SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT STORNOWAY

 

SA34/12

 

 

NOTE

 

by

 

SHERIFF PRINCIPAL DEREK C W PYLE

 

in causa

 

 

RICHARD GOLLIN, Bailne na Cille, Uig, Isle of Lewis HS2 9JD

Pursuer and Appellant

 

against

 

TRIP ADVISOR LIMITED, 7 Soho Square, London W1D 3QB

Defenders and Respondents

 

 

 

Inverness, 25 February 2013

 

Act: Appellant Absent

 

Alt: Mr A MacDonald for Respondents

 

 

The Sheriff Principal, Dismisses the Appeal on the grounds of competency; Finds the Pursuer/Appellant liable to the Defenders/Respondents in the expenses of the Appeal as Taxed, Allows an Account thereof to be given in and Remits same to the Auditor of Court to Tax and to Report.

 

 

 

 

Note

 

[1] In this small claim action, the appellant sought payment of damages for loss of reservations for his guest house due, it was alleged, to a false and malicious entry on the respondents' website. The actions first called in Stornoway sheriff court on 21 June 2012. A diet of debate was fixed for 11 October 2012 to deal with the respondents' preliminary plea of no jurisdiction. That plea was not insisted upon, but on the same date the sheriff granted the respondents' incidental application that the cause be treated as an ordinary cause in terms of Section 37(2B) of the Sheriff Courts (Scotland) Act 1971. On 23 October 2012, Mr Duncan Burd, the solicitor for the appellant, lodged an appeal to me. For present purposes the grounds of appeal do not matter. The note of appeal stated that the appellant was appealing the interlocutor of an unspecified date in October but I assumed that Mr Burd meant the interlocutor of 11 October. The papers were transmitted to my personal secretary and were received on 29 October. It was obvious to me - and should have been obvious to Mr Burd - that the appeal was incompetent. Section 38 of the 1971 Act provides:

"In the case of -

(a)   any summary cause an appeal shall lie to the sheriff principal on any point of law from the final judgment of the sheriff, and

(b)   ...

but save as aforesaid an interlocutor of the sheriff... in any such cause shall not be subject to review."

 

Section 35(2) provides that a 'small claim' is a form of summary cause process.

 

 

On any view, the interlocutor of 11 October could never be described as a final judgment, those words being defined by Section 3(h) of the Sheriff Courts (Scotland) Act 1907 as:-

"... an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that the expenses found due may not have been modified, taxed or decerned for".

 

 

[2] On my instruction, my secretary contacted Mr Burd by telephone on 31 October to advise him that I considered the appeal to be incompetent. He said that he agreed with that, but that the appellant was insisting upon it and Mr Burd intended not to lodge an initial writ as required in the sheriff's interlocutor, which "would mean the action would fall and he would appeal it then." This made little sense to me.

 

[3] On 7 December, again on my instruction, my secretary sent an e-mail to the agents for the parties in the following terms:

"The Sheriff Principal has already intimated to the appellant's agents that he considers that the appeal is incompetent - and indeed that point has been conceded by those agents. The respondents' agents have sought clarification about the status of the appeal.

The Sheriff Principal does not consider that it is competent for him ex proprio motu to refuse the appeal without fixing a hearing for parties to be heard. In these circumstances he has asked me to confirm the availability of parties and agents for such a hearing. It will take place in Inverness.

If the appellant does not wish to argue the competency issue, he is free if he wishes to intimate his intention to abandon the appeal, in which event the Sheriff Principal will issue an interlocutor refusing the appeal for want of insistence. That could be dealt with administratively without a hearing."

 

 

 

By e-mail dated 18 December, the respondents' agent advised that he had spoken to Mr Burd who "appeared to be suggesting that he has no intention of doing anything in relation to the Appeal". The agent gave dates for his availability for the hearing. By e-mail dated 19 December, my secretary advised Mr Burd that I intended to fix a hearing for 12 February 2013 and asked if that date was suitable for him. A response was received on the same day from an Anne Farmer from Mr Burd's firm advising that the date was unsuitable. Later that day, my secretary wrote to the parties' agents by e-mail intimating that the hearing would take place in Inverness on 25 February. By e-mail dated 4 January 2013, Mr Burd advised my secretary that the appellant "had withdrawn his instruction to me and, as such, I will not be present on the 25th February". By 15 January Mr Burd was clearly re-instructed, in that he sent an e-mail to my secretary advising that the appellant was "content now to formally instruct the withdrawal of the Appeal which will presumably avoid the necessity of a Hearing for the Principal". The e-mail made no mention of how I should dispose of the issue of expenses. My secretary e-mailed Mr Burd on 21 January asking if the appellant conceded expenses. He replied on 22 January that he had "requested [the appellant] consider the matter and let me have instructions if appropriate". On 25 January Mr Burd advised that the appellant "is strongly against conceding any and all expenses. [The appellant] has reiterated that his case was a Small Claims case and all the definitions of a Small Claims case as specifically advised by the staff within the Court House in Stornoway."

 

 

 

[4] On 28 January, on my instruction, my secretary advised parties in the following terms:-

"The Sheriff Principal has been advised that the appellant does not intend to proceed with his appeal, but is unwilling to concede expenses. The appeal has of course been set down for a hearing at Inverness on 25 February. There is little purpose in that taking place - and it is likely to be a waste of judicial and court resources, never mind the parties'.

 Nevertheless, the Sheriff Principal does not consider that he can deal with this ex proprio motu. Accordingly, the hearing will proceed. If the appellant wishes not to risk the possibility of the expenses of the hearing being found against him, he should lodge a motion abandoning the appeal and concede the expenses. Alternatively, the parties are free to agree if they wish that the appeal be refused with a finding of no expenses due to or by either party. The appellant, if he wishes, is also free to advise the Sheriff Principal at the hearing on 25 February that he intends to abandon the appeal but opposes any motion by the respondents for expenses. The Sheriff Principal will deal with that motion, if made, on the day."

 

By e-mail dated 22 January, Mr Burd replied as follows:-

"Following on from your email of 28th January I write simply to advise that I have had a discussion with Angus MacDonald, solicitor for Trip Advisor, this morning.  I reminded Mr MacDonald that I am no longer instructed in this matter and therefore not in a position to formally address either him or the Court on matters, this of course having been communicated to you on 4th January.

Insofar as I am aware Mr Gollin remains resident in the United States of America but would oppose any award of expenses.  The Court will take into account that there is no Initial Writ upon which they can formally pronounce expenses on the Ordinary Cause and that the matter was appealed as a Small Claim and any appeal should be dealt with on that basis. 

Presuming also as Mr Gollin is a lay person he would have been entitled to have been heard by the Sheriff Principal in the local Court and any award of expenses should proceed on that basis."

 

On the morning of the hearing on 25 February, a long e-mail from the appellant was received by my secretary. Included in it were the following points:

1.     He has been resident in America since October 2012;

 

 

2.     He had received no notification or details of the case;

3.     He would be free to attend court from about 24 April;

4.     He had been advised by the Stornoway court office that his case fitted the requirements of a small claim case and that his expenses would be limited to the expenses allowed in such cases;

5.     The respondents had employed tactics to delay the case and indeed to avoid the claim altogether;

6.     The procedural history of the action showed that the aim of the small claims court to have a quick, simple and cheap procedure had been defeated.

 

 

[5] I have set out the history of this appeal for a number of reasons some of which are relevant to this case and others are of general application and should be carefully considered by solicitors throughout the sheriffdom of Grampian, Highland and Islands when dealing with appeals to me.

 

[6] Whatever could be argued against the decision of the sheriff to decide to treat this case as an ordinary cause, about which I express no view, it is plain that this appeal was hopelessly incompetent. The commendable principle that small claim proceedings should, as the appellant reminds us, be quick, simple and cheap does not apply when a party exercises a right of appeal. The fact that the rules restrict appeals only to sheriffs

 

principal does at least ensure that the litigation is kept within bounds which are a necessary compromise between the need for a simple procedure and the right to have a wrong final decision by a judge at first instance overturned.

 

[7] To state, as Mr Burd did in this case, that his client insisted on an incompetent appeal is no answer. It is the responsibility of a solicitor to refuse to take a step in a legal process which he knows full well is incompetent. If the client remains unhappy with that, his remedy is to seek a second opinion from another lawyer or to proceed, however incompetently, as a party litigant. But if he chooses the latter, he has only himself to blame if he incurs a liability in expenses.

 

[8] Both I and the respondents' solicitor gave the appellant several opportunities to avoid the expense which was eventually incurred of the respondents being represented at the hearing on 25 February. That he, whether under advice or not, did not take the opportunities given to him inevitably results in him incurring a liability in the expenses of the appeal.

 

[9] Mr Burd's e-mail of 22 January is unsatisfactory in two respects:-

(a) He impliedly states that I and the respondents' agents should have remembered that he, Mr Burd, had withdrawn from acting on 4 January, when the position was that after that date he sent e-mails to my secretary on behalf of his client;

 

 

(b) Despite asserting that he was no longer acting for the appellant and therefore having no locus in the proceedings, Mr Burd still considered it appropriate, if it ever was anyway outwith a formal hearing, to tell me how I should deal with expenses and to assert that the appellant was entitled to have the hearing in Stornoway, not Inverness.

 

[10] It has been customary in this sheriffdom for the Sheriff Principal's personal secretary to liaise with parties' agents in the administrative matters which arise in appeals. That is a practice which I intend to continue. But there are limits to it. The following principles should be followed by agents:-

(a) It is their responsibility to ensure that any communication to my secretary sets out the position fully and does not require either me or her to seek clarification on points which the solicitor ought to have considered in the first place. In this case, for example, Mr Burd said that his client did not insist on the appeal but did not deal with the question of expenses;

(b) Communication by e-mail is encouraged but it is no substitute for obedience to the rules of procedure. Thus, if a party wishes to abandon an appeal he requires to lodge in process the appropriate minute and/or motion as appropriate, unless he intends to enter into a joint minute with his opponent, in which case the principal copy should be sent to my secretary who can then prepare the appropriate interlocutor for my signature;

(c) I will do what I can to facilitate the fixing of a date for any hearing which is convenient to parties' agents or counsel, but that does not mean that appeals can be delayed beyond a reasonable time. Ultimately, I have a responsibility to ensure that

 

appeals are dealt with expeditiously in the interests of justice and the parties themselves. That may mean that a hearing will be fixed notwithstanding the unavailability of a particular agent or counsel. For me to delay the fixing of a hearing so that such an agent or counsel can appear will be only where I consider that it is in the interests of justice to do so.

(d) More generally, I detect a certain informality has crept into the communications between my secretary and agents. There is nothing inherently wrong with that, but agents should remember that any such communication is part of the official record of the proceedings and may be cited in any subsequent written judgment or note. In many ways, I regret having singled out Mr Burd for publication of his communications with my secretary, but I do so primarily to make agents aware that sloppily prepared e-mails may, when referred to in any judgment or note prepared by me, become subject to publication on the Scottish Court Service website of recent judicial opinions.