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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Blackfriars (Scotland) Ltd v Laurie [1999] ScotCS 171 (14 July 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/171.html Cite as: [1999] ScotCS 171

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The defender is trustee in sequestration of the Shetland Salmon Company. He instructed solicitors to raise proceedings against the pursuers for payment of a debt due to Shetland in terms of invoices dated between 11 July, 1991 and 30 June, 1992. A summons was signeted on 27 June, 1997. The summons was amended before service, and warrant was granted for service of the amended writ. On 11 July, 1997 the defender's solicitors sent to the pursuers by first class recorded delivery post the service copy of the amended summons together with a citation in the form prescribed by the Rules of Court. The documents were received by the pursuers. From their terms the pursuers were aware of the action against them, knew that defences would be required following calling, and knew the period of notice applicable. However, the citation form had not been signed. The pursuers contend that the lack of signature by a qualified law agent was a fatal irregularity, and that the citation and all that followed from it should be reduced on grounds of nullity.

Following the posting of the documents, the defender's solicitor completed a certificate of service certifying that the summons together with the citation subjoined had been duly served on the pursuers. The pursuers contend that the invalidity of the citation undermines the certificate of service. The pursuers did not enter the process in the action for payment. If they had done so, they would have been disabled from challenging the validity of the procedure carried out: Rule of Court 16.11.

The parties lodged full notes of argument for the second diet of debate in this case, following amendment by the pursuers, as the basis for their oral submissions.

The Citation Act, 1592 provides:

The first issue which arises is as to the meaning of the expression "copys of summouondis" in the Act. For the pursuers, Miss Grahame argued that the words were to be interpreted as a reference to the schedule of citation: Maxwell: Court of Session Practice page 177; Izatt v Robertson (1842) 2 D 476; Erskine 4. 1. 4. For the defender, Mr Lake argued that the observations in Izatt were obiter; and in any event irrelevant since the case pre-dated postal service: Citation Amendment (Scotland) Act, 1882. Further, Erskine was in error in treating the 1592 Act as prior to the institution of the College of Justice, and was not reliable on this matter. He referred to Stair IV. 38. 15. There was no logical reason to read the expression as referring to anything but the summons itself, or to extend its application beyond that.

In my view, Miss Grahame's submission is to be preferred. The issue is, in my opinion, determined by Izatt v Robertson. The question in that case was as to the consequences of service of a summons which was unsigned together with a citation which was duly signed. That question had been decided by Lord Fullerton as Lord Ordinary in the earlier case of Bruce v Hill, when he followed Erskine in holding that the Act applied to the citation. The decision in Izatt affirmed that view. In Bruce v Hill Lord Fullerton referred expressly to the same usage in later statutes, perhaps anticipating the possible criticism of Erskine which was made by Mr Lake. The passage in Stair was before the Court. Lord Gillies dismissed it as having no application to procedures later than the time of which Stair wrote. Maxwell treats the 1592 Act as authority for the proposition that the schedule of citation requires to be signed. There is no doubt, difficulty in applying comments on procedure, necessarily made in the context of rules applying at the time, in later, different, procedural contexts. Mr Lake correctly argued that the court could not have had postal citation in mind. The Citation Amendment (Scotland) Act, 1882 first made provision for postal citation. Section 3 provided, inter alia, that any summons might be executed by an enrolled law-agent. The rules for service contained in section 3 required that the summons be posted "with the proper citation or notice subjoined thereto ..." There were, and remain, differences in the detailed procedures prescribed. However, the relative functions of the copy summons and the form of citation are the same in current practice as between personal and postal citation, and, in my view, there is no material difference which would allow one to distinguish Izatt.

The second issue between parties was whether the Act had been superseded by the code now contained in the Rules of Court. Mr Lake argued that the 1592 Act, and, so far Court of Session proceedings were concerned, section 3 of the 1882 Act, had been superseded by the Rules of Court which now regulated exclusively the relevant procedure. Section 3 was expressly repealed by Schedule 4 to the Rules. Rules 13.7, 16.1 and 16.4 regulated service, so far as material for present purposes. The new procedural code was comprehensive. The Lord Ordinary's opinion in Tait v Johnston (1891) 18 R 78 supported this approach. For the pursuers, Miss Grahame argued that Schedule 4 to the Rules of Court clearly distinguished those provisions of the earlier legislation which were superseded, and duly repealed, from those which remained in force. Part only of the 1882 Act had been repealed even on Mr Lake's argument. In terms of section 5 (m) of the Court of Session Act, 1988 one would require an express exercise of the court's power to repeal the 1592 Act.

On this issue also I agree with Miss Grahame. Schedule 4 to the Rules of Court provides for selective repeal of the former legislation on citation. The repeal of the Citation Acts 1540 and 1693 along with the partial repeal of the 1882 Act demonstrates the discrimination of approach which was followed. Tait v Johnston was decided by the Second Division without reference to the Lord Ordinary's obiter observations. Lord Kincairney's views were in any event expressed tentatively, and I do not consider that they have any material bearing on the present argument. The use of the form of citation, Form 13.7, is provided for by Rule of Court 13.7.-(1). The rule does not refer to signature. The form itself makes provision for signature. But there is no equivalent of Rule 4.2.-(1), which provides for the signature of the summons and of other documents. The form of citation is not among the documents dealt with in that rule. The form of summons, Form 13.2 -A, has provision for signature, and it is plain that the Rules are drafted on the basis that provision in the form is not a substitute for express provision in the Rules of such requirements as are intended to be imposed by them. Mr Lake accepted that there was no express requirement for signature of the form of citation in the Rules. In my opinion the structure and terms of the Rules are wholly consistent with the view that the 1592 Act, construed in the light of Izatt, remains the source of the requirement for signature of the citation of the defender in an ordinary action. Reading the sources together the Act does, and the Rules do not, make provision for signature of citations. In this respect the statute cannot be regarded as superseded by the Rules of Court.

The next question which arises is as to the consequences of the failure to sign the citation form. Miss Grahame's argument that the deficiency rendered the citation null was based substantially on observations in Izatt. Mr Lake's approach was materially different. He emphasised the function of citation. It was to bring to the attention of a defender the fact that an action had been raised against him. The form in the Rules of Court was not mandatory. In common with other forms it was sufficient to use a form to substantially the same effect as that prescribed: Rule 1.4. In Addison v Brown (1906) 8 F 447, Lord President Dunedin said, at page 447, that the "only object of citation is to give the receiver of the notice warning...". Mr Lake referred also to Steuart v Ree (1885) 12 R 563 in this connection as an illustration of the disinclination of the court to support a narrow application of the requirements of citation where there was actual communication. The Rules of Court reflected that view: Rule 16.11 cured a wide range of deficiencies where it applied. It was inconsistent with the view that the absence of a signature nullified the citation. All of the information that was required to be provided in a citation was communicated by the document sent in this case. All that was missing was the signature. The signature was not an essential of citation, but only a check upon the proof that citation had occurred: compare Shiells v Reid (1829) 7 S 535, at page 541, in the opinion of Lord Mackenzie. The signature might be an illegible scrawl. It might communicate nothing. When considered along with the Rules of Court, the 1592 Act had now to be considered as directory only. The omission of a signature could not be considered to reduce the citation to a fundamental nullity. Even if the Rules did not supersede the Act, it would be wholly artificial to apply the Act without reference to the Rules. The Act made no provision for the effect of failure in compliance. The court could relieve the pursuer of failure to complete the form by the application of its general dispensing power.

It is clear that citation does have a practical role in informing a defender of the raising of the action, and in communicating to him the timetable within which he must act in instructing a defence. It is equally true that the signature of the solicitor or messenger-at-arms may be the least communicative part of the citation, and will frequently be illegible. However, regular citation is an essential step in the initiation of a litigation: McLaren v McLaren 1956 S.L.T. 324. The solicitor or other officer in executing the citation represents his mandate to act for the pursuer and his authority as a qualified law agent to execute the warrant of the court, using Her Majesty's name. One would incline naturally to the view that the signature was an essential of such a formal step in the judicial process rather than a mere check on the fact that there had been a citation. In Izatt the court held that the Lord Ordinary had erred in applying the Act to the service copy summons rather than the citation. But there was no criticism of his view that failure to comply with the Act would imply a nullity. The only purpose of the 1592 Act is to require signature. In my opinion there is nothing in Addison v Brown, Shiells v Reid, or in Steuart v Ree which affords the support the defender sought in them. In Steuart v Ree the court rejected summarily an argument that there had been no citation of the defender "at his known residence..." where the court accepted that in fact the document had been received by or on behalf of the defender at the post office and taken to his house by an employee. Addison v Brown dealt with two technical issues, neither of which is analogous to the present case, namely whether the period of notice was accurately specified in terms of the 1882 Act, and whether a solicitor might execute a citation in a case in which he was pursuer. The observations relating to the function of citation have to be read in context. The 1592 Act was not considered at all. Lord Mackenzie's opinion in Shiells v Reid appears to me to point in the opposite direction from that for which Mr Lake contended. The case related to the question whether the mention of witnesses' names was an essential of a valid inhibition. The consulted judges held that it was not. But Lord Mackenzie having concurred in that view went on to say:

The omission of the signature required by the 1592 Act is no less a natural essential of citation than the name of the executor. Miss Grahame referred to passages in the opinions of Lord Glenlee and Lord Alloway, both at page 538. However, the judges of the Second Division were over-ruled by the consulted judges, and there is little in the dicta which can profitably be used in this case.

The interaction of the Act and the Rules of Court does not assist the defenders, in my view. The general dispensing power in Rule 2.1 is available only to relieve a party from the consequences of failure to comply with provisions of the Rules themselves. It cannot extend to a requirement of statute. The peremptory requirements of statute cannot be dispensed with: Scottish v Eastern Investment Trust Limited 1966 S.L.T. 285. Further, there is no incompatibility between a subsisting statutory requirement which is inflexible in application and rules which are subject to an over-riding dispensing power but which leave the statutory requirement untouched. A deliberate distinction between the two provisions merely serves to underline the absolute nature of the statute.

Mr Lake mounted a separate attack on the pursuers' case. Postal citation was provided for in the case of persons other than individuals by Rule of Court 16.1. -(1) (b) (ii). Posting the documents effected service on the day following the date of posting: Rule 16.4. -(6). The act of posting was, therefore, the correct focus. The same was true under the Citation Amendment (Scotland) Act, 1882: Alston v Macdougall (1887) 15 R 78. In Addison v Brown, at page 447, Lord McLaren gave emphasis to the point by noting that the service was effected by the post office. Postal citation was independent of the person who signed the notice. Where postal citation was effected in this way, it was valid unless the person on whom service was sought to have been made proved that the envelope and its contents were not tendered or left at his address. In terms of the 1882 Act, section 4, service was valid where the letter tendered was refused. It would be perverse if a citation were to be considered void when posted, but became valid when the addressee refused to accept it. The Rules of Court accorded with the treatment of the 1882 Act. The one provision which remained in force in relation to Court of Session proceedings was the proviso to section 4 which provided for the consequences of a variety of ways in which a summons was not delivered. If a defender refused to accept service, then the court could hold the tender of the writ equal to a good citation. That power was not qualified. If the pursuers' argument were valid, a nullity could be cured by an exercise of judicial discretion. Miss Grahame's response was simple and brief: a purported citation which was found to be a nullity was no citation at all for any purpose, and in particular for the purposes of Rule 16.4. If the defenders were correct, even bad faith would be irrelevant as a basis for attack on a postal citation. In my opinion, the defender's argument is misconceived. If it were valid, a purported postal service which contained a blank citation form would be validated by Rule 16.4.-(7). If it were to have the effect contended for, it would elide all requirements of valid postal service under the Rule, and grounds of challenge based on bad faith, limiting the scope of challenge to one issue, whatever breaches there may otherwise have been of the procedural requirements of statute or of the Rules themselves. The "contents" must be a service copy summons and a proper citation. If Rule 16.4. -(2) is not complied with, Rule 16.4.-(7) cannot retrieve the situation. If Mr Lake were correct there would be no content for Rule 16.11 except where the defender proved that he had not had the documents delivered or tendered at his address.

In the whole circumstances, I consider that the position adopted by the pursuer in relation to the citation is correct. As Mr Lake observed, there is little justice in this view: the pursuers take a purely technical objection to the citation in circumstances in which they had all of the information they required to respond to the summons. On the other hand, if the defender is prejudiced by the decision, other than in relation to expense of the proceedings, that is likely to be because the action was raised so near to the expiry of the prescriptive period that it was impossible to repeat the procedure and remedy the defect. It is only in such exceptional circumstances that an error such as has occurred in this case is material.

At the first diet of debate in this case, Mr Lake relied on Tait v Johnston for support for the argument that, given the terms of the certificate of service by the defender's solicitor, no steps having been taken to set that certificate aside, the pursuers could not competently challenge the citation as defective. That position was ultimately accepted by Miss Grahame. The pursuers' pleadings were thereafter amended to seek reduction of the certificate in addition to the citation. At the second diet of debate discussion concentrated on this issue.

Miss Grahame accepted that a duly executed certificate of service in Form 16.4 was probative. However, such a certificate was open to challenge on wide grounds. In former practice where fraud was alleged reduction-improbation was required. In all other circumstances simple reduction was appropriate: Graham Stewart on Diligence pages 332-4. Miss Grahame referred to a number of cases dealing mainly with the procedural requirements where fraud was alleged: McVitie v Barbour (1838) 16 S 1184; McLellan v Graham 30 June 1841, F.C.; Stewart v Macdonald (1860) 22 D 1514; and Reid v Clark 1914 2 S.L.T. 68. She referred also to Dickson on Evidence paras 1279-81, and Kincaid v Taylor 1974 S.C. 15. In that case it was contended by the pursuers that the certificate was completed in error. It certified that a summons and citation had been posted to the pursuers where that was clearly an error. If the certificate could not be shown to have been completed in error it would be impossible to attack the effectiveness of service except in cases of fraud or bad faith. If there had been a decree in absence in the defender's action, it could have been reduced having regard to the whole circumstances of the case, including the validity of the citation: Nunn v Nunn 1997 S.L.T. 182, Robertson's Executor v Robertson 1995 S.L.T. 429. That could not be correct if the certificate were conclusive despite proceeding on an error. Mr Lake argued that the authorities were plain: for the certificate of execution to be challenged there had to be either an ex facie defect, or allegations of fraud or falsehood. There were two starting points: Erskine 4.2.5 and Graham Stewart on Diligence at page 332. If ex facie regular, the execution could be overruled or redargued only by proof of falsehood: Reid v Clark. There was no suggestion of fraud or falsehood in this case. None of the authorities suggested that a mere error was sufficient for reduction. Mr Lake referred to Brown v W Richmond & Co. (1833) 11 S 407; Wallace v Hume (1835) 13 S 1034; and McLaren v Finlay (1835) 14 S 143 as illustrating the issues which had arisen. None gave guidance on what ultimately had to be proved. McVitie v Barbour illustrated what had been held relevant. It was concerned with falsehood. McLellan v Graham was a case of ex facie error. In Kincaid v Taylor Lord Kissen noted that he had not been referred to any case where a decree had been reduced because of a defect in citation where there was an unchallenged ex facie regular execution of service. Miss Grahame had produced none. In this case the certificate was accurate in what it said, that a copy of the summons and citation were sent, albeit the citation had not been signed. The Rules were concerned with the physical presence of the documents, not with some metaphysical question about something being deemed not to exist when it was present in fact. There was no falsehood and none was suggested. Nunn v Nunn and Robertson's Executor v Robertson did not assist: they were concerned with reduction of decrees in absence. They did not call into question the certificate of execution. There were no averments in the present case that the certificate of execution was a fundamental nullity.

The pursuers' averments in support of the reduction of the certificate of service are, in summary, that the certificate stated that the summons as amended was posted with "citation subjoined"; that the citation was a nullity, and therefore it was not properly attached to the summons; and that it was not properly tendered or left at the pursuers' address. The formalities and requirements of service were not met by the defender. The purported service was not valid. The solicitor is not said to have been aware of the defect in the citation. It is, of course, clear that when the certificate was prepared and executed the service copy summons and the citation form would have been in the hands of the present pursuers. The validity of the citation cannot be attacked standing an ex facie regular certificate of execution: Kincaid v Taylor. Lord Kissen stated at page 16 that the reduction of the execution must be specifically pleaded. But the problem is to define the grounds on which the certificate may be challenged where there are neither allegations of falsehood nor of ex facie deficiency.

Erskine 4. 2. 5 includes "executions upon summonses" in the class of official documents which "afford so strong evidence of the facts therein set forth, that they cannot be overruled or redargued otherwise than by a proof of falsehood". Having regard to the earlier discussion it appears appropriate to construe this as a reference to citation. It is necessary to have regard to the scope of the principle as explained by Erskine, and by Graham Stewart. The presumption applies to the solemnities of execution, the intrinsic facts, but not to any extrinsic facts stated. The solemnities of execution are the fact and manner of service, and that the defender was cited on the induciae mentioned in the summons: Graham Stewart pages 332-3. Signature of the citation is clearly a solemnity of execution. The generality of the statement in Erskine appears therefore to support fully Mr Lake's argument that the case is irrelevant in the absence of averments of falsehood. However, the discussion in Graham Stewart extends over a much wider range of examples. Gibson v Clark (1895) 23 R 294 dealt with reduction of an execution of service where the defect was said to be a difference between the date on the execution and the date set forth in the service copy of the petition. If the later of the two dates had been accurate, the sheriff would have disposed of the matter before expiry of the period of notice. It was held that the evidence of the copy petition was not sufficient to set aside the execution: Lord Adam at page 311. But there was no suggestion that error in date could not have warranted reduction if proved. The remaining examples in the text are similarly examples of error or disconformity of fact where there were no allegations of fraud or falsehood. In Reid v Clark Lord Ormidale discussed the appropriate procedure for challenge of an execution of citation. He said:

It is plain that he found no difficulty with the notion that simple reduction was competent where there was innocent error. The first class of cases was properly characterised by Mr Lake as cases of ex facie defect. Again simple reduction was competent without a requirement to aver falsehood or fraud. None of the opinions in the three cases deals with the issue as other than failure to comply with the statutory requirements. In McLellan v Graham a question arose again as to the need for reduction-improbation. The Lord Ordinary said at page 1214:

The court differed from the Lord Ordinary as to the effect of the errors, but agreed that simple reduction was competent. It follows, in my opinion, from these authorities that reduction is not restricted to patent error and fraud or falsehood, but is available at least in certain cases of innocent error.

The question therefore comes to be whether there are averments in this case sufficient to amount to error justifying reduction of the certificate of service. The essence of the pursuer's case is that the solicitor erroneously represented in the certificate that there had been a valid citation when in fact the purported citation was a nullity. None of the authorities cited deals with this issue. The circumstances in Kincaid v Taylor are similar, but Lord Kissen did not require to express a view on the issue since the certificate of execution was not challenged. In my view it was clear that Mr Lake was driven to the extreme position that the certificate had to be read as referring to the physical objects sent to the defender by recognition that his argument required to be valid whatever the defect in the citation. It would require to accommodate an error of date, of the period of notice, or of the designation of the defender. It would require to accommodate a blank form sent in error and unnoticed when the certificate came to be completed and executed. In principle the deficiency in the citation in this case is no different from any of these examples if it is correct to hold, as I have, that the absence of the solicitor's signature renders the citation null. There is nothing metaphysical in the view that a nullity cannot properly be given effect as a citation by describing it erroneously as such in a certificate.

It appears to me that Miss Grahame did find some support for her submissions in Nunn v Nunn and Robertson's Executor v Robertson. There would be an inconsistency in the law if a defender could seek reduction of a decree in absence on the ground that there had been a fatal defect in citation, with appropriate conclusions for reduction of the citation itself and the certificate of execution of service, but could not seek reduction before the decree passed. Those cases vouch the proposition that a decree in absence may be reduced if it is appropriate having regard to the whole circumstances of the case. A fatal defect in citation is a powerful indication that something has gone wrong in the procedure resulting in decree passing which might well incline the court to grant decree of reduction. Other facts and circumstances might weigh in the balance. But it seems to me that a defender who could demonstrate that he could not have entered the process without prejudice to the argument that he had not been validly cited, who had not delayed in seeking a remedy in independent proceedings, and who had a strong case against the regularity of his opponent's conduct of the prior action, might well obtain decree of reduction.

In the circumstances, with some reluctance, I am of opinion that the defences are irrelevant, and that the pursuers must have decree of reduction de plano. The pursuers' case is based on pure technicalities. But citation is a technical matter. I shall repel the defender's pleas-in-law, sustain the first, second and third pleas-in-law for the pursuers and grant decree accordingly of reduction of the citation and of the certificate of execution of service in terms of the first and second conclusions of the Summons.