Inverclyde Council V John F. Mccloskey T/a Prince Of Wales Bar
| Jurisdiction | Scotland |
| Judge | Sheriff Principal DI Murray |
| Court | Sheriff Court |
| Date | 15 December 2014 |
| Docket Number | Pursuer/Respondent |
| Published date | 23 December 2014 |
SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY
2014SCPAIS69
|
| JUDGEMENT
of
SHERIFF PRINCIPAL DL MURRAY, WS
in the cause
INVERCLYDE COUNCIL Pursuer/Respondent
against
JOHN F McCLOSKEY t/a PRINCE OF WALES BAR Defender/Appellant
|
________________________________________
Act: Upton
Alt: Anderson
Paisley, 15 December 2014
The sheriff principal having resumed consideration of the appeal and heard parties; modifies the terms of the interlocutor of 2 June to insert “Recalls the sist granted 29 July 2013 between the words “Defender” and “Ordains”; Refuses the appeal and adheres to the interlocutor of the Sheriff dated 7 July 2014; Meantime Reserves expenses.
DL Murray
NOTE:
[1]This appeal arises from an action by Inverclyde Council against Mr McCloskey trading as the Prince of Wales Bar for arrears of rent, irritancy of the lease of those premises and removal from them. I shall hereafter refer to the council as the respondent and Mr McCloskey as the appellant. The action was commenced as long ago as 2011. I need not record the historic procedure, save to note that by interlocutor of 29 July 2013 the sheriff granted decree of consent for payment of the reduced sum of £25,081.32 in terms of crave 3 of the initial writ and sisted the action. The £25,081.32 for which decree was granted reflected the sum stated as being outstanding in the notice of irritancy, under deduction of a payment to account made by the appellant.
[2]The respondent enrolled a motion dated 24 March 2014 seeking recall of the sist and for decree in terms of craves 1 and 2 of the record. These craves read short; that the appellant has allowed a sum in excess of one quarter’s rent to be in arrears for a period in excess of three months and incurred irritancy of the lease which is at an end; and that the respondent is entitled to enter upon possession and remove the appellant from the subjects. Intimation of the motion was made in the requisite manner to the appellant’s then agents and the motion was opposed. The motion called on 28 April and was continued until 2 June. There being no appearance by the appellant on 2 June, his then agents having intimated that they were withdrawing from acting, a peremptory diet was fixed for 7 July and notice duly served on the appellant. At the hearing on 7 July the appellant appeared in person and Mr Upton, who appears before me, appeared for the respondent, and moved the second part of his motion, for decree in terms of craves 1 and 2 of the initial writ.
[3]The appeal first called before me on 9 October and I granted Mr Anderson’s motion for an adjournment of the appeal hearing fixed for that day, allowed the grounds of appeal to be adjusted, fixed a period for answers and a set a further hearing for 13 November. I had observed when considering the papers for the appeal there was no interlocutor recording the sist as having being recalled, and drew this to the attention of parties.
.
[4]An amended note of appeal and answers thereto were lodged. When the case called before me on 13 November 2014 Mr Anderson again appeared for the appellant and Mr Upton for the respondent. I am grateful to counsel for the appellant and the agent for the respondent for their detailed and reasoned submissions.
The submissions of the appellant.
[5] The appellant in his amended note of appeal raises the following grounds of appeal: - the Sheriff had erred in law in stating there was no defence to the action and granting summary decree on that basis; the Sheriff ought not to have granted summary decree at the peremptory diet and in doing so erred in law; and the Sheriff erred in law in granting decree on 7 July 2014 because the cause had been sisted and the sist had not been recalled. He developed these in his submissions.
[6]The modifications introduced by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 not being applicable. Rule 17.2, of the Ordinary Cause Rules as applicable, provides:
“17.2 (1)Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or part of it, disclosed in the defences.
(2) in applying for summary decree, the pursuer may move the sheriff –
(a) to grant decree in terms of all or any of the craves of the initial writ;
(b) to pronounce an interlocutor sustaining or repelling a plea-in-law; or
(c) to dispose of the whole or part of the subject-matter of the cause.
(3) the pursuer shall intimate a motion under paragraph (1) by registered post or the first class recorded delivery service to every other party not less than 14 days before the date fixed for the hearing of the motion.
(4) On a motion under paragraph(1) the Sheriff may –
(a) if satisfied there is no defence to the action or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part as the case may be; or
- ordain any party, or a partner, director, officer or office be of, any party –
- to produce any relevant document or article; or
- to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion.”
[7] It was submitted that a motion for summary decree requires to be made on the basis that there is no defence to the action disclosed in the defences. P & M Sinclair v The Bamber Partnership 1987 SC 203 establishing the level of satisfaction required is more than probability, it is the near certainty that there is no defence.
[8] Counsel drew attention to the difference between the Sheriff Court rule and the equivalent of the Court of Session rule 21.2. He noted that in the Court of Session Rule 21.2 reference to “disclosed in the defences” is included but absent in the Sheriff Court rule. Counsel suggested that this textual variance meant that there was a greater onus on a Sheriff, than a Lord Ordinary to explore the underlying legal position and whether there was a defence to the action. He posited that the rule may have been drafted in this way given there was a greater chance of litigation in the sheriff court against a party litigant who may be unaware of a particular technical defence.
[9] Counsel submitted that the new formulation rule 17.2(2):
“An application may only be made on the grounds that –
- an opposing party’s case (or any part of it) has no real prospect of success; and
- there exists no other compelling reason why summary decree should not be granted at that stage.
simply made clear, what was the developed understanding of the import of the old rule.
[10] He recognised that Frimokar (UK) Ltd v Mobile Technical Plant (International) Ltd 1990 SLT 180 makes clear that the defence must be tested at the time when the motion is considered:
“It is for the defender, before that stage, to be in a position to satisfy the court that there is the framework of a defence available.”
[11] I was referred to the House of Lords decision in Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85, paragraph 14 of the opinion of Lord Rodger:
“Rule 21.2(4) gives the court a power to grant the motion, but does not require it to do so where it would not be appropriate in all the circumstances (Frew v Field Packaging Scotland Ltd, per Lord Prosser, p 1195F). Next what the pursuer is entitled to seek is summary decree. The very description “summary” decree indicates that the procedure is intended to be used where the matter can be determined in a summary fashion, without there being any need for a prolonged examination of matters of fact or law.”
[12] In paragraph 15 Lord Rodger stated:
“A motion for summary decree will be appropriate where the pursuer anticipates being able to satisfy the court without the need for any prolonged legal debate, that there is no defence to the whole or part of the action because the defender’s averments are irrelevant.”
[13] In paragraph 17 it is made clear that while the court is concerned to examine whether any defence is disclosed in the defences it is not confined to considering the defender’s averments and may look at documents or other materials:
“So the rule envisages that the court may look beyond the pleadings and consider what, in substance, each of the parties and, more particularly, the defender is saying. It is this power which allows the court to deal with a party who tries to use written pleadings not to present a real defence but to throw up a smokescreen of supposed fact behind which he can delay the progress of an action or part of an action which he is bound to lose.
[18] A rule of this kind serves the interests of justice and helps to make the legal system work more efficiently. The rule must be interpreted and applied in a manner which promotes those ends and does not create injustice for defenders. As we have seen, in a motion for summary decree a judge can clarify matters of fact by having documents or articles produced or affidavits lodged. But all this takes place within a system the disputed matters of fact or generally resolved by a judge sees and hears witnesses giving oral evidence at our proof.”
[14] In the instant case counsel argued that the sheriff required to consider the notice of irritancy dated 21 February 2013. The effectiveness of the notice of irritancy, he submitted, must be accepted before summary decree can be competently granted. Counsel suggested that without assessment of the notice of irritancy, the test of whether or not there is any defence available could not be determined. He pointed out that the sheriff’s note omitted to make any reference to the notice of irritancy, which he prayed in aid, that the sheriff had not given proper consideration of the validity of the notice of irritancy. He submitted in the absence of any reference in his note to looking at the notice it could not be held that the...
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