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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Orkney Islands Council v. Whitehead & Anor [2005] ScotSC 66 (07 October 2005) URL: http://www.bailii.org/scot/cases/ScotSC/2005/66.html Cite as: [2005] ScotSC 66

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Act: Mr David Bartos, advocate, instructed by Lindsays WS, Edinburgh

Alt: Mr W G Sutherland, solicitor, Drever & Heddle, Kirkwall

Kirkwall: 7^th October 2005

The sheriff principal, having resumed consideration of the cause, allows the appeal in part and recalls (i) the decision pronounced by the sheriff at the end of the proof on 14 December 2004, and (ii) the final decree granted by him on 22 February 2005; finds the pursuers and appellants liable to the defenders and respondents in the expenses of (i) the preparation for and conduct of the proof on 14 December 2004, and (ii) the whole procedure in the cause thereafter to the date hereof (including in particular the expenses of the appeal and of the procedure associated with the assessment by the sheriff clerk on 3 February 2005 of the account of expenses incurred by the defenders and respondents to their solicitor); quoad ultra remits the cause to the sheriff to proceed as accords under reference to the ensuing note.

Note

[1] It is clear from the stated case that at the conclusion of the evidence on 14 December 2004 parties' submissions (and in particular those of the defenders' solicitor) were presented upon the basis of the concession made by the pursuers' solicitor which the sheriff recorded at page 8 of the stated case. The sheriff thereafter proceeded to reach his decision in the case and, perhaps more importantly for present purposes, to draft the stated case itself and in particular his findings in fact on the basis of this concession.

[2] Opening the appeal, counsel for the pursuers moved me to allow the concession to be withdrawn and a new question of law to be added to the stated case, namely: "3. In the absence of such a concession did I or would I err in law in holding that the first named defender had been accepted by the pursuers as tenant of the premises?" Having heard the solicitor for the defenders in reply, I refused this motion. In short, it appeared to me that, the sheriff having reached his decision and drafted the stated case on the basis of the concession, and there being no record of the evidence (this being a summary cause), it would be wrong to allow the appeal to be argued upon an entirely different basis from that upon which the case had proceeded before the sheriff and upon which he had drafted the stated case.

[3] After I had refused the pursuers' motion, counsel submitted under reference to Edwards v Bairstow 1956 AC 14 and Mathieson Gee (Ayrshire) Limited v Quigley 1952 SC (HL) 38 that the concession made before the sheriff was in any event wrong in law and that the sheriff had therefore erred in law in deciding the case upon the basis of the concession. Counsel then proceeded to examine many of the letters which had been lodged as productions in the case (and which are the subject of the sheriff's findings in fact 9 and 10) and to argue that in light of this correspondence, and in the absence of any finding in fact to the effect that the pursuers had through their actions accepted the first defender as a tenant, the sheriff had not been entitled as a matter of law to find that the first defender had acquired a right to occupy the premises as a tenant in her own right. In these circumstances, said counsel, the sheriff had erred in law in granting decree of absolvitor and the appeal should therefore be allowed and decree of removing granted against the defenders.

[4] The defenders' solicitor reminded me of the course which the parties' submissions on the evidence had taken in light of the concession made by the pursuers' solicitor. He recognised that, since this concession had only been made at the conclusion of the evidence, it could not be said that the evidence led on behalf of the defenders, or their approach to the evidence led on behalf of the pursuers, might have been different if the concession had not been made. But he pointed out that it had not been necessary for him to present certain submissions to the sheriff as he would otherwise have done if the concession had not been made. He pointed out too that there was no record of the evidence and that the sheriff's findings in fact had been drafted in light of the concession which had been made. He submitted in effect that it would be wrong to decide the appeal upon the basis of these limited findings in fact. He contended that it had not been shown that the concession had in fact been ill-founded in law, and further that the sheriff had been entitled to find that the pursuers had accepted the defenders as tenants in their own right and to grant decree of absolvitor accordingly. In these circumstances the appeal should be refused and the decree of the sheriff adhered to.

[5] Rule 25.3(4) of the Summary Cause Rules 2002 provides that in an appeal the sheriff principal may (a) adhere to or vary the decree appealed against; (b) recall the decree appealed against and substitute another therefor; or (c) remit, if he considers it desirable, to the sheriff, for any reason other than to have further evidence led. Having considered the matter, I have concluded that the proper and desirable course in the unusual circumstances of this case would be to remit the cause to the sheriff to hear parties of new on the evidence upon the basis that, while I have not allowed the concession to be withdrawn for the purposes of this appeal, the sheriff may, and indeed should, allow it to be withdrawn when he hears parties on the evidence. I have therefore recalled his decision dated 14 December 2004 and the decree pronounced by him on 22 February 2005. In so doing I am in effect directing that the cause should be returned to the stage it had reached at the conclusion of the evidence on 14 December 2004, and the sheriff should take it forward from there exactly as if the proceedings had come to an abrupt halt at that stage and nothing further had happened since then.

[6] I recognise that this is a somewhat unorthodox manner of disposing of the appeal, albeit that it is one that is clearly contemplated by rule 25.3(4)(c). But I believe it to be the fairest way of resolving the dispute between the parties, and here I have in mind not only fairness to the parties themselves but also to those on the pursuers' waiting list (see finding in fact 7) who clearly have an interest in the outcome of this case whichever way it goes. And in this context it is interesting to notice that the course which I have adopted may well have been what was in the mind of the sheriff when he wrote in the penultimate sentence of the stated case: "It may be that if your Lordship considers that such a concession can be withdrawn the matter can be remitted back for further procedure".

[7] In light of what I have said so far I do not think that it would be appropriate that I should express any opinion upon the submissions made by counsel for the pursuers and the defenders' solicitor on the merits of the case. These are matters for the sheriff to determine in light of the submissions which will be made to him at the fresh hearing on the evidence.

[8] It will be seen that I have found the pursuers liable to the defenders in the expenses of preparation for and conduct of the proof on 14 December 2004 and of all that has followed thereon to the date hereof. In including here the expenses of preparation for and conduct of the proof I have had in mind that it was the making of the concession at the proof by the pursuers' solicitor that put the case off the rails, so to speak, and further that both parties will incur additional expense in preparing for and conducting the fresh hearing on the evidence. It will be for the sheriff to determine where the liability for this additional expense should fall in light of the decision reached by him on the merits of the case.