Crabbe v Reid
| Jurisdiction | Scotland |
| Judge | Sheriff Principal CD Turnbull |
| Judgment Date | 20 December 2018 |
| Docket Number | No 6 |
| Court | Sheriff Appeal Court |
| Date | 20 December 2018 |
[2019] SAC (Civ) 6
Sheriff Principal CD Turnbull
Crabbe v Reid and ors [2013] CSIH 53
Ferguson's Tr v Reid 1931 SC 714; 1931 SLT 502
Jongejan v Jongejan 1993 SLT 595
McCue v Scottish Daily Record and Sunday Mail Ltd 1998 SC 811; 1998 SLT 983; 1998 SCLR 742
McLaren v Ferrier (1865) 3 M 833
Paterson v Kidd's Trs (1896) 23 R 737; 4 SLT 11
Prospect Healthcare (Hairmyres) Ltd v Kier Build Ltd (No 1) [2017] CSIH 70; 2018 SC 155; 2018 SLT 47
Reid v Crabbe [2009] CSIH 81; 2010 SC 268; 2009 GWD 39–672
Whyte v Whyte (1895) 23 R 320; 3 SLT 225
Process — Review — Appeal from sheriff court — Competency — Whether the court ought to countenance an appeal against a final interlocutor granted without opposition and two earlier interlocutors — Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (SI 1993/1956 (S 223)), sch 1, rr 15.3, 15.4
Norna Forsyth Crabbe raised an action for payment at the sheriff court in Glasgow. After a preliminary proof the defenders were absolved in respect of the sums first craved. Thereafter, on the defenders' unopposed motion, the action was dismissed in respect of the remaining sums second and third craved. The pursuer appealed to the Sheriff Appeal Court.
Rule 15.3 of sch 1 to the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (SI 1993/1956 (S 223)) requires that a party seeking to oppose a written motion shall complete a notice of opposition, intimate a copy of that notice to every other party, and lodge the notice with the sheriff clerk. Rule 15.4 provides that, where a party consents to a written motion, he shall endorse the motion, or give notice to the sheriff clerk in writing, of his consent.
The parties are solicitors and former partners of the firm, West Anderson & Co, Glasgow. The appellant sought payment of certain sums from the respondents under three separate craves. On 7 November 2017, the sheriff sustained a plea of prescription and assoilzied the respondents in respect of the sum first craved. On 24 November 2017, the sheriff dealt with expenses to date and allowed a proof before answer in respect of the remaining sums second and third craved. The appellant sought to appeal against both interlocutors. On 8 March 2018, the appeal was refused as incompetent on the basis that there was no final interlocutor. On 30 April 2018, the respondents moved the court, inter alia, to grant decree of dismissal and to award expenses in favour of the appellant, the respondents meantime having settled in full the sums second and third craved. No notice of opposition was lodged. On 3 May 2018, the court emailed the appellant to ask whether she intended to oppose the motion, albeit late. The appellant merely confirmed her intention to appeal against the final decree. On 4 May 2018, the sheriff granted the respondents' unopposed motion after hearing the respondents' solicitor. The appellant neither appeared nor was represented at the hearing. Subsequently, the appellant marked an appeal against the sheriff's decision of 4 May 2018, seeking also to challenge the interlocutors of 7 and 24 November 2017.
The appellant argued that there had been no basis upon which she could have opposed the granting of the interlocutor of 4 May 2018, but nor had she consented to it, acquiesced, or acted in reliance upon it.
The respondents argued that, in the absence of opposition, the court ought not to countenance an appeal and, as such, the appellant would not be entitled to subject to review the earlier interlocutors.
Held that: (1) an interlocutor pronounced on an unopposed motion could not be equated with an interlocutor pronounced of consent (paras 30, 31); (2) the final interlocutor was to the appellant's benefit to the extent of expenses only, which had not been acted upon at the time of appeal, and no acquiescence could be identified outwith the appellant's decision not to oppose the motion (para 37); (3) the interlocutors complained of, taken together, dealt with the whole craves of the initial writ, and it was therefore necessary to countenance an appeal in order to do complete justice on the merits (para 38); and appeal allowed to proceed to a further hearing.
McCue v Scottish Daily Record and Sunday Mail Ltd 1988 SC 811 considered, Prospect Healthcare (Hairmyres) Ltd v Kier Build Ltd (No 1)2018 SC 155applied and Ferguson's Tr v Reid1931 SC 714distinguished.
The pursuer appealed to the Sheriff Appeal Court (Sheriff Principal CD Turnbull) for a hearing, on 29 November 2018.
At advising, on 20 December 2018, the opinion of the Court was delivered by Sheriff Principal CD Turnbull—
Opinion of the Court—
[1] The issue in this appeal is whether the appellant's failure to oppose a motion, as a consequence of which a final interlocutor was pronounced in this case, precludes her from challenging both that interlocutor and two earlier interlocutors which she had previously been unable to challenge, this court having held that an earlier appeal against those interlocutors was incompetent.
[2] As noted by the now Lord President, giving the opinion of an Extra Division in Reid v Crabbe ([2009] CSIH 81), the parties are solicitors and were formerly partners in West Anderson & Co, Glasgow. The respondents retired from the partnership on 31 January 1998; at which time the appellant continued the business under its existing name as a sole practitioner. More than 20 years later, the parties have still not resolved their disputes.
[3] The present action was raised in 2007. In it the appellant sought payment of certain sums of money under three separate craves. After sundry procedure, which included a successful appeal to the Inner House by the respondents (see Crabbe v Reid and ors[2013] CSIH 53), the sheriff heard a preliminary proof in relation to the respondents' plea of prescription. In his decision dated 7 November 2017, the sheriff sustained the respondents' plea to the extent that it related to crave one and assoilzied the respondents in respect of that crave. In that same decision the sheriff appointed parties to be heard on further procedure in relation to craves two and three. The sheriff subsequently, on 24 November 2017, dealt with the question of expenses to that date and allowed a proof before answer in respect of craves two and three, the appellant's remaining craves.
[4] The appellant sought to appeal the decisions of 7 and 24 November 2017 to this court. On 8 March 2018 the appellant's appeal was refused as incompetent. The reasons for so doing were set out by the appeal sheriff in his note of that date. I need not repeat his reasoning, however, one passage is worthy of repetition. In relation to the decision of the sheriff of 7 November 2017, the appeal sheriff said this:
‘It is not a final interlocutor, as the court's remit has not been exhausted, because craves two and three remain to be decided upon. Once that process is at an end … then that court will be functus officio, and the appellant may then appeal the whole merits (if justified) without leave. The case has not yet reached that stage.’
[5] On 12 April 2018 the sheriff assigned 11 May 2018 as a diet for the proof before answer he had previously allowed. The subsequent events in the period between 26 April 2018 and 4 May 2018 are of considerable significance to the issue this court requires to determine. Accordingly, I set them out in some detail.
[6] On 26 April 2018 the first named respondent wrote to the appellant indicating that as the respondents had been assoilzied from crave one, and having regard to the economics of their continuing with the defended action in relation to what he described as ‘the lesser craves’, without admission of liability and without prejudice to the respondents' position, the respondents would make payment in full of the sums due in respect of craves two and three. A cheque in favour of the appellant was enclosed. The respondents also indicated they were content to concede the expenses of the cause, as taxed, in so far as they had not already been dealt with. The first respondent's letter indicated that the respondents' motion, seeking the discharge of the forthcoming proof and dismissal of the action, and conceding expenses in the manner outlined, would follow in early course. The letter and cheque were delivered to the appellant personally on 27 April 2018, at 11.35 am (by messenger-at-arms).
[7] The respondents' motion was lodged with the court on 30 April 2018. The respondents moved the court to: (i) shorten the period of opposition to 48 hours in accordance with OCR 15.2(4) (Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (SI 1993/1956 (S 223)); (ii) discharge the diet of proof fixed for 11 May 2018; (iii) grant decree of dismissal; and (iv) find the respondents liable to the appellant in the expenses of the cause, save in so far as already decerned for, as taxed by the auditor of court or as otherwise agreed. On 30 April 2018 the sheriff, having considered the respondents' motion, reduced the period for the lodging of opposition to 48 hours. A note to the sheriff's interlocutor provided that, if opposed, the motion would call on 4 May 2018, at 9.45 am. It is pertinent to add that the sheriff who dealt with the motion was the sheriff who had heard the preliminary proof abovementioned.
[8] The motion and relative interlocutor were intimated to the appellant, by facsimile transmission, on Monday, 30 April 2018, at 3.07 pm. In terms of the court's interlocutor, notice of opposition required to be lodged by the same time on Wednesday, 2 May 2018.
[9] On Thursday, 3 May 2018, at or around 11.32 am, most unusually, the court sent an email to the appellant asking if it was her intention to oppose the motion, albeit then late, no notice of opposition having been lodged. The email culminated by asking the appellant that if it...
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