Eric Mcdermid V. D & E Mackay (contractors) Ltd
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2012] CSIH 60 |
| Court | Court of Session |
| Published date | 17 July 2012 |
| Year | 2012 |
| Date | 10 July 2012 |
| Docket Number | XA92/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Emslie | [2012] CSIH 60 XA92/12 OPINION OF LORD EMSLIE sitting as a Procedural Judge in the Appeal by ERIC McDERMID Pursuer and Appellant; against D & E MACKAY (CONTRACTORS) LTD Defenders and Respondents: _______ |
Defenders: Love; HBM Sayers
10 July 2012
Introduction
[1] On 16 March 2012, after having parted company with his solicitors, the pursuer failed to appear at a peremptory diet in the Sheriff Court at Peterhead. The sheriff granted decree against him by default, dismissing his personal injury claim and finding him liable to the defenders in expenses. In due course, after instructing fresh representation, the pursuer sought to appeal to the sheriff principal against that decision. However, his appeal was marked outwith the 14-day period prescribed under the Sheriff Court Ordinary Cause Rule ("OCR") 31.1, and a question arose as to whether it should be allowed to proceed. In the event, the issue was focused by the pursuer's own motion to allow his appeal to be received, although late. The defenders opposed that motion, and after hearing parties the sheriff principal on 23 April 2012 refused to exercise his discretion, under OCR 2.1, to relieve the pursuer of the ordinary consequences of his failure to comply with the relevant time limit.
[2] In this context, it is fair to say that the OCRs contain no express guidance as to how such issues should be brought before the court. However, with the much more informative Court of Session Rules in mind, it seems to me that exactly the same matter could have been focused by the defenders objecting to the competency of the appeal and moving for its dismissal. In response, the pursuer would no doubt have sought relief in terms of OCR 2.1, and the decision of the sheriff principal would, in substance and in reality, have been the same.
[3] The pursuer has now marked an appeal to the Court of Session against the sheriff principal's interlocutor of 23 April 2012. The short issue which I am asked to determine, pursuant to a formal objection tabled by the defenders, is whether this latest appeal is itself competent. On that matter, section 28 of the Sheriff Courts (Scotland) Act 1907, as amended, provides inter alia as follows:
"(1) Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment either of a sheriff principal or of a sheriff if the interlocutor appealed against is a final judgment; or is an interlocutor -
(a) Granting interim decree for payment of money...; or
(b) Sisting an action; or
(c) Refusing a reponing note; or
(d) Against which the sheriff principal or sheriff....grants leave to appeal.
..."
Similar, but perhaps less restricted, provisions govern appeals from the sheriff to the sheriff principal under section 27. Under section 3(h) of the Act, moreover, the phrase "final judgment" is defined as denoting an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject matter of the cause. By contrast, the phrase "Refusing a reponing note" remains undefined.
The present appeal
[4] For the purposes of this appeal, it is common ground that the pursuer can only succeed if the decision of the sheriff principal was either a "final judgment" or the "refusal of a reponing note" within the meaning of section 28 of the Act. Otherwise, in the absence of leave, the appeal would admittedly fall to be dismissed as incompetent. Resolution of these issues involves an exercise of construing the relevant statutory provisions, as also an appreciation of the true nature of the proceedings which took place before the sheriff principal.
[5] Relying on a textual analysis of the statutory framework, counsel for the defenders contended that the pursuer's appeal fell into neither category and must therefore be dismissed. To begin with, the decision of the sheriff principal was not a "final judgment" as defined in section 3(h) of the Act, since it concerned only procedural matters and not the underlying subject-matter of the cause. That subject-matter had already been finally disposed of by the sheriff when the pursuer's whole action was dismissed on 16 March 2012. By contrast, the issues determined by the sheriff principal on 23 April 2012 were incidental or interlocutory, and even if the appeal was thereby brought to an end the statutory definition had not been met. This important distinction was vouched by the decision of Sheriff Principal Caplan in W Jack Baillie Associates v Kennedy 1985 SLT Sh Ct 53, esp. at p.56, and also by the decision of the First Division in the later case of Robertson v Robertson's Executor 1991 SC 21, esp. per Lord President Hope at p.23, and there was no reason why the ratio decidendi of these decisions should not apply equally to the present case. In both instances the ultimate appeal was held incompetent because the decision in the court below had...
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