Hamilton v Glasgow Community and Safety Services
| Jurisdiction | Scotland |
| Judge | Sheriff Principal MM Stephen,Sheriff Principal D Pyle,Sheriff Principal MW Lewis |
| Judgment Date | 01 June 2016 |
| Docket Number | No 2 |
| Court | Sheriff Appeal Court |
| Date | 01 June 2016 |
[2016] SAC (Civ) 3
Sheriff Principal MM Stephen QC, PSAC
Sheriff Principal D Pyle and
Sheriff Principal MW Lewis
Adesina v Nursing and Midwifery Council sub nom R (on the application of Adesina) v Nursing and Midwifery CouncilUNK [2013] EWCA Civ 818; [2013] 1 WLR 3156; 133 BMLR 196
Alloa Brewery Co Ltd v ParkerUNK 1991 SCLR 70
Graham v John Tullis & Son (Plastics) Ltd (No 1) 1992 SLT 507; 1991 SCLR 823
Graham Builders Merchants Ltd v Mann Engineering LtdSC 2003 SC 479; 2003 SCLR 632; 2003 GWD 18–547
Holmes v Nursing and Midwifery Council [2009] CSIH 82; 2010 SC 246; 2010 SLT 346; 2010 SCLR 514
Hume v Nursing and Midwifery Council [2007] CSIH 53; 2007 SC 644
Mucelli v AlbaniaUNK [2009] UKHL 2; [2009] 1 WLR 276; [2009] 3 All ER 1035; [2009] Extradition LR 122; 153 (4) SJLB 28
Pomiechowski v Poland sub nom Pomiechowski v District Court of Legnica, Poland and anr [2012] UKSC 20; [2012] 1 WLR 1604; [2012] 4 All ER 667; [2012] HRLR 22; [2013] Crim LR 147; (2012) 162 NLJ 749
Simpson v Downie [2012] CSIH 74; 2013 SLT 178; 2013 SCLR 377; 2012 Fam LR 121
Process — Sheriff Appeal Court — Note of appeal lodged late — Whether competent — Whether discretion to allow late — Whether court should exercise discretion — Act of Sederunt (Sheriff Appeal Court Rules) 2015 (SSI 2015/356), rr 2.1, 6.3, 6.4
Process — Decree — Decree of dismissal extracted by defender — Note of appeal subsequently lodged by pursuer — Whether competent
Andrew Hamilton brought an action for reparation against Glasgow Community and Safety Services in the sheriffdom of Glasgow and Strathkelvin at Glasgow. Following sundry procedure, the action called before the sheriff for a proof, on 15 February 2016. The pursuer failed to appear and the action was dismissed. The decree of dismissal was extracted by the defender after the expiry of 28 days. The pursuer, subsequently, moved the Sheriff Appeal Court to allow him to lodge a note of appeal against the decree of dismissal, although late.
Commercial First Business ltd brought an action against Joseph Sweeney in the sheriffdom of Grampian, Highlands and Islands at Inverness. Following sundry procedure, the action called before the sheriff, on 10 February 2016, on the pursuer's motion to recall a sist and grant decree against the defender. The defender failed to appear on that date and decree was granted. On 9 March 2016, the defender sought to lodge a note of appeal at the sheriff court in Inverness but was informed that it required to be lodged with the Sheriff Appeal Court, in Edinburgh. The defender faxed the note of appeal to the Sheriff Appeal Court on the same day but was, thereafter, unable to properly lodge it in time. The defender, subsequently, moved the Sheriff Appeal Court to be allowed to lodge a note of appeal against the decree, although late.
The Sheriff Appeal Court conjoined the two causes for the purposes of dealing with both motions.
Rule 6.3(1) of the Act of Sederunt (Sheriff Appeal Court Rules) 2015 (SSI 2015/356) provides, “An appeal must be made within 28 days after the date on which the decision appealed against was given.” Rule 6.4 provides. inter alia, “(1) This rule applies where the enactment under which the appeal is made– (a) specifies a period within which the appeal must be made; and (b) provides that a party may apply to the Court to allow an appeal to be made outwith that period. (2) An application to allow an appeal to be received out of time is to be made by motion. (3) That motion is to be made when the note of appeal is lodged.” Rule 2.1 provides, inter alia, “(1) The Court may relieve a party from the consequences of a failure to comply with a provision in these Rules. (2) The Court may do so only where the party shows that the failure is due to– (a) mistake; (b) oversight; or (c) any other excusable cause.”
Two appeals were conjoined to deal with similar motions. In the first appeal, a pursuer in a reparation action failed to attend a diet of proof and the action was dismissed. The decree was extracted after expiry of the 28 days for appealing. Subsequently, he moved the court to allow him to lodge a note of appeal against the decree of dismissal, although late. In the second action, a sheriff recalled a sist and granted decree against a defender in his absence. The defender claimed that he had only received intimation of the motion on the day of the hearing. He sought to lodge a note of appeal at the sheriff court in Inverness on the last day for appealing. He was, however, informed that it had to be lodged with the court in Edinburgh and was unable to do so in time. Subsequently, the defender moved the court to allow him to lodge a note of appeal against the decree, although late. The court conjoined the two appeals to deal with the preliminary question of the competency of allowing appeals late. As the appellants were unrepresented individuals, the court appointed an amicus curiae to address the issue of competency.
The amicus curiae and the defender in the first appeal submitted that the court had a discretion to allow an appeal to be lodged late in the exercise of the dispensing power contained in r 2.1 of the Sheriff Appeal Court Rules. The appellants did not make any submissions on the issue of competency. The appellants, however, both explained the reasons for the lateness of their appeals and submitted that, in the circumstances, they should be allowed to lodge their appeals late. The defender in the first appeal submitted that, in the circumstances, the appeal should not be allowed to be lodged late.
Held that: (1) the court had a discretion to relieve appellants from a failure to lodge their appeals timeously in terms of r 2.1 of the Sheriff Appeal Court Rules; this was because the time-limit was one contained in the rules of court and not contained in a statute; further, this was consistent with previous practice in appeals to the sheriff principal (para 11); (2) in the first appeal, there was no suggestion that extract had been improperly or incompetently issued; the general rule was that there could be no appeal against an extracted interlocutor and, accordingly, the court could not competently exercise its discretion under r 2.1 (para 13); (3) in the second appeal, the late lodging of the note of appeal was excusable and it was appropriate to exercise the court's discretion to allow the appeal to be lodged late (para 12); and motion to lodge note of appeal late refused as incompetent in the first action but granted in the second action.
Observed that: (1) r 6.4 of the Sheriff Appeal Court Rules only applied where an appeal was brought under a statutory provision that provided an application to appeal out of time could be competently made (para 9); and (2) the dispensing power in r 2.1 could not normally be used to excuse a failure to comply with a time-limit imposed by statute or another enactment, although this strict rule might not apply in exceptional circumstances (para 11).
Alloa Brewery Co Ltd v ParkerUNK 1991 SCLR 70 applied, Graham v John Tullis & Sons (Plastics) Ltd (No 1)1992 SLT 507 and Graham Builders Merchants Ltd v Mann Engineering LtdSC2003 SC 479followed and Pomiechowski v PolandWLR[2012] 1 WLR 1604 and Adesina v Nursing and Midwifery CouncilWLR[2013] 1 WLR 3156considered.
The causes called before the Sheriff Appeal Court, comprising Sheriff Principal MM Stephen QC, PSAC, Sheriff Principal D Pyle and Sheriff Principal MW Lewis, for a conjoined hearing on the appellants' respective motions to allow the lodging of a note of appeal although late on 27 April 2016.
At advising, on 1 June 2016, the note of the Court was delivered by Sheriff Principal MM Stephen QC, PSAC—
Note—
[1] We have held a conjoined hearing in two cases in which the appellants seek to lodge a note of appeal to this court, though late. Both appellants, Mr Hamilton and Mr Sweeney, have provided an explanation and reasons for the appeal being lodged late. However, the important preliminary question which we have to determine is whether it is competent to appeal late, whatever the reason, standing the terms of rr 6.3 and 6.4 of the Sheriff Court Appeal Rules made by Act of Sederunt (Sheriff Appeal Court Rules) 2015 (SSI 2015/356). It is also necessary to consider whether this court may exercise its discretion to relieve a party of the consequences of failing to comply with the 28-day time-limit for lodging an appeal in terms of r 2.1.
[2] Both appellants are unrepresented. The question which the court has to answer is a question of law. In these circumstances Mr Walker has been appointed amicus curiae. The role and function of the amicus curiae is to assist the court by presenting a neutral appraisal of the issues which require to be decided and by raising considerations that might not otherwise come to the court's attention particularly in circumstances where the appellants are not legally represented. It is important that we point out that the amicus curiae has no interest in the cause and does not represent the view of one or any party. The amicus curiae is in a position to provide advice on points of law purely for the information of the court. It is important that it is understood that the amicus curiae's function is not to assist or represent either of the appellants who will, of course, have an opportunity of addressing the court.
[3] Any appeal to this court must be brought within 28 days after the date of the decision appealed against (Sheriff Appeal Court Rules, r 6.3). It is not in dispute that in these cases the notes of appeal were lodged in this court outwith the period of 28 days allowed by r 6.3 and are therefore late.
[4] The terms of rr 6.3 and 6.4 are as follows:
‘Time for appeal
6.3.–(1) An appeal must be made within 28 days after the date on which the decision...
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