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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Keenan v. Sanghera [2005] ScotSC 37 (07 July 2005) URL: http://www.bailii.org/scot/cases/ScotSC/2005/37.html Cite as: [2005] ScotSC 37 |
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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
A2301/01
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JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC |
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in the cause |
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ALAN KEENAN |
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Pursuer and Appellant |
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against |
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BALJINDER SINGH SANGHERA |
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Defender and Respondent |
Act: Mr David Bartos, advocate, instructed by Simpson & Marwick, Aberdeen
Alt: Mr Peter Littlejohn, solicitor, Raeburn Christie Clark & Wallace, Aberdeen
Aberdeen: 7th 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; certifies the appeal as suitable for the employment by the pursuer and appellant of junior counsel; and reserves meantime the question of the expenses of the appeal and appoints parties to be heard thereon and on further procedure in the cause in chambers at Aberdeen Sheriff Court on 2005 at .
Note
[1] In this case in terms of an agreement dated 27 October 1999 the pursuer and appellant contracted with the defender and respondent to rent to him a shop in Aberdeen for a period of three years from 1 November 1999. The pursuer now craves the court to grant decree for payment to him by the defender of the sum of £5,508.40 which is said to be due in terms of the agreement.
[2] The record was originally closed on 17 April 2002. Since then the case has had a protracted procedural history, the full details of which need not be narrated here. It is sufficient to notice that by interlocutor dated 22 June 2004 the sheriff allowed a minute of amendment for the pursuer to be received and to form no. 21 of process. The defender was given time to lodge answers thereto, if so advised. He duly did so, and his answers form no. 22 of process. A lengthy period of adjustment of the minute of amendment and answers ensued, and some time before 8 November 2004 the defender incorporated into his answers by way of adjustment a counterclaim in terms of which he craved the court to rectify the agreement between the parties dated 27 October 1999 by making certain alterations to clause 3 thereof.
[3] Eventually parties were heard on the minute of amendment and answers by the sheriff on 10 January 2005. The upshot of this hearing was that he pronounced an interlocutor in the following terms:
The Sheriff, having heard parties procurators on submissions in relation to the amendment procedure and on the basis that the Defender's Counterclaim has been competently introduced in the Defender's Answers No. 22 of process; On the Pursuer's motion, of consent, Allows parties a further 21 days to adjust the Pursuer's Minute of Amendment No. 21 of process and Answers thereto No. 22 of process; Continues the cause on the Procedure Roll until 7 February 2005 at 10 am for a Hearing thereon.
It is this interlocutor which is the subject of the present appeal.
[4] At this point it should be noted that there is a second action (A2439/01) between the same parties which was also dealt with by the sheriff on 10 January 2005 and in which an appeal to myself was marked against his interlocutor of that date. In both cases the competency of the appeal has been in issue and subject to one point this issue has been precisely the same in each case. I have today issued an interlocutor refusing the pursuer's appeal in the other case and have appended thereto a note setting out in full the reasons for my decision. It will be seen that I have dismissed this appeal also as incompetent, and rather than repeat myself at length here I would refer to what I have said in my note in the other case.
[5] For present purposes the one point of difference between this case and the other case arises from the fact that in this case the defender has incorporated in his answers to the pursuer's minute of amendment a counterclaim in terms of which he seeks rectification of the agreement dated 27 October 1999. In his note of appeal, the pursuer added a third reason why, according to him, the interlocutor of the sheriff dated 10 January 2005 was incompetent, namely:
3. a counterclaim for rectification of a document is not competent, rectification of a document being a matter requiring to be dealt with by means of a summary application and not an ordinary action (A.S. Summary Applications, Statutory Applications etc. Rules) 1999, para. 1 (4)).
[6] In his note the sheriff dealt with this particular matter in the following terms:
A further point which I should make is that the note of appeal in this action contains a paragraph (No. 3) which does not appear in the note of appeal lodged in respect of the other case. I am a little surprised to see this paragraph since no substantial argument to the effect set out within it was actually presented by the solicitor for the pursuer at the hearing before me. The issue was restricted to the one set out in my report in respect of the appeal in the other case.
[7] At the hearing of the two appeals the defender's solicitor conceded that an action for rectification of a document required to be presented by way of a summary application and could not be introduced in a counterclaim in an ordinary action. Counsel for the pursuer submitted that for this reason alone in the present case the interlocutor of the sheriff dated 10 January 2005 was incompetent. I do not agree. It does not follow from the fact that the sheriff fell into error (through no fault of his) on this aspect of the matter that the interlocutor which he pronounced on 10 January 2005 was incompetent. He was asked to decide whether or not a counterclaim could competently be introduced in answers to a minute of amendment, and it was within his own competence to decide this. It is nothing to the point that in the particular circumstances of this case he got the answer wrong, at least to the extent that a claim for rectification of a document cannot competently be introduced in a counterclaim in an ordinary action.
[8] It will be seen in my interlocutor in this case that I have neither adhered to the sheriff's interlocutor dated 10 January 2005 nor recalled it. On reviewing the notes which I took during the hearing of the appeals, I am uncertain how parties wish to proceed with this action given both my conclusion that the appeal itself is incompetent and the concession on behalf of the defender to which I have referred. No doubt parties will be able to advise me what should be done about this at the forthcoming hearing on expenses which I have fixed.
