Hugh Shaw Formerly Trading As The Venue V. Performing Right Society Limited
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Date | 09 July 2002 |
| Docket Number | A3442/01 |
| Court | Court of Session |
| Published date | 09 July 2002 |
| OUTER HOUSE, COURT OF SESSION | |
| A3442/01
| OPINION OF LORD MENZIES in the cause HUGH SHAW FORMERLY TRADING AS THE VENUE Pursuer; against PERFORMING RIGHT SOCIETY LIMITED Defenders: ________________ |
Pursuer: Higgins; Hasties, S.S.C.
Defenders: Carruthers; Simpson & Marwick, W.S.
9 July 2002
[1]This is an action for reduction of a sheriff court decree granted on 16 January 2001 and extracted on 31 January 2001, whereby the Court granted decree by default for payment by the present pursuer to the present defenders of the sum of £47,357.62. The pursuer also seeks suspension of a charge on said decree dated 6 February 2001, and interdict and interim interdict against the defenders from doing further diligence upon said decree.
[2]According to the pursuer's averments, he formerly traded as "The Venue" from premises at Calton Road, Edinburgh. He leased the premises to others, usually for use by them as a night-club or discotheque. He sold his business on about 3 January 2001. In October 2000 the defenders raised an action against The Venue in Edinburgh Sheriff Court, seeking payment of a "royalty" in respect of a purported licence granted by the defenders to The Venue for the period October 1999 to October 2000. The initial writ in this action was dealt with on behalf of the present pursuer by a Mr Sinclair, who was employed by the pursuer as his general manager. He was responsible for all matters of day to day management at the premises, including the payment of bills and other debts. The pursuer avers that Mr Sinclair did not inform him that the initial writ had been served. Mr Sinclair completed a notice of intention to defend, on which he named Messrs Hasties as his solicitors. As a result, Messrs Hasties received a form P5 from the sheriff court. When they contacted Mr Sinclair about this, he informed them that he was using another solicitor. Messrs Hasties accordingly forwarded the form to him in order that he could pass it to his agent. Thereafter, Mr Sinclair passed the papers to a Mr James McDonald, who held himself out to be a solicitor practising in Stirling, in order that Mr McDonald might deal with the matter. Mr McDonald did not do so. Indeed, the pursuer now avers that Mr McDonald is not a solicitor and has no legal qualifications. Defences were never lodged, and in January 2001 the defenders enrolled a motion seeking decree by default. This motion was intimated to Messrs Hasties, who contacted the pursuer, who suggested that they speak to Mr Sinclair as Mr Sinclair had informed the pursuer that he already had a solicitor instructed to deal with this matter. Messrs Hasties contacted Mr Sinclair, who asked them to fax the intimation of motion to Mr McDonald. Mr McDonald did not mark opposition to the motion, and decree by default was granted on 16 January and extracted on 31 January 2001. A charge was served on 6 February 2001. The pursuer goes on to aver that "following service of the charge, the pursuer became aware for the first time of the court action at the instance of the defender" (although the pursuer's counsel accepted that standing the earlier averments quoted above, this averment could not be accurate). The pursuer goes on to aver that for a period of months prior to January 2001 Mr Sinclair had been removing money from the business for his own purposes, and that the pursuer has obtained decree against him for about £96,000 in respect of unpaid debts due to him by Mr Sinclair.
[3]The pursuer goes on to aver that in these circumstances he has not had an opportunity to state a defence to the action. He disputes his liability to make payment of the sum sued for in the action, and maintains that he had a good defence to it along the lines (a) that there was no contract between the defenders and the pursuer, (b) that the pursuer has never played music in public at the premises, (c) that the invoices relied on in the initial writ relate to periods which extend beyond the specified period in the writ, and (d) that some of the sums sought fell outwith the five year prescriptive period.
[4]The action came before me on the procedure roll, at which time Mr Carruthers for the defenders moved me to dismiss the action and sustain the defenders' first plea-in-law. He emphasised that reduction of an inferior court decree was a remedy which does not exist of right, and will only be granted in exceptional circumstances and where no other means of review is available. In support of this submission he referred me to the speech of Viscount Dunedin in Adair v Colville & Sons 1926 SC (HL) 51 at 56:
".... It is a remedy which does not exist of right and must be most carefully applied... generally speaking, it is certainly not competent when other means of review are prescribed, and these means have either been utilised or the parties have failed to take advantage of them."
He also referred me to the decision of the Second Division in Philp v Reid 1927 SC 224, and to the passage in the Opinion of the Lord Justice Clerk at p. 229-230:
"Now two things are apparent with regard to the decrees which are under challenge. The first is that they are appealable decrees, and the second is that they are implemented decrees. With regard to the first point, it is manifest that for many months an appeal was open to Mr Burns' client against the decrees of which he now complains; and it is equally obvious that he neglected to avail himself of the opportunity of taking an appeal. ... With regard to the second ground, namely, that a good excuse has been tendered, the only excuse is that the appeal was not taken per incuriam. That would merely seem to amount to an admission of slackness, veiled, no doubt, by resort to another language."
Mr Carruthers submitted that the decree which is the subject of the present action was open to appeal, and appeal is the remedy which the pursuer ought to have sought, rather than reduction.
[5]Mr Carruthers submitted that the pursuer could not avoid responsibility for the actings of his agent, Mr Sinclair. He might well have a remedy against Mr McDonald for falsely holding himself out as a solicitor and for failing to take steps to protect the pursuer's position; he might also have an action against Mr Sinclair. These were the remedies now open to the pursuer - the remedy which he seeks against the defenders is incompetent. He referred me in this regard to Forsyth v A F Stoddard & Co Ltd 1985 SLT 51.
[6]Mr Carruthers went on to submit that the pursuer in the present case was the author of his own misfortune. He had neglected to take care of his own business - he ignored invoices, his employee dealt with this sheriff court action incompetently, and a person who was not a solicitor was instructed to deal with it. If ever a man should take blame for his own actings, it was Mr Shaw. In this regard he referred me to Gehlan v Saeed 1987 SCLR 668, which bore similarities to the circumstances of the present case. In that case landlords of shop premises served an action on the tenant for recovery of possession of the premises. The writ was accepted by the manager of the shop who was employed by the tenant. Solicitors were instructed and defences lodged, but eventually the solicitors resigned agency on the basis that they were unable to get instructions from the tenant, who was then resident in Newcastle. An interlocutor ordering a peremptory diet was served on the shop premises and accepted by the manager, who failed to tell the tenant of the position. The landlords took decree by default and served a charge. The tenant petitioned the Court for reduction of the decree. In a motion for recall of interim suspension Lord Jauncey stated that
"Against this background I have to consider whether this is a case in which it might in the end of the day be appropriate to grant decree of reduction. I make the assumption that the petitioner had a stateable defence to the sheriff court action. The remedy of reduction of a properly pronounced decree is not to be granted lightly and it would be quite wrong to assume that reduction is available as an alternative general remedy to a party who has failed to make use of other remedies, such as appeal, which were available to him. It is clear from the authorities that it is a remedy to be exercised sparingly and only in exceptional circumstances."
He went on to observe:
"Where it appears that a party may have suffered substantial injustice as a result of a granting of a decree by default against him in circumstances over which he had no direct control, it may be that it would be appropriate to afford to him the remedy of reduction. It does not, however, follow that such a remedy should be available to a party who is substantially the author of his own misfortune".
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