Mono Seal Plus Limited V. Colin Young
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 23 February 2009 |
| Docket Number | SA8/08 |
| Published date | 03 March 2009 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT TAIN
SA8/08
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause MONO SEAL PLUS LIMITED Pursuers against COLIN YOUNG Defender |
Act: No appearance
Alt: Mr D J Swarbrick, solicitor, Munro & Noble, Inverness
Mr George Edwards in person
Tain: 23rd February 2009
The sheriff principal, having resumed consideration of the cause, answers question 5 in the stated case in the affirmative and the first part of question 3 and question 6 in the negative, finds it unnecessary in the meantime to answer questions 1, 2, 4 and 7, allows the appeal and recalls the interlocutor of the sheriff dated 31st July 2008; continues consideration of the defender's incidental application made at the bar on 27th January 2009 (a) to allow the designation of the pursuers in the summons to be amended to read "Mono Seal Plus Limited, a company registered in Scotland and incorporated under the Companies Acts under company number SC 267365 and having its registered office at 1A Cluny Terrace, Buckie, AB56 1AH, formerly having a place of business at Railway Terrace, Buckie, Moray AB56 1HQ" and (b) thereafter to find the pursuers liable to the defender in the expenses of the action; appoints the defender to intimate this interlocutor and the ensuing note to the pursuers as so designed within fourteen days of the date hereof and to lodge a certificate of intimation in process; and appoints parties to be heard further on this incidental application within chambers at Inverness Sheriff Court, The Castle, Inverness on Friday 27th March 2009 at 9.30 am.
Note
[1] This action was raised as a small claim on 25th January 2008. The claim was for payment of the sum of £2,700 with interest and expenses in respect of work said to have been carried out by the pursuers at the defender's property in Alness. In addition it was narrated in box 4 on page 1 of the summons that;
Further interest is claimed under EU Directive 2000/35 effective 7th August 2002, the Late Payment of Commercial Debts (Interest) Act 1998 Chapter 20 under reasonable debt recovery costs intimated.
Attached to the summons was a document which bore to show a calculation of the total amount due to the pursuers by the defender including the interest claimed under the EU Directive. This total amount was said to be £3,597.43 inclusive of £611.43 due under the EU Directive.
[2] In box 2 on page 1 of the summons the pursuers were said to be "Mono Seal Plus Limited, Railway Terrace, Buckie, Moray AB56 1HQ", and in box 5 "Mr George Edwards, Private Finance Consultant, Woodside Financial Solutions, Woodside, Seafield Avenue, Keith, Moray, AB56 5BS" was identified as the pursuers' authorised lay representative. Although it was not stated in the summons, copies of an estimate and various invoices which were submitted by the pursuers to the defender (and which were lodged as productions by the latter) indicate that the pursuers were a registered company with the number 267365.
[3] In response to the summons the defender lodged a form of response, written defence and counterclaim for payment to him by the pursuers of the sum of £1,300.
[4] At the first hearing on 27th March 2008 Sheriff Sutherland presided. Mr Edwards was present as was a local solicitor instructed on behalf of the defender. The sheriff allowed the pursuers fourteen days within which to lodge answers to the defender's counterclaim and assigned a hearing on evidence to take place on 23rd May 2008. It appears that he also made a finding in terms of rule 2.1(3) of the Small Claim Rules 2002 that Mr Edwards was not a suitable person to represent the pursuers. The effect of this, according to the rule, was that Mr Edwards was thereupon obliged to cease to represent them.
[5] In spite of the sheriff's decision, on 1st April 2008 a document incorporating a typed response to the defender's written defence and counterclaim was lodged with the sheriff clerk on behalf of the pursuers. It was signed by Mr Edwards and below his signature and designation were typed the words "Agent/Representative for the Pursuer". The document itself is undated, but attached to it is a compliments slip signed by Mr Edwards and dated 31st March 2008. Moreover, on 16th May 2008 he signed a document which bore to be in Form 11 but which I think may more accurately be described as an incidental application by the pursuers. In short it incorporated an invitation by them to the court to dismiss the claim against the defender. On this occasion below Mr Edward's designation were typed the words "Agent/Authorised Representative of Pursuer".
[6] There is no date stamp on this document to indicate when it was received by the sheriff clerk. It is not clear whether it was available to Sheriff Sutherland when the case called for the hearing on evidence on 23rd May 2008. The defender was represented that day by his principal solicitor but there was no appearance for the pursuers. The upshot of the hearing was that the sheriff pronounced an interlocutor in the following terms:
The sheriff, on the motion of the defender, in terms of rule 15.2(2) of the Small Claim Rules, remits the cause to the summary cause roll, thereafter, assoilzes the defender from the crave of the principal action; in terms of the counterclaim, decerns against the pursuer for payment to the defender of the sum of £1,300 Sterling, with interest thereon at the rate of 8% per annum from 17th March 2008 until payment, quoad ultra, continues the cause to the summary cause roll of 16th July 2008 at 11 a.m. to allow the agent for the defender to lodge and intimate an incidental application dealing with all matters relating to the expenses of the cause.
In pursuance no doubt of this interlocutor an incidental application for the defender was lodged with the sheriff clerk on 23rd June 2008. It read as follows:
Swarbrick for the defender craves the court to find the pursuers' representative named in paragraph 5 of the summons, Mr George Edwards, Private Financial Consultant, Woodside Financial Solutions, Woodside, Seafield Avenue, Keith, Moray, AB56 5BS liable to the defenders of £1,516.69 in respect of the expenses of the action as set out in the defender's account of expenses, a copy of which is attached to this application.
[7] On 1st July 2008 Mr Edwards lodged a typed response to the defender's incidental application. Much of what he said in this was directed against the sheriff's decision on 27th March 2008 to find that he was not a suitable person to represent the pursuers, and for present purposes I need say no more about this. But in addition he did make it clear that he opposed the defender's incidental application.
[8] The incidental application was duly considered by Sheriff MacFadyen at the hearing on 16th July 2008 which had previously been assigned by Sheriff Sutherland. The defender was again represented by his principal solicitor and Mr Edwards appeared on his own behalf. The sheriff evidently took time to consider his decision, and on 31st July 2008 he issued an interlocutor in terms of which, in short, he found Mr Edwards personally liable to the defender in the expenses of the cause as assessed by the sheriff clerk. To this interlocutor he appended a characteristically clear and comprehensive note explaining his decision. This speaks for itself and it is unnecessary to set it out in full here. In a nutshell, it appears that the defender's solicitor advanced various grounds upon which he maintained that Mr Edwards ought to be found personally liable in expenses to the defender. The sheriff rejected all these grounds with one exception. This was that Mr Edwards had raised the action without any proper foundation in as much as the pursuers' case had been founded on a contract supposedly made between the parties in 2006 at a time when the company designed as pursuers in the summons had not existed, having only been incorporated in September 2007, more than a year after the completion of the works in question. The sheriff observed therefore that, whoever the defender had contracted with, it had certainly not been the pursuers with the result that the action had been bound to fail, there never having been any attempt to amend the statement of claim. In these circumstances the sheriff concluded that, as the author of the summons and having assumed responsibility for the conduct of the litigation, Mr Edwards should bear personal liability in the expenses of the cause to the defender.
[9] The sheriff reached this conclusion upon the basis of representations which had been made to him by the defender's solicitor and which the sheriff summarised in paragraphs 10...
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