Scottish Sheriff Court Decisions

DUMFRIES SHERIFF COURT
Sheriff Principal B A Lockhart	CASE NO: SC75/11 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART In Note of Appeal by Robert Shanks Pursuer and Appellant   Against   The Scottish Ministers Defenders and Respondents

Act: Stuart Cochran, Solicitor, Edinburgh

 

Alt: Gemma Hay, Solicitor, Edinburgh

_____________________________________________________________________________

DUMFRIES: 19 December 2013

The Sheriff Principal having considered written submissions in respect of this appeal lodged by both parties and having noted the agreement of parties that the appeal should proceed by way of written submissions and without an oral hearing, allows the appeal and recalls the sheriff's interlocutor of 30 May 2013 complained of; Remits the cause to the sheriff to ordain the sheriff clerk to assign and intimate fresh diets of assessment and approval in respect of the pursuer's account of expenses; Finds of consent the pursuer liable to the defenders in respect of the expenses of the previous diets of assessment and approval fixed for 24 and 30 May 2013, quoad ultra finds the defenders and respondents liable to the pursuer and appellant in respect of the expenses of the appeal; allows accounts thereof to be given in and remits same when lodged to the auditor of court to tax and to report.

 

 

Note:

[1] This is a summary cause personal injury action in which the pursuer seeks damages for injury sustained at work on 29 September 2009 when using gym equipment provided by the defenders. The sheriff heard a summary cause proof in Dumfries Sheriff Court on 12 April 2013. He granted decree in favour of the pursuer against the defenders for payment of; (1) the principal sum of £1890.80 and (2) the pursuer's judicial expenses as assessed. At the conclusion of the hearing the sheriff clerk fixed a diet of assessment for 24 May 2013 and a diet of approval for 30 May 2013. These were intimated verbally in court to parties. This was done in accordance with what appears to be the current practice in Dumfries Sheriff Court.

 

[2] The following sections of Rule 23.3 of the Summary Cause Rules 2002 are relevant in this case:-

"(6) Except where the sheriff principal or the sheriff has reserved judgement or where he orders otherwise, the hearing on the claim for expenses must take place immediately upon the decision being pronounced.

 

(7). When that hearing is not held immediately, the sheriff clerk must -

(a) Fix the date, time and place when he shall hear the parties or their solicitors and

(b) Give all parties at least 14 days' notice in writing of the hearing so fixed.

 

(8). The party awarded expenses must -

(a) Lodge his account of expenses in court at least 7 days prior to the date of any hearing fixed under paragraph (7) and

(b) At the same time forward a copy of that account to every party.

 

(9). The sheriff clerk must -

(a) Fix the amount of expenses and

(b) Report his decision to the sheriff principal or the sheriff in open court for his approval at a diet which the sheriff clerk has intimated to parties.

 

(10). The sheriff principal or the sheriff, after hearing parties or their solicitors if objections are stated, must pronounce final decree including decree for payment of expenses as approved by him....

 

(12). Failure by -

(a) Any party to comply with any of the provisions of this rule or

(b) The successful party or parties to appear at the hearing on expenses, must be reported by the sheriff clerk to the sheriff principal or the sheriff at a diet which the sheriff clerk has intimated to the parties.

 

(13). In either of the circumstances mentioned in paragraphs 12(a) or (b) , the sheriff principal or sheriff must, unless sufficient cause be shown, pronounce decree on the merits of the action and find no expenses due to or by any party."

 

[3] Against the background of the relevant provisions of Rule 23.3 which I have set out, in this case the following facts require to be considered:-

(i) The sheriff clerk did not, when fixing the diet of assessment of expenses (the hearing on the claim for expenses) for 24 May 2013 give parties at least 14 days' notice in writing of this hearing in terms of Rule 23.3(7) (b).

(ii) At the conclusion of the hearing on 12 April 2013 the sheriff clerk depute assigned verbally the date for the diet of assessment for 24 May 2013 and the diet for approval by the sheriff for 30 May 2013. However these dates were not diarised by the pursuer's solicitor due to oversight.

(iii) On 17 April 2013 the pursuer's solicitors sent papers to Law Accountants to prepare the account of expenses.

(iv) Between 12 April 2013 and 24 May 2013 there was e mail correspondence between the two firms of solicitors - the defenders' solicitors enquiring when they might expect to receive a copy of the pursuer's account of expenses and the pursuer's solicitors indicating that their file was still with their Law Accountant.

(v) The diet of assessment called before the sheriff clerk depute on 24 May 2013. A local solicitor appeared on behalf of the defenders. The pursuer was neither present nor represented. The sheriff clerk depute did not satisfy himself that the diet fixed for that date had been intimated in writing to the pursuer's solicitors in terms of Rule 23.3 (7) (b). The matter was continued until the diet of approval, (which had been intimated verbally to the parties on 12 April 2013) before the sheriff on 30 May 2013.

(vi) However, Rule 23.3(12) requires the failure of the pursuer's solicitor to appear at the diet of assessment to be reported to the sheriff at a diet which the sheriff clerk had intimated to parties. No steps were taken to intimate to the pursuer's solicitor that it would be reported to the sheriff on 30 May 2013 that he had failed to appear at the hearing on expenses on 24 May 2013.

(vii) On 24 May 2013 the pursuer's solicitors intimated their account of expenses to the defenders' solicitors. It was received by the defenders' solicitors on 28 May 2013 by letter but had not by then been lodged in court.

(viii) At the diet of approval on 30 May 2013 the pursuer's solicitor again failed to appear. The sheriff did not satisfy himself, as he required to do, that the terms of Rules 23.3 (7) and 23.3.(12)(b) had been obtempered. The defenders' local solicitor on the instruction on the defenders' principal solicitor advised that the account of expenses had now been intimated to the defenders' solicitor, but given the pursuer's failure to comply with Rule 23.3 of the Summary Cause Rules, the sheriff was moved to grant decree of absolvitor with no expenses due to or by either party. It was stated to the sheriff that a cheque in settlement of the principal sum had been sent to the pursuer's solicitors by letter on 22 April 2013. The sheriff granted decree of absolvitor with no expenses due to or by either party.

(ix) 7 August 2013 the pursuer's solicitors wrote to the defenders' solicitors seeking proposals in relation to the account, which failing they would lodge the account.

(x) 8 August 2013 defenders' solicitors e mailed the pursuer's solicitors enclosing extract decree of absolvitor with no expenses. The pursuer's solicitors were advised on the telephone by the sheriff clerk to lodge a minute for recall of the decree.

(xi) The sheriff clerk fixed 29 August 2013 for hearing on the minute for recall but stated to the pursuer's solicitors that the sheriff had concerns about the competency of recall.

(xii) On 21 August 2013 pursuer's solicitors intimated minute of recall to the defenders solicitors.

(xiii) On 28 August 2013 pursuer's solicitors withdrew the minute of recall on the grounds of competency. They advised the sheriff clerk and defenders' solicitors of same and advised defenders' solicitors they would be appealing the interlocutor of 30 May 2013, inviting them to discuss the account with the pursuer and conceding the expenses of the diet of assessment of 24 May 2013 and the diet of approval on 30 May 2013.

(xiii) On 2 September 2013 an appeal against sheriff's interlocutor of 30 May 2013 was marked to the sheriff principal.

(ix)The above chronology has been gleaned from the very detailed written submissions which I received from both parties. I reach the following conclusions:-

1. The failure of the sheriff clerk to give all parties at least 7days' notice in writing of the hearing fixed for 24 May 2013 in terms of Rule 23.3(7)(b).

In terms of this Rule, where the hearing on expenses is not held immediately the sheriff's decision has been given, the sheriff clerk requires to give to parties 14 days' notice in writing of the date, time and place of the hearing. It is not enough to give such intimation verbally in court at the conclusion of the hearing when the sheriff has given his decision. There may well be a practice in a local court to give intimation verbally, but this is in breach of Rule 23.3(7)(b).

 

2. Intimation of failure by the pursuer's solicitor to appear at the hearing of expenses to be reported by the sheriff clerk to the sheriff at a diet which the sheriff clerk has intimated to parties in terms of Rule 23.3(12)(b).

In my opinion the purpose of this Rule is that, if a successful party fails to appear at a hearing on expenses, intimation should be given to that party that a report of their failure to appear will be made to the sheriff at a diet of which intimation is given. The diet fixed may be the date originally fixed for the approval of the assessment of expenses, or it may be another diet. However, there requires to be intimation of such a diet, after the date of assessment, in order that the defaulting solicitor or party be given the opportunity to explain his/her default to the sheriff. In this case, after the pursuer's solicitor had failed to attend the hearing for assessment of expenses on 24 May 2013, intimation in terms of Rule 23.3(12)(b) should have been made to him that his failure to appear on 24 May 2013 would be reported to the sheriff on a given date. The date could have been 30 May 2013, the date originally fixed for the diet of approval. This was not done.

 

3. Failure by the sheriff to satisfy himself on 30 May 2013 that the terms of Rule 23.3(7)(b) and Rule 23.3(12)(b) had been obtempered.

In my opinion the sheriff, when faced with the absence of the pursuer's solicitor on 30 May 2013, should have enquired (a) Whether the notice of the diet of assessment on 24 May 2013 had been intimated in writing to him in terms of Rule 23.3(7)(b) and (b) Whether, in terms of Rule 23.3(12)(b) the pursuer's solicitor had been given separate intimation that his default in failing to attend on 24 May 2013 would be reported to the sheriff on 30 May 2013. Clearly the sheriff did not make these enquiries.

 

[4] Accordingly the provisions of Rule 23.3(7)(b) and 23.3(12)(b) not having been obtempered, the sheriff was not entitled to proceed to dispose of the action. I take the view that the sheriff erred in disposing of this case in the manner in which he did on 30 May 2013

 

[5] Although it is not necessary for the decision in this case, it is my opinion that it was not competent in any event for the sheriff to grant decree of absolvitor without the agreement of both parties. In this case the sheriff had heard evidence at a proof and he had granted decree in favour of the pursuer with expenses. In terms of Rule 23.3(12) if there had been a failure on the part of the pursuer to appear at the hearing on expenses, the sheriff, "must, unless sufficient cause be shown, pronounce decree on the merits of the action and find no expenses due to or by any party." Now it was represented to the sheriff on 30 May 2013 by solicitor for the defenders that the principal sum had been paid. It had not been intimated by the sheriff clerk to the solicitor for the pursuer that his failure to attend the hearing on expenses on 24 May 2013 would be reported to the sheriff on 30 May 2013. If there had been such intimation, it would have been open to the sheriff, if the pursuer's solicitor did not attend on 30 May 2013, to find that there was sufficient cause not to grant final decree in terms of Rules 23.2. He could then also have found no expenses due to or by either party. However it was not open to him to grant decree of absolvitor as his decision at the proof on the merits of the action was that the pursuer was entitled to decree for £1890.80. I take the view that the only circumstances in which decree of absolvitor could be granted, standing the sheriff's decision on the merits, would have been if parties had agreed that settlement had taken place and he was jointly moved to grant decree of absolvitor.

 

[6] In view of the narrative of events which I have given and the view I have taken on the Rules, it follows that I should exercise my dispensing power in terms of Rule 3.1(1) of the Summary Cause Rules 2002 and allow this appeal to be received although late. In the circumstances which I have outlined I allow the appeal, recall the sheriff's interlocutor of 30 May 2013 , and remit the cause to the sheriff to ordain the sheriff clerk to intimate in writing fresh diets of assessment and approval in respect of the pursuer's account of expenses which, in terms of the rules, requires to be lodged 7 days before the date of assessment.

 

[7] The only remaining issue is the question of expenses of the appeal. The solicitor for the pursuer specifically invites me to find the pursuer liable to the defenders in the expenses of attendance at the previous diets of assessment and approval on 24 and 30 May 2013. This confirms an offer which was made to the defenders' solicitors at the outset. Thereafter, essentially this appeal has proceeded because the defenders have not accepted the interpretation of the Summary Cause Rules 2002 which I have placed upon them, and which has been urged upon me on behalf of the pursuer. In these circumstances I am persuaded that it is proper that I award the expenses of the appeal from 30 May 2013 to the pursuer and appellant. It goes without saying that this award would not include any procedure in connection with the abortive minute for recall. I

much appreciate the agreement of both parties to deal with this appeal by way of written submissions. This has restricted the expenses of the appeal to a minimum.