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SHERIFF APPEAL COURT
[2025] SAC (Civ) 8
FFR-SG243-22
Sheriff Principal N A Ross
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL N A ROSS
in the appeal in the cause
LONDON PROPERTY SERVICES (REPAIR & MAINTENANCE) LIMITED
Claimant and Respondent
against
KILWARTON LIMITED
Respondent and Appellant
11 March 2025
[1]
In this Simple Procedure action, decree for the principal sum of £3,438.68 was
awarded on 2 December 2022 to the claimant and respondent ("LPS") in respect of defective
works carried out by the respondent and appellant ("Kilwarton") to a property in London.
That award was appealed. The appeal was refused on 3 October 2023. There was a later
and unsuccessful attempt at a second appeal.
[2]
The original decree for payment dated 2 December 2022 contained no award of
interest on the principal sum. It found no expenses due to or by either party. Neither party
challenged the non-award of interest. The decree of 3 October 2023 refused the appeal and
adhered to the interlocutor of the sheriff, without awarding interest. On 30 October 2023
Kilwarton was found liable to LPS in the expenses of the appeal procedure.
2
[3]
LPS then submitted an account of their appeal expenses for taxation. An account of
expenses was approved by the court on 8 October 2024.
[4]
The present appeal arises out of subsequent events. By email of 27 October 2024,
LPS' representative contacted the original sheriff court and asked for interest on the
principal sum. LPS had included this in its account of expenses and the auditor, rightly,
identified that this was beyond his jurisdiction. LPS intimated to the court that they wished
to claim interest of £353.82 from the date of decree until payment. It appears from
contemporary correspondence that Kilwarton paid the principal sum on 19 January 2024.
[5]
As a result of LPS' application for interest, the sheriff court fixed a further hearing, in
the form of a case management hearing, on 8 November 2024. The sheriff noted that the lay
representative of Kilwarton claimed the parties had reached an extra-judicial agreement, to
include a sum for interest, but that the lay representative of LPS disputed this. She noted
that both parties accepted that judicial interest was payable at 8% a year from the date of
decree to the date of payment, unless otherwise agreed. The dispute between them was
whether a settlement agreement had been reached.
[6]
The sheriff considered contemporary correspondence and found that no agreement
had been demonstrated. She considered that the sum claimed of 8% a year was reasonable,
and awarded the sum claimed.
Submissions for Kilwarton
[7]
Kilwarton raised a new but related point, not argued before the sheriff, to challenge
whether there was any liability to pay interest. The original interlocutor made no award of
interest, and neither did the appeal judgment, which adhered to the sheriff's interlocutor. In
any event the sheriff erred by awarding interest. The sheriff had erred in not interpreting
3
the correspondence as creating a binding agreement about interest to be paid. Further
evidence could have been led but was not, because this was a case management hearing and
not a proof. There were procedural irregularities, with documents being unavailable online,
short notice and no fair notice of the various points to be raised. Emails submitted for
Kilwarton had been unavailable to the court.
Submissions for LPS
[8]
The sheriff had not erred. There had been agreement which related only to the
principal sum, but there remained an entitlement to claim for expenses and interest, which
was not agreed.
Decision
[9]
This appeal is against a decision which followed the final judgment in the action.
While the sheriff attempted to resolve a subsequent issue between the parties, in accordance
with the need to provide speedy, inexpensive and informal resolution, she did not have
power to do so.
[10]
In any action, including Simple Procedure cases, once the court has pronounced final
decree it has no further power to resolve other matters. It is functus officio. The original
interlocutor did not award interest. LPS did not appeal that decision. The appeal court did
not interfere with the decision on interest. The claim was then at an end. If the principal
sum remained unpaid thereafter, the remedy for LPS was to raise a new claim. The Simple
Procedure rules do not allow for any further hearings after final decree.
[11]
The interlocutor of 8 November 2024 was beyond the sheriff's powers, and must be
quashed. The appeal must be allowed.
4
[12]
For completeness, there is a general principle that there is an entitlement to interest,
as a matter of law, from the date of decree (Macphail, Sheriff Court Practice (4th Ed)
paragraph 9.102). An entitlement, however, is not enough, and that entitlement can only be
enforced by obtaining a judicial award. LPS does not hold any judicial award. It cannot
seek an award in the present action, in which the sheriff was functus officio from 2 December
2022 onwards. It is also worth mentioning that, even if LPS now raised a separate claim,
there is a further obstacle. Interest was sought in the present action but not awarded. The
claim for interest has been litigated and is res judicata. It cannot be litigated again.
[13]
It is therefore unnecessary to resolve the question of whether there was an agreed
settlement. It may be observed that the sheriff's reasoning appears sound. It was for
Kilwarton to prove the existence of any agreement upon which it purported to rely.
Although complaint is made of defective procedure, no submission was made that there was
further evidence available, or that more time was required. At present, however, LPS has no
enforceable right to seek interest from Kilwarton.
Disposal
[14]
The appeal is allowed. The question posed by the sheriff in the Appeal Report falls
to be answered in the affirmative. As Kilwarton has been successful, LPS will be found liable
in the expenses of the appeal, as taxed.
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