JUDGEMENT

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC

in the cause

KEVAN M SMITH LIMITED

Pursuers and Respondents

against

MR E TEVENDALE

Defender and Appellant

Act: Miss Linda Fyffe, solicitor, Thorntons, Dundee

Alt: Miss Julie Greig, solicitor, Stronachs, Aberdeen

Aberdeen: 2^nd September 2008

The sheriff principal, having resumed consideration of the cause, refuses the motion for the defender, no. 8/1 of process, to be allowed to appeal, although late, against the interlocutor of the sheriff dated 4th June 2008; finds the defender liable to the pursuers in the expenses of the hearing on 14th August 2008 and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In the initial writ in this case the pursuers craved the court (1) to grant decree against the defender for payment to them of the sum of £4,321.31, (2) to grant decree against the defender for payment to them of the sum of £20,000.00, and (3) to find the defender liable to them in expenses. A notice of intention to defend was in due course lodged by solicitors on behalf of the defender. The case then followed the normal procedure in an ordinary cause, and in particular an options hearing was assigned to take place on 23rd January 2008.

[2] Rule 9.8(1) of the Ordinary Cause Rules provides that the parties may adjust their pleadings until fourteen days before the date of the options hearing, or any continuation of it. In this case the pursuers evidently did adjust their pleadings. In particular they adjusted the aggregate sum of £24,321.31 originally sought in terms of craves 1 and 2 to the sum of £9,608.31. But it is not in dispute that they never formally amended either of craves 1 and 2 to give effect to this adjustment. This they could have done without leave of the sheriff in terms of rule 18.1(1) which provides that, in a cause in which all other parties have lodged defences or answers, the pursuer may, before the closing of the record, alter any sum sued for by amending the crave of the initial writ, and any record. It is apparent from an examination of the initial writ that at no stage in the proceedings were craves 1 and 2 amended in accordance with this provision.

[3] On 14th January 2008 the pursuers lodged a record of the pleadings as required by rule 9.11(1) which provides that the pursuer shall, at the end of the period for adjustment referred to in rule 9.8 (1), and before the options hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record. In this record there are shown two craves. In terms of crave 1 the pursuers purportedly sought decree against the defender for payment to them of the sum of £9,608 81, and in terms of crave 2 they sought to have him found liable to them in expenses.

[4] At the options hearing on 23rd January 2008 the sheriff on cause shown continued the hearing until 20th February 2008. Shortly afterwards the pursuers adjusted the sum sued for again, this time to the sum of £12,575.69. But once again they did not formally amend the craves in either the initial writ or the record which had been lodged on 14th January 2008. On the other hand, on 15th February 2008 in anticipation of the continued options hearing they lodged a second copy of the record as required by rule 9.11(3) which provides that, where the options hearing has been continued under rule 9.12(5), and further adjustment or amendment is made to the pleadings, a copy of the pleadings as adjusted or amended, certified by the pursuer, shall be lodged in process not later than two days before the options hearing so continued. In this second copy of the record there were again two craves as in the first record, and in crave 1 the sum sued for was now stated to be £12,575.69.

[5] At the continued options hearing on 20th February 2008 the sheriff closed the record, allowed parties a proof of their respective averments and assigned 7th July 2008 for this purpose. He also assigned 25th June 2008 as an "intermediate proof diet" which I take to be a pre-proof hearing such as is authorised under rule 28A.1(1).

[6] On 7th May 2008 a letter dated 2nd May 2008 was received in the sheriff clerk's office from the defender's solicitors in which they intimated their resignation from acting for him in terms of rule 24.1(1). By interlocutor dated 9th May 2008 the sheriff therefore assigned a peremptory diet to take place on 4th June 2008 in terms of rule 24.2(1). As required by the sheriff in terms of this interlocutor, and in accordance with rule 24.2(3), the pursuers' solicitors duly intimated the peremptory diet to the defender by recorded delivery letter at the address given for him in the instance of the initial writ. According to the defender, when the letter was delivered at this address he no longer resided there. It was said that the property had been rented out by him and that he had had difficulty in recovering mail from the tenants. But it was not argued on his behalf that the peremptory diet had not been properly intimated to him in accordance with rule 24.2(3).

[7] At the peremptory diet on 4th June 2008 there was no appearance by or on behalf of the defender. According to the interlocutor of that date the sheriff on the motion of the pursuers discharged the diets which had been assigned for 25th June and 7th July 2008 respectively and thereafter granted decree by default against the defender in terms of craves 1 and 2 "of the initial writ" (sic) and found the defender liable to the pursuers in the expenses of the cause as taxed. It is not apparent whether either the solicitor who then appeared for the pursuers (and who it seems was a local agent instructed by the pursuers' principal solicitors) or the sheriff were aware of the discrepancy between the terms of the craves in the initial writ and those in the version of the record which had been lodged in advance of the continued options hearing. But it was not argued on behalf of the defender that the sheriff had been at fault in granting decree in these terms, and this is perhaps not surprising given that there had never been any formal amendment of the craves in terms of rule 18.1(1).

[8] On 19th June 2008 the sheriff clerk issued an extract of the interlocutor dated 4th June 2008 in the following terms:

The sheriff granted decree by default against the defender for payment to the pursuers of the undernoted sums.

Sums decerned for (1) £4,321.31 with interest at eight per cent per annum from 10th October 2007 until payment; (2) £20,000.00 with interest at eight per cent per annum from 10th October 2007 until payment; found the defender liable to the pursuers in the expenses of the cause as taxed.

The extract was evidently received by the pursuers' solicitors on 20th June 2008, and on that same day they wrote to the sheriff clerk inter alia as follows:

We refer to the above and return the extract decree for payment. The decree is incorrect as it reverts to the original initial writ which had 2 craves for payment. We would refer you to the continued options record which was lodged in process and which states the sum sued for as £12,575.69 which is the correct amount.

We would be grateful if you would kindly send us a fresh extract decree in terms of the crave in the continued options record.

This letter and the extract decree itself were received in the sheriff clerk's office on 23rd June 2008.

[9] On 23rd July 2008 a note of appeal against the interlocutor of 4th June 2008 was lodged on behalf of the defender by his current solicitors. This was accompanied by a motion on his behalf in terms of which he moved the court to allow him to mark an appeal, although late, in terms of rule 2.1 of the Ordinary Cause Rules 1993. The pursuers lodged a notice of opposition to this motion on 25th July 2008, and on 14th August 2008 I heard parties' solicitors on the motion.

[10] The first question discussed with whether it was competent for me to grant the motion given that the interlocutor of 4th June 2008 had already been extracted before the note of appeal and accompanying motion were lodged. I was referred here to Alloa Brewery Co Ltd -v- Parker 1991 SCLR 70. In that case the sheriff granted decree against the defenders and this was extracted and a charge served upon them. Thereafter they marked an appeal and lodged a motion to allow the appeal to be heard, although presented late. They sought to persuade the sheriff principal to exercise the dispensing power contained in what was then rule 1 of the Ordinary Cause Rules. The sheriff principal held that it was not competent to allow the appeal to proceed after extract had taken place. The defenders appealed to the Court of Session which affirmed the decision of the sheriff principal, holding that it was not competent to exercise the dispensing power to allow an appeal to be marked late against a decree which had been extracted.

[11] This decision is reflected in the statement in Macphail's Sheriff Court Practice (3rd Edn) at paragraph 18.19 where it is said: "As a general rule, there can be no appeal against an extracted interlocutor, unless the interlocutor or the extract has been improperly and incompetently issued". I understood both parties' solicitors to accept that this statement was a correct statement of the law. It was submitted for the defender that in the present case an appeal would be competent upon the basis, so it was said, that the extract had not been properly issued, the pursuers having failed to amend the sum sued for either before or at the time of seeking decree by default and having as a result obtained an extract decree for payment to them by the defender of a sum almost double that which they had considered was due to them as evidenced by their position on record. It was, said the defender's solicitor, inequitable that the pursuers should be entitled to obtain the benefit of such an extract decree, and the fact that it did not reflect the pursuers' true position entitled me to hold that it had been issued irregularly with the result in turn that I was entitled, if so minded, to exercise the dispensing power to allow the appeal to be marked late. Reference was made here to Millar -v- Millar 1992 SLT (Sh Ct) 69 and Wanderers World Ltd -v- Marco's Leisure Ltd 2000 SLT (Sh Ct) 79.

[12] In response the pursuers' solicitor submitted that the decision in Alloa Brewery was binding on me with the result that I should hold the defender's motion to be incompetent. She sought to distinguish the two authorities relied on by the defender's solicitor and submitted that in the present case, since the sum sued for had never been formally amended, the decree by default had been competently sought and granted and the extract had likewise been competently issued thereafter. Reference was made here to Nortech -v- Aeroskip Sports Ltd 1996 SLT (Sh Ct) 94.

[13] In my opinion the submissions for the pursuers on this aspect of the matter are to be preferred. As already indicated, it was not argued that the sheriff had erred in granting decree by default against the defender in terms of the original craves in the initial writ, and the extract which was subsequently issued by the sheriff clerk reflected faithfully the terms of this decree. In these circumstances I do not consider that either the sheriff's interlocutor or the extract can be said to have been improperly or incompetently issued, and it follows that I am bound by the decision in Alloa Brewery and must refuse the defender's motion as incompetent.

[14] For the sake of completeness here I should perhaps mention that at one point in her submissions the defender's solicitor submitted that I would be entitled to grant the defender's motion, not only where the extract had been improperly issued, but also where it had been obtained in bad faith. She did not develop this particular submission and I therefore express no opinion on it beyond observing that I have not seen or heard anything to suggest that there is any basis upon which it might be said that the pursuers or their solicitors had acted at any stage of the proceedings in bad faith. There may have been a degree of ineptitude on the part of these solicitors and they may not have been as familiar with the rules, and in particular rule 18.1(1), as they ought to have been. But that is a different matter altogether.

[15] In other circumstances I might have felt most uncomfortable at being obliged to refuse the defender's motion given that the pursuers had obtained an extract decree for payment to them by the defender of a sum almost twice that which they had eventually maintained was due to them. But I have been reassured in this case by two considerations. In the first place, the pursuers' solicitor stated explicitly that the pursuers would only seek to enforce the extract decree in respect of the sum of £12,575.69 which was the sum sought in crave 1 in the version of the record produced for the continued options hearing. And secondly, even if it had been competent to grant the defender's motion, I should not have been persuaded that it would have been appropriate to exercise the dispensing power which is now available under rule 2.1(1) to relieve the defender from the consequences of his failure to comply with rule 31.1 which, in short, requires an appeal to be lodged within fourteen days of the date of the interlocutor against which the appeal is to be taken.

[16] Rule 2.1(1) provides that the sheriff may relieve a party from the consequences of failure to comply with a provision in the rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit. So a party seeking to rely on this rule has to overcome two hurdles. Firstly, he must show that his failure to comply with the rule in question has been due to mistake, oversight or other excusable cause, and secondly, if he overcomes this first hurdle, he must persuade the sheriff in the exercise of his discretion to relieve him from the consequences of his failure. In this case, had it been necessary to decide the point, I should have held that the defender had failed at the first of these hurdles.

[17] In submitting that the defender's failure to lodge the appeal timeously had been shown to be due to mistake, oversight or other excusable cause, the defender's solicitor explained that his former solicitors had written to him on 22nd February 2008 following the fixing of the proof at the continued options hearing. According to him, he had not received this letter. These solicitors had written to him again on 24th April 2008 saying that they would resign from acting for him if they received no response from him within the following seven days. He had not responded and accordingly on 2nd May 2008 they had written to the court intimating their withdrawal from acting for him, and had written to him on the same day to advise him what they had done. For most of March and April this year he had been working away from home in Inverness. He had received the letter dated 24th April 2008, but not until after 2nd May 2008 when it had been too late to respond timeously to it. He no longer resided at the address given for him in the instance. He had rented out the property and had been having difficulty in recovering mail sent to him at that address. He had also been experiencing difficulties with Royal Mail as they would not allow his business mail to be delivered to his new address - why was not clear - which meant that he had continued to use his former address as the address to which his business mail should be sent. Intimation to him of the peremptory diet fixed for 4th June 2008 had been made to him at this address, but he had not received the letter containing the intimation. He had only learned that the decree by default had been granted against him when his former solicitors had written to him on 24th June 2008 (after the extract had been issued). He had then instructed his current solicitors. He accepted that on receipt of the letter dated 24th April 2008 he should have done something to ascertain the position in the proceedings against him in this court, but he had overlooked doing so until after the existence of the extract decree had been brought to his attention. This oversight on his part had been attributable to the fact that he had been working away from home and had been unable to manage his affairs. In these circumstances, so it was submitted, his failure to appear at the peremptory diet and thereafter to appeal timeously had indeed been due to oversight on his part.

[18] In response the pursuers' solicitor submitted that the defender had been aware of the proceedings against him and had had a duty to instruct his then solicitors in connection with these proceedings. She suggested that it was difficult to understand his explanation that the Royal Mail would not allow his business mail to be sent to his new address. If he had been aware that there was a problem with the delivery of his mail, he should have ensured that he received this somehow. There was no dispute that the peremptory diet had been properly intimated and that the recorded delivery letter had been signed for. The defender could have contacted his former solicitors before they had withdrawn from acting for him on 2nd May 2008, and having received the letter of the 24th April 2008 (albeit after 2nd May 2008) he had had ample opportunity to instruct other solicitors before the peremptory diet or the issue of the extract decree. In the circumstances there had been no mistake or oversight on his part or other excusable cause which would justify invoking rule 2.1(1) in this case.

[19] Had it been necessary for me to decide this aspect of the case, I should have preferred the submissions for the pursuers. The defender was well aware of the proceedings against him and yet over a period of at least four months or so between late February and late June this year he did nothing at all to keep in touch with his solicitors. Even when he admittedly received their letter of 24th April 2008 he still did nothing to retrieve the situation albeit that he had ample time and opportunity at that stage to do so. It was only after he learned of the existence of the extract decree that he was eventually moved to do what he ought to have done many weeks, if not months, previously. In these circumstances it will not do in my opinion for him to maintain now that his failure to appeal timeously was due to mistake, oversight or other excusable cause.

[20] It was accepted that the defender should be found liable to the pursuers for the expenses of the hearing on 14th August 2008 in the event that his motion was refused, as it has been.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Kevan M Smith Ltd v. Tevendale [2008] ScotSC 25 (02 September 2008) URL: https://www.bailii.org/scot/cases/ScotSC/2008/25.html Cite as: 2009 SLT (Sh Ct) 21, [2008] ScotSC 25, 2008 GWD 32-479

Scottish Sheriff Court Decisions

JUDGEMENT