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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackie v East Ayrshire Council, Re Application For Judicial Review [2000] ScotCS 257 (10 October 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/257.html Cite as: [2000] ScotCS 257

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[1] In this petition for judicial review of decisions of the Sheriff Principal of North Strathclyde (hereinafter referred to as "the Sheriff Principal") the petitioner, who is a party litigant, seeks reduction of interlocutors pronounced by the Sheriff Principal on 4 November 1999 and 13 January 2000 with an order to remit the case back to the Sheriff Principal to hear the appeal at the instance of the petitioner against the respondents.

[2] At the hearing the respondents lodged an affidavit of David John Mitchell (No.13 of process) which explained the history of the action in the Sheriff Court including the hearing before the Sheriff Principal on 12 August 1999 and various events which occurred up to and including the hearing before the Sheriff Principal on 4 November 1999. The petitioner did not have any adverse comment about the content of the affidavit.

[3] The petitioner was the defender in an action at the instance of the respondents which proceeded to proof before Sheriff Croan, Sheriff of North Strathclyde at Kilmarnock (hereinafter referred to as "the Sheriff"). By interlocutor dated 11 January 1999 the Sheriff pronounced decree in favour of the respondents to the effect that they were entitled to the payment of rent arrears and to recover possession of the property at 8 Covenanter's Court, Newmilns where the petitioner resides. The petitioner lodged a Note of Appeal against said decision. The Sheriff produced a draft stated case. The petitioner proposed adjustments thereto. The stated case was issued on 20 May 1999. The appeal called before the Sheriff Principal on 12 August 1999. At that hearing the solicitor for the respondents intimated to the Sheriff Principal that he wished to take a preliminary plea to the competence of the appeal on the basis that the grounds of appeal disclosed no question of law. The Sheriff Principal decided to hear the petitioner and advised the solicitor for the respondents that he would hear the plea to competence as part of the submissions in response to the petitioner. The petitioner addressed the Sheriff Principal on various issues specified in the affidavit (No.13 of process) none of which disclosed a point of law. The Sheriff Principal expressed the view at that hearing that the matters raised by the petitioner amounted to challenges to the Sheriff's findings on evidence and he encouraged the petitioner to seek an adjournment to enable the petitioner to obtain legal advice as to whether there were any valid grounds of appeal and, if so, for the petitioner to secure legal representation at the adjourned appeal hearing. Despite opposition by the respondents, the Sheriff Principal granted the petitioner's motion to adjourn the appeal to a later date to enable the petitioner to obtain legal advice. The adjourned hearing was fixed for 4 November 1999.

[4] On 1 October 1999 the solicitor for the respondents wrote to the petitioner seeking confirmation that the petitioner had obtained legal advice and also that the petitioner intended to proceed with the appeal at the adjourned hearing on 4 November. No response was received to that letter and the solicitor again wrote to the petitioner on 28 October 1999 requesting the petitioner to confirm his position preferably by return. On 3 November 1999 the solicitor for the respondents received a letter dated 2 November from Messrs D & J Dunlop, Solicitors. advising the solicitor for the respondents that these solicitors had only recently been instructed by the petitioner and had not had an opportunity to review matters with the petitioner. They also enclosed a soul and conscience certificate relating to the petitioner's health and indicated that it would appear that the hearing fixed for 4 November would require to be discharged.

[5] On 3 November 1999 the solicitor for the respondents telephoned Mr Muir of Messrs D & J Dunlop and ascertained that after the appeal hearing on 12 August the petitioner had approached Mr Muir, who advised the petitioner that if he wished to instruct Mr Muir the petitioner would require to provide him with all of the relevant papers. Mr Muir also advised the petitioner at that stage that he would require to complete an application for legal aid. Mr Muir advised the solicitor for the respondent that after this initial contact he had not heard from the petitioner until 1 November 1999 when the petitioner deposited a large quantity of case papers at his office. This was followed by the correspondence submitted by the petitioner to Mr Muir by facsimile on 2 November relating to the petitioner's health. On 3 November after the said telephone conversation Messrs D & J Dunlop sent a facsimile to the solicitors for the respondents confirming that they would not be appearing on behalf of the petitioner at the appeal hearing on 4 November. They also enclosed a copy of a letter which they had sent to the petitioner. That letter is No.7/1 of process.

[6] On 3 November 1999 the petitioner was advised by the Sheriff Clerk at Kilmarnock that the soul and conscience certificate was incompetent because it had been signed by a non-medically qualified manager on behalf of the petitioner's general practitioner. The petitioner attended at the surgery of his general practitioner on 3 November to obtain an appropriate certificate which he then delivered personally to the Sheriff Clerk's office on 3 November. The petitioner explained to me that he had been driven to the surgery by a friend who had thereafter driven him to the Sheriff Clerk's office but he was unable to attend at the Sheriff Court the following day because of his medical condition.

[7] On 4 November 1999 the petitioner did not attend the adjourned diet of appeal. The solicitor for the respondents narrated the events outlined above to the Sheriff Principal and sought dismissal of the appeal in respect that no injustice would be suffered by the petitioner as no competent grounds of appeal were before the Court. The Sheriff Principal dismissed the appeal and in doing so stated three reasons. The first was that the Sheriff Principal was not satisfied that the petitioner was unable to attend the Court on 4 November to seek a further adjournment. Second, the Sheriff Principal was not satisfied that the petitioner had made proper use of the period of adjournment to obtain advice about the competence of the appeal. Third, the Sheriff Principal indicated that he was satisfied that no injustice would be done as there was no apparent proper ground of appeal.

[8] Before the substantive argument in the case was presented, counsel for the respondents invited me to dismiss the petition by reason of the delay on the part of the petitioner in proceeding with the petition. The basis of this motion was that although Lord Hamilton pronounced a first order on 1 February 2000 following a hearing at which the respondents were represented by virtue of a caveat, the petition was not served on the respondents until 27 June 2000. Until service had been effected a diet for a first hearing could not be fixed by the Keeper of the Rolls. Counsel for the respondents relied upon an Opinion of Lord Bonomy dated 17 August 2000 in the petition of Joga Singh v Secretary of State for the Home Department. The petitioner explained that he had been endeavouring to obtain legal assistance and had ultimately obtained help from the solicitor employed by the charity, Shelter. The petitioner stated that his delay was not wilful. In the circumstances I did not consider it appropriate to dismiss the petition by reason of the delay and invited counsel for the respondents and the petitioner in person to address me on the substance of the petition.

[9] Counsel for the respondents invited me to dismiss the petition as incompetent and irrelevant, whereas the petitioner invited me to reduce the interlocutors dated 4 November 1999 and 13 January 2000 and to remit the case to the Sheriff Principal to hear this appeal.

[10] The issue of competence depends upon a construction of section 38 of the Sheriff Courts (Scotland) Act 1971 (hereinafter referred to as "the Act") and the Act of Sederunt (Summary Cause Rules, Sheriff Court) 1976 (hereinafter referred to as "the Rules"). Section 38 of the Act restricts the right of appeal in a summary cause from the final judgment of the Sheriff to the Sheriff Principal to an appeal on a point of law. Moreover, an appeal from the Sheriff Principal to the Court of Session is restricted to cases where the Sheriff Principal certifies the cause as suitable for such an appeal. The procedure to be followed in appeals is governed by Rule 81 of the Rules.

[11] The petitioner challenges the dismissal of the appeal by the Sheriff Principal and bases his case upon the failure of the Sheriff Principal to follow Rule 28 of the Rules. However, in my opinion, Rule 28 has no application in the context of appeals to the Sheriff Principal and is confined to proceedings at first instance. The reasons for my opinion are based upon a construction of the terms of the Rule itself and also upon the structure of the Rules as a whole. The terms of Rule 28 envisage a continuation of the case to the first appropriate summary cause roll not earlier than 14 days from the date of a failure of a party to appear or be represented at any diet. The summary cause roll is a roll of cases coming before a Sheriff at first instance. In practice appeals do not appear on the summary cause rolls. Moreover, interlocutors in summary causes at first instance appear in the Book of Summary Causes whereas interlocutors in appeals in summary causes appear in the Register of Appeals. This practice supports my interpretation of Rule 28 but I also derive support from the structure of the Rules. Part I of the Rules (Rules 1-48) deals with the action from the stage of the summons to the close of the proof including arrestments on the dependence and arrestments to found jurisdiction. Part II (Rules 49-80) deals with special rules in relation to particular types of action and it is notable that Rule 49 incorporates the provisions of Part I into Part II except where they are inconsistent with the special rules in Part II. By contrast Part III (Rules 81-85A) which deals with appeals has no equivalent provision to Rule 49. From a construction of the Rules I am of the opinion that where, as in the present case, a party fails to appear at a diet fixed for an appeal hearing, Rule 28 has no application and it is within the discretion of the Sheriff Principal whether to continue the hearing to give the party a further opportunity of being heard or to dismiss the appeal.

[12] In considering the exercise by the Sheriff Principal of his discretion in this case, the issue, as counsel for the respondents submitted, is not whether I would have taken a different decision but rather whether the Sheriff Principal was entitled to exercise his discretion in the way in which he did. The stated case (6/4 of process) did not contain a question of law for the Sheriff Principal as required by Rule 81(5). Notwithstanding this omission, the Sheriff Principal at the hearing before him on 12 August 1999 considered the Note of Appeal (6/2 of process) in an attempt to ascertain whether there was a point of law. The only ground of appeal which raises a possible point of law is the second ground to the effect that the Sheriff erred in his understanding of the case of Lex Service plc v Johns (1989) 59 P & C R 427. The complaint of the petitioner is that the recorded delivery envelope which was sent to him contained a letter but not the notice in terms of section 47(3) of the Housing (Scotland) Act 1987. If no such notice were served, the proceedings for recovery of possession would be incompetent. This clearly is a point of law. However, the question as to whether such a notice was served is a question of fact for the Sheriff to determine on the evidence and is not subject to review by the Sheriff Principal. In his submissions before me the petitioner suggested that the Sheriff had misunderstood the evidence and had not appreciated or given due weight to the fact that the principal notice, as opposed to a copy, was lodged as a production by the respondents indicating that the principal notice was not enclosed in the envelope sent to him. Moreover, he relied upon certain criticisms of the respondents by the Accounts Commission and suggested that these were evidence disclosing perjury of the only witness for the respondents who testified that the notice was enclosed in the recorded delivery envelope sent to the petitioner. Counsel for the respondents explained that some officials employed by the respondents signed two principal copies of notices and sent one to a tenant while retaining the other one on file. Nothing sinister could or should be inferred from the fact that the production lodged in the Sheriff Court was apparently a principal document.

[13] The evaluation of the credibility and reliability of witnesses is essentially for the Sheriff who conducted the proof. The Sheriff rejected the evidence of the petitioner and preferred the evidence of the witness for the respondents. It is not necessary, as was suggested by the petitioner, for the respondents to prove the contents of the envelope beyond reasonable doubt. It is sufficient if a credible witness testifies that he or she enclosed the notice in a recorded delivery envelope and that it is proved or accepted that that envelope was delivered. The Sheriff has accepted such testimony in this case and in particular finding in fact 5 is in the following terms:

I am of the opinion that the dispute which the petitioner wishes to raise in this case is one of fact, namely whether the notice was contained in the envelope. The Sheriff has made a finding in fact in this regard. The review of that fact is not a question of law for the Sheriff Principal. Accordingly I have concluded that there was no point of law raised in this appeal. This view coincides with the approach adopted by the Sheriff Principal. Notwithstanding the absence of a question of law raised in the stated case, the Sheriff Principal allowed the petitioner to address him and continued the case to enable the petitioner to seek legal advice. When the case called before him the Sheriff Principal was provided with a copy of the letter from D & J Dunlop, ( 7/1 of process) who indicated that they had advised the petitioner to ensure representation before the Sheriff Principal on 4 November 1999. The Sheriff Principal was also advised that the petitioner had only provided these solicitors with papers a few days before the appeal. In these circumstances it was not unreasonable for the Sheriff Principal to dismiss the appeal, particularly as no point of law was raised.

[14] In relation to other matters raised before me relating to alleged maladministration by the respondents resulting in the loss of benefits to the petitioner, these are matters which the petitioner may wish to raise with his Member of Parliament. They are not, however, relevant to the issue before me.

[15] The only remaining question is whether it was reasonable for the Sheriff Principal to refuse a certificate of the suitability of the cause for appeal to the Court of Session in terms of Rule 84 of the Rules. In view of my decision on the principal issue in this case, it will be apparent that I am of the opinion that the decision of the Sheriff Principal in this regard was not unreasonable. Indeed in the circumstances it is difficult to comprehend how the Sheriff Principal could have reached any other conclusion on this aspect of the case. Accordingly I shall repel the pleas-in-law for the petitioner and sustain the first and second pleas-in-law for the respondents and dismiss the petition.