SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Brodie Lord McGhie	[2013] CSIH 65 XA92/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the cause ERIC IAN McDERMID Pursuer and Appellant; against D & E MACKAY (CONTRACTORS) LTD Defenders and Respondents: _______________

Act: Laing; Digby Brown LLP

Alt: Love; HBM Sayers

20 March 2013

[1] The pursuer sues the defenders for damages in respect of an injury, which he avers he suffered, as a result of an accident at work on 2 July 2008. The injury involved the amputation of part of his left index finger. The action was raised on the eve of the expiry of the triennium and sisted for a period, pending the production of certain reports.

[2] On 23 December 2011, the Sheriff allocated a diet of proof for 23 April 2012. At that time the pursuer was represented by Messrs Allan, Black & McCaskie, Solicitors, Elgin. However, he experienced difficulty obtaining appropriate legal aid or other funding and ultimately his agents decided to withdraw from acting.

[3] On 13 February 2012, the pursuer's agents wrote to the court in terms of OCR 24.1 intimating their withdrawal from acting. On 14 February, in terms of OCR 24.2, the sheriff appointed the defender to serve upon the pursuer a notice in Form G10, requiring him to appear personally or be legally represented at a diet fixed for 16 March 2012 under certification that, if he failed to do so, the action may be dismissed. At this time the address given for the pursuer was in Buckie. It is not disputed that he had not lived there for several months and had taken up residence in Huntly.

[4] Meantime, on or about 1 March 2012, the pursuer had consulted Messrs Digby Brown, solicitors, Inverness, with a view to them taking over agency. He did not explain to them that his former agents had formally withdrawn from acting, simply that he sought alternative representation. On that basis, maintained Messrs Digby Brown, they had no cause to take any prompt action. Rather, they took the view that they could not accept instructions from the pursuer without, first, seeing the relevant file and establishing whether the pursuer had a stateable case and, secondly, ensuring that proper funding arrangements could be put in place. They wrote to the pursuer's former agents seeking the file on 7 March 2012. They received this file on 19 March 2012, although by that time the particular agent with Digby Brown was on leave and did not return to the office until 27 March. Even then, she did not, because of other work, review the file until 4 April.

[5] However, on 20 February the defenders' agents had sent to the pursuer a copy of the interlocutor and Form G10 by First Class Recorded Delivery. This was received by the occupier of the address in Buckie on the following day. Although the name of the receiving person is stated on the Post Office receipt to be "McDermid", the signature is of a quite different nature. It is that of the pursuer's former partner. A precognition from her confirmed that she had signed for the Recorded Delivery envelope, but had not passed it on to the pursuer, even although, following upon their separation in the previous November, she had still kept in contact with him. It was said that the envelope was never opened. She had intended to pass it onto the pursuer but had forgotten to do so. At all events, it is not disputed in this process that the pursuer did not receive the interlocutor or Form G10, albeit that they had been properly served at the address in the instance. The pursuer explains that he had told his former agents of his change of address but, for one reason or another, but not unusually, that had not translated itself into an amendment of the instance.

[6] When the case called on 16 March 2012, there was, of course, no appearance by or on behalf of the pursuer and the sheriff accordingly granted decree of dismissal. It is of passing interest to note that, although such a sanction is specified in the interlocutor, Form G10 does not specifically refer to it.

[7] On 5 April, Messrs Digby Brown made enquiries of the court concerning the action and were advised of the decree of dismissal. They immediately faxed a Note of Appeal to the court. On 11 April the Note was formally lodged. However, in terms of OCR 31.1, the interlocutor of 16 March could only be appealed within 14 days. Accordingly, even the faxed Note of Appeal was some 5 days late. A motion also lodged therefore to excuse the failure to appeal timeously, utilising the provision in OCR 2.1, which entitles the sheriff to relieve a party from the consequences of a failure to comply with the rules where it can be shown that the failure has been due to "mistake, oversight or other excusable cause".

[8] This motion was heard by the Sheriff Principal on 23 April 2012 and refused. The Sheriff Principal explains that he did not consider that anything that had occurred amounted to a mistake, oversight or other excusable cause. In so holding he states that "the starting point" was that any competent firm of solicitors "must be taken to be familiar with the rules relating to personal injuries procedure in the Sheriff Court". This was particularly so in the case of the particular new agents instructed by the pursuer. The Sheriff Principal was of the opinion that the first thing that these agents ought to have done, upon being consulted by the pursuer, was to ascertain the procedural position of the action, given that there might have been an imminent proof or other procedural step requiring attention. In addition, he found it hard to understand why the agents had not appreciated that it was very probable that the former agents had withdrawn and hence that it was likely that there would be a peremptory diet in the offing. The Sheriff Principal took the view that, since the Sheriff could not be faulted for having proceeded to grant decree of dismissal at the peremptory diet, it was "beside the point" that the pursuer had not in fact received due intimation of the diet.

[9] It was submitted on behalf of the pursuer that the Sheriff Principal had erred in the exercise of his discretion. Although in the written grounds of appeal there are a variety of complaints about the weight which the Sheriff Principal had placed, or not placed, on particular factors (which would not found a good ground for interfering with a discretionary decision), the central submissions came to be that his error was the failure to take into account that the pursuer had not received intimation of the peremptory diet and the assessment that the "starting point" was a consideration of the actings of the new agents. Reference was made to Macphail: Sheriff Court Practice (3^rd ed) at para 18.111; McChristie v EMS Promotions 1991 SLT 934; Connelly v Lanarkshire Health Board 1999 SC 364; Thomson v Glasgow Corporation 1962 SC (HL) 36; and G v G [1985] 1 WLR 647. The defenders countered that, in terms of these authorities, the court would only interfere with a discretionary decision in limited circumstances. Reference was made also to Little v Little 1990 SLT 785. The sheriff had asked the correct question, taken into account all the circumstances and reached a decision which he was entitled to reach.

[10] The court will not, of course, interfere with a discretionary decision of a Sheriff or Sheriff Principal, unless it can be shown that:

"... he misdirected himself in law or failed to take into account a relevant and material factor or reached a result which was manifestly inequitable or plainly wrong" (Little v Little 1990 SLT 785, LP (Hope) at 786, following Gray v Gray 1968 SC 185, Lord Guthrie at 193).

In this case, the court is satisfied that the Sheriff Principal did fail to take into account a relevant, indeed highly relevant, consideration, namely whether the pursuer had in fact received intimation of the peremptory diet and hence whether he was made aware of the interlocutor of 16 March. Whether his appeal against that interlocutor succeeds or not, if the pursuer was not aware of it until his agents contacted the court on 5 April, that is a significant factor (although by no means a conclusive one) which must be taken into account in determining whether to excuse a party for failing to lodge an appeal on time. The failure to have proper regard to that factor materially undermines the validity of the discretionary decision of the Sheriff Principal. In the circumstances of this case, it is not legitimate to use as a "starting point" the actings of Digby Brown, as if they had accepted instructions and were the pursuer's new agents. These agents might have instantly made enquiries as to the progress of the action. On the other hand, unless they were aware of any special urgency, they were perfectly entitled to refrain from doing anything until they were satisfied that it was proper for them to act and had funding arrangements in place. The court is thus satisfied that this is a case in which the dispensing power should be applied to relieve the pursuer of the consequences of his failure to appeal in time. His failure to do so was caused directly by the fact that he was unaware of the interlocutor against which he wished to appeal and the delay involved in failing to do so is measured as a matter of a few days.

[11] The court accordingly allows the appeal, recalls the interlocutor of the Sheriff Principal and, in effect, permits the pursuer's appeal to proceed, although late.