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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mowbray v. Valentine [2003] ScotCS 170 (06 June 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/170.html
Cite as: 2003 SCLR 677, [2003] ScotCS 170

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Mowbray v. Valentine [2003] ScotCS 170 (06 June 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Johnston

Lord Drummond Young

 

 

 

 

 

 

 

 

 

XA83/02

OPINION OF THE COURT

delivered by LORD OSBORNE

in

APPEAL

From the Sheriffdom of Tayside, Central and Fife held at Stirling

in the cause

JOHN RENTON MOWBRAY

Pursuer and Appellant;

against

KEITH VALENTINE

Defender and Respondent:

_______

 

 

Act: Party

Alt: Gardiner; Shepherd & Wedderburn, W.S. ((Defender and Respondent)

6 June 2003

[1]      In this action of damages, raised in Stirling Sheriff Court, the pursuer and appellant sought damages from the defender in respect of his alleged wrongful sequestration. The appellant was represented by a firm of solicitors, Beveridge & Kellas, throughout the course of the action until the initiation of the appeal to the sheriff principal. A diet of debate was assigned for 11 October 2001, the position having been that both parties had tabled preliminary pleas. On that date, with the consent of parties, the sheriff discharged the diet of debate, having been informed that there was a prospect of settlement of the action. The cause was continued to 20 November 2001 for a notional diet of debate. On this latter date the cause was continued again to 18 December 2001 to enable parties to lodge a joint minute of settlement. On that date the cause was further continued to 15 January 2002 to enable parties to lodge that minute. On 15 January 2002, the sheriff pronounced an interlocutor in the following terms:

"The sheriff, on the joint motion of parties made at the bar of the court, interpones authority of court to the joint minute for parties, No.16 of process, and in terms thereof, assoilzies the defender from the craves of the Initial Writ and finds no expenses due to or by either party."

In terms of Rule 31.1 of the Sheriff Court Ordinary Cause Rules 1993 it is provided:

"Subject to the provisions of any other enactment, an interlocutor which may be appealed against may be appealed within 14 days after the date of the interlocutor unless it has been extracted following a motion under rule 30.4(2) (early extract)."

Section 27 of the Sheriff Courts (Scotland) Act 1907, as amended, provides for the kinds of interlocutors against which appeals are competent from the sheriff to the sheriff principal. They include "all final judgments".

[2]      On 6 March 2002 the pursuer personally submitted a document in the sheriff court, No.17 of process, which is somewhat lacking in clarity. It was in the following terms:

"Because of the circumstances lately and now revealed to the pursuer, and which show that the pursuer's solicitor (Miss Harrison) operated to create a settlement illusion unharmonious and in disobedience of pursuer's concession package of terms and condition instructed to be followed by her and rule connected to any settlement bargain, these terms consisted of four elements, the last of which in particular has been absolutely ignored, his fourth point and condition covered the period from after diet of debate to end of action date and amounted to the defender accepting payment on agent and client basis that case part of the pursuer and his solicitor expenses, his solicitor represented to him his terms and conditions governed settlement achievement, only when the pursuer challenged the amount which was tendered to him as insufficient and deficient subsequent to the introduction of 15 January 2002 interlocutor and response received was he able to perceive that his instructions not followed as directed, and thereafter remedy of this situation has been rejected by his solicitor, the said solicitor has acted outside her remit, and THEREFOR PURSUER CRAVES THE CAUSE BE ENROLLED AND LISTED FOR APPEAL REVIEW AND HIS SOLICITOR BE FOUND LIABLE FOR EXPENSES OF THIS BRANCH OF PROCEDURE. Additionally pointed out pursuer suffers ill health problem and during latter period of December 2001 and into January and February 2002 needed treatment for recurring ill health problem. In respect whereof John Mowbray."

The cause was subsequently brought before the sheriff principal, who construed the document just quoted as constituting an appeal against the interlocutor of 15 January 2002. Since the document had been received outwith the days of appeal, he also treated it as a motion to allow an appeal to be received late, presumably in terms of the dispensing power available under Rule 2.1(1) of the Ordinary Cause Rules. Thereafter the sheriff principal heard the appellant personally and the solicitor for the defender in a hearing on 10 April 2002. On 11 April 2002, the sheriff principal pronounced an interlocutor in the following terms:

"The sheriff principal, having resumed consideration of the pursuer's opposed motion (No.17 of process) to allow an appeal to be received late, refuses same as incompetent; finds the pursuer liable to the defender in the expenses occasioned by the said motion; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report."

In the Note appended to this interlocutor the sheriff principal explains that he treated the document No.17 of process as a motion to allow an appeal to be received late and heard parties on both the competency and the merits of that motion.

[3]      On 26 April 2002, the appellant appealed the interlocutor of the sheriff principal, dated 11 April 2002, to the Court of Session. Following the transmission of the process to this court, on 12 July 2002 grounds of appeal were lodged by the pursuer, No. 22 of process. The appeal came before us on 25 April 2003 when the appellant appeared personally. The defender and respondent was represented by solicitors and counsel. Also before the court on that date were two motions at the instance of the pursuer. One of these was a motion to allow amendment of the grounds of appeal "to be received as No. of process and amend grounds of appeal in terms thereof". This motion was accompanied by proposed amendments to the existing grounds of appeal. There was also before the court a motion on behalf of the pursuer to adjourn the diet fixed for the appeal "due to the pressure of circumstances affecting the pursuer, and recent supply to 23/4/3 of fresh information to pursuer." These motions were opposed by the defender.

[4]      When the case came before us on 25 April 2003, we invited the appellant to address us first on his motion for amendment of the grounds of appeal. He stated that the proposed amendments to the grounds of appeal had been precipitated by a letter from Messrs Shepherd & Wedderburn, the solicitors acting for the defender, dated 22 April 2003, intimating their opposition to his motion. In addition to giving such intimation, that letter stated that, in response to the pursuer's own request, the writers were providing him with a copy of an account of expenses relating to the action, which was said to have been agreed at the sum of £2,200. The appellant then proceeded to elaborate and explain the proposed amendments to his ground of appeal. We refer to the document which he submitted itself for the terms of these proposed amendments. Paragraph 1 of this document appears to advance as a ground of appeal against the sheriff principal's interlocutor the circumstance that the appellant has become aware that Messrs Shepherd & Wedderburn were acting as solicitors "for massive company Smith Anderson Ltd said company having desire to acquire the pursuer's vested heritage. Contended conflict of interest appertains connected to this solicitor firm." The second paragraph of the document contains the following statement:

"Recent information discovered by the appellant demonstrates the source of the sum paid is from dominus litus (sic.) position connected to Lord Advocate Offices public purse for a private matter."

Paragraph 3 of the document contains the following statement:

"The cause has been wrongly influenced throughout by ANS 4 misrepresentative statements of a Public Service operation despite objection of pursuer. The implications against pursuer applying on interlocutors 8 June and 28 August 2001 should be reversed to benefit pursuer/appellant. His human rights in relation to fairness in law have been grievisly (sic.) infringed."

 [5]      Counsel for the defender, in opposing the amendment of the grounds of appeal, submitted that none of the information recently produced to the appellant related to the proposed amendments. In any event, none of the matters now sought to be introduced into the grounds of appeal was relevant to the interlocutor and associated note of the sheriff principal. Furthermore, the proposed amendments to the grounds of appeal did not conform with Rule of Court 40.14(2).

[6]      Having considered the motion and the opposition to it, we decided to refuse the motion for amendment of the grounds of appeal upon the basis that the matters sought to be introduced into the grounds of appeal in the new document were palpably irrelevant to the issues arising in the appeal itself.

[7]      The appellant next moved his motion to discharge the diet of appeal. He made reference to new information, already mentioned. He went on to say that he felt unprepared to conduct his appeal, since he had recently been heavily engaged acting as the political agent of his wife, who was a candidate in the impeding local government elections in Fife. He agreed that a discharge of this diet of appeal had been sought on 19 March 2003 on substantially the same ground, save for the issue of new information. On that occasion the discharge had been refused. Counsel for the defender opposed the motion for the discharge of the diet. The diet had been fixed for many months. There was no substantial reason why it should not proceed.

[8]      In the light of what was said concerning this motion we decided to refuse it. As regards the other activities of the appellant, these had been addressed on 19 March 2003 when a similar motion was refused. So far as the new information was concerned, in our view that was irrelevant to the issues properly arising in this appeal.

[9]      Accordingly the appeal proceeded. The appellant commenced by objecting to an appendix for the respondent, No.24 of process, which he said had been lodged late and not intimated to him. The Rules of Court in regard to that matter had been ignored. We understood him to contend that it was improper for any use to be made of that document. We should make clear that, in the succeeding debate, no use was in fact made of it. Accordingly we do not consider it necessary to say more about this matter.

[10]      The appellant then proceeded to make submissions in support of his appeal. He explained that the solicitor acting previously for him in the action, Miss Harrison, had had no authority to settle the action on the basis on which she did. He drew our attention to a letter by him dated 23 January 2002, which is to be found at page 1 of the appendix for the appellant, which contained his complaint against his solicitors. He also referred to a telephone call between himself and Miss Harrison on 19 November 2001, in which he had explained to her what he wanted. He was then told that his demands were to be accepted by the defender. The essence of his complaint was that, in the settlement actually attained, Miss Harrison had not obtained expenses over the relevant period on an agent and client basis. In this connection reference was made to a letter from Beveridge & Kellas to the appellant, dated 25 January 2002, in which the position had been explained to him. He said that he also complained regarding the conduct of the defender, in respect that the Lord Advocate appeared to be the dominus litis. He emphasised that he had not authorised the terms of the joint minute. He accepted that a number of legal authorities stood against his contentions in this appeal. However, he referred to Gloag and Henderson, unknown edition, page 298, para.28. He submitted that Miss Harrison had exceeded her authority. For all these reasons he sought the recall of the interlocutor pronounced by the sheriff under which authority was interponed to the joint minute. On the assumption that that course was taken by the court, he said that he wished to have a proof before answer in relation to the actions of his solicitor.

[11]      Counsel for the respondent submitted that the appeal should be refused and that the court should adhere to the interlocutor of the sheriff principal. He explained that he was to make two main submissions. First, the appeal was incompetent because the interlocutor pronounced by the sheriff on 15 January 2002 was consented to by the appellant. Further, the agent then acting for the appellant had in any event had actual authority to settle the action on the basis on which it was settled. Secondly, in any event, if the agent then acting for the appellant did not possess actual authority to proceed in that way, because she was a procurator in the sheriff court conducting the action, she had ostensible authority to compromise the action on the basis on which it was compromised, thus binding her client. In any event, it was to be submitted that the appellant had not shown that, even if the appeal were competent, the sheriff principal had erred in the exercise of his discretion not to relieve the appellant from the consequences of his failure to appeal timeously.

[12]      Turning to deal with the issue of actual authority, reference was made to the letter of 25 January 2002 from Beveridge & Kellas to the appellant, item 2 in the appendix for the pursuer, No. 23 of process. It was apparent from that letter that the appellant's solicitors stated that the appellant's instructions were that he would accept £5,000 in full and final settlement of the claim, together with expenses on a party and party basis up to the diet of the debate, no enforcement by the defender of the awards of expenses which he had against the appellant in respect of the diet of debate and the amendment procedure and that Messrs Beveridge & Kellas's fees on an agent and client basis from after the diet of debate to the conclusion of the case were to be settled by the defender, with no further liability resting upon the appellant. This letter had been the subject of discussion before the sheriff principal. At page 2 of his Note he referred to it. He also narrated that, at the hearing before him, the appellant had accepted that his instructions were as described in this letter. He went on to point out that, as was the case, the only difference between the instructions given by the appellant and the settlement achieved had been in relation to the taxation basis for the expenses following upon the diet of debate. However, Messrs Beveridge & Kellas had waived their right against the appellant to claim expenses on an agent and client basis and had contented themselves with the expenses recovered from the defender, which were on a party and party basis. The sheriff principal had concluded that that point of distinction between the appellant's instructions and the facts of the settlement possessed no materiality in the circumstances. That conclusion was correct. In this situation, it could be contended that Messrs Beveridge & Kellas had acted within the terms of their actual authority.

[13]      Turning to the issue of ostensible authority, counsel for the respondent submitted that an agent who was acting as a procurator in the sheriff court has ostensible authority to compromise an action. In connection with that proposition he referred to Gloag, Contract, 2nd ed., page 147. Coming to the specifics of the situation, he relied upon the article on agency in the Stair Memorial Encyclopaedia of the Laws of Scotland, Vol.1, page 253, para.613 where it is stated that a solicitor employed to conduct a case in court has implied authority to employ counsel and, if acting as a procurator, to compromise or abandon the action in court. The position of a procurator was equiparable to that of counsel as explained by Lord President Inglis in Batchelor v Pattison & Mackersy (1876) 3 R. 914. He also referred to Jongejan v Jongejan 1993 S.L.T. 595, although he accepted that that case related to the actings of counsel. However, it was submitted that the position of a solicitor acting as a procurator in the sheriff court was identical with that of counsel. In that connection reference was made to Rome v Watson (1897) S.L.T. 106. Reliance was also placed on William McKenzie (Carpenters) Ltd (in receivership) v Mowat 1991 S.L.T. (Sh.Ct.) 48, a decision of Sheriff Principal Ireland. He had concluded that a solicitor, acting as a procurator, had implied authority to compromise or abandon an action in court and that in the case in question the defender was bound by the actings of his solicitor regardless of whether actual authority had been conferred upon the solicitor so to act.

[14]      Counsel accepted that there might be thought to be some authority against the proposition which he was advancing, in particular, Cormie v Grigor (1862) 24 D. 985. That case could be distinguished on its facts from the present one. However, that action had been an action of reduction and damages at the instance of the principal against her some-time agent. It was not an action concerned with the ostensible authority of a procurator in the sheriff court.

[15]      Upon the assumption that the foregoing submissions were wrong, the case of Torbat v Torbat's Trustees and Others 1906 S.L.T. 830 showed that a procurator had authority to waive their entitlement to their expenses.

[16]      Counsel for the respondent then proceeded to submit that nothing had been said which showed that the sheriff principal had erred in the exercise of his discretion not to relieve the appellant in respect of his failure to appeal timeously. However, under reference to page 4 of the sheriff principal's Note, it was pointed out by the court that the sheriff principal did not appear to have made a decision on that aspect of the case. He had simply observed that, had he not refused the motion on the grounds of competency, he would have refused it as a matter of discretion.

[17]      The appellant replied. There then followed some discussion as to what the sheriff principal had in fact done. In that connection, the appellant stated that he had been advised by the sheriff court authorities that his appeal to the sheriff principal was late. However, he contended that that was not so. He also raised for the first time the matter referred to in paragraph 2(A) of the grounds of appeal. He complained that he had been summoned to attend before the sheriff principal in his chambers following the making of avizandum. The purpose of this had apparently been to afford him the opportunity of making any representation that he desired on the expenses of the appeal. He had been informed that the respondent's solicitors had already addressed the sheriff principal. As a separate matter the appellant went on to deny the accuracy of what the sheriff principal had said at the bottom of page 2 of his Note as regards what had passed during the course of the debate in the appeal before him. He contended that the matter of the expenses and the basis of their taxation was a matter for the litigant, not the solicitor.

[18]      Before expressing our decision in this case we would observe that there is some ambiguity in the terms of the sheriff principal's interlocutor of 11 April 2002. The sheriff principal has explained in his Note that he treated the motion, No.17 of the Sheriff Court Process, as a motion to allow an appeal to be received late. However, the interlocutor appears to indicate that that motion was refused as incompetent. We have difficulty in understanding how a motion to allow an appeal to be received late could be said in any circumstances to be incompetent. Accordingly we proceed upon the basis that the sheriff principal refused the motion upon the basis that the appeal which it sought authority to bring late would itself be incompetent. That view appeared to accord with the approach of the sheriff principal as explained in his Note.

[19]      In the light of the submissions made to us, we have no hesitation in concluding that the sheriff principal was correct in deciding that the appeal sought to be brought before him late was an incompetent appeal. The appeal was one sought to be taken against the interlocutor of the sheriff of 15 January 2002, which interlocutor interponed authority to the joint minute for the parties, No.16 of process and assoilzied the defender from the craves of the Initial Writ. On that occasion, the sheriff was giving effect to a joint motion made on behalf of the appellant and the respondent. In these circumstances, we consider that it is not open to the appellant subsequently to challenge such an interlocutor upon the basis that his solicitor did not in fact possess authority to compromise the action in the way in which that was done. Plainly, if counsel had been involved in the transaction, there could have been no argument about the issue, since counsel possess an ostensible authority to compromise an action regardless of the instructions of their client. The authorities brought to our attention persuade us that the position of a procurator responsible for the handling of an action in the sheriff court is no different to that of counsel. In this connection we refer to the Stair Memorial Encyclopaedia of the Laws of Scotland, Vol.1, page 253, para. 613; Torbat v Torbat's Trustees; McAthey v The Patriotic Investment Society Ltd 1910 S.C. 584, a case cited before the sheriff principal; William McKenzie (Carpenters) Ltd (in receivership) v Mowat and Gloag, Contract, 2nd ed., page 147. We were not persuaded that the case of Cormie v Grigor was to a contrary effect. That case was an action of reduction and damages brought by a principal against, among others, her some-time agent. It was not concerned with the issue of the ostensible authority of a procurator in the sheriff court, but rather with the issue of the actual authority of an agent in a question with his client.

[12]      In all of these circumstances we can see no merit in the present appeal which will accordingly be refused.

[13]      In our view, if the appellant has any grounds for criticism of what occurred at the time of the settlement of this action, that is a matter which could only be taken up by him directly with his former solicitors. However, having regard to the contents of the letter of Messrs Beveridge & Kellas, dated 25 January 2002, we have great difficulty in seeing how their handling of the matter has caused any loss to the appellant in any way.

[14]      Before parting with this case we feel it appropriate to say something concerning the matters referred to in ground 2(A) of the appellant's grounds of appeal. Although the facts of the matter are not wholly clear, it appears that the hearing of the appeal before the sheriff principal concluded by his making avizandum without hearing any representations on the matter of expenses. Thereafter it appears that the sheriff principal subsequently dealt with that matter in an informal way, hearing the solicitor for the respondent alone and subsequently the appellant. We think that this approach to the matter of expenses, which may have been overlooked at the formal hearing was somewhat irregular. However, it is difficult to see that any injustice has followed from it, since the sheriff principal did accord to the appellant himself the opportunity of making any representations he wished on the matter.

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