Khaliq v Gutowski
| Jurisdiction | Scotland |
| Judgment Date | 17 October 2018 |
| Neutral Citation | [2018] CSIH 66 |
| Docket Number | No 6 |
| Date | 17 October 2018 |
| Court | Court of Session (Inner House) |
[2018] CSIH 66
First Division
Sheriff Appeal Court
AW, Applicant [2018] CSIH 25; 2018 Fam LR 60; 2018 GWD 12–158
Aslam v Glasgow City Council [2016] CSIH 78; 2016 GWD 34–611
Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119; [2018] 3 All ER 487
Battenberg v Dunfallandy House [2010] CSIH 41; 2010 SC 507; 2010 GWD 19–370
Bridging Loans Ltd v Hutton [2018] CSIH 63
DTZ Debenham Thorpe v I Henderson Transport Services 1995 SC 282; 1995 SLT 553; 1995 SCLR 345
Eurocopy Rentals Ltd v Tayside Health Board 1996 SC 410; 1996 SLT 1322; 1996 SCLR 1060
Helow v Advocate General [2007] CSIH 5; 2007 SC 303; 2007 SLT 201; 2007 SCLR 219
McCallion v Apache North Sea Ltd [2018] SAC (Civ) 1; 2018 GWD 2–32
Moran v Freyssinet Ltd [2015] CSIH 76; 2016 SC 188; 2015 SLT 829
SSE Generation Ltd v Hochtief Solutions AG [2018] CSIH 26; 2018 SLT 579
Process — Party litigant — Decree by default — Failure to comply with rules of court — Whether failure to comply with rules should be excused when party is representing himself — Whether merits of appeal relevant to granting decree by default
Abdul Khaliq raised an action for payment in the sheriff court at Falkirk against Alvin Gutowski, on 13 February 2014. Following a proof, the sheriff (JK Mundy) granted decree for payment, on 8 May 2017. The pursuer appealed to the Sheriff Appeal Court. On 30 October 2017, the procedural appeal sheriff (PJ Braid) refused the appeal. The pursuer appealed to the Court of Session following the grant of permission by a procedural judge of that court (Lord Glennie).
Rule 3.2(3) of the Act of Sederunt (Sheriff Appeal Court Rules) 2015 (SSI 2015/356) provides that the procedural appeal sheriff may refuse the appeal if the appellant is in default.
The pursuer raised an action for payment in Falkirk Sheriff Court. The defender failed to appear at a diet of debate after his solicitor had withdrawn from acting and decree of default was granted. The decree was recalled by the sheriff principal and a debate eventually took place after which a proof was fixed. Following proof, the sheriff granted decree for payment.
The defender appealed to the Sheriff Appeal Court (‘SAC’). He failed to intimate the note of appeal to the pursuer timeously but this was excused. He thereafter failed to lodge the appeal print and the pursuer moved for decree by default. The SAC granted the pursuer's motion and refused the appeal on the basis that it was not appropriate to prolong the appeal by giving the defender more time when the appeal was in any event unlikely to succeed. Thereafter, the Court of Session granted permission to appeal against the decision of the SAC.
Held that: (1) although recall of a decree by default may be a matter for the discretion of the appellate court where new circumstances are brought to light on appeal, whether to grant decree in the first place was a matter for the discretion of the inferior court with which an appeal court would not lightly interfere in the absence of error, and no error had been identified in the present case (para 30); (2) the earlier default was a significant factor (para 32); (3) while a court may afford a party litigant a degree of latitude, it could not excuse without proper cause compliance with the rules of procedure, which were designed to meet the requirements of access to justice and fairness to both parties (paras 34); (4) although on a motion for decree by default the court should not delve too deeply into the merits, an appeal being obviously devoid of merit was a strong factor in favour of granting decree (para 38); (5) the appeal to the SAC had no real prospects of success (paras 39–42); and appeal refused.
Observed that: (1) a court should not take it upon itself the role of adviser to a party litigant in relation to what grounds of appeal should be advanced, as it should not act in a manner by which the fair-minded and impartial observer would conclude that there was a real possibility of bias (para 41); (2) this case raised no point of principle or practice and there was no compelling reason for the Court of Session to have heard the appeal (para 43); and (3) there was no provision in the rules of court permitting the court to grant permission to appeal on restricted or specific grounds of appeal, the task was simply to determine whether permission should be granted (para 44).
Barton v Wright Hassall LLP [2018] 1 WLR 1119 applied.
The cause called before the First Division, comprising the Lord President (Carloway), Lady Paton and Lord Drummond Young, for a hearing on the summar roll, on 27 September 2018.
At advising, on 17 October 2018, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This case arises out of an appeal by the defender to the Sheriff Appeal Court (‘SAC’) against an interlocutor of the sheriff, dated 8 May 2017, granting decree for payment to the pursuer of £10,946. The appeal was refused by the SAC on 30 October 2017, primarily as a consequence of the defender's failure to lodge an appeal print timeously. The appeal raises questions concerning: (1) the operation of the SAC Rules on the lodging of documents and decrees by default; (2) the test for reviewing a decision of the SAC pronouncing decree by default; and (3) the relationship of a court with a party litigant. The latter concerns the extent to which a court should: (a) assist a party litigant in relation to matters of substantive law; and (b) excuse a party litigant's failure to comply with rules of procedure. The case raises a subsidiary issue of whether permission to appeal to this court can be restricted to one or more grounds of appeal.
[2] The SAC Rules (Act of Sederunt (Sheriff Appeal Court Rules) 2015 (SSI 2015/356) provide (r 6.5) that, once a note of appeal (r 6.2) has been lodged, the procedural appeal sheriff will make an order for intimation of the appeal to the respondent within seven days. When an appeal is appointed to the standard appeal procedure (r 6.6(1), (2)), a timetable is to be issued specifying the dates by which certain procedural steps must be taken (r 7.2(1)). These include the lodging of the appeal print and any necessary appendix. The timetable may be varied on special cause shown (r 7.6(1), (2)). The appeal print must be lodged within 21 days of the timetable being issued (r 7.9(1)). It consists of the pleadings, interlocutors and any note by the sheriff (r 7.9(2)). The appendix is to be lodged no later than seven days before the procedural hearing (r 7.10(1)). It is to contain: (a) any document lodged in process which is founded upon in the grounds of appeal; and (b) the notes of evidence ‘if it is sought to submit them for consideration’ (r 7.10(2)). The procedural hearing is fixed at the time of the issue of the timetable (r 7.2(2)). Its purpose (r 7.14) is to enable the procedural appeal sheriff to fix an appeal hearing, if the parties are ready, or to make an order to secure the expeditious disposal of the appeal. It is, in essence, a case management hearing.
[3] The rules provide (r 3.2(1)–(3)) that, where a party is in default, the procedural appeal sheriff may make any order to secure the expeditious disposal of the appeal. This includes an order to refuse the appeal, if the party in default is the appellant. A party is in default if, inter alia, he fails: (a) to comply with the timetable; (b) to implement an order of the court within the specified period; and (c) to appear at a hearing. In terms of a general dispensing power (r 2.1(1)), the court can relieve a party from the consequences of a failure to comply with the rules, but only (r 2.1(2)) if the party shows that the failure is due to a mistake, oversight or any other excusable cause.
[4] The subject of the dispute is a building contract, dated November 2012, whereby the defender was to build an extension to the pursuer's shop. The action for payment which followed commenced on 13 February 2014. On 14 August, the sheriff granted decree by default against the defender, when he failed to appear at a debate; the defender's agent having intimated his withdrawal from acting late in the day. The defender instructed new agents. The decree was recalled by the sheriff principal on 6 October 2014, but with the defender having to pay the expenses. An amendment procedure followed, with the defender introducing a counterclaim for £15,629. The defender's new agents withdrew from acting in March 2015. The defender began adjusting the pleadings himself. A debate was fixed for 12 October 2015. At that time the sheriff described the pleadings as a mess, with, for example, the defender trying to amend a minute of amendment. The debate was discharged, with the defender being again found liable in the expenses of the discharge. The defender was allowed a further period in which to amend his pleadings, for the expenses of which he was also found liable. A further debate was fixed for 7 January 2016.
[5] The pursuer's pleadings focused the dispute, in so far as they made it clear that the pursuer's position was that the defender had left the building site in about April 2013 without completing the works. This, he averred, was in breach of contract. The pursuer averred a contract price of £45,875 plus £6,000 extras. There was a difference between the parties of £5,000 in respect of the sums which had been paid: £40,875 or £35,875. The pursuer therefore said that £11,000 had been owed to the defender, but not payable at the time of the breach. The pursuer's primary claim in the principal action was for £12,346, consisting of £23,346, which he said that he had spent in having the works completed, less the £11,000 due. After debate, this was all deemed suitable for proof, as was a subsidiary claim for £5,200, in which the pursuer maintained that he had lost in rent as a result of the...
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