Dtz Debenham Thorpe v I Henderson Transport Services
| Jurisdiction | Scotland |
| Judgment Date | 27 January 1995 |
| Docket Number | No 32 |
| Date | 27 January 1995 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
PracticeSheriff court practiceOptions hearingPursuers failing to lodge record timeously prior to options hearing due to error in office of agentsWhether failure excusable by exercise of sheriff's dispensing powerWhether sheriff entitled to dismiss actionSheriff Courts (Scotland) Act 1907 (7 Edw VII, cap 51) Sched, rules 2.1(1), 9.11 and 16.21
The pursuers brought an action of payment in the sheriff court in respect of the balance of fee due in respect of a supply made by the pursuers to the defenders. Defences were lodged and an options hearing was fixed for 9 November 1994. The record was lodged on 8 November 1994, in contravention of rule 9.11(2) of the Ordinary Cause Rules 1993 set forth in the amended schedule to the Sheriff Courts (Scotland) Act 1907. The agents for the pursuers stated that the reason for late lodging had been that the cause had been wrongly entered in the diary, indicating that the record was not due to be lodged until 11 November. The error was discovered on 7 November when steps were taken to correct it and a letter was sent to the sheriff clerk on that day enclosing a certified copy of the record by means of a document delivery service. The sheriff was unsatisfied with the explanation and found the pursuers to be in default and dismissed the cause under rule 16.2. The pursuers appealed to the Court of Session.
Held (1) that the question was whether the sheriff had been entitled to attach such importance to the rule about timeous lodging of the record and to insist on adherence to the strict timetable for the taking of a step in process relating to the options hearing; (2) that the purpose of the 1993 rules had been to introduce a new procedure for securing the expeditious progress of defended causes in the sheriff court, and if that purpose was to be achieved it was crucial to the performance by the sheriff of his functions at the options hearing that he should have the record in his hands when he had time to prepare for the hearing by reading it; and (3) that the sheriff had been entitled to exercise her discretion in terms of rule 16.2(2) by dismissing the action as there were no compelling reasons in the interest of justice for granting relief; and appeal refused.
Moran v Glasgow Council of Tenants Association 1995 SLT (Sh Ct) 46 and Mahoney v Officer 1995 SLT (Sh Ct) 49 approved.
Observed that the phrase mistake, oversight or other excusable cause in rule 2.1(1) was wide enough to cover cases of common office error, but the dispensing power was not available to be used to frustrate the object of the rule.
DTZ Debenham Thorpe brought an action of payment against I Henderson Transport Services in the sheriffdom of Glasgow and Strathkelvin at Glasgow for payment of 1,524.72 in respect of a balance of fee due. The defenders lodged a notice of intention to defend and, on 25 August 1994, an interlocutor was pronounced in terms of rule 9.2(2) of the Ordinary Cause Rules 1993 set forth in the amended schedule to the Sheriff Courts (Scotland) Act 1907 appointing defences to be lodged by 8 September 1994, fixing 26 October 1994 as the last date for making adjustments to the writ and the defences and fixing 9 November 1994 at 11.45 am in court 1 of the Sheriff Court at Glasgow as the date, time and place for the options hearing in the case. Defences were thereafter lodged and parties adjusted their pleadings.
The pursuers failed to lodge the record for the options hearing timeously and, on 9 November 1994, the sheriff dismissed the action.
The pursuers appealed.
Cases referred to:
Comrie v National Coal BoardSC 1974 SC 237
Gray v GraySC 1968 SC 185
Grieve v Bachelor and BucklingSC 1961 SC 12
Keenan v CarmichaelSC 1991 JC 169
Little v Little 1990 SLT 785
Mahoney v Officer 1995 SLT (Sh Ct) 49
Main v City of Glasgow District Licensing Board 1987 SLT 305
Morran v Glasgow Council of Tenants Association 1995 SLT (Sh Ct) 46
Thomson v Glasgow CorporationSC 1962 SC (HL) 36
Whatling (Hector) Ltd, Re [1936] Ch 208
The cause called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Weir for a hearing in Single Bills on 18 January 1995 on the pursuer's motion for early disposal of the appeal in terms of rule 40.11 of the Rules of the Court of Session 1994.
At advising, on 27 January 1995, the opinion of the court was delivered by the Lord President (Hope).
Opinion Of The CourtThis is an appeal against the decision of the sheriff on 9 November 1994, the pursuers having failed to lodge a record timeously as required by rule 9.11(2) of the sheriff court Ordinary Cause Rules 1993, to...
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