A3239/05
NOTE BY SHERIFF PRINCIPAL
JAMES A TAYLOR
in the cause
Arthur Gemmell
APPELLANT
against
MWB Argyll Street Ltd
RESPONDENT
My Lords,
[1] This case called before me for an appeal
hearing on 24 April 2007. The pursuer and appellant represented
himself. Mrs Wolffe, Advocate, appeared
for the defenders and respondents.
[2] The main ground of the action at Mr
Gemmell's instance is that damage was occasioned to his property by building
works taking place on an adjoining property. The building works complained of
were preparatory to the construction of the Radisson Hotel, Glasgow.
The employers in the contract were the defenders. As explained by
Mr Gemmell, the principal complaint which he had was that Blyth &
Blyth Consulting Engineers, who had been instructed by the defenders, carried
out work of an exploratory nature which destabilised the property of which Mr
Gemmell was a part owner. The cost of
making good the damage was the sum first sued for. The learned Sheriff dismissed the action as
irrelevant. I refused the appeal. Mr Gemmell has now marked an appeal to your
Lordships. He has advanced two grounds
of appeal. The first ground is:-
"The sheriff principal insisted on proceeding with the appeal
despite the pursuer's motion to have the appeal discharged to a later
date."
The second
ground is:-
"The sheriff principal ignored the appellant's plea that he was
unprepared for the hearing due to ill-health and the defenders being allowed to
consider the new evidence that came to light.
During the hearing it was appallingly obvious that the pursuer was
unprepared."
[3] Mr Gemmell moved me to discharge the
hearing because, he submitted, he had been unable to prepare for the appeal due
to his ill-health. He informed me that
he had become unwell in 30 January
2007 during the debate before Sheriff Noble whose decision was
under appeal. Noting Mr Gemmell's
distress the learned Sheriff offered to adjourn the debate but that was not
deemed necessary. Subsequent to the
debate, Mr Gemmell had been in hospital on two occasions each of one
week's duration for blood tests. He had
an operation in March of this year which had taken him longer to get over than
anticipated. He was taking
antibiotics. He had a further
consultation with his surgeon on 26
April 2007. He was in
considerable discomfort or pain. If I
refused the motion he would require more comfort breaks than might normally be
the case. I enquired of Mr Gemmell if he
wished to tell me the nature of the operation but stressed that he should feel
under no obligation to answer my enquiry.
He told me that it was an operation on his gall bladder.
[4] Furthermore, in support of the motion to
adjourn, he informed me that new evidence had come to light to the effect that
in 1999 the damage which had been sustained to his property had not been
accidental. He required more time to ingather the necessary evidence and then
amend his pleadings.
[5] In reply Mrs Wolffe suggested that if
new evidence had come to Mr Gemmell's attention his remedy was to raise a new
action. A motion to amend his pleadings to introduce a further ground of action
had been refused on 20 November 2006. In so far as discharging the diet on the basis
that Mr Gemmell was unwell, she submitted that I should refuse the motion and
allow the case to proceed albeit having more frequent breaks than might be
expected. She highlighted the fact that
the motion for the discharge was only made at the bar of the court. This had necessitated her clients in
additional expense in that she had been instructed, solicitors were present and
the preparation had been undertaken for the appeal hearing. Any suggestion that the appeal hearing might
not proceed had only been raised by Mr Gemmell following receipt by him of the
respondents' bundle of authorities. She
further drew to my attention that the grounds of appeal extended to two pages
yet no list of authorities had been lodged.
This, she suggested, did not foreshadow detailed submissions being made
by Mr Gemmell. She pointed out that the
case was of some antiquity and although this present action had only started in
May 2005 the dispute between the parties had been ongoing since June 2001. Mr Gemmell was intimately familiar with all
the relevant facts in the case. She
pointed out that there had been a hearing on the pursuer's motion for interim
interdict before Sheriff Kearney when the learned Sheriff recalled the interim
interdict previously granted. On 17 June 2005 the pursuer moved that
the case be sisted. Sheriff Kearney
refused that motion. Mr Gemmell had represented his own interests before the
learned Sheriff. Mr Gemmell appealed
that decision to Sheriff Principal Stewart, QC, when again Mr Gemmell
represented himself. Sheriff Principal
Stewart, QC, refused the appeal. A diet
of debate had then been assigned for 13
February 2006 which diet had been discharged on the pursuer's
motion. On 31 March 2006 Mr Gemmell had again moved that the action
be sisted which motion had been refused.
A further diet of debate had been assigned for 14 August 2006 at 10.00 am. The
pursuer moved that this diet be discharged and notwithstanding opposition the
motion for discharge was allowed and a further diet assigned for 4 September 2006. On 4
September 2006 the learned Sheriff had ex proprio motu discharged the diet of debate and of new assigned
20, 21 and 22 November 2006 as a three day diet of
debate. Mr Gemmell had again represented
his interests at the debate. From this
history she submitted that it was clear that Mr Gemmell knew intimately the case
which he wished to advance. Mr Gemmell had tried in the past to delay it coming
before the court for any substantive hearing.
The respondents had been trying to get the case to a hearing where they
could move for dismissal but had been thwarted at every turn by
Mr Gemmell.
[6] I afforded Mr Gemmell an opportunity to
respond. He indicated that the bundle of
authorities had arrived after he canvassed with the defenders' solicitors the
possibility that the appeal hearing should be discharged. My note then states that Mr Gemmell said that
he would go along with my decision if I decided to refuse the motion.
[7] Given Mr Gemmell's final comment which I
have just narrated, I am a little surprised by the terms of the grounds of
appeal. In any event I came to the view
that we should start the appeal. If it
became apparent that Mr Gemmell was disadvantaged in any respect and such
disadvantage could not be compensated for by adjournments I would have been
prepared to consider a later motion to adjourn.
I was conscious of the fact that this action had been ongoing for some
two years, that if I had to discharge the appeal I would inevitably have to
find Mr Gemmell liable in expenses given the late intimation of the motion and
that in the interests of justice we had to proceed. I was not prepared to discharge the hearing
to allow further evidence to be ingathered with the inevitable amendment
procedure. I was not told why the new
evidence was only now available.
[8] Mr Gemmell was granted two adjournments
in the course of the morning to enable him to gather his thoughts. I did not form the impression that he was
unprepared. He was very articulate. He took me through a considerable number of
productions displaying his intimate knowledge of the case most adequately. He summarised his position thus: if he engaged a tradesman to carry out work to
his property and in the course of carrying out that work the tradesman damaged
his neighbour's property then under the law of Scotland he, Mr Gemmell, was
liable to his neighbour for making good the damage occasioned by the tradesman
always providing that Mr Gemmell carried the requisite insurance cover. He put
his proposition in a slightly different form later in his submission: since the respondents benefited from the work
carried out by Blyth & Blyth, they must pay the damage occasioned by Blyth
& Blyth's operations. No matter how much time Mr Gemmell had to prepare for
the appeal I doubt very much if he would have been able to persuade me that
either of these propositions properly represented the Law of Scotland. His
difficulty was not any lack of preparation but the basis of his action. I had read the learned Sheriff's judgment in
advance of the hearing. Mr Gemmell at no
time referred me to it. The issue is
dealt with by the learned Sheriff in paragraph 21 of his Note. When giving my judgment ex tempore I indicated to Mr Gemmell that the normal course is for
a party whose property has been damaged by the negligent actings of others to
sue the allegedly negligent party. If he had evidence that the engineers who
caused the damage had been negligent his remedy might be to sue them.
[9] Mr Gemmell took all morning to make his
submissions. He did not strike me as a man who was underprepared. At all times
he was courteous and respectful to the bench. It was only when he started to
attack the integrity of Semple Fraser, the defenders' solicitors, that he
overstepped the mark. I indicated to Mrs Wolffe that I did not require her to
address me.
[10] Given that the grounds of appeal are
directed solely at my refusal to grant the motion for an adjournment I have not
narrated at length Mr Gemmell's submissions.
In my opinion they were irrelevant covering matters such as a)
stilicide, in respect of which there was no record following the refusal of the
minute of amendment on 20 November 2006, b) having the hotel building removed
for which he had no crave and c) an attack on the integrity of Semple Fraser. At one time I was addressed on what Mr
Gemmell referred to as common sense in that there was a moral obligation on the
respondents to make good damage caused by their agent or contractor. I must also record that Mr Gemmell
accepted that Sheriff Noble was entitled to criticise Mr Gemmell's pleadings in
the manner in which he had done. Mr
Gemmell was of the opinion that all of the information was there if one just
looked for it. He also took exception
to the fact that correspondence from his own engineers had not been adequately
dealt with by Blyth & Blyth. Accordingly
I refused the appeal.
[10] There was no opposition to the motion by
Mrs Wolffe for the expenses of the appeal procedure.
