Scottish Sheriff Court Decisions

AIRDRIE SHERIFF COURT
Sheriff Principal B A Lockhart	B741/11   JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in causa   North Lanarkshire Council Pursuers and Respondents   against   Alistair McMeekin Defender and Appellant

 

Act: Mr A Hunter, Solicitor, Glasgow

Alt: Mr R McCran, Solicitor, Dunfermline

 

 

_____________________________________________________________________________

AIRDRIE: 17 December 2013

The Sheriff Principal, having resumed consideration of the cause, refuses to allow the amended grounds of appeal to be received; quoad ultra refuses the defenders motion to allow the Note of Appeal to be received late; accordingly refuses the appeal and adheres to the sheriff's interlocutor of 22 April 2013 complained of. Finds the first defender and appellant liable to the pursuers and respondents in the expenses of the appeal, allows an account thereof to be given in and remits same when lodged to the auditor of court to tax and to report.

NOTE:

[1] The interlocutor appealed against is dated 22 April 2013. The appeal ought to have been lodged by 3 May 2013, but in fact was not lodged until 14 May 2013. Note attached to my interlocutor of 26 June 2013 sets out the factual background as at that date. I continued the motion to a date to be afterwards fixed. That date was eventually fixed for 16 October 2013. In the detailed Note attached to my interlocutor dated 29 October 2013 I explained why I continued consideration of the motion on behalf of the defender and appellant to allow the Note of Appeal to be received late until 9 December 2013 to enable the defender and appellant to lodge detailed grounds of appeal. The hearings before me on 26 June 2013 and 29 October 2013 had concentrated on the reasons for the delay in lodging the Note of Appeal. I came to the conclusion, albeit with hesitation, that the interests of justice demanded that it would be reasonable to grant that motion. However, having made the decision that it would be fair to do so, I then noticed that there was only one ground of appeal lodged which was wholly irrelevant and without foundation. In that situation, it was not appropriate that I grant the motion. As the defender had parted company with his second set of solicitors and appeared personally before me on 29 October 2013, I considered it to be unfair to refuse the motion on the grounds that there were no arguable grounds of appeal lodged on his behalf as this issue had not been argued before me. I decided to further continue consideration of the motion until 9 December 2013 to allow amended grounds of appeal to be lodged. I stated in my Note that, if I was not persuaded, once the amended grounds of appeal had been lodged, that there was an arguable case on appeal, I would refuse the defenders motion to allow the note of appeal to be received late.

 

[2] Amended grounds of appeal were in fact lodged by the third firm of solicitors instructed by the defender and he was represented by them at the appeal hearing before me on 9 December 2013. The original grounds of appeal had been:-

"That the learned sheriff erred in applying the law in relation to this matter by deciding that service of a Calling Up Notice which went unanswered meant that the pursuer was entitled to the crave of the writ and requests the sheriff to write a Note."

 

The amended grounds of appeal are in the following terms:-

"By judgment dated 22 April 2013 the learned sheriff Daniel Kelly QC granted decree in favour of the pursuers following a proof. The first defender appeals to the sheriff principal on the following grounds.

As the learned sheriff notes at paragraph 8 of his note and elsewhere, the provisions of part II of the Conveyancing and Feudal Reform (Scotland) Act 1970 fell to be applied to the pursuers' action. An action under part II of the 1970 Act may be defended on the basis that there is no liability due by the debtor to the creditor under the personal obligation which the standard security (or in this case, the charging order) secures. In his pleadings, the first defender sought to argue the pursuers could not enforce the personal obligation secured by the charging order.

At paragraph 9 of his note the learned sheriff misapprehends the nature of the defence. It was not the first defender's argument that the pursuers were personally barred from obtaining a decree under the 1970 Act, as the learned sheriff suggests. The first defender argued that the pursuers were personally barred "from proceeding to recover monies". His second plea in law is directed to the issue of whether the obligation secured by the charging order is enforceable. The learned sheriff relegated that issue to being a matter which might be relevant to his judgment, under section 24(5)-(7) of the 1970 Act, as to whether it was reasonable to grant the orders sought by the Pursuer. In doing so he erred. He ought to have considered whether, in light of the evidence, the council was entitled to recover any sum from the defenders.

That said, the first defender wishes to restate the grounds upon which he argues that the estate of the late Mrs McMeekin has no outstanding obligation to make any payment to the pursuers in respect of her care. The restated grounds are as follows.

(1) The pursuers, having assessed the contributions due to be made by the late Mrs McMeekin to the cost of her care, under the National Assistance (Assessment of Resources) Regulations 1992, had no legal power to conduct a reassessment of those contributions, after her death.

(2) The reassessment of March 2006, not being an assessment made under the 1992 regulations, had no legal effect. In particular, that reassessment:

(a) failed to distinguish between different years of assessment between 2001 and 2005;

(b) did not proceed on the basis of any up to date valuation of the subjects at [address];

(c) did not take into account the deductions that ought to be made from the valuation under regulation 23 of the 1992 regulations, being in particular the extent of the encumbrance constituted by the standard security in favour of Halifax plc, and the 10% reduction for the costs of sale, under regulation 23(1)(a);

(d) proceeded on the false contention that Mrs McMeekin had deprived herself of capital;

(e) failed to apply the diminishing notional capital rule under regulation 26.

(3) The letter of 24 March 2006, in terms of which the pursuers' reassessment was communicated to the first defender, stated that "the calculation of the charges which have to be paid by the resident to the home will now include the value of the capital". Thus the decision was effective only in relation to prospective care costs, rather than the costs already incurred. As no costs were incurred after 24 March 2006, no money is due to the pursuers.

(4) If that is not so, because the reassessment is correctly regarded as retrospective, then the obligation to make payment for care costs has been extinguished by prescription. Mrs McMeekin died in August 2005. The reassessment decision was communicated to the first defender in March 2006. These proceedings were not raised until November 2011.

The first defender craves the indulgence of the court in allowing these arguments to be presented. They may be considered by the court on the basis of the findings made by the sheriff, together with parties' productions. They will not require the leading of additional evidence. Since the proof, the first defender has instructed new agents. The presentation of his case at proof did not take advantage of the legal arguments that might have been made on his behalf. It is in the interests of justice that he now be permitted to make those arguments."

 

[3] I heard parties on this appeal in Airdrie Sheriff Court on 9 December 2013. I first heard from solicitor for the pursuers and respondents in respect of their objection to the amended grounds of appeal being received.

 

SUBMISSIONS FOR THE PURSUERS AND RESPONDENTS

 

[4] Solicitor for the pursuers submitted that the amended grounds of appeal could not be addressed without the hearing of additional evidence. It was suggested that the sheriff had not dealt with personal bar argument properly. It was submitted that in the sheriff's judgement (the essential parts of which are set out in my Note of 29 October 2013) he had considered how the doctrine of personal bar could have operated and took a view that it did not in light of the facts presented to him. He concluded;-

"The first defender, therefore, failed to demonstrate how the defenders (principally qua executors but equally in any other capacity) had altered their actions to their disadvantage as a result of the pursuers' conduct."

 

It was submitted that the sheriff dealt with personal bar and took the view that the facts presented did not allow its operation in favour of the defender. It was submitted that the amended grounds of appeal tried to stretch the second plea in law to mean something it was not intended to mean on the basis of the averments. i.e. it was trying to give it a wider meaning than the averments suggested.

 

[5] As far as the numbered paragraphs in the amended grounds of appeal were concerned, it was submitted that they did not demonstrate a restatement of anything that had previously been argued, but represented entirely new grounds of challenge. It was submitted that grounds 1, 2 and to a lesser extent 3 could not be considered with without additional evidence being heard. This was a summary application where evidence was not recorded by a short-hand writer. The two witnesses at the proof, Ms McMonnigle and Mr Paul both spoke to the productions and the assessments made by them in respect of care charges. They had made their calculations. The appeal as now presented would require substantial amendment and answers and further detailed evidence. It would effectively amount to a rehearing of the case.

 

[6] As far as the amended ground of appeal regarding prescription was concerned this had not been previously canvased. There was no plea in law or averment. The obligation to make contributions to nursing care charges arises from statute, namely, the National Assistance Act 1948 and the National Assistance (Assessment of Resources) regulations 1992.

 

[7] It was submitted on behalf of the pursuers that the obligation to pay arose from statute. As such, the obligation to pay was not extinguished by prescription. In terms of schedule 1, para 2(a) of the Prescription and Limitation (Scotland) Act 1973, section 6 of that Act specifically does not apply to "...an order of... an authority exercising jurisdiction under any enactment." The orders which were made in respect of the assessments were made under statute and have not prescribed.

 

[8] Questions of justice and fairness had to be looked at in allowing any of the grounds to be pursued at this stage. If the amended grounds were allowed to be received, there would require to be a detailed Minute of Amendment, answers, and the matter remitted to the sheriff for a further proof. This would involve very substantial further expense. It was pointed out that the current solicitors, who had just appeared for the first time on behalf of the defender were the third firm of solicitors whom he had instructed. The proof which the sheriff heard on 22 April 2013 was the fifth diet of proof which had been assigned. The history of the case was that this summary application was served on 19 October 2011. The first calling was on 5 December 2011. On that date 14 days were allowed for answers and a hearing fixed for 26 March 2011. Answers were not lodged timeously and there was a motion for decree by default. On 2 March 2012 the defender's then solicitor asked for a discharge of the hearing fixed for 26 March 2012 as he proposed to seek counsel's opinion. About two months later, the second hearing which was assigned for 22 May 2012 was discharged because of very substantial adjustment on behalf of the defender. Numerous new arguments were placed in the answers including a plea of personal bar. It was to be presumed that counsel's opinion by this time had been obtained. The diet fixed for 8 October 2012 was discharged on the motion of the defender in view of adjustment by the pursuers in answer to their adjustment. The diet fixed for 6 December 2012 was discharged because one of the pursuers' witnesses was indisposed. There had been very substantial adjustment of the pleadings on behalf of the defender, on the advice of counsel, and yet for the first time on 2 December 2013 completely new grounds of appeal, none of which had been dealt with in the defender's pleadings to date, were put before the court.

 

[9] I was referred to Macphail Sheriff Court Practice para 18.13:-

"...the question of whether a new point will be entertained on appeal is not one of competency, but of discretion....If a fresh argument cannot properly be advanced without the addition by amendment of an appropriate plea-in-law, the allowance of amendment is within the discretion of the appeal court, who will have regard to considerations of fairness and prejudice to the other side... the new argument cannot be based on evidence other than that led at first instance, except where the court is willing to consider circumstances which have arisen since the hearing in the court below."

 

I was also referred to para 10.24:-

"The appeal court may allow amendment at the commencement of the hearing of the appeal or during its course. An amendment which entails only the addition of a plea in law after debate in the court below, in order to focus an argument more precisely, or only a technical alteration of the pleadings which does not affect the substance of a proof led in the court below, is likely to be allowed; but the addition after proof of a plea unsupported by relevant averments of fact which would involve unjustifiable disregard of the rules of fair notice will be refused, as will a belated and unjustifiable attempt to make a radical amendment, as by adding a plea to competency after proof...The appeal court may be reluctant to allow an amendment which raises a new case or contention on which the court below has no opportunity of expressing an opinion."

 

The amended grounds of appeal lodged would effectively give the defender the right to start again. In the whole circumstances I was invited to refuse to allow the amended grounds of appeal to be received.

 

SUBMISSIONS FOR DEFENDER AND APPELLANT

 

[10] Solicitor for the defender conceded that he had only been instructed after I had issued my Note on 29 October 2013 following the hearing before me on 16 October 2013. He submitted that it was not necessary to lead evidence in respect of the additional grounds of appeal. Arguments could be based on the productions which were in process. This was particularly true in respect of grounds 2 dealing with the reassessment of March 2006 and ground 4, which dealt with whether the obligation had been extinguished by prescription. It was submitted that these were two potentially strong arguments and it was in the interests of justice that the defender should be allowed to present them.

 

[11] I was asked to allow the amended grounds to be received. I was thereafter invited to ordain the defender to lodge a Minute of Amendment and to give the pursuers time to answer. The case would then come before me for a further procedural hearing. If I was not prepared to do this in respect of all four grounds of appeal, it was submitted that I should allow this procedure in respect of grounds 2 and 4.

 

DECISION

 

[12] I have already afforded accommodation to the defender in respect of two separate matters. The first was when I gave him the opportunity to establish the reasons for the late lodging of his Note of Appeal (which he ought to have been able to do at the first calling). The second was, on an occasion when the appellant was unrepresented, I would have been entitled to refuse the appeal to be received late on the basis that the only ground of appeal lodged was wholly irrelevant and without substance. However, ex proprio motu, I continued the appeal to allow the defender to lodge amended grounds of appeal. The defender now seeks a third accommodation from me in respect of amended grounds of appeal which bear no relation to the pleadings or to the evidence which was led before the sheriff. Whether I should allow the amended grounds of appeal to be received is a discretionary one for me in light of the whole circumstances.

 

[13] I am mindful of the dicta of Lord President Dunedin in the case of Coul v Ayr County Council 1909 SC 424 when he said:-

"No doubt, when proof has been concluded and judgement has been given both by the sheriff substitute and by the sheriff, it is not on light grounds that your Lordships will go back upon what has been done and open up the proof, and in particular when a party, by his own negligence, failed to bring forward evidence which might have been available to him..."

 

I am also mindful of the opinion of the court in Ralston v Secretary of State for Scotland 1992 SLT 687 at 689 where, after quoting the passage of Lord President Dunedin in Coul to which I have referred, their Lordships stated:-

"We consider that although the responsibility of this court in dealing with such a motion is to consider the interests of justice, the court must be very slow indeed to reopen a proof in circumstances in which not only has the proof been concluded when both parties to the proof were legally represented, but the court has issued its judgement determining all matters ventilated at the proof."

 

[14] Defender was served with this summary application on 19 October 2011. The Hearing which took place before the sheriff on 22 April 2013 was the fifth hearing assigned. The defender had been given ample opportunity for access to legal advice and to adjust the pleadings. He was given the benefit of the advice of counsel who considered the papers and presumably drafted the answers to the pursuers' allegations. The defender has had ample time to get his house in order. On the basis of the pleadings as they existed at the date of the proof, the sheriff heard evidence, heard submissions thereon then issued a detailed judgement which is dated 22 April 2013.

 

[15] The defender lodged a Note of Appeal on 14 May 2013. It ought to have been lodged on 3 May 2013. His only ground of appeal was :-

"That the learned sheriff erred in applying the law in relation to this matter by deciding that service of a Calling Up Notice which went unanswered meant that the pursuer was entitled to the crave of the writ and requests the sheriff to write a Note."

 

[16] There were two hearings before me on the question of the reasons for the late lodging of the Note of Appeal. While, with some hesitation, I concluded that these were perhaps just acceptable, when I went on to consider the ground of appeal it was wholly without foundation. Given the opportunity by me to lodge amended grounds of appeal, the defender now seeks to lodge grounds of appeal which indicate lines of defence which would have been open to him more than two years earlier when the summons was served upon him.

 

[17] This is a summary application and should be dealt with expeditiously. The defender at no time has dealt with this matter expeditiously. In the whole circumstances I am not prepared to exercise my discretion and allow the defender at this stage to lodge entirely new grounds of appeal which would involve a detailed minute of amendment, detailed answers and further evidence before the sheriff. As far as the prescription point is concerned, while I comment that the issue would appear to have been very adequately answered in the submission by solicitor for the pursuers and respondents which I record in para 7 hereof, it has been raised for the first time more than two years after the action was first raised, during almost all of which period the defender has had access to legal advice and in particular to the advice of counsel. It is not in the interests of justice that the amended grounds of appeal be received at this stage. It should also be noted that these conclusions are reached by me against a background that the sheriff, having heard all the evidence, and in particular the evidence of the defender, concluded;-

"Essentially it appeared this was a scheme which had been devised in order to circumvent the payment of care charges. My conclusion is that in this particular case the scheme is ineffectual".

 

In these circumstances the appeal fails and I adhere to the sheriff's interlocutor of 22 April 2013.

 

[18] I have awarded the expenses of the appeal to the pursuers.