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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Welding v Wilson & Ors [2004] ScotSC 86 (22 December 2004) URL: http://www.bailii.org/scot/cases/ScotSC/2004/86.html Cite as: [2004] ScotSC 86 |
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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT DINGWALL
A168/03
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JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC |
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in the cause |
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BARBARA WELDING |
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Pursuer and Respondent |
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against |
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RICHARD HANNAY WILSON, MIRANDA CHRISTINE WILSON AND JULIAN HUMPHREY SPENCER COOK |
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Defenders and Appellants |
Act: Miss Gillian Shaw, solicitor, Ledingham Chalmers, Inverness
Alt: Mr R Macdonald, solicitor instructed by Shepherd and Wedderburn, Edinburgh
Dingwall: 21st December 2004
The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 3 August 2004; finds the defenders and appellants liable to the pursuer and respondent in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.
Note
[1] In this case the pursuer and respondent craved the court to order the rectification of a plan annexed and signed as relative to a disposition which she had granted in favour of the defenders and appellants in 1996. For present purposes it is unnecessary to examine the details of the claim. What does matter is the procedural history of the case. This was agreed in terms of a joint minute of agreement which was produced at the hearing of the appeal. Although this had not been signed, it was confirmed that it accurately reflected what had happened. [2] By interlocutor dated 28 May 2004 Sheriff MacFadyen assigned a diet of debate to take place on 22 July 2004. On 20 July 2004 the pursuer's agent intimated to the defenders' agent by fax that the action was to be abandoned. In this fax the pursuer's agent enquired whether the defenders would insist on expenses. After the fax had been received by the defenders' agent there was a telephone conversation in the course of which the two agents discussed the issue of expenses. The defenders' agent advised that instructions were being sought on the issue of expenses but indicated that it was likely that the defenders would seek expenses in the event of abandonment. [3] On 21 July 2004 the pursuer's agent intimated to the defenders' agent by fax both a minute of abandonment and an accompanying motion. The minute of abandonment (no. 12 of process) reads: Shaw for the pursuer stated and hereby states to the court that the pursuer abandons the cause and consents to decree of absolvitor in terms of rule 23.2(1)(a) of the Ordinary Cause Rules
The motion is no. 7/4 of process, and it reads:
Shaw for the pursuer respectfully moves the court to grant decree of absolvitor in terms of the minute of abandonment.
Document attached with motion:
Minute of abandonment
Unfortunately, the minute of abandonment and relative motion had not been received by the court. In the circumstances, we moved that the debate be discharged and for a continuation to allow the minute of abandonment to be received. The sheriff discharged the debate, reserving meantime the question of expenses. He also continued consideration of the pursuer's motion 7/3 of process. The case will next continue (sic) on 12 August 2004 at 10.00 am.
The sheriff, on joint motion, discharges the diet of debate fixed for today and continues the cause on the roll until 12 August 2004 for a minute of abandonment to be lodged.
The sheriff, on the unopposed motion of the pursuer (no. 7/4 of process) and having seen and considered the minute of abandonment (no. 12 of process), assoilzies the defenders from the craves of the initial writ and finds no expenses due to or by either party.
The Defenders appeal to the Sheriff Principal on the following grounds:-
The Sheriff erred in finding no expenses due to or by either party in the interlocutor of 3 August 2004 as the issue of expenses had not been referred to in the Pursuer's Motion.
Expenses had been reserved at the discharged Diet of Debate on 22 July and consideration of same was to be held over until the Continued Hearing fixed for 13 (sic) August 2004.
The Defenders had intimated their intention to the Pursuer that expenses would be sought on both 22 July and at the Continued Hearing on 13 (sic) August and it was conceded that any such Motion would not be opposed by the Pursuer.
On 3 August 2004 I was presented with a Motion of the Pursuer (No. 7/4 of Process) and having been advised that the Motion was unopposed considered the Motion to grant decree of Absolvitor in terms of the Minute of Abandonment (No. 12 of Process). The Motion and Minute made no mention of expenses and accordingly I found no expenses due to or by either party.
I had not been involved in earlier proceedings in this case and note in her Note of Appeal that the Pursuer (sic) indicates that expenses had been reserved at the diet of Debate on 22 July and consideration of same was to be held over until the continued hearing fixed for 13 August 2004. At the time of consideration of the Motion, I had before me the Interlocutor sheets and noted that on 22 July the diet of Debate had been discharged and continued until 12 August for a Minute of Abandonment to be lodged, no mention being made of reserved expenses. Given that the court was aware of a Minute of Abandonment being lodged and that the Defenders had not opposed the Motion, I granted same with no award of expenses due to either party.
Clearly I have no knowledge of the Defenders' third ground of appeal not having conducted the hearing on 22 July 2004.
[15] In reaching this conclusion I do not feel myself embarrassed by anything that I said in Rennie v Norquoy. Here I need only point out that the circumstances of that case were readily distinguishable from those of the present case.
[16] (In passing, I should perhaps observe that, although the defenders' solicitor accepted that the pursuer's motion, no. 7/4 of process, had been timeously lodged in court, I do not think that this was strictly true. The motion was intimated to the defenders' agents by fax on 21 July 2004 and in terms of rule 15.1(2) it ought therefore to have been lodged with the sheriff clerk not later than 26 July 2004. In fact it was not lodged until 30 July 2004. I pointed this out to the defenders' solicitor but, understandably in the circumstances, he did not seek to argue that the sheriff had erred in granting the motion after it had been lodged late).
[17] The defenders' solicitor went on to argue that, on the assumption that their agents had been at fault in not having lodged a notice of opposition to the pursuer's motion, I should exercise my dispensing power in terms of rule 2.1 of the Ordinary Cause Rules to relieve them from the consequences of this error, it having been shown to have been to mistake, oversight or other excusable cause. Thereafter it was submitted that I should recall the interlocutor of the sheriff dated 3 August 2004 and deal now with the question of expenses. As to this, it was submitted under reference to Bookless Brothers v Gudmundsson 1921 1 SLT 329 that the general rule was that, where a pursuer abandoned an action, he should be found liable for his opponent's expenses. There was nothing in the present case, so it was argued, to suggest that there should be a departure from this general rule and accordingly the defenders should be found entitled to the whole expenses of the cause, including the expenses of the appeal. [18] In response, the pursuer's solicitor drew attention to the fact that in their note of appeal the defenders appeared to have relied solely on the proposition that the sheriff had erred in law in pronouncing his interlocutor dated 3 August 2004. There was no suggestion in the grounds of appeal that the court might be invited to exercise the dispensing power in favour of the defenders and accordingly they were not now entitled to argue that there had been a mistake, oversight or other excusable cause such as would justify my exercising the dispensing power so as to recall the sheriff's interlocutor and consider the question of expenses. Moreover, even if this argument were open to them, it should be rejected since the entire responsibility for the sequence of events which had unfolded lay at the door of the defenders. In any event, whatever the outcome of the appeal, they should at least be found liable to the pursuer in the expenses of the appeal itself.[19] In other circumstances I think that I should have had some sympathy with the view that the defenders ought to have been found entitled to the expenses of the action, at least when it was before the sheriff. Whatever the outcome of the appeal, I think that I should have been most reluctant to do anything other than find the pursuer entitled to the expenses of this. But the difficulty here for the defenders is that they gave no notice at all in their grounds of appeal that they would be inviting the court to recall the interlocutor of the sheriff dated 3 August 2004 on the basis of an exercise of the dispensing power under rule 2.1. In a brief reply to the submissions of the pursuer's solicitor, the defenders' solicitor submitted under reference to Macphail at paragraph 18.78 that his motion to myself to exercise the dispensing power in favour of the defenders had been competent notwithstanding that it had not been foreshadowed in the grounds of appeal. Even on the assumption that this submission was well founded, the fact remains that in terms of rule 2.1 I have a discretion to determine whether or not to grant relief to the defenders. If I refuse to grant this relief, they will be penalised to the extent that they will lose the award of expenses which might otherwise have been granted in their favour. By the same token, it may be said that the pursuer will gain a windfall benefit to the extent that she will avoid an award of expenses which she might have expected would be made against her, she having abandoned the action. At the same time, it may be said too that the defenders have been the authors of their own misfortune in not having lodged a notice of opposition to the pursuer's motion, no. 7/4 of process, and further that it would not be fair to the pursuer to allow the defenders to obtain an award of expenses against her on the back of an argument of which no notice had been given in the grounds of appeal. In this context it should not be forgotten that in terms of rule 31.4(5)(a) the defenders could have amended their grounds of appeal at any time up to fourteen days before the date assigned for the hearing of the appeal (namely 15 December 2004). In other words, after I had on 20 September 2004 allowed their note of appeal to be received although late they had had over two months during which they would have been entitled to amend their grounds of appeal (having already had almost seven weeks to think about these grounds following the date of Sheriff Sutherland's interlocutor). And even within the fourteen days immediately preceding the hearing of the appeal itself they might have applied to the court in terms of rule 31.4(7) in effect to be allowed to amend their grounds of appeal. Yet it was only during the hearing of the appeal itself that notice was given for the first time of the argument based on rule 2.1. In all the circumstances I am not persuaded that this would be an appropriate case in which to grant relief to the defenders in terms of rule 2.1 and I have therefore adhered to the interlocutor of the sheriff dated 3 August 2004.
[20] There was no dispute that, if the appeal was unsuccessful, the defenders should be found liable to the pursuer for the expenses of this.
