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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDonald v. Stirling Council [2005] ScotCS CSIH_79 (18 November 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_79.html Cite as: [2005] ScotCS CSIH_79, [2005] CSIH 79 |
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McDonald v. Stirling Council [2005] ScotCS CSIH_79 (18 November 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Macfadyen Lord Mackay of Drumadoon Lord Marnoch
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[2005CSIH79] XA63/05 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL by JAMES McDONALD Pursuer and Appellant; against STIRLING COUNCIL Defenders and Respondents: _______ |
Act: Party (Pursuer and Appellant)
Alt: I.F. Maclean; Dundas & Wilson (Defenders and Respondents)
18 November 2005
Introduction
[1] This appeal arises out of an interdict obtained by the pursuer against the defenders on 22 June 1993. The pursuer brought proceedings for breach of that interdict. The case was appointed to debate on 18 May 2005. The pursuer failed to appear on that date. The sheriff found the pursuer in default and dismissed the action. The pursuer has appealed to this court against that decree of dismissal.Procedural history
[2] On 25 January 1993 the defenders' statutory predecessors, Central Regional Council, applied to the Sheriff at Stirling for a summary warrant for recovery of arrears of community charge. Attached to the application were 182 pages on which were listed the names and addresses of persons alleged to have failed to pay sums due by them in respect of community charge. The pursuer was included in that list. Summary warrant was granted in accordance with that application on 27 January 1993. [3] The pursuer raised an action of interdict against Central Regional Council, in which he sought interdict and interim interdict against the Regional Council effecting any diligence that purported to proceed on the warrant granted on 27 January 1993. On 18 May 1993 interim interdict was granted as craved. [4] The Regional Council did not enter the process and on 22 June 1993 the interim interdict was, in absence, made perpetual. [5] After the perpetual interdict had been granted, the Regional Council realised that the interdict which had been granted at the instance of the pursuer might be construed as preventing them from enforcing the warrant granted on 27 January 1993 not only against the pursuer, but against any of the persons named in the list appended to the application of 25 January 1993. They therefore presented a reponing note against the decree of interdict granted in absence on 22 June 1993. It appears that the reponing note was presented on or about 20 July 1993. It was refused. [6] On 16 July 2004 the pursuer raised an action against the defenders alleging breach of interdict. In the action the pursuer craves (i) payment of £100,000 for breach of interdict (erroneously referring in the crave to the interim interdict of 18 May 1993 rather than the final interdict of 22 June 1993) and (ii) an order on the defenders to deliver up to the pursuer the 182 sheets containing the list of names attached to the application for summary warrant dated 25 January 1993 "to enable the pursuer to examine the extent of the defenders' breach of interdict". [7] In article 3 of the condescendence the pursuer avers that by letter dated 22 June 2004 the defenders indicated "that they have misdirected themselves in law in their interpretation of the said interdict orders and have continued to collect sums due under the warrant interdicted". In article 4 of the condescendence the pursuer avers that, having been granted the interdict, he "is entitled to moniter (sic) the actions of the defender" in this regard and "accordingly entitled to the sum sued for in establishing the breach of interdict". [8] By interlocutor dated 22 March 2005 the action was appointed to debate on 18 May 2005. On that date the pursuer did not appear. The sheriff pronounced an interlocutor finding the pursuer in default and dismissing the action. It is against that interlocutor that the pursuer now appeals.The issue
[9] The pursuer does not dispute that in deciding whether to grant decree of dismissal by default the sheriff was exercising the discretion conferred on him by rule 16.2 of the Ordinary Cause Rules. In terms of rule 16.2(1) a party is in default if he fails to appear or be represented at a diet, which, by virtue of rule 16.2(3), includes a debate. In terms of rule 16.2(2), where a pursuer is in default, the sheriff may grant decree of absolvitor or of dismissal. [10] It follows that the issue for us to determine is whether the sheriff, in deciding in the present case to grant decree of dismissal, acted in a way which was beyond the proper scope of his discretion in the circumstances of the case.The pursuer's submissions
[11] In his submissions to us the pursuer explained that he had discovered, when his daughter attempted to buy her local authority house, that the defenders would not entertain such an application until arrears of community charge due by her had been paid. He had looked into the matter, and discovered that there were about 20 people, who had been mentioned in the warrant of 27 January 1993, who had had to make payment of the arrears of community charge to which that warrant related before they were allowed by the defenders to exercise their rights to buy local authority houses tenanted by them. No mention of these circumstances appears in the pursuer's pleadings. The pursuer's position appears to be that the interdict granted in his favour on 22 June 1993 prevents the defenders, not merely from doing diligence on the warrant dated 27 January 1993, but from enforcing payment in any way of the debts in respect of which that warrant was obtained. On that view of the effect of the interdict, the pursuer maintains that he is entitled to bring this action; that it is, involving as it does a breach of interdict, a matter of great importance; and that since he failed to appear at the debate merely as a result of a mistake in the entry which he made in his diary (his intention to proceed with the action having been made clear by his paying the fees applicable to the debate a few days before), it was an unreasonable and disproportionate exercise of the sheriff's discretion to grant decree of dismissal. The sheriff could and should have continued the case to a further peremptory diet.The defenders' submissions
[12] For the defenders, Mr Maclean submitted that the primary consideration to be taken into account by the sheriff in exercising his discretion under rule 16.2 was the interests of justice. Two aspects of the circumstances fell to be taken into account, namely (1) whether the default was excusable and (2) whether the pursuer had an arguable prima facie claim. He accepted that, on the basis of the explanation tendered by the pursuer, it would be difficult to maintain that the default was inexcusable. He submitted, however, that the pursuer's action was plainly incompetent and irrelevant. [13] In support of the submission that the action was incompetent, Mr Maclean made two separate points. The first was that the second part of the crave, which sought an order for production of the list of persons to whom the warrant related to enable the pursuer to examine the extent of the defenders' breach of interdict, was incompetent. That was because to grant such an order would compel the defenders to act in breach of their obligations under data protection legislation. The second point was that a complaint of breach of interdict required to be made in the form of inviting the court to impose a penalty for the breach rather than in the form of a claim for damages. [14] As to the relevancy of the action, Mr Maclean made a number of submissions. There was, he said, no relevant averment of breach of interdict. The pursuer's approach was wrong, in so far as he maintained that the interdict prohibited any enforcement of the debts to which the warrant related, rather than reliance on the warrant. In so far as the pursuer's case depended on the narrative about twenty people who had had to pay their community charge arrears in order to proceed to purchase their local authority houses, there was nothing in the pursuer's pleadings about those matters. In these circumstances the sheriff was entitled to take the view that the pursuer's pleadings did not disclose an arguable case, and on that basis to grant decree of dismissal in respect of the pursuer's default. It was to be noted that the sheriff had chosen not to grant decree of absolvitor. The pursuer was therefore not irretrievably prejudiced. If he had a good claim, he could pursue it by raising a fresh action.Discussion
[15] In our opinion, to succeed in this appeal, the pursuer would have to persuade us that the sheriff, in granting decree of dismissal in respect of the pursuer's failure to attend at the diet of debate, had made a decision which fell outside the proper scope of his discretion. We proceed on the basis that the pursuer's mistake as to the date of the debate would probably have been regarded as excusable if he had had a meritorious case to advance. We do not consider, however, that the pursuer has an arguable case. The principal point against him is that on any reading of it the interdict went no further than to prohibit reliance on the warrant of 27 January 1993. It did not prevent the defenders from enforcing by other means the debts to which the warrant related. That misunderstanding on the pursuer's part of the effect of the interdict undermines his whole case. Even if he had cured the lack of specification in his pleadings by making averments about the persons who had to pay arrears of community charge in order to have their applications to buy their local authority houses accepted, the case would have remained irrelevant. He has, as a result, no relevant averments of breach of interdict. Moreover, he has no relevant averments in support of his claim for damages. [16] So far as the issues of competency are concerned, we accept that the claim for delivery of the list of names attached to the warrant is not a competent remedy available to the pursuer in the circumstances of this case. We are not persuaded, however, that it is incompetent for the pursuer to claim damages for breach of interdict without first invoking the authority of the court to punish the defenders for that breach. The authorities which Mr Maclean cited in that connection, which we need not discuss in detail, were concerned with the proper scope of procedure by petition and complaint in the Court of Session. They do not seem to us necessarily to preclude a simple action of damages for recovery of loss allegedly caused by actings in breach of an interdict. The pursuer's difficulty lies not in the incompetency of the claim for damages, but in the absence of relevant averments of breach of interdict or of loss resulting therefrom. [17] We are in these circumstances of opinion that the sheriff was fully entitled to conclude that, even if the pursuer's default was excusable, the action was clearly irrelevant, and that the interests of justice did not require the default to be excused.Result
[18] For these reasons we refuse the appeal, and adhere to the sheriff's interlocutor of 18 May 2005 dismissing the action.
