Appeal By John Cape T/a Briggate Investments In The Cause Ingrid Alexandra Gray And Catherine Alexandra Sweaton Or Deeney Against John Cape T/a Briggate Investments
| Jurisdiction | Scotland |
| Judge | Appeal Sheriff A M Cubie,Sheriff Principal D L Murray,Appeal Sheriff T McCartney |
| Neutral Citation | [2021] SAC (Civ) 32 |
| Court | Sheriff Appeal Court |
| Date | 18 October 2021 |
| Docket Number | SAC/2021/DUN-A79-11 |
| Published date | 28 October 2021 |
SHERIFF APPEAL COURT
[2021] SAC (Civ) 32
SAC/2021/DUN-A79-11
Sheriff Principal D L Murray
Appeal Sheriff A M Cubie
Appeal Sheriff T McCartney
OPINION OF THE COURT
delivered by SHE RIFF PRINCIPAL D L MURRAY
in appeal by
JOHN CAPE, t/a BRIGGATE INVESTMENTS
Defender/Appellant
In th e cause
INGRID ALEXANDRA GRAY and CATHERINE ALEXANDRA SWEATON OR DEENEY
Pursuers/Respondents
against
JOHN CAPE t/a BRIGGATE INVESTMENTS
Defender/Appellant
Defender/Appellant: Logan, Advocate; Baillies Law
Pursuers/Respondents: MacRae; GFM Law
18 October 2021
[1] The respondents own two flats (hereinafter referred to as “Flat A” and “Flat B”) in
Dundee which they let out to tenants. They engaged the appellant to collect rents and factor
the properties for them. The respondents raised an action for count reckoning and payment
(“CRP”) in 2011. The action has had an elongated and unsatisfactory procedural history,
about wh ich we shall say more later. The appellant appeals against the decision of the
2
sheriff on 27 February 2020 which inter alia ordered him to make payment to the
respondents of £35,000.
Grounds of appeal
[2] The appellant initially advanced seven grounds of appeal, the first of these which
related to affidavits was not insisted upon. The final ground related to the award of
expenses. As counsel for the appellant explained the other grounds were encompassed by
the single proposition that the core parameters of what the sheriff could do were fixed by
the terms of the record of objections which had been produced for each of the properties and
in determining himself what was payable he had fallen into error.
Submissions for the appellant
[3] Counsel for the appellant adopted his written submissions and supplementary
submissions. He confirmed he did not propose to undertake a detailed analysis of the
evidence and explained it was not part of his case to challenge the findings of the sheriff that
the appellant was an unreliable or dishonest witness. He accepted that those were findings
which the sheriff was entitled to make.
[4] He undertook an analysis of the procedure for a CRP under reference to Macphail
Sheriff Court Practice 3rd edition at 21.02-21.11; the article by WJD (1950) 66 SLR 276 quoted
therein and the summary as set out by Lord Ericht in Herberstein v TDR Capital 2021
CSOH 64 at paragraphs [26] and [27].
[5] The procedure has two stages. At the first stage the pursuer invites the court to
order the defender to produce an account of the intromissions so that the true balance due to
the pursuer may be ascertained. The initial writ in the first stage is only concerned with
To continue reading
Request your trial