Neil Mckie V. Jack Robinson (trawlers) Limited
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 13 July 2004 |
| Docket Number | A4/01 |
| Published date | 14 July 2004 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PORTREE
A4/01
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC | ||
| in the cause | ||
| NEIL McKIE | ||
| Pursuer and Appellant | ||
| against | ||
| JACK ROBINSON (TRAWLERS) LIMITED | ||
| Defenders and Respondents |
Act: Mr K J Campbell, advocate, instructed by The McKinstry Company, Ayr
Alt: Mr A D MacLean, solicitor, Henderson Boyd Jackson WS, Edinburgh
Portree: 13th July 2004
The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 25th June 2003; finds the pursuer and appellant liable to Jack Robinson (Trawlers) Limited in the taxed expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.
Note
History
[1]In this case the pursuer and appellant sought decree against Jack Robinson (Trawlers) Limited for payment to him of the sum of £50,000 to compensate him for loss, injury and damage said to have been sustained by him as a result of their negligence and breach of statutory duty. In what follows I shall refer to them as "the defenders" but, as will shortly become apparent, no notice of intention to defend was ever lodged on their behalf and, strictly speaking, they never entered the process in the action.
[2]The accident which gave rise to the pursuer's claim was said in article 2 of the condescendence to have occurred on or about 31 January 1998 when the pursuer was working in the course of his employment with the defenders as a share fisherman on board a fishing vessel which was then owned by the defenders and was operating just off the coast of Uig Harbour, Portree. The defenders are designed in the instance as a company incorporated under the Companies Acts and they are stated to have their registered office at 1st Floor, 23 Bargate, Grimsby.
[3]On 25 January 2001 (shortly before the expiry of the triennium) a warrant of citation was signed by the sheriff clerk depute. Thereafter, on 31 January 2001, a Process Server in England swore an affidavit in which he stated, inter alia:
- That I did on Monday the 29th day of January 2001 at 2.50 o'clock in the afternoon at 1st Floor, 23 Bargate, Grimsby, DN34 4SU, this being the registered office, serve upon Jack Robinson (Trawlers) Limited, an Initial Writ with warrant added along with forms 04 and 07 by posting the same in a sealed envelope marked private and confidential and for their attention through the letterbox. A true copy of the documents served are hereto exhibited marked "A", "B" and "C".
[4]There is no sign in the process of the document which was said to have been marked "A". But there is no dispute that this must have been a copy of the initial writ with the warrant of citation attached, and nothing now turns upon the absence of this document. Exhibit "B" is a copy of the form of citation in Form 04 appended to the Ordinary Cause Rules - see rule 5.2(1). The form bears to have been produced by Messrs Stirling Park who are a well known firm of messengers-at-arms and sheriff officers. It is dated 29 January 2001 and reads, inter alia, as follows:
You, Jack Robinson (Trawlers) Limited, 1st Floor, 23 Bargate, Grimsby, are hereby served with this copy writ and warrant, with Form 07 (notice of intention to defend).
Form 07 is served on you for use should you wish to intimate an intention to defend the action.
IF YOU WISH TO DEFEND THIS ACTION you should consult a solicitor with a view to lodging a notice of intention to defend (Form 07). The notice of intention to defend, together with the court fee of £46 must be lodged with the sheriff clerk at the above address within twenty one days of 29.1.2001.
[5]Towards the bottom right hand corner of the document are the words: "Sheriff Officer, 4 Wellington Square, Ayr" and opposite these on the left hand side of the document is the word: "Witness". But there is no signature beside the words "Sheriff Officer", nor is there one beside the word "Witness".
[6]The document marked "C" is a copy of a form of notice of intention to defend in Form 07 appended to the Ordinary Cause Rules - see again rule 5.2(1). It has the name and business address in Ayr of the pursuer's solicitors. The date of service is stated to be 29 January 2001, and the date of expiry of the period of notice is stated to be 19 February 2001. This document is of course only a copy of the document which was posted through the defenders' letterbox at their registered office and, as already indicated, no notice of intention to defend was ever lodged on their behalf.
[7]On 20 February 2001 solicitors instructed by the defenders informed the sheriff clerk depute that they believed service upon the defenders to have been unsuccessful in that the Form 04 had neither been signed nor witnessed. They further observed that for the defenders to appear by the lodging of the notice of intention to defend on their behalf would cure these defects or irregularities.
[8]On 12 July 2001 the pursuer's solicitors minuted for decree in absence. The papers were evidently put before Sheriff Fraser for his consideration. Thereafter there was a lengthy delay until 7 March 2003 when Sheriff Pollock appointed parties to be heard, if so advised, on the pursuer's motion for decree in absence and on the competency thereof on 27 May 2003. For present purposes it is unnecessary to explain what happened during the period of this delay other than to record that the opinion of English counsel, Mr Stuart Hornett, was sought on behalf of the pursuer on the question whether the proceedings commenced by him had been properly served upon the defenders in accordance with the law of England. Mr Hornett's advice dated 22 May 2002 was in due course lodged by the pursuer's solicitors, and I shall refer to it in more detail shortly.
[9]At the hearing on 27 May 2003 the pursuer was represented by counsel. The interests of the defenders were represented by a solicitor who appeared before the sheriff essentially upon the same basis as had counsel for the defenders in Colley v Celtic Pacific Ship Management (Overseas) Limited 2001 SLT 320. In that case the summons was served on the defenders in Hong Kong but by an oversight there was not served with it any citation such as was required by rule 13.7(1)(a) of the Rules of the Court of Session. The defenders did not enter appearance. Instead, their solicitors wrote to the Deputy Principal Clerk of Session explaining that they would not enter appearance for the defenders and contending that service of the summons had not been valid, no citation having been attached to it. Rule 16.11(1) of the Rules of the Court of Session provides: "A person who enters the process of a cause shall not be entitled to state any objection to the irregularity of the execution of service or intimation of a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation". Rule 5.10(1) of the Ordinary Cause Rules is to the same effect except that it has a reference to "citation" as well as to "service or intimation". After sundry procedure, the Lord Ordinary (Macfadyen) in Colley decided to put the case out by order for an oral hearing, and at page 322J he stated: "Although the defenders had not entered appearance, and could not do so without throwing away the point which they sought to make against the validity of the service of the summons (rule 16.11), it seemed to me that it would be of assistance to me in dealing with the matter to have submissions made on the defenders' behalf. In putting the case out by order, therefore, I authorised the defenders to be represented at the hearing".
[10]Having heard submissions from the parties, the sheriff in the present case made avizandum, and on 25 June 2003 he issued an interlocutor in terms of which he refused the pursuer's motion for decree in absence and dismissed the action for want of valid service of the writ upon the defenders. It is this interlocutor which is the subject of the present appeal.
[11]The sheriff appended to his interlocutor a very full and careful note in which he set out the history of the case, the submissions for the parties and his own conclusions upon these submissions. In short, he held in light of the terms of the Citation Act 1592 and the judgement of Lord Penrose in Blackfriars (Scotland) Limited v Shetland Salmon Co's Trustee 2001 SLT 315 that the citation of the defenders in this case had been a nullity, the form of citation not having been signed, and further that personal service had not been effected upon the defenders in accordance with the law of England as required by rule 5.5(1)(a)(i) of the Ordinary Cause Rules.
[12]The grounds of appeal in the pursuer's note of appeal read as follows:
- The sheriff erred in law in holding that the absence of signature on the Form 4 had the effect that citation in this case was a nullity.
- The sheriff erred in fact and law that the writ had not been properly served in accordance with English law.
[13]At the hearing of the appeal the pursuer was represented by the same counsel as had represented him before the sheriff. The defenders were represented by a different solicitor, who appeared on the same basis as counsel had appeared for the defenders in Colley.
The relevant legislation and Mr Hornett's advice
[14]It was not in dispute that the Citation Act 1592 (which is an Act of the original Parliament of Scotland) is still in force. It reads as follows:
That the Copies of lettres or chargis be subscryvit be the executor thairof
Item It is statute and ordanit that in all tyme cuming all copys of summoundis and lettres quhilkis salbe deliuerit to ony pairtie be subscryuit be the officiar executour thairof.
[15]Rule 5.2(1) of the Ordinary Cause Rules provides:
- Subject to rule 5.6...
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