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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Keenan v. Sanghera [2005] ScotSC 36 (07 July 2005) URL: http://www.bailii.org/scot/cases/ScotSC/2005/36.html Cite as: [2005] ScotSC 36

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Act: Mr David Bartos, advocate, instructed by Simpson & Marwick, Aberdeen

Alt: Mr Peter Littlejohn, solicitor, Raeburn Christie Clark & Wallace, Aberdeen

Aberdeen: 7^th July 2005

The sheriff principal, having resumed consideration of the cause, refuses the motion for the pursuer and appellant to the effect that the cause should be remitted to the sheriff to consider an application out of time for leave to appeal; dismisses the appeal as incompetent and adheres to the interlocutor of the sheriff dated 10 January 2005 subject to the qualification that the hearing which he appointed to take place on 7 February 2005 should now take place on a date to be hereafter fixed by him; certifies the appeal as suitable for the employment by the pursuer and appellant of junior counsel; reserves meantime the question of the expenses of the appeal and appoints parties to be heard thereon in chambers at Aberdeen Sheriff Court on 2005 at .

Note

[1] In this case the pursuer and appellant is the heritable proprietor of a shop in Aberdeen. By missives of let dated 8 and 13 June 2001 he let the premises to the defender and respondent. He now craves the court to find and declare that the defender has incurred an irritancy of the lease and to ordain him and his servants and agents to remove themselves from the shop under pain of ejection.

[2] The action has had a lengthy procedural history which it is unnecessary to record in full here. It is sufficient to notice that on 17 April 2002 the sheriff closed the record and assigned a debate to take place on 24 June 2002. But this was discharged on joint motion. On 26 January 2004 the pursuer lodged a minute of amendment and by interlocutor dated 3 February 2004 the sheriff allowed this to be received and form no. 19 of process. The defender was given time to lodge answers thereto, and these were eventually lodged on 23 July 2004. By interlocutor dated 9 August 2004 the sheriff allowed parties time to adjust the minute of amendment and answers and continued the cause for a hearing on 23 August 2004. But this hearing was discharged and there followed a lengthy period during which the minute of amendment and answers were adjusted.

[3] At some stage between 18 October and 12 November 2004 during this period of adjustment the defender incorporated as paragraph 19 of his answers a counterclaim against the pursuer in terms of which he craved the court to grant decree against the pursuer for payment to him of the sum of £15,200 by way of damages for what was said to have been a breach by the pursuer of the terms of the lease.

[4] Some time on or before 6 December 2004 the pursuer adjusted his minute of amendment to incorporate a new paragraph 5 containing answers to the defender's counterclaim. But he evidently thought better of this since in the final version of his minute of amendment as adjusted to 29 December 2004 the paragraph containing answers to the counterclaim had been deleted.

[5] By interlocutor dated 13 December 2004 the sheriff allowed parties until 5 January 2005 to adjust the minute of amendment and answers and continued the cause on the Procedure Roll until 10 January 2005 for a hearing thereon. Although the interlocutor does not say so explicitly, it was evidently intended that this would be a hearing in terms of rule 18.3(2) of the Ordinary Cause Rules.

[6] What happened at the hearing on 10 January 2005 is recorded in the careful note which the sheriff prepared following the marking of this appeal. After considering the question whether or not leave to appeal was required (to which I shall refer shortly), the sheriff continued:

1. when the defences are lodged or during the period for adjustment;
2. by amendment at any other stage, with the leave of the sheriff and subject to such conditions, if any, as to expenses or otherwise as the sheriff thinks fit."

[7] In the result the sheriff pronounced an interlocutor dated 10 January 2005 in the following terms:

[8] On 20 January 2005 a note of appeal was lodged on behalf of the pursuer. So far as material, this read:

1. the issue of the competency of introducing a counterclaim by means of answers to a minute of amendment without leave of the court can only be considered in a motion to amend in terms of those answers, and no such motion was made to and dealt by the learned sheriff in terms of said interlocutor;
2. no leave to make a counterclaim(as required by ordinary cause rule 19.1(2)(b)) had been granted nor minute of amendment introducing a counterclaim (as required by ordinary cause rule 19.1(2)(b) as read with rule 18.3(1) with accompanying motion to allow it to be received had been lodged.

[9] It will be noted that this note of appeal, although timeous for the purposes of rule 31.1, was lodged outwith the period of seven days after 10 January 2005 within which any application for leave to appeal should have been made to the sheriff in terms of rule 31.2(1). The note of appeal was accompanied by a letter from the pursuer's agents dated 20 January 2005 in which it was stated inter alia: "Leave to appeal is not required in this instance". The sheriff clerk depute who dealt with the matter took a different view and returned the letter and the note of appeal to the pursuer's agents. In a hand-written note on the letter he drew attention to section 27 of the Sheriff Courts (Scotland) Act 1907 and stated that in his opinion leave to appeal was required. The pursuer's agents responded in a letter dated 25 January 2005 to the sheriff clerk in which they wrote inter alia:

[10] It appears that there was then a discussion between the sheriff clerk depute and the sheriff who dealt with this aspect of the matter in his note in the following terms:

[11] Opening the appeal, counsel for the pursuer acknowledged, as I understood him, that the interlocutor of the sheriff dated 10 January 2005 was not one of those referred to in any of sub-paragraphs (a) to (f) of section 27 of the 1907 Act. But he submitted under reference to Macphail's Sheriff Court Practice (2^nd Edn) at paragraphs 18.10/12, Archer's Trustees v Alexander & Sons 1911 27 Sh. Ct. Rep. 11, Mackays v James Deas and Son Limited 1977 SLT (Sh.Ct.) 10, VAG Finance Limited v Smith 1988 SLT (Sh.Ct.) 59, Gupta v Laurie 1994 SCLR 176 and City of Edinburgh District Council v Robbin 1994 SCLR 43 that a sheriff principal had a supereminent jurisdiction at common law to recall an incompetent interlocutor pronounced by a sheriff in his sheriffdom notwithstanding that leave to appeal had not been granted by the sheriff. In response, the defender's solicitor submitted under reference to the authorities cited by counsel for the pursuer and also Dobie's Sheriff Court Practice page 290, Drummond v Bryden 1869 8M 277, Maxwells (Dundee) Limited v Adam 1911 2 SLT 149, Sydie v A A Stuart & Sons (Contractors) Limited 1968 SLT (Sh.Ct.) 93, McKenzie v John R Wyatt (Musical Enterprises) Limited 1974 SLT (Sh.Ct.) 8, Appleyard (Aberdeen) Limited v Morrison 1979 SLT (Sh.Ct.) 65, Brown v British Rail Property Board 1983 SLT (Sh.Ct.) 19, Ampliflaire Limited v The Chisholme Institute 1995 SCLR 11, Gray v Gray 1996 SCLR 531, Brown v Hamilton District Council 1983 SLT 397, Forbes v Underwood 1886 13 R 465 and Lord Advocate v Johnston 1983 SLT 290 (1) that a sheriff principal had no supervisory jurisdiction at common law over the judicial decisions of a sheriff and that rights of appeal against such decisions were regulated by statute, (2) that there was no statutory provision for an appeal against an incompetent interlocutor pronounced by a sheriff otherwise than under the provisions of section 27 of the 1907 Act, (3) that in the present case the interlocutor of the sheriff dated 10 January 2005 was one against which no appeal could be taken to the sheriff principal without the leave of the sheriff in terms of section 27(f) and (4) that, leave to appeal not having been granted by the sheriff, the appeal was incompetent and should be refused accordingly.

[12] This whole discussion begged the question whether the interlocutor pronounced by the sheriff on 10 January 2005 was in fact incompetent. Counsel for the pursuer drew attention to the grounds of appeal which I have set out in paragraph [8] above and submitted that it was. He took particular exception to the words in the sheriff's interlocutor which read: "and on the basis that the defender's counterclaim has been competently introduced in the defender's answers no. 21 of process". He submitted that it had not been competent for the sheriff to determine that the defender's counterclaim had been competently introduced in his answers in the absence of a motion to the court to allow amendment in terms of these answers. In effect, said counsel, the sheriff had reached a decision on the competency of introducing the counterclaim in the answers ex proprio motu, and this he had no power to do. Referring to the second ground of appeal, counsel pointed out that in terms of rule 19.1(2)(b) the leave of the sheriff was required to introduce a counterclaim into the defences by way of amendment. In the present case no such leave had been sought and therefore it had again been incompetent for the sheriff to hold that the counterclaim had been competently introduced into the defender's answers. The sheriff by his decision had created a situation in which the pursuer had been placed in a position where he could not amend without being burdened by a counterclaim in the answers to his minute of amendment. On a proper reading of the rules a counterclaim could only be introduced by amendment in a minute of amendment accompanied by a motion to allow the minute of amendment to be received into process. For all these reasons the interlocutor pronounced by the sheriff was incompetent.

[13] In response, the defender's solicitor submitted that the interlocutor of the sheriff was not incompetent in the sense that he had no power or right to pronounce it. He submitted (1) that a counterclaim could competently be introduced, not only in a minute of amendment, but also in answers to such a minute of amendment, (2) that the issue determined by the sheriff in the present case in regard to the competency of the defender's having introduced a counterclaim in his answers had been an issue which the sheriff had been entitled to determine and (3) that in any event there had been no fundamental irregularity in the interlocutor of 10 January 2005 nor any distortion of the litigation process such as would entitle me to exercise the power claimed for me at common law by the pursuer to review an incompetent interlocutor pronounced by a sheriff. Besides, the interlocutor dated 10 January 2005 reflected the issue which the parties had sought that day to have determined by the sheriff and what they had agreed should happen following his determination of the issue. It followed that the interlocutor had been made either on the motion, or at least with the consent, of the pursuer and so was not appealable without leave.

[14] Replying to these last submissions of the defender's solicitor, counsel for the pursuer submitted that, in incorporating the words "and on the basis that the defender's counterclaim has been competently introduced in the defender's answers no. 21 of process" into his interlocutor, the sheriff had effectively been pronouncing a declarator. This had been of real force and effect and had been as operative a part of the interlocutor as the part which followed in terms of which the sheriff had allowed a period of adjustment of the minute of amendment and answers and continued the cause for a hearing on 7 February 2005. Counsel suggested that in light of this declarator, if and when the pursuer moved to amend in terms of his minute of amendment and the defender's answers under deletion of the reference to his counterclaim, the motion would be met by an argument that the matter was res judicata and that the pursuer was personally barred from challenging the declarator which ought to have been appealed if the pursuer had not been satisfied with it. It was difficult to see another sheriff disturbing the sheriff's declarator and it would not be open to the pursuer at a later stage to appeal against the decision of another sheriff to refuse to exclude the counterclaim from the answers and so open up the interlocutor of the sheriff dated 10 January 2005 in terms of section 29 of the 1907 Act. Reference here was made to Ferguson's Trustee v Reid 1931 SC 714. It was submitted that, if the pursuer were to adjust his minute of amendment to incorporate answers to the defender's counterclaim, this might be seen as further acquiescence by the pursuer in the interlocutor dated 10 January 2005 so that it would be said that it had already been acted upon by the pursuer with the result that it could not be opened up under section 29.

[15] I intend no disrespect to the carefully researched and presented submissions of both counsel for the pursuer and the defender's solicitor when I say that I think that this aspect of the appeal can be disposed of quite shortly. As the sheriff explained in his note, the initial motion before him for the pursuer was that he should open the record, allow amendment thereof in terms of the pursuer's minute of amendment and the defender's answers thereto under deletion of the counterclaim and close the record of new. In dealing with this motion, the sheriff had to deal in the first instance with the issue of law which was put before him by the parties, namely whether a counterclaim could be introduced in answers to a minute of amendment. The sheriff decided this issue in favour of the defender and so advised the parties' solicitors. Understandably in light of this the pursuer's solicitor indicated that she would wish further time to adjust the minute of amendment and this was not opposed by the defender's solicitor. If, as I think he perhaps ought to have done, the sheriff had given effect to what had taken place before him by pronouncing an interlocutor in hoc statu refusing the motion for the pursuer to allow amendment in terms of his minute of amendment and the answers under deletion of the counterclaim and had then on the unopposed motion for the pursuer allowed parties a further period of adjustment and continued the cause to a later date for a hearing on the minute of amendment and answers, I do not think that there could have been any doubt about the competency of such a course of action with the result that there could have been no appeal to myself without the leave of the sheriff.

[16] In the event in his interlocutor the sheriff did not deal explicitly with the pursuer's initial motion to allow amendment in terms of the minute of amendment and answers under exclusion of the counterclaim. But he did deal with the alternative motion to allow a further period of adjustment after he had given his decision on the issue of the competency of introducing a counterclaim in answers to a minute of amendment. Thus the operative part of his interlocutor of 10 January 2005 reads: "On the pursuer's motion, of consent, allows parties a further 21 days to adjust the pursuer's minute of amendment no. 19 of process and answers thereto no. 21 of process; continues the cause on the procedure roll until 7 February 2005 at 10.00 am for a hearing thereon". Try as I may, I cannot understand how it can possibly be suggested that it was not competent for the sheriff to have pronounced an order in these terms.

[17] As already indicated, counsel for the pursuer took particular exception to the words in the sheriff's interlocutor which read: "and on the basis that the defender's counterclaim has been competently introduced in the defender's answers no. 21 of process". I do not consider that these words fall into the operative part of the sheriff's interlocutor at all. They simply explain part of the sheriff's reasoning process in pronouncing the operative part of his interlocutor. Arguably therefore, if they were to appear in writing at all, this should only have been in the note prepared by him to explain the reasons for his decision in terms of rule 12.2(3)(b). And, even if it could be said these words fell into the operative part of his interlocutor, I do not consider that they thereby render the interlocutor incompetent. The blunt fact is that at the hearing before him on 10 January 2005 the sheriff was invited by the parties, after hearing argument from their solicitors, to determine whether or not a counterclaim could be introduced by way of answers to a minute of amendment. He decided that this competently be done. He may or may not have been right in this conclusion (and for present purposes I need not express an opinion on the point myself). But what is in my view beyond doubt is that it was competent for the sheriff at the hearing on 10 January 2005 to determine the issue. Here I would respectfully draw attention to what was said by Sheriff Principal Caplan (as he then was) in VAG Finance Limited v Smith at page 61E/I:

[18] Dealing with counsel's final argument, I am at a loss to understand how it can be said that anything that has been done by the pursuer already or may be done on his behalf as outlined by counsel would constitute acquiescence on his part in the decision of the sheriff to the effect that a counterclaim may competently be introduced in answers to a minute of amendment so as to bar a challenge at the proper time (and where necessary with leave) to an interlocutor which actually permits the incorporation of the counterclaim into the defender's pleadings.

[19] In summary therefore I consider that this appeal is incompetent in the absence of leave to appeal having been granted by the sheriff in terms of section 27(f) of the 1907 Act. Counsel for the pursuer submitted that, in the event that I was of this opinion, I should exercise the dispensing power available to me in terms of rule 2.1 to remit the cause to the sheriff to consider whether he in turn would be prepared to exercise the dispensing power to entertain an application now for leave to appeal and, if he was prepared to entertain such an application, to consider whether or not to grant it. Counsel explained that the reason why leave to appeal had not originally been sought from the sheriff within the seven days allowed in terms of rule 31.2(1) was that, on his advice, it had been concluded that leave to appeal was not required in light of the decision in Archer's Trustees v Alexander & Sons. If he had been wrong in giving this advice, then this constituted an excusable cause within the meaning of rule 2.1(1). Counsel pointed out that the present action had been raised as long ago as 2001 and it had only been in November 2004 that the counterclaim had been introduced into the defender's answers. This had been nearly three years after the action had been raised and the counterclaim could have been introduced at any stage during that period. To answer the counterclaim would involve the pursuer in considerable time and expense and it might be necessary for him to recover documents and instruct an expert witness. Thus, if the sheriff were not to be given an opportunity to consider whether or not to consider an application for leave to appeal by the pursuer, he would suffer prejudice, whereas there would be no prejudice to the defender in remitting the cause to the sheriff to consider whether or not he should grant an application out of time for leave to appeal.

[20] In response, the defender's solicitor submitted under reference to Macphail's Sheriff Court Practice (2^nd Edn) paragraphs 18.47/8, rule 32(2) of the Rules of the Court of Session, Hamilton v Hamilton 1948 SLT (N) 8, Grier v Wimpey Plant and Transport Limited 1994 SCLR 454, Thompson v Lynn 1995 SCLR 1090 and MacDonald v MacDonald 2002 SLT (Sh.Ct.) 144 that it would not be competent for me to remit the cause to the sheriff to consider whether or not to entertain a late application for leave to appeal and, if he decided to do so, to determine whether or not to grant leave to appeal. In any event, even if this were competent, I should not exercise my discretion in favour of the pursuer. It had been a conscious decision on his part to appeal against the interlocutor of the sheriff dated 10 January 2005 without leave, considerable time had already elapsed since that date and, as the sheriff had pointed out in his note, the issues surrounding the counterclaim, including in particular the question whether leave should be given to the defender in terms of rule 19.1(2)(b), could still be explored before the sheriff in due course. Accordingly the motion to remit to the sheriff should be refused.

[21] Counsel for the pursuer submitted that it would be competent for me to remit the cause to the sheriff for the purposes indicated by him. For my own part, I do not think that I need to decide this question of competency since I am in any event persuaded that, even if I had the power to do so, I ought not to remit the cause to the sheriff. The blunt fact is that the pursuer through his advisers took a conscious decision to appeal without first seeking the leave of the sheriff. As appears from the latter's note, he raised the possibility that the pursuer's solicitor might wish to ask him to exercise the dispensing power in order to hear an application for leave to appeal out of time. But, as the sheriff records in his note (and this was not disputed by counsel for the pursuer) the pursuer's solicitor did not wish to avail herself of this opportunity. I appreciate that the pursuer will now have to investigate and prepare answers to the defender's counterclaim (unless, that is, he is confident that at the end of the day the sheriff may be persuaded not to grant leave to introduce it). But it does not seem to me that this is a sufficient reason to relieve him from the consequences of the deliberate decision made on his behalf to appeal against the interlocutor of the sheriff dated 10 January 2005 without leave.

[22] I was addressed at some length on the merits of the appeal. But I do not think that I need to deal with this aspect of the matter in view of my conclusion that the appeal is incompetent.

[23] I understood it to be agreed that the question of the expenses of the appeal should be reserved for a further hearing.

[24] In addition to the authorities already mentioned, I was referred to Hardy v Robinson 1985 SLT (Sh.Ct.) 40, Crendon Timber Engineering Limited v Miller Construction Limited 1996 SLT (Sh.Ct.) 102, Fleming v Alexander Eadie & Son 1897 25R 3 and Whyte v Whyte 1895 23R 320.

[25] I was asked to certify the appeal as suitable for the employment by the pursuer of junior counsel. I am persuaded that this was appropriate and have so indicated in my interlocutor. But of course this may or may not be academic depending upon the outcome of the hearing on expenses.