 2014, the pursuers lodged an incidental application seeking recall of the sist and the fixing of “a new first hearing date”.  On 24 June 2014 at a hearing fixed on the incidental application, at which the defender did not attend, the sist was recalled and 22 July 2014 was set down as a hearing date.  On 22 July 2014, in the absence of the defender, decree was granted in favour of the pursuers.

1.4       On 23 September 2014 the defender lodged a minute for recall of decree in terms of rule 24.1.

1.5       On 14 October 2014, I heard the parties in debate on the minute for recall.  The pursuers were represented by Mrs Gordon, solicitor, appearing as local agent.  The defender was unrepresented.

2.         The Debate

2.1       Mrs Gordon opposed the minute for recall of decree on the basis that it was incompetent.  She founded on rule 24.1(1) which is in the following terms:

“A party may apply for recall of a decree granted under any of the following provisions—

      (a)        rule 7.1; or

(b)        paragraph (5), (6) or (7) of rule 8.2.”

2.2       Rule 7.1 relates to undefended actions.  Mrs Gordon made particular reference to paragraphs (1) and (7) of that rule which state:-

“(1)      … where the defender has not lodged a form of response on or before the return day-

(a)        the action shall not require to call in court on the calling date; and

(b)        the pursuer must lodge a minute in Form 17 before the sheriff clerk's office closes for business on the second day before the calling date.

(7)        If the defender does not lodge a form of response in time or if the sheriff is satisfied that he does not intend to defend the action on the merits or on the amount of the sum due, the sheriff may grant decree with expenses against him.”

2.3       Mrs Gordon’s referred to paragraph (5) of rule 8.2, paragraphs (6) and (7) of that rule having no relevance to this case being concerned with counterclaims or with dismissal of the cause on failure of the pursuer to appear.  She also referred to paragraphs (1) and (2) of that rule.  The paragraphs are in the following terms:-

“(1)      Where the defender has lodged a form of response in accordance with rule 8.1(1) the action will call in court for a hearing.

(2)         The hearing shall be held on the calling date.

(5)         Where the defender-

(a)        does not appear or is not represented; and

(b)        the pursuer is present or is represented,

decree may be granted against the defender in terms of the summons.”

2.4       Mrs Gordon’s point was that the decree could not have been granted under rule 7.1(7) because no minute in Form 17 had been lodged as mentioned in rule 7.1(1)(b).  Nor could the decree have been granted under rule 8.2(5) because the defender had not lodged a response in terms of rule 8.2(1) and a decree in terms of 8.2(5) could only have been granted at a hearing held in terms of rule 8.2(2) in consequence of the defender having lodged that form.  This being the case, rule 24.1 manifestly could not apply and the minute for recall was incompetent.

2.5       Mr Younger, understandably because he is a layman, was unable to make any submissions on the competency of the minute for recall in reply to Mrs Gordon.  His submissions were confined to explaining that whilst he had originally intended to settle the sums claimed by the pursuers, and he had joined the pursuer in lodging the incidental application in terms of which the case was sisted, he had subsequently been given legal advice that the pursuers had acted negligently in the defence of the ordinary cause referred to in the first paragraph of this note and which is the subject of this summary cause.

2.6       Neither Mrs Gordon nor Mr Younger was able to say on what basis the decree had been granted.

3.         Discussion and Decision

3.1       I accept Mrs Gordon’s submission that the decree was not granted under rule 7.1.

3.2       I do not accept Mrs Gordon’s submission that the decree was not granted under rule 8.2(5).  The pursuers’ incidental application for recall of the sist also requested that the court fix “a new first hearing date”.  That was clearly intended to be a hearing in substitution for the hearing which would have been held in terms of rule 8.2 had the defender lodged a form of response.  There is no other kind of hearing under the rules to which the pursuers’ phrase “a new first hearing date” could reasonably apply.

3.3       It is worth noting here that by joining in the incidental application with the pursuers to have the case sisted the defender effectively entered the process just as he would have done if he had lodged a form of response, albeit that that did not achieve the same purpose as the form of response in terms of which the defender would have been obliged to indicate his defence in a manner giving fair notice to the pursuer.

3.4       Be that as it may, hearings have to be conducted in terms of rules.  The only rules that could reasonably apply to the hearing fixed in terms of the pursuers’ incidental application are those to be found in rules 8.2(3) to (7) and 8.3.  That being the case the only possible basis for the grant of decree against the defender was rule 8.2(5).  Therefore, the minute for recall is competent in terms of rule 24.1(1)(b)

3.5       The decree must be recalled in terms of rule 24.1(12).  That rule also requires that there be a hearing under rules 8.2(3) to (7) and 8(3) and I have provided for this.

3.6       The minute for recall of decree indicates a defence of “given wrong advice by solicitor”.  Although that gives notice of the general nature of the defence it does not give the pursuer fair notice of the basis upon which the defender maintains that the pursuers’ advice was wrong.  I observe that, curiously, a minute for recall of decree in terms of rule 24.1(3) must simply “include where appropriate (and if not already lodged with the sheriff clerk), the proposed defence”, there being no reference to a requirement that the defence be stated in a manner giving fair notice as is necessary in a form of response in terms of rule 8.1(1).  It may be that rule 24.1(3) falls to be interpreted to mean that “the proposed defence” must be a statement of defence giving fair notice but no argument was addressed to me on that point.  I am prepared to proceed on the basis that the minute for recall of decree satisfies the terms of rule 24.1(3) but I have taken the opportunity to ordain the defender to lodge a written note of his defence giving fair notice to the pursuers.  That will enable the sheriff to properly conduct the hearing that I have assigned, with particular reference to rule 8.3(3)(c) relating to the soundness in law of the claim or defence.

3.7       I have reserved the question of the expenses of the hearing on 14 October 2014.