Eric Nguyen V. Searchnet Associates Ltd
| Jurisdiction | Scotland |
| Judge | Sheriff Principal C.G.B. Nicholson |
| Court | Sheriff Court |
| Date | 15 June 1999 |
| Docket Number | A3001/98 |
| Published date | 16 June 1999 |
A3001/98
JUDGMENT OF
SHERIFF PRINCIPAL NICHOLSON
in the cause
ERIC NGUYEN
Pursuer and Appellant
against
SEARCHNET ASSOCIATES LIMITED
Defenders and Respondents
Act: O'Neill, Advocate; Skene Edwards WS
Alt: Halley, Advocate; Davidson Chalmers WS
EDINBURGH, 15 June 1999
The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutors of 13 January 1999 and 9 February 1999; of new allows to parties a proof of their respective averments, and appoints said proof to proceed on a date to be afterwards fixed; finds the defenders liable to the pursuers in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of junior counsel.
NOTE:
This is in the first instance an appeal against an interlocutor of 9 February 1999 in which the sheriff granted decree of absolvitor in favour of the defenders. That interlocutor followed from an earlier interlocutor of 13 January 1999 in which the sheriff had ordained the pursuer to consign the sum of £4,000 in respect of potential liability for the defenders' expenses in the hands of the sheriff clerk on or before 1 February. That sum was not consigned by the pursuer; and it was in respect of that failure that the sheriff granted the decree against which the present appeal has been taken.
The action to which this appeal relates is one in which the pursuer seeks payment from the defenders of a sum of money which he claims is due to him in respect of work which he did in Edinburgh on behalf of the defenders during a period between March 1997 and January 1998. The pursuer is a computer software engineer, and the work in question relates to computer programming.
The pursuer is a French national, and he currently lives and works in the Netherlands. It was in that situation that, in January 1999, the defenders enrolled a motion to have the pursuer ordained to sist a mandatary, or alternatively to have him ordained to find caution for expenses. That motion (no. 7/2 of process) is expressly stated as proceeding on the basis "that the pursuer is resident outwith the United Kingdom", and that basis for the motion has been noted by the sheriff in the Note which she prepared in response to the marking of the present appeal. By the stage when the motion was being considered by the sheriff proof in the action had already been assigned for 16 February 1999 (that is to say, just over a month later), and in that situation she reached the conclusion that it would not be appropriate to order the sisting of a mandatary. However, she concluded that the finding of caution for expenses would be appropriate, and the course which she took was to ordain the pursuer to consign the sum of £4,000 on or before 1 February 1999. Such a course is competent in terms of rule 27.4(1)(b) of the Ordinary Cause Rules 1993 but, as the rule makes clear, an order for consignation is merely one method of requiring a party to find caution for expenses.
The present appeal is competent without leave of the sheriff since the interlocutor in which she granted decree of absolvitor upon the failure of the pursuer to obtemper the order for consignation constituted a final judgment within the meaning of sections 3(h) and 27 of the Sheriff Courts (Scotland) Act 1907. However, it was accepted on both sides of the Bar that, in terms of section 29 of that Act, that appeal entitled the pursuer and appellant to seek review of the earlier interlocutor in which the order for consignation was made. In the circumstances of the present case that is the effect of the decision in McCue v. Scottish Daily Record & Sunday Mail 1998 SCLR 742. Consequently, the submissions which were presented at the appeal nearly all related to the earlier interlocutor of 13 January 1999, it being accepted that, if that interlocutor were to be recalled, it must inevitably follow that the subsequent interlocutor of 9 February 1999 should also be recalled.
In the first instance four separate grounds of appeal were intimated on behalf of the pursuer. However, at the end of the day counsel founded only on the fourth ground of appeal which is in the following terms:
"Further and in any event, the Sheriff in ordering the lodging of Caution in circumstances where the Pursuer was an EC National residing in an EC member country, was in breach of the Pursuer's rights under EC legislation. In particular, said order for caution was in breach of Article 7 [sic] of the Treaty of Rome 1957, which prohibits discrimination on the grounds of nationality. The Sheriff accordingly erred in law in ordering Caution to be lodged by the Pursuer."
The article of the Treaty of Rome to which reference is made is now article 12 of the post-Amsterdam version of the Treaty (which came into force on 1 May 1999), and it is in the following terms:
"Within the scope of the application of this Treaty and without prejudice to any special provision contained therein, any discrimination on grounds of nationality shall be prohibited."
Before turning to the submissions which were advanced on behalf of the pursuer at the appeal it is appropriate that I should set out what the sheriff has herself given as her reasons for ordering the pursuer to find caution in the form of a consigned sum of money. In her Note she says that she:
"had regard to the nature of these proceedings, the nature of the pursuer's employment and residence and the clear admission that the pursuer was resident outwith the jurisdiction of this Court and outwith the United Kingdom. There were no allegations that the pursuer was impecunious but rather that he had limited means and, more importantly, would be liable to move at short notice to a different job in a different country. There was no suggestion that the pursuer had assets or property in Scotland against which diligence could be executed to satisfy expenses. Although it was suggested that the pursuer was well settled in Holland he has no specific ties to Holland other than the short-term contract work relating to computer programming on which he was engaged. Within the last 12 months it was known that the pursuer has lived and worked in Scotland and Holland and furthermore is a French National. Certainly no undertaking was given that the pursuer would not move outwith the jurisdiction of the Dutch Courts, nor was any issue taken to the suggestion that the pursuer's employment was normally of a short-term nature and that he has in the past travelled widely in the course of providing services as a software engineer."
The sheriff goes on to say that it was against the foregoing background that she decided to exercise her discretion by ordering the pursuer to consign the sum of £4,000 as caution for expenses.
In her narrative of the submissions which had been advanced before her the sheriff notes that reference had been made by the solicitor appearing for the pursuer to the Brussels Convention on the Enforcement of Judgments. However, so far as the Treaty of Rome itself is concerned she makes the following observations:
"I should add that no submission was made on behalf of the pursuer in terms of paragraph 4 of the grounds of appeal namely that the order that the pursuer consign money was in contravention of his rights under the Treaty of Rome. The Brussels Convention was certainly mentioned as being an appropriate vehicle for the defenders to enforce any decree for expenses but I was certainly not addressed on the broader principles embodied in the Treaty of Rome. In these circumstances it is not appropriate for me to deal in any detail with that ground of appeal save to mention that my understanding would be that the Treaty of Rome deals with the obligations upon States within the European Community rather than the rights of individuals within member States when pursuing litigation in order to resolve civil disputes. Clearly the practice in the Scottish Courts of ordering the sisting of mandataries or the lodging of consigned funds by Foreign nationals when litigating in the UK Courts has developed over a considerable number of years both prior to and since the Treaty of Rome and furthermore against a background of established conventions such as the Brussels Convention which facilitates enforcement of foreign judgments. Although the Convention may be considered a useful tool in order to assist the enforcement of a judgment abroad it can also be considered a blunt instrument which adds to the expense and delay caused to a succesful litigant within our Courts."
In presenting the appeal on behalf of the pursuer counsel began by submitting that the sheriff's views regarding the effect of the Treaty of Rome, as expressed in the passage which I have just quoted, are so fundamentally flawed as to vitiate her whole approach to the question whether or not the pursuer should have been required...
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