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Scottish Sheriff Court Decisions


You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Screwfix Direct LTD t/a Trade UK against the firm of Northdeko and others (Sheriff Court Civil) [2025] SCABE 27 (29 April 2025)
URL: http://www.bailii.org/scot/cases/ScotSC/2025/2025scabe27.html
Cite as: [2025] SCABE 27

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
[2025] SC ABE 27
ABE-A372-23
NOTE OF SHERIFF ANDREW MILLER
in the cause
SCREWFIX DIRECT LIMITED t/a TRADE UK
Pursuer
against
(1)
THE FIRM OF NORTHDEKO
(2)
MR RENARS SPROGIS
(3)
MR TOMS PURIS
Defenders
Act: Mr Foyle, Solicitor Advocate
Alt: No appearance
ABERDEEN, 29 April 2025
[1]
This is an action for payment in respect of building and construction materials and
related products supplied by the pursuer to the defenders. The first defender is described
in the initial writ as a partnership. The second and third defenders are each sued as
partners in the firm and as individuals. The pursuer's single crave seeks decree against the
defenders, jointly and severally, for payment of: (1) the sum of £4,954.53, being the
outstanding balance due in respect of the materials supplied, with interest; (2) £247.73,
being an administration fee claimed by the pursuer under its terms of business in respect of
costs incurred in recovering the principal sum; and (3) the sum of £70.00, which the pursuer
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claimed in terms of the late payment of Commercial Debts (Interest) Act 1988, with
expenses.
[2]
None of the defenders lodged a notice of intention to defend. The pursuer
eventually lodged a minute for decree. This note explains in detail my reasons,
summarised at the time of my decision, for refusing to grant the pursuer's minute for
decree in relation to the first and second defenders.
[3]
The writ was warranted on 24 October 2023, on a period of notice of 21 days in
relation to each defender. A certificate of intimation subsequently lodged by the pursuer
confirmed that the action was served on the first and second defenders by post on
17 November 2023, the papers being delivered on 18 November. The pursuer had difficulty
tracing the third defender and, according to the certificate of intimation subsequently
lodged in relation to him, postal service was not effected upon him until 10 September 2024,
with the papers delivered to him on 16 September. None of the defenders lodged a NID.
On 25 February 2025 the pursuer's solicitors lodged with the sheriff clerk (by email) a
minute seeking decree in absence against all three defenders, under deduction of a sum
paid to account. Despite not being lodged until 25 February 2025, the minute for decree
was dated 25 October 2024.
[4]
Thus, the only steps in procedure which involved the court during this procedural
chronology were on 24 October 2023, when the action was warranted, and on 25 February
2025, when the pursuer's minute for decree was received by the sheriff clerk.
[5]
Following receipt of the minute for decree, a concern arose as to its competency so
far as the first and second defenders were concerned, given that the minute was not lodged
with the sheriff clerk until over a year and a day after the expiry of the period of notice
relating to those defenders. Having regard to the chronology set out above, I sought
3
clarification from the pursuer's solicitors, by email via the sheriff clerk, of the basis for the
pursuer's motion for decree in absence against the first and second defenders. This elicited
a helpful email from the pursuer's solicitors dated 21 March 2025, after which I assigned a
hearing on the matter, which called before me via Webex on 15 April 2025. Mr Foyle
appeared on behalf of the pursuer. There appeared to be no authority directly in point.
Having heard Mr Foyle, I granted decree in absence in respect of the third defender but
declined to grant the pursuer's minute for decree in respect of the first and second
defenders.
[6]
The concern in this case arose from the long-standing common law rule that an
undefended action falls if it is not `called' within the period of a year and a day after the
expiry of the period of notice (Macphail, Sheriff Court Practice, 4th edition, paragraph 7.06;
McKidd v Manson (1882) 9 R 790), even if some incidental procedure (such as a motion for
interim interdict) has occurred prior to the expiry of the period of notice (McCulloch v
McCulloch 1990 SLT (Sh Ct) 63). For these purposes the `calling' of the case may be
constituted by the lodging of a minute for decree or by any other procedural step on the
part of the pursuer which invokes or calls for some response from the court, such as a
motion for decree in absence which is refused due to the absence of proof of intimation
(Royal Bank of Scotland Plc v Mason 1995 SLT (Sh Ct) 32).
[7]
Where an action is raised against multiple defenders, some of whom enter
appearance and some of whom do not, it is open to the pursuer to minute for decree in
absence against the non-compearing defender(s) and to continue the action against the
compearing defender(s), although in such circumstances it is open to the court to decline in
hoc statu to grant decree in absence against the non-compearing defender(s) if that might
result in prejudice to the remaining defender(s) (Macphail, paragraph 7.09; Morrison v
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Somerville & Others (1860) 22D 1082; Symington, Son & Company Limited v Larne Shipbuilding
Company Limited & Others 1921 2 SLT 32).
[8]
In the present case the pursuer took no steps to seek decree in absence against the
first and second defenders or to otherwise invoke any decision or response from the court
in respect of those defenders, or indeed in respect of the third defender, for a period in
excess of a year and a day between the expiry of the period of notice relating to the first and
second defenders in early December 2023 and the lodging of the minute for decree in
relation to all three defenders on 25 February 2025. At the hearing before me Mr Foyle
observed that the issue really resolved to the question of whether, given that the action had
been raised against three defenders jointly and severally, there was only one process
against all three defenders or whether there were three separate processes which were
capable of separate analysis. Mr Foyle adopted the position set out in the pursuer's
solicitors' email of 21 March 2025, namely that all three defenders had a common interest
and that it made logical sense for the period of a year and a day to run from the expiry of
the period of notice relating to the last defender to receive intimation, ie from the date upon
which it could be said that all of the defenders had the action brought to their attention and
were placed in a position to defend it, if they wished to do so. As a matter of policy it
would be undesirable for a situation to arise in which the action could fall against two of
the defenders but remain live against the third, with the result that decree in absence was
granted against him alone. Such an outcome may be regarded as prejudicial to the third
defender and may also result in a multiplicity of actions arising from the same subject
matter.
[9]
Mr Foyle was unable to point to any authority which directly supported his position
but he founded on the sheriff's observation in RBS v Mason (p. 32K) that the rule demanded
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that "the minute for decree required to be endorsed within one year and a day of the last
period of notice otherwise the action would fall" (emphasis added). However, Mr Foyle
recognised that the sheriff's comments were obiter because that case turned on different
issues from the present case and did not involve the same factual background. The sheriff's
decision in RBS v Mason was successfully appealed on the basis that the pursuer's
unsuccessful motion for decree in absence against the second defender in that case during
the period of a year and a day following the expiry of the period of notice relating to that
defender was sufficient to invoke the court's response (namely, refusal in hoc statu to grant
the minute due to the absence of a certificate of intimation) and therefore to interrupt the
period to which the rule relates and to initiate a `depending process' in relation to that
defender (p. 33H-I). That is a circumstance which does not feature in the procedural
history of the present case. Further, both the reasoning of the sheriff at first instance in
RBS v Mason and the opinion of the sheriff principal on appeal appear to focus solely on the
procedural history of the case in relation to the second defender. The report records that
the first defender had initially defended the action before consenting to decree against him
in terms of a joint minute. Thus, there were clearly striking differences between the
procedural history of RBS v Mason and that of the present case. Neither the sheriff's
reasoning nor the sheriff principal's opinion address the issue which arises in the present
case. In my view the sheriff's comment on which Mr Foyle founded was obiter and,
considered in context, does not bear the interpretation for which Mr Foyle contended.
[10]
It was clear to me that this longstanding rule applied to this case. I was not referred
to, and did not find, any reported case in which the court considered the application of the
rule to the circumstances of this case, in which multiple defenders receive intimation of a
writ on dates separated by a significant gap and none enters appearance. Whatever the
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historical origins of the rule, it seems to me that its application serves to provide some
measure of certainty and finality to the legal position of a non-compearing defender, who
can expect the pursuer, if intending to seek decree in absence against him, to take practical
steps to do so within a reasonable time after the end of the period of notice relating to him,
calculated according to the date on which the action was served on him. I recognise the
practical attraction of the pursuer's argument in a case such as this, which was raised
against a number of defenders jointly and severally. Against that the pursuer's approach
would mean that the application of this rule to a defender who has received intimation and
elects not to defend the action would be entirely dependent upon the success and timing of
the pursuer's efforts to locate and effect service upon the other defender(s). In a case
involving multiple defenders in which one defender receives intimation of the initial writ
and elects not to lodge a NID, the period of a year and a day in relation to that defender for
the purposes of this rule would commence on the expiry of the period of notice relating to
that defender if the pursuer is never able to, or elects not to, effect service on the other
defender(s). However, if service of the writ is subsequently effected on another defender or
defenders, the period of a year and a day in relation to the original non-compearing
defender would not commence until the expiry of the period of notice relating to the last
defender to receive intimation. Where, as in this case, the pursuer has difficulty in tracing
and effecting service on the final defender, the application of this rule to the original non-
compearing defender could potentially remain uncertain for a very significant period.
[11]
It appears to me to be most consistent with the underlying significance of this rule
for its application to be considered separately in relation to each non-compearing defender,
according to the date of expiry of the period of notice relating to that defender. This
approach is consistent with the practical guidance given in Macphail, paragraphs 7.06
7
and 7.09, to the effect that it is open to a pursuer to minute for decree in absence against a
non-compearing defender even where the action continues against another defender and
that it is regarded as a prudent course for the pursuer's solicitor to minute for decree in
absence as soon as possible after the expiry of the period of notice, not least to minimise the
scope for circumstances to arise which might compromise the pursuer's ability to seek or
enforce a decree in absence against a non-compearing defender. This approach is also
consistent with the approach of the sheriff and the sheriff principal in RBS v Mason, both of
whom appear to have focussed solely on the procedural history of that case so far as it
related to the second defender, who did not defend the action, without the necessity of
analysing the significance (for the second defender) of the procedural history relating to the
first defender in that case, who did initially defend the action before consenting to decree
against him.
[12]
For these reasons I reached the view in the present case that the action, so far as
directed against the first and second defenders, had fallen a year and a day after the expiry
of the period of notice applicable to them (McCulloch v McCulloch at p. 64F; Cringean v
McNeil 1996 SLT (Sh. Ct.) 136 at pp 137F and 138J-K). In these circumstances I refused the
pursuers' minute for decree in relation to the first and second defenders and, following the
approach of the sheriff principal in Cringean v McNeil, I made no further order in relation to
those defenders. I granted the pursuer's minute for decree in relation to the third defender.
[13]
Nothing turned on this particular point but it seems clear to me that, so far as the
application of this rule in the circumstances of the present case is concerned, the date which
appeared on the pursuer's minute for decree (25 October 2024) was of no significance. The
significant date was the date on which the minute for decree was lodged with the sheriff
clerk (25 February 2025), since it was only then that an action or response by the court was
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sought or, to use the language of the sheriff principal in RBS v Mason, `invoked' (Hughes,
Petitioner (1940) 56 Sh. Ct. Rep. 176).
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