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SHERIFF APPEAL COURT
[2025] SAC (Civ) 11
PAI-A71-22
Sheriff Principal Pyle
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL PYLE
in the appeal in the cause
JAMES RODGERS
Pursuer and Appellant
against
MOTONOVO FINANCE LIMITED
Defender and First Respondent
ARNOLD CLARK AUTOMOBILES LIMITED
Third Party and Second Respondent
Pursuer and Appellant: Skelly; Skelly & Co
Defender and First Respondent: Tosh, adv; Brodies LLP
Third Party and Second Respondent: Vaughan, sol adv; Morton Fraser MacRoberts LLP
7 April 2025
[1]
In this action, the appellant moved the court to allow the note of appeal to be
received late. The solicitor for the appellant, Mr Kelly, advised that the appeal was lodged
only one day late and was caused by him inserting the wrong date in his diary. In normal
circumstances such an administrative failure might be excusable. However, counsel for the
respondent (and the solicitor advocate for the third party who was content to adopt the
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respondent's submissions) submitted that the motion should be refused because the
grounds of appeal were so plainly without merit.
[2]
For obvious reasons, there was no note available from the sheriff, the action having
been dismissed at the diet of proof. Again in normal circumstances, it would not be open to
this court to proceed without the sheriff's detailed reasons and indeed without study of the
history of the action, including the written pleadings and the interlocutors. Nevertheless,
counsel submitted that it was still open to me to consider the grounds of appeal and what
actually happened on the day of the proof.
[3]
During the course of the hearing of the motion, I was able to interrogate the solicitor
for the appellant about the salient points put before me. He was able to agree with much
that was said by counsel, such that I was able to decide that the motion should be refused. I
indicated that I would set out my reasons in writing.
[4]
The first ground of appeal is in the following terms:
"The Sheriff has erred in law by dismissing the action. It is accepted that the Pursuer
was not in a position to proceed to proof. The Pursuer was unavailable due to being
called into a Child Protection meeting on the day of the proof, due to an incident
which occurred the night before. An award of expenses in relation to the abortive
expenses of the preparation and attendance at proof would have been the correct
course. If the action is re raised, which it will if this appeal is unsuccessful, virtually
all of the procedure prior to proof will have to duplicated, giving a windfall award of
expenses to both the defenders and third party. It will increase the time taken to
resolve the action and will not be an appropriate use of court time."
[5]
That ground did not explain the whole circumstances. On the morning of the proof,
the solicitor for the appellant moved the sheriff to allow amendment of the pleadings. He
did not produce a minute of amendment. He accepted that the possibility of a minute of
amendment had been mooted at a pre-proof hearing some weeks before, but that he had
done nothing about it, although at one point he appeared to suggest that the arithmetical
calculations which were required had not been available.
3
[6]
In any event, the important point was, as the solicitor admitted, that he had not told
his client to attend the proof, had not instructed a shorthand writer and had not cited the
relevant expert witness (although counsel disputed that this witness was properly an
expert). Thus he imperilled the action on the sheriff agreeing to a discharge of the diet of
proof for a minute of amendment to be lodged at some future date. It appeared that the
sheriff did not immediately dismiss the action because the solicitor seemed to have
attempted to take steps to proceed with the proof after the motion to discharge had been
refused. He said that he had been able to secure the services of a shorthand writer but it was
at that point that the so-called child protection issue apparently prevented the attendance by
the appellant. The position of the expert witness was obscure, although at one point the
solicitor seemed to be saying that there was a medical reason for the failure of the expert
witness to be present and that he had in his possession a medical certificate but that it was
not `soul and conscience' because the medical practitioner was not prepared so to certify.
That explanation however flew in the face of the solicitor's admission that he had not
prepared for the proof.
[7]
In these circumstances, the ground of appeal is unsatisfactory in its terms. It
suggests that the sheriff dismissed the action because of the non-attendance of the appellant
for what might be a proper reason. Instead, the ground is not candid, as it should have
been, about the true reasons for the failure, namely the irresponsible decision of the solicitor
simply not to prepare for the proof and to proceed merely in the hope that the sheriff would
allow the discharge.
[8]
The law is clear: a discharge of a diet of proof, particularly on the day, to allow
amendment of pleadings will be granted in only highly exceptional circumstances
(Dryburgh v National Coal Board 1962 SC 485; Strachan v Caledonian Fish-selling and Marine
4
Stores Co 1963 SC 157). It is one thing to seek a discharge where something occurs which
could not be reasonably anticipated; it is quite another for a solicitor to proceed in a reckless
manner without regard to the interests of the other parties, never mind the public interest,
both being matters of which the sheriff is bound to take account in the interests of justice in
its widest sense. As counsel pointed out, the circumstances of this case are similar to those in
Skiponian Ltd v Barratt Developments Scotland Ltd 1983 SLT 313, in which the Second Division
supported the sheriff's decision to grant decree of absolvitor (an option which was available
to the sheriff in this case).
[9]
As the ground of appeal recognises, it is still open to the appellant to raise another
action. The fact that he will be involved in additional expense is a consequence of the
cavalier conduct of his solicitor.
[10]
The second ground of appeal is in the following terms:
"The Sheriff erred in law departing from standard practice in awarding expenses
beyond those referred to above to the Third Party (TP). The pursuer raised the action
as a consumer under the Consumer Rights Act 2015 (the Act). The Act dictates the
trader, in this case the finance company, not the supplier of goods to the trader is
sued. The trader can seek indemnity against the supplier of the goods. If the Sheriffs
decision is correct the consumer would have to bare [sic] two sets of expenses."
Appeals against awards of expenses are severely discouraged unless there has been an
obvious miscarriage of justice, the expenses have become a great deal more valuable than
the merits or a question of principle is involved (see, eg, McNeil v National Coal Board 1966
SC 72). Counsel cited Prospect Healthcare (Hairmyres) Ltd v Kier Build Ltd 2018 SC 569 where
the Inner House expressly discusses (at paras [25]-[27]) the very situation which counsel said
arises in this case. In his submissions, the solicitor for the appellant did not address that
issue and, in particular, did not suggest that this case was other than all fours with the
example discussed in that case. Even if that point is discounted, a court would be well
5
entitled, as I can presume the sheriff did in this case, to regard the conduct of the solicitor to
be so egregious as of itself to be the deciding factor in dismissing the action and finding the
appellant liable in the expenses of the other parties.
[11]
The same point can be made in the decision for this court. While a mistake in a diary
can always be excused, the fact is that even at best the solicitor decided to leave everything
to the eleventh hour. That of itself is characteristic of a slapdash attitude to the conduct of
the action up to and at the diet of proof.
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