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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Nolan v. Anderson & Innes Ltd & Anor [2003] ScotSC 41 (09 July 2003) URL: http://www.bailii.org/scot/cases/ScotSC/2003/41.html Cite as: [2003] ScotSC 41

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KILMARNOCK 9 JULY 2003

The Sheriff Principal having resumed consideration of the cause Dismisses the appeal constituted by the note of appeal number 20 of process as being incompetent for want of leave from the sheriff; Refuses the third party and appellants' motion to remit the cause to the sheriff for him to consider the motion number 7/6 of process for leave to appeal; Finds the third party and appellants liable to the defenders and respondents in the expenses of the appeal procedure; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report thereon; Remits the cause to the sheriff to proceed as accords.

BA KERR

NOTE:

In this action the pursuer sues his employers for damages in respect of an injury said to have been sustained when he was using a hired cement mixer in the course of his employment. The defenders have convened into the action as third party the hirers to them of the cement mixer alleging breach of contract on their part in respect of the condition of the cement mixer. The third party although duly convened by the usual procedure giving notice that inter alia they must lodge answers within 28 days of a named date failed to do so and later, some six weeks after the answers were due, lodged a motion (number 7/5 of process) craving the court to allow the answers (which were produced therewith) to be received late "in respect that there was a delay on the part of the third party's insurers in instructing their agents to respond to the third party notice". This motion was opposed by the defenders and refused by the sheriff, after a hearing, with expenses of the motion to the defenders; he at the same time discharged an imminent diet of proof on the pursuer's unopposed motion and fixed a new diet for a date some three months later. On the sixth day after their motion had been refused the third party lodged a motion (number 7/6 of process) seeking leave to appeal the interlocutor refusing their earlier motion and a hearing sixteen days later was fixed before the sheriff on that motion for leave to appeal. Prior to the date of that hearing however on the fourteenth day after their original motion had been refused the third party also marked an appeal to the sheriff principal by lodging a note of appeal (number 20 of process) under and in terms of Ordinary Cause Rule 31.4 in which they stated two grounds on which they maintained that the sheriff had wrongly exercised his discretion in refusing to allow their answers to be received late and requested the sheriff to write a note. This the sheriff duly did but not until he had first heard argument on the motion for leave to appeal on the appointed day, which was opposed by the defenders. The sheriff decided that the marking on the fourteenth day of an appeal to the sheriff principal by the note of appeal (number 20 of process) had rendered him, the sheriff, functus officio so that it was no longer competent for him to entertain the motion for leave to appeal and accordingly it would be inapposite for him to express any view on it.

When the case called before me for hearing of the appeal marked by the note of appeal (number 20 of process) all three parties were represented although, as matters turned out, the pursuer's solicitor made no contribution to the ensuing debate and was given leave to withdraw at lunchtime without opposition and without making any motion for expenses. The first issue on which I was addressed for the defenders and the third party was the competency of the present appeal which had been marked without leave by the lodging of the said note of appeal. Argument centred on the application to the present circumstances of section 3(h) of the Sheriff Courts (Scotland) Act 1907. For the defenders it was maintained straightforwardly that the interlocutor now appealed which had refused the third party's motion to allow their answers to be received late could not be viewed as a final interlocutor so as to be appealable without leave since it did not deal with liability for the expenses of the third party's involvement in the cause and it did not deal either with disposal of the subject-matter of the cause so far as the third party's involvement in it was concerned; in order to deal with the subject-matter of the cause the interlocutor would have to encompass determination both of the incidence of liability if any to pay damages to the pursuer and the quantification thereof, in which respects no order against the third party yet existed and conceivably no such order would ever come to exist if for instance the pursuer failed in his case against the defenders. I was referred to Macphail on Sheriff Court Practice (second edition) at paragraphs 18.34 and 18.36 and also to Governors of Strichen Endowments v Diverall (1891) 19R 79 and Lloyd v Thompson 2001 SLT (Sh.Ct.) 127. For the third party it was contended that the interlocutor now appealed against was tantamount to a final interlocutor so that leave to appeal was not required. The effect of the said interlocutor was to disallow the entry of the third party into the process so that only formal steps remained to enable the defenders to obtain decree against the third party if and when any entitlement of the pursuer to obtain damages was determined; effectively it brought the present litigation to an end so far as the third party were concerned and its continuation could only be for the purpose of an executorial or operative decree being obtained against them. On this point it was said that no reported authority existed. An argument was advanced by reference to certain rules of the Court of Session to the effect that anomalous results would flow in sheriff court procedure if the present interlocutor now appealed were not to be regarded as final in effect. Reference in particular was made to rules 19.2 and 26.6 of the Rules of the Court of Session whereby a finding, order or decree against a third party who fails to lodge answers is treated in that court as equivalent to a decree in absence and so is not reclaimable but may be recalled. This was said to be equivalent to a reponing procedure under chapter 8 of the Ordinary Cause Rules in the Sheriff Court. It would be anomalous, it was suggested, for the present appeal to require leave when any further interlocutor pronounced against the third party after proof would be a decree in absence against which the third party would be entitled to lodge a reponing note, the test for granting which was now less stringent than that for relief against a failure to lodge answers timeously. In this respect I was referred to Forbes v Johnstone 1995 SLT 158 and it was submitted that the better approach was to treat the sheriff's interlocutor as in effect a final judgement against which an appeal did not require leave.

Having heard these submissions I was not in doubt that those advanced for the defenders were correct and those for the third party incorrect so that the former should be preferred and I informed parties of my opinion to that effect there and then. The interlocutor presently under appeal does not deal, even between the defenders and third party alone, with each of the issues of (i) liability and the extent thereof, (ii) quantification of any amount payable by way of damages or (iii) the expenses of the action. In my opinion only a decree moved for and granted after all issues of liability and quantification have been determined first between the pursuer and the defenders could have these necessary effects so as to fit the statutory definition contained in section 3(h) of the 1907 Act. I am not at all convinced that practice in the Court of Session under rules 26.6 and 19.2 of the Rules of the Court of Session can have any bearing on the interpretation or application of this statutory definition enacted for the sheriff court and I view the rules and practice of the Court of Session as irrelevant to the issue before me here.

Having announced to parties my opinion as to the competency at this stage of the appeal, being one that required leave of the sheriff which had not been obtained, I then heard submissions on a motion made at the bar for the third party asking me now to remit the cause back to the sheriff for him to hear and determine the motion number 7/6 of process which had been timeously lodged but not dealt with by him when it had called before him on a date subsequent to the marking of the present appeal. It was said that this motion had therefore remained in process in a state of suspension never having been dropped and could and should now be dealt with. Although this motion was made at the bar both parties had envisaged that it might require to be argued and had prepared themselves to do so. I was referred in the course of argument on the point to the following authorities:-

Reference was also made to Ordinary Cause Rule 31.5 and to section 32(2) of the Court of Session Act 1988.

The position adopted by the solicitor for the third party and appellants was that the present case fell to be distinguished from that of MacDonald by virtue of the fact that here a motion for leave to appeal had been timeously lodged and was in the circumstances simply waiting to be dealt with, whereas in MacDonald no such motion had been lodged in advance and the sheriff principal had to decide whether he could competently remit the cause (ie the admittedly incompetent appeal) back to the sheriff to consider whether to grant leave which had not yet been sought so as to render the appeal competent. The sheriff principal there had held that he had no power to do so but I need not have any such difficulty because the necessary motion was already timeously in process awaiting attention. The marking of the present appeal subsequently had merely suspended that motion, leaving it to be taken up and dealt with later if necessary. It was therefore open to me to remit the cause for the sheriff to consider that already extant motion and I should do so forthwith. The other cases referred to were likewise distinguishable from the present on the same ground since they too were concerned with appeals which had been taken without any prior motion being enrolled for necessary leave and in any event their appeals were not to a sheriff principal but to the Court of Session.

For the defenders and respondents the cases of McArthur and Sheltered Housing were founded on for the propositions that the marking of an appeal without leave cut off any power in the sheriff to grant leave thereafter and that a remit now to the sheriff for him to hear the motion number 7/6 of process would in effect amount to the start of a new (or second) appeal. It was submitted that the prior lodging of that motion did not materially distinguish the present case and I was invited to follow the sheriff principal in MacDonald's case in holding that the sheriff principal had in any event no power to make such a remit.

I have to say that I am not in agreement with either of these submissions, or at least not with the whole of each, although I have nevertheless a clear opinion as to how the situation which has arisen ought properly to be viewed. If the final sentence of paragraph 18.20 in the second edition of Macphail, to which I was referred, were to be taken as correct and comprehensive that would be an end to the matter; it is there stated that "where leave to appeal is required and an appellant has proceeded to appeal without leave he cannot thereafter return to the sheriff (or sheriff principal) to seek leave" and the footnote cites the cases of McArthur and Sheltered Housing to which I was referred. These decisions of the Inner House of the Court of Session indeed support the proposition so far as it goes and I see no reason why their ratio should not be equally applicable to an appeal from the sheriff to the sheriff principal. The first was an appeal to the Court of Session from a sheriff and the second was an appeal to the Court of Session from the sheriff principal but in both cases the appeal had been taken without leave in circumstances where it was held or accepted that leave was required and in neither case had leave to appeal been sought in advance. In each case the process having been transmitted initially to the Court of Session found its way back to the sheriff court where the sheriff or sheriff principal purported on a motion of the appellant to grant leave to appeal although late and the process was transmitted back to the Court of Session. In neither case had the process been remitted to the sheriff court for the particular purpose of leave to appeal being considered by the sheriff or sheriff principal. It was held in effect in both cases that the marking of an appeal without leave deprived the lower court of any competence to pronounce an interlocutor granting leave to appeal because the marking of the appeal took the matter out of the hands of the lower court which was thereby rendered functus officio. In each case reference was made to the power conferred on the Court of Session by section 32(2) of the Court of Session Act 1988 to remit the cause to the sheriff principal or sheriff with instructions but in each case the Inner House did not elect to exercise that power.

From these decisions I take it to be established that the marking of an appeal without leave having been obtained, whether to the sheriff principal or to the Court of Session (between which I see no ground of distinction in this regard), has the effect of rendering the sheriff functus officio and so unable to deal with any matter (save for matters of interim possession and the like as provided for by OCR 31.10) unless and until the cause be remitted back to the sheriff by the appellate court, as stated in paragraph 18.69 of the second edition of Macphail. As Lord Prosser put it in the McArthur case at 932FH the power of the sheriff to grant leave to appeal cannot survive the significant act which constitutes the appeal, namely the marking of it: the sheriff cannot thereafter grant leave and so turn an incompetent appeal into a competent one. It follows from this in my opinion that where, as in the present case, a motion for leave to appeal has been timeously lodged but not yet heard the subsequent timeous lodging of a note of appeal has the effect not of suspending that motion so as to preserve it for possible later consideration but of superseding it as if it never had been lodged. The lodging of the note of appeal without leave having first been obtained has the effect of transforming what might have become an appeal with leave into an appeal without leave and ready to proceed as such with that character alone: it cannot in my view have an intermediate effect of creating a hybrid appeal to proceed for the time being as one without leave until such time as it may be declared incompetent by the superior court but carrying with it an ability then to revert to its former character of a potential appeal with leave. For this reason I take the view that the present case is not materially distinguishable from that of MacDonald (or from the cases of McArthur and Sheltered Housing) by virtue of the motion number 7/6 of process having been timeously lodged prior to the lodging of a note of appeal: in all four cases the actual marking of the appeal had the effect of rendering the appeal one proceeding without leave whether a motion for leave had been earlier lodged or not. It follows also that the sheriff in the present case viewed the position correctly in my opinion at the hearing before him of the motion number 7/6 of process set down for 25 July 2002 and was entirely correct procedurally in his handling of the matter as explained by him in the last four paragraphs of his subsequent note to his interlocutor of 3 July 2002.

As narrated above I was moved to remit the cause to the sheriff for him to consider the motion number 7/6 of process. That motion however is for the reasons given in the preceding paragraph no longer extant in my opinion, having been superseded by the marking of the appeal without leave having been obtained. Nevertheless it might be open to me to remit the cause to the sheriff to consider the matter of leave of new, ie on a new motion enrolled, albeit the sheriff could then grant leave to appeal only if he was also willing to grant a dispensation under OCR 2.1 which would permit a motion for leave now to be lodged late. That presents a difficulty because I doubt whether any sheriff could properly exercise the discretion conferred by OCR 2.1 in favour of granting the necessary dispensation in the circumstances here disclosed. This appears to me to be a situation in which the appellants have straightforwardly misread the law in seeking to assert that the sheriff's interlocutor now sought to be appealed was a final interlocutor when by all accepted canons it clearly was not. It appears also to be a situation in which they have sought, albeit unsuccessfully, to ride two horses by marking an appeal without leave while maintaining at the same time the possibility of proceeding with leave should that prove necessary.

I was urged, as also narrated above, to follow the lead of the sheriff principal in the case of MacDonald in declaring it to be incompetent for the sheriff principal to remit the cause to the sheriff to consider the granting of leave to appeal on the view that the sheriff principal has no power to remit similar to that conferred on the Court of Session by section 32(2) of the 1988 Act, which is in the following terms: "On any such appeal [to the Court of Session under section 28 of the Sheriff Courts (Scotland) Act 1907] the court may if it thinks fit remit the cause to the sheriff principal or sheriff with instructions.". I am not however inclined to follow the lead of my learned colleague in this particular matter and find myself reluctant to subscribe to the view that the sheriff principal does not have power to remit a cause to the sheriff with instructions. The sheriff principal in MacDonald considered (at page 146BC of the report) it to be highly unlikely that the sheriff principal would have power at common law to remit to the sheriff to consider granting leave to appeal when the Court of Session has no such power at common law and can do so only in exercise of the power conferred by section 32(2) and he was made aware of no statutory provision conferring on the sheriff principal a power equivalent to that contained in section 32(2) of the Court of Session Act 1988. I am inclined to think however that the reason for the existence of the statutory provision in section 32(2) of the 1988 Act for the Court of Session but the absence of any equivalent statutory provision for the sheriff principal lies in the different relationship which has always existed between, on the one hand, the Court of Session and the sheriff court and, on the other hand, the sheriff principal and his sheriffs within his sheriffdom. The Court of Session and the sheriff court are by origin separate institutions and to a large extent remain so even to this day. It is perhaps not surprising therefore to find a statutory provision conferring explicitly a power of remit with instructions on the Court of Session which may have been thought otherwise not to exist. I observe incidentally that this provision has its origin not in 1988 but much earlier, being apparently derived from section 40 of the Court of Session Act 1825. The sheriff principal on the other hand is an integral part, indeed the original part, of the sheriff court structure along with the sheriffs who were originally his substitutes and the relationship between them is much more closely intertwined. It is from this relationship that the existence of an appeal from the sheriff to the sheriff principal derives: certainly it did not require to be created originally by statute and there is an interesting passage in the second edition of Macphail at paragraph 18.06 which gives some indication of its non-statutory and somewhat haphazard origins and development. It is true that the appellate relationship between sheriffs and sheriffs principal has in recent centuries come to be regulated by statute but that has been done chiefly to determine or define the scope of the appellate jurisdiction rather than to create a relationship which otherwise would not have existed. Against this background, far from expecting some statutory provision to be necessary in order to create in the sheriff principal a power of particular remit to his sheriffs, I am inclined to think that the sheriff principal has and always had a general common law power to remit matters to the sheriff with such instructions as he may think fit in order to promote the ends of justice. I do not therefore consider the remit now moved for by the appellants to be something which I cannot competently order.

It is however another question whether such a remit to the sheriff to consider granting leave to appeal is appropriate in circumstances such as those of the present case. Clearly Lord McCluskey in the McArthur case thought that there could be circumstances in which such a remit from the Court of Session might be appropriate under section 32(2), although he did not enter into any specific suggestion as to what they might be: see page 931IJ of the report there. In Sheltered Housing there was mention of section 32(2) but no discussion of its appropriate application in connection with leave to appeal. In MacDonald the sheriff principal stated that he would have remitted the cause to the sheriff to consider leave to appeal had he thought it competent to do so but entered into no real discussion as to why it should have been appropriate to do so. He did however give some consideration to a case of DTL Gas Supplies Ltd v Protan Srl 1999 SLT 397, to which I was not referred but in which the First Division of the Court of Session had decided to remit the cause to the sheriff for this purpose. It is apparent however from a perusal of the report in that case and in particular of the final paragraph of the opinion of the court at 399FJ that the appellants there had in effect been misled into the position of marking an incompetent appeal to the Court of Session by an informal pronouncement of no less a person than the sheriff principal which had been transmitted to them on his authority by the sheriff clerk. The circumstances therefore can safely be said to have been highly unusual. It appears that the appellants had gone the length of enrolling a motion for leave to appeal out of time which had been assigned a date for hearing by the sheriff when they received a message to the effect that the sheriff principal, to whom the sheriff had spoken, viewed leave to appeal as unnecessary. The hearing before the sheriff therefore did not proceed and the sheriff clerk reiterated the sheriff principal's view in writing. Presumably the sheriff principal must have been expecting the appeal to come before him but instead it was marked to the Court of Session where it was held to be incompetent for want of leave. It is hardly surprising in such circumstances that the Inner House were sympathetic to the motion for a remit back to the sheriff to seek the necessary leave which had been omitted, taking the view that it was no fault of the appellants or their agents that their motion for leave to appeal out of time had in effect been dropped from the roll without a hearing. I regard this as a cautionary tale indeed for any sheriff principal but what it demonstrates for present purposes is that the circumstances were very exceptional in which a remit back to the sheriff was made to consider granting leave after an appeal had been found to be incompetent. In my opinion it is only in such very exceptional circumstances that such a remit should be made for that purpose and in what might be described as "normal" circumstances (where, as here, the appellants and their agents have themselves simply mishandled the matter of generating a competent appeal) such a remit is inappropriate and out of place. Viewing as I do the circumstances of the present case as in that respect unexceptional I do not think it proper to allow a procedure whereby an incompetent appeal may be turned into a competent one and I refuse the third party and appellants' motion for a remit for that reason.

In the circumstances narrated above I did not hear argument relating to the merits of the appeal against the sheriff's exercise of his discretion in refusing to allow the third party's answers to be received late. For that reason I think it proper to resist the temptation to express even the preliminary view which I had formed about it. It was agreed before me that in the event of the appeal being dismissed and the motion to remit back to the sheriff to consider leave to appeal being refused, which has happened, the expenses of the appeal procedure should be awarded to the defenders and respondents against the third party and appellants. I was asked to deal with the expenses also of the hearing before the sheriff which occurred on 25 July 2002 on the motion number 7/6 of process but in my view they are best left for disposal by the sheriff himself.

BAK