Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

 

 

CASE Reference Number A24/11

 

 

 

 

JUDGMENT

 

 

of

 

 

 

SHERIFF GEORGE JAMIESON

 

 

In relation to validity of intimation of Pursuer's Motion 7/2 of Process

 

in causa

 

 

 

JAMES DUFF, 29 Mossvale, Lochmaben, Lockerbie, Dumfriesshire

 

PURSUER

 

 

 

against

 

 

 

 

GEORGE WIMPEY WEST OF SCOTLAND LTD, Cirrus Building, Unit C, Ground Floor, Marchburn Drive, Abbotsinch, PAISLEY

 

DEFENDER

 

 

 

 

 

 

 

 

 

DUMFRIES: May 2012

 

Act: Party

Alt: Absent

 

The sheriff, having resumed consideration of the cause, finds that Pursuer's Motion 7/2 of process was not effectually intimated by the Pursuer upon the Defender, Therefore Refuses to consider, and makes no order, in relation the Motion.

 

 

Sheriff George Jamieson

 

 

 

NOTE:

 

Prelude

 

[1].              The interlocutor of 26^th April 2012 mistakenly refers to continuation of consideration of Pursuer's Motion 7/4 of process; in fact, at the date of this interlocutor, there is no such motion in existence; the interlocutor ought to have referred to Pursuer's Motion 7/2 of process.

 

[2].              The interlocutor of 10^th May 2012 mistakenly refers to continuation of consideration of Pursuer's Motion 7/3 of process; while at the date of this interlocutor, there was such a motion in existence, the interlocutor ought to have referred to Pursuer's Motion 7/2 of process.

History

 

[3].              On 20th March 2012 the pursuer lodged a motion with the sheriff clerk in which he "move[d] the court to appeal to the Court of Session" my interlocutor of 15^th March 2012, ordering him to find caution for the Defender's expenses, and setting out his reasons for an appeal. This motion is ambiguous in its terms as it is not clear whether it is an application for leave to appeal to the Court of Session.

 

[4].              Since, however, the Pursuer requested something from the court (by use of the phrase "moves the court" in his motion to this court), I allowed the Motion to be received by the sheriff clerk, subject to the question whether it had been effectually intimated by the Pursuer to the Defender's solicitor.

 

[5].              No notice of opposition having been lodged by the Defender within the period of opposition, I was invited by the sheriff clerk to determine the motion in chambers.

 

[6].              On 4^th April 2012, I pronounced an interlocutor appointing parties to be heard on 19^th April 2012 on "the validity of intimation of a motion by a party, rather than a sheriff officer or solicitor".

 

[7].              The Defender declined to be represented at the hearing, though their solicitors lodged a Note of Argument, number 13 of process, in respect of the hearing.

 

[8].              Mr Duff appeared in person at the hearing. He referred me to a number of authorities and made submissions, which I duly noted.

 

[9].              I then made avizandum.

 

[10].          Meantime the action was due to call on the Procedure Roll on 26^th April in relation to whether Mr Duff had found caution.

 

[11].          Pressure of court business prevented me from the earlier issuing of this Judgment; accordingly the Procedure Roll hearing was postponed first to 10^th May 2012 and then to 7^th June 2012 to allow me to consider the Pursuer's Motion 7/2 of process.

 

Intimation of the Pursuer's Motion 7/2 of process

 

[12].          The Pursuer's certificate of intimation of Motion 7/2 of process is in Form G8 appended to the Ordinary Cause Rules 1993.

 

[13].          It is signed by him personally in the designation "party litigant".

 

[14].          It states that intimation of the motion was made to the Defender's solicitor "by fax.... on 21 March and by post on the 12^th March 2012".

 

The authorities

 

[15].          I directed parties' attention to the following authorities in my interlocutor of 4^th April 2012.

 

[16].          Firstly, Form G8 appended to the Ordinary Cause Rules 1993. This Form envisages that a certificate of intimation of motion be signed by a solicitor or sheriff officer.

[17].          Secondly, the Citation Amendment (Scotland) Act 1882, section 3. This section inter alia authorised postal citation of parties or "judicial intimation" by a solicitor or officer of court "in any civil action or proceeding in any court".

 

[18].          Thirdly, McGregor v McLaughlin (1905) 8 F 70 at 77, per Lord Kinnear:

 

"The sheriff officer was not an agent or servant of his own selection but the officer of law appointed for the purpose of serving writs which the party interested cannot effectually serve for himself (emphasis added)".

 

[19].          Fourthly, Addison v Brown (1906) 8 F 443 at 447, per Lord McLaren commenting on the alteration made to the law of citation and intimation by the Citation Amendment (Scotland) Act 1882, section 3:

 

"Instead of having to employ a messenger-at-arms, it was thought convenient that the pursuer's agent should himself be entitled to give the notice by registered letter. It must be done by a law agent because only a lawyer can be entrusted with the execution of the directions of the Act".

 

[20].          And finally and fifthly, Dove Wilson, Sheriff Court Practice(4^th edition 1891), page 110 explaining that previous to the Citation Amendment (Scotland) Act 1882, section 3, citation "through delivery by an officer of court" was "the only way competent".

 

[21].          The Defender's solicitor's Note of Argument also refers to Dove Wilson, Sheriff Court Practice (4^th edition 1891), at page 119.

[22].          This passage explains that the Citation Amendment (Scotland) Act 1882, section 3, introduced postal citation as a:

 

"substitute, in every civil case, for service by an officer of Court".

 

Relevant provisions of the Ordinary Cause Rules 1993

 

[23].          Rule 15.2 provides for "intimation of motions".

 

[24].          It sets out the modes of intimation but is silent on who may intimate.

 

[25].          In addition to "any of the methods provided for in Chapter 5 (citation, service and intimation)", it provides for intimation of a motion inter alia by facsimile transmission or first class ordinary post "to a party represented by a solicitor".

 

[26].          "Postal service or intimation" by first class recorded delivery mail is regulated by rule 5.3.

 

[27].          "Service within Scotland by sheriff officer" is regulated by rule 5.4.

 

[28].          Rule 5.10(1) provides that:

 

"A person who appears in a cause shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him; and his appearance shall remedy any defect in such citation, service or intimation".

 

Mr Duff's Submissions

 

[29].          Mr Duff referred to the merits of his cause and his wish for it to be sisted pending the determination of his appeal in a separate action of his in the Court of Session.

 

[30].          He referred to authorities concerning the rule expressed in rule 5.10(1) of the Ordinary Cause Rules 1993 that a party who "appears" in answer to a defective citation or intimation thereby remedies any defect in citation or intimation: see Struthers v Magistrates of Kirkintilloch 1951 SLT (Notes) 77; Thomson v Wiggins Teape Ltd 1981 SLT (Sh Ct) 85; and Macphail, Sheriff Court Practice, (3^rd ed, 2006), paragraph 6.04 at page 228.

 

[31].          Mr Duff relied in particular on Sullivan v Young, 11^th April 2003. In that case, Sheriff Crowe, sitting in Dundee Sheriff Court held that the defenders could not argue want of service, having appeared in relation to a motion to recall a purported sist.

 

[32].          The motion in that case had been unopposed; it had requested the fixing of an Options Hearing. The defender appeared at and participated in the Options Hearing and concurred in the fixing of a diet of debate. Her agent conceded rule 5.10(1) applied and she could not plead want of service.

 

[33].          Mr Duff also referred to White, Practice & Procedure in the Sheriff's Ordinary Court (1987) , "Motions" (found at page 62), which refers to the practice for the other party consenting to a written motion to endorse his consent on the motion (the procedure for consenting to motions I note is now governed by rules 15.4 of the Ordinary Cause Rules 1993).

 

 

Defender's Solicitor's Note of Argument

 

[34].          The defender's solicitor argued under reference to Cairney v Bulloch 1994SLT (Sh Ct) 37 that as no notice of opposition had been lodged to the pursuer's Motion 7/2 of process, there had been no "appearance" by them in terms of rule 5.10(1).

 

Legislation relating to citation previous to the Citation Amendment (Scotland) Act 1882

 

[35].          There are still extant Acts of the Parliaments of Scotland bearing on the question of citation in the sheriff court.

 

[36].          I think it instructive to refer to three of these Acts.

 

[37].          Firstly, the Citation Act 1540 (repealed in relation to procedure in the Court of Session) provides as follows:

 

"Item For eschewing of grett Inconvenientis and fraude done to our souerane lordis liegis be Summoning of thame at thare duelling places And oft tymes falslie and gettis neuer knawlege thairof It is statute and ordanit that In tymes cuming quhare ony officiar or schireff in that part passis at the command of The kingis lettrez or the schireffis stewartis barone or balyeis precept to Summond ony party geif thai can nocht apprehend thame personalie thai sall pass to the yett or durr of the principale duelling place quhare the persoune to be Summond duellis and has thair actuale residence for the tyme and thare sall desire to haif Enteres quhilk gif It be grantit thai sall first schaw the cause of thare cuming And gif thai can nocht gett the party personalie thai sall schaw thair lettres or precept befor the seruandis of the house or vther famouse witnesse and sall execute thair offices and charge and thaireftir sall offir the copy of the saidis lettrez or precept to ony of the servandis quhilk gif thai refuse to do that thai affix the samin vpoune the yett or dure of the personis Summondit And siclik gif thai gett na Enteres thai first knokand at the dure vj knokis thai sall execute thair office befor famouse witnesse at the said house and duelling place and affixt the copy vpoune the yett or dure thairof as said Is quhilk sall be lauchtfull and sufficient Summoning and deliuering of copy And the party nor officiar sall nocht be haldin to gif ony vthir copy bot at thair awin plesour And euery officiar In his indorsatioune sall mak mentioune of his executioune In maner forsaid And the party at quhais instance the lettre or precept Is direct sall pay to the officiar executour the expense of the copy affixt As said Is And salbe taxt and gevin agane to him at the geving of the decrete or sentence gif he happinnis to optene And gif the officiar beis fundin culpable in the executioune of his office he salbe put In our souerane lordis prisoune and punist In his persoune and gudis at the kingis grace will."

 

[38].          The Citation Act 1592 provides that:

 

"[A]ll copys of summoundis and lettres quhilkis salbe deliuerit to ony pairtie be subscryuit be the officiar executour thairof ."

 

[39].          The Citation Act 1686 provides that:

 

"[A]ll Citations ...be subscrived by the executor therof and the witnesses therto Otherways to be null and void..."

 

[40].          The detailed rules for service by sheriff officer in respect of ordinary causes are now set out in rule 5.4 of the Ordinary Cause Rules 1993.

[41].          However, the old Acts demonstrate a long policy of entrusting service of process (citation) and execution of diligence exclusively to messenger-at arms and sheriff officers as officers of court. The stated policy objective in the Citation Act 1540 is that this is:

 

" For eschewing of grett Inconvenientis and fraude done to our souerane lordis liegis be Summoning of thame at thare duelling places And oft tymes falslie and gettis neuer knawlege thairof."

 

[42].          Moreover, citations not subscribed by the officer and witnesses (now witness-see below) are "null and void" in terms of the Citation Acts 1592 and 1686 and accordingly decrees in absence following thereon may be reduced or suspended by the Court of Session: see Blackfriars(Scotland) Ltd v Shetland Salmon Co's Trustee 2001 SLT 315.

 

Only one witness required for service

 

[43].          Section 32 of the Debtors (Scotland) Act 1832 (as amended) provides in relation to citation in the sheriff court( it has been repealed in relation to the Court of Session) that:

 

"Extracts, citations, deliverances, schedules, and executions may be either printed or in writing, or partly both, and more than one witness shall not be required for service or execution thereof (emphasis added)".

 

[44].          Section 1 of the Citations (Scotland) Act 1846 provides that section 32 :

 

"[S]hall apply to all citations on all summonses, and to all cases whatsoever of services and execution, and more than one witness is not and shall not be required for service or execution in any case(emphasis added)".

 

[45].          This rule that one witness is sufficient for the execution of citation is set out expressly in rule 5.2(4) of the Ordinary Cause Rules 1993.

 

The Profession of officer of court

 

[46].          Section 60 of the Bankruptcy and Diligence (Scotland) Act 2007 intended to abolish the ancient offices of messenger-at arms and sheriff officer (officers of court) and replace them with "judicial officers".

 

[47].          This "needless abolition"( RA Macpherson, Mergers in Messengery: A Confusion of Livet and Clyde, page 92) was repealed by the Public Services Reform (Scotland) Act 2010, which by amendment of section 63 of the Bankruptcy and Diligence (Scotland) Act 2007 provided for designation by the Scottish Ministers of a professional association to which all officers of court must belong, the relevant designation in respect of the Society of Messengers-at-Arms and Sheriff Officers being made by regulation 3 of the Officers of Court's Professional Association (Scotland) Regulations 2011 (SSI 2011/90).

 

[48].          The profession is regulated by rules made by the Court of Session under section 75 of the Debtors(Scotland) Act 1987, currently the Act of Sederunt(Messengers-at-Arms and Sheriff Officers Rules) 1991, and its members are subject to elaborate disciplinary procedures set out in section s 80-82 of that Act. Every officer of court must carry an official identity card when carrying out his functions: 1987 Act, section 86(1).

May a party litigant serve parts of process in an ordinary action in the sheriff court?

 

[49].          I turn now to address this question posed by Mr Duff's attempt to intimate his Motion 7/2 on the Defenders himself and not to instruct sheriff officers to carry out intimation or to instruct a solicitor to carry out intimation by first class recorded delivery letter.

 

[50].          By virtue of section 77(2) of the Debtors (Scotland) Act 1987, a messenger-at-arms was not authorised by his commission to execute a warrant granted by the sheriff or sheriff clerk. By virtue of the Recorded Delivery Service Act 1962, section 1(1), the reference to service by registered letter in the Citation Amendment (Scotland) Act 1882 now refers to service by either registered letter or by the recorded delivery service.

 

[51].          The Citation Act 1540 directed the sheriff officer to attempt personal service, which failing to serve on a servant, which failing to affix to the door. Rule 5.4 of the Ordinary Cause Rules 1993 (as recently amended) now allows the sheriff officer to serve personally, on a resident at the person's dwelling house, or on an employee at his place of business, failing which by depositing or leaving it in such a way it is likely to come to the person's attention.

 

[52].          Mr Duff's motion 7/2 of process could have been intimated by any of the methods provided by chapter 5 of the Ordinary Cause Rules 1993 (rule 15.2(2) (a)), but these would plainly in my view have necessitated intimation either by an sheriff officer under rule5.4 or intimation by first recorded delivery by a sheriff officer or solicitor under rule 5.3 of the Ordinary Cause Rules 1993 and section 3 of the Citation Amendment (Scotland) Act 1882.

 

[53].          Was it therefore open to Mr Duff as a party litigant to serve on the Defender's solicitors under rule 15.2(2) (b) of the Ordinary Cause Rules 1993?

[54].          This rule allows intimation of a motion on a party represented by a solicitor to that solicitor by personal delivery, facsimile transmission, first class ordinary post, or delivery to a document exchange. The rule is silent about who may deliver, fax or post the intimation, but Form G8, certificate of intimation, provides for signature of the certificate of intimation, by a "solicitor or sheriff officer".

 

[55].          Form G8 contrasts with Form G6, Form of Motion, which may clearly be signed by a party litigant personally, or by his solicitor. By virtue of section 32(1) (c) of the Sheriff Courts (Scotland) Act 1971, the Court of Session had power by Act of Sederunt to prescribe "the person by whom, and the manner in which" execution of documents was to be authenticated. This in my view was sufficient authority for rule15.2(2)(b) and Form G8 of the Ordinary Cause Rules 1993, limiting to a solicitor or sheriff officer the right to intimate a motion in accordance with that rule.

 

[56].          There is no provision of which I am aware in any of the primary legislation or the Ordinary Cause Rules 1993 bearing on service or intimation of process which either allows or excludes a party litigant from faxing, posting or delivering an intimation copy motion to the solicitor of a party represented by that solicitor. The legislation appears entirely silent on the question.

 

[57].          However, I am left with little- if any- doubt that the consistent policy of the law since the Citation Act 1540 has been to entrust service or intimation of process to officers of court, now since section 77(2) of the Debtors (Scotland) Act, sheriff officers only in relation to the sheriff court. If others are to be entrusted with that responsibility in any given case, then it must be as a result of specific unambiguous legislative provision.

 

 

[58].          It follows in my view that a party litigant can only personally serve or intimate items of process if given specific legislative authority to do so. Otherwise that responsibility falls exclusively to the sheriff officer, or to a solicitor in terms of making recorded delivery service or intimation or, in respect of a motion, to a solicitor in terms of intimating to the other party's solicitor in accordance with rule 15. 2(2) (b) of the Ordinary Cause Rules 1993.

 

[59].          This position accords in my opinion with the view long held by the courts in Scotland. Thus as Lord Kinnear stated in McGregor v McLaughlin (1905) 8 F 70 at 77:

 

"The sheriff officer was not an agent or servant of his own selection but the officer of law appointed for the purpose of serving writs which the party interested cannot effectually serve for himself (emphasis added)".

 

[60].          And I consider that Lord McLaren in Addison v Brown (1906) 8 F 443 at 447 confirmed the principle that citation or intimation is entrusted in Scotland only to officers of court, in the broader sense to include solicitors, when he stated in reference to the alteration made to the law of citation and intimation by the Citation Amendment (Scotland) Act 1882, section 3:

 

"Instead of having to employ a messenger-at-arms, it was thought convenient that the pursuer's agent should himself be entitled to give the notice by registered letter. It must be done by a law agent because only a lawyer can be entrusted with the execution of the directions of the Act (emphasis added)".

 

[61].          Mr Duff was unable to offer any argument, or to cite any authority, to show that these statements were no longer good law.

 

[62].          Accordingly in my opinion he was not entitled to avail himself of rule 15.2(2) (b) of the Ordinary Cause Rules 1993 and himself attempt intimation of his Motion 7/2 on the Defender's solicitor by fax and post.

 

[63].          He could only therefore have had his Motion 7/2 of process effectually intimated on the Defenders in accordance with either:

 

(a) Chapter 5 of the Ordinary Cause Rules 1993, that is by instructing-

 

(i) a sheriff officer to intimate it in accordance with rule 5.4 of the Ordinary Cause Rules 1993; or

 

(ii) a sheriff officer or solicitor to intimate it by first class recorded delivery post in accordance with rule 5.3 of the Ordinary Cause Rules 1993 and section 3 of the Citation Amendment (Scotland) Act 1882;or

 

(b) Rule 15.2(2) (b) of the Ordinary Cause Rules 1993 , that is by instructing a sheriff officer or solicitor to intimate it to the Defender's solicitor by one of the modes of intimation authorised by that rule.

 

Nonetheless, does rule 5.10(1) apply so that the Defenders may not object to the irregular service?

 

[64].          The simple answer to this question is in my opinion: no.

 

[65].          Opposition to a motion is by notice of objection in terms of rule 15.3. No such notice was lodged. That in my view is what is meant in this context by "appearance": cf the lodging of a notice of intention to defend in relation to "appearing" in response to citation in respect of the initial writ- Cairney v Bulloch 1994SLT (Sh Ct) 37.

 

[66].          And in any event a party invited by the court to make submissions on validity of service does not thereby "appear" in relation to the cause or part of process in question: Cairney v Bulloch 1994SLT (Sh Ct) 37.

 

[67].          Mr Duff suggested the party objecting to service or intimation had either to ignore or return to him the service or intimation copy: see Macphail, Sheriff Court Practice, (3^rd Ed, 2006), paragraph 6.04 at page 228.

 

[68].          But that in my view is not necessary in every case. In this case it was sufficient for the Defender's solicitors to write to the sheriff clerk objecting to the validity of intimation of the pursuer's Motion 7/2 of process: see item 13 of process.

 

Conclusion and disposal

 

[69].          It is my view that a party litigant cannot effectually intimate a motion to an opposing party's solicitor in accordance with rule 15.2(2) (b) of the Ordinary Cause Rules 1993: only a sheriff officer or solicitor may intimate under that rule. A party may attempt to do so, and lodge his motion with the sheriff clerk, but the opposing party may object to regularity of intimation by writing to the sheriff clerk without risk rule 5.10(1) will apply-provided of course he does not lodge a notice of opposition.

 

[70].          Since in this case the Defender did not lodge a notice of opposition to the pursuer's Motion 7/2 of process, and indeed their solicitor wrote to the sheriff clerk with objection to the validity of intimation by Mr Duff himself, it follows his Motion 7/2 of process was not effectually intimated on the Defender. As the Motion is not therefore properly before the court, I consider the correct disposal is for me to refuse to consider, and make no order, in relation it.