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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKay v. Lloyds TSB Mortgages Ltd [2004] ScotCS 237 (02 November 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/237.html Cite as: [2004] ScotCS 237 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF R F MACDONALD Q C (Sitting as a Temporary Judge) in the cause COLIN McKAY Pursuer against LLOYDS TSB MORTGAGES LIMITED Defenders
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Pursuer: Lindhorst; HBM Sayers (for Hamilton Burns & Co, Glasgow)
Defenders: Heaney; DLA
2 November 2004
Introduction
[1] The pursuer concludes against the defenders for payment of the sum of £10,000 together with interest thereon at the rate of 8% per annum from the date of decree until payment. He avers that on 7 March 2001 he was the heritable proprietor of the flat at 4 Queen Street, Gourdon, Montrose, Angus. Approximately three weeks previously the occupants of the flat above, 1 Thoms Building, were evicted and the flat was repossessed by the defenders on behalf of Lloyds TSB Scotland plc. From the time of the eviction until 14 December 2001 the defenders' flat remained vacant but in their possession. Notwithstanding the fact that the defenders' flat was going to be vacant indefinitely the defenders took no steps to prepare it for a long period of being vacant and, in particular, did not drain either the water system or the heating system. They did not switch off the water supply. On 7 March 2001 the pursuer's flat was damaged extensively by flooding and water ingress from the defenders' flat. He avers that he suffered considerable inconvenience and loss of amenity due to being unable to enjoy his flat, that he required to secure alternative accommodation and that he was marketing his flat at the time of the flooding and as a result of the flooding the sale did not proceed. He goes on to aver that "in all of the circumstances the sum sued for is reasonable". [2] In condescendence 4 the pursuer avers that his losses have been caused by the fault and omissions of the defenders. He avers that, as occupiers and possessors of the defenders' flat, it was their duty to take reasonable care to minimise the risks of the defenders' flat flooding the pursuer's flat. In the exercise of this duty of care and in the knowledge that the defenders' flat would remain vacant indefinitely, it was their duty to drain the water and heating systems. It was their duty to isolate the water supply. They knew or ought to have known that in the event of a leak occurring when the property was unoccupied a considerable amount of water could leak and infiltrate other properties such as the pursuer's flat without early detection of any such leak in the defenders' flat. It was their duty to inspect the defenders' flat frequently to check for problems such as water leaking. They knew or ought to have known that if the defenders' flat had any difficulties therein, such as leakages, they would persist undetected. In answer the defenders aver that they discharged the duties incumbent upon them and explain that on 19 February 2001 contractors employed by them attended at the defenders' flat. The contractors were Service (UK) Limited, a company with skilled experience in securing repossessed properties. The tasks which its employees carry out as a matter of course include draining down the hot and cold water systems in properties, and that was done in the defenders' flat. The stop tap on the first floor was turned off, all ballcocks were tied and the water system was fully emptied. On 7 March 2001 there was an ingress of water into the pursuer's flat. There had been a failure in the water system in the defenders' flat. The failure in the system was close to the stop tap. It was at a point to the incoming side of the stop tap. [3] On 27 July 2004 the court, on the unopposed motion of the defenders, on cause shown, allowed the defences to be received late. An Open Record was lodged on 9 August 2004 and the adjustment period commenced on 13 August 2004. On 9 September 2004 the defenders enrolled a motion in the following terms:"On behalf of the defenders to remit the action to the Sheriffdom of Lothian and Borders at in (sic) terms of section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985".
Opposition to the motion was intimated by the defenders, the reason given for the opposition being that there was insufficient cause to justify a remit. The defenders' motion called before me in the Recess Court on Tuesday 14 September 2004.
The relevant statutory provision
[4] Section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 provides as follows:
"The Court of Session may in relation to an action before it which could competently have been brought before a sheriff remit the action (at its own instance or on the application of any of the parties to the action) to the sheriff within whose jurisdiction the action could have been brought, where, in the opinion of the court, the nature of the action makes it appropriate to do so".
Submissions
[5] Mr Heaney for the defenders submitted that there were three reasons why the nature of the action made it appropriate for it to be remitted to the Sheriff. These were: (1) the action was straightforward and simple on the facts and the law; (2) it was a low value claim; and (3) the procedure in the Sheriff Court made it more appropriate that the action should be litigated there. In his submission these three factors cumulatively made the Sheriff Court the more appropriate forum. Under the applicable Rules in the Sheriff Court the lists of productions and witnesses had to be lodged earlier than in a Court of Session action and this gave the defenders an earlier opportunity to consider the issues of the merits of the action and quantum of damages. In presenting his submission Mr Heaney referred to the decision of the First Division in McIntosh v British Railways Board 1990 SC 338. He directed my attention to what was stated in the rubric at pages 339-340. The First Division had held that the proper approach to the application of section 14 was that, except in extreme cases, the fact that the claim was small and straightforward was not enough to justify a remit to the Sheriff Court and that, if the pleadings showed that the pursuer could possibly recover more than the upper limit of the privative jurisdiction in the Sheriff Court, then the action should be regarded as appropriate for the Court of Session unless some other factor was present which showed that the nature of the particular case was such that it was appropriate for it to be dealt with in the Sheriff Court. It was also held that, in considering a motion for remit, the court ought to have regard to any practical or procedural advantages to be found in adopting one forum rather than another. The action in McIntosh was, unlike the present action, an action for damages for personal injuries, and the sum sued for (in 1990) was £3,000. [6] In opposing the motion Mr Lindhorst submitted that the action was not straightforward and simple as issues may arise as to the liability of the defenders. He did not say what these issues might be. Relying upon the decision of the First Division in McIntosh, he asserted that the pursuer was entitled to have the action before the Court of Session and submitted that the circumstances relied on by Mr Heaney did not make it appropriate for me to remit the action to the sheriff.Decision
[7] I decided to remit the action to the sheriff within whose jurisdiction it could have been brought as, in my opinion, the nature of the action made it appropriate for me to do so. The terms of the motion sought a remit to an unnamed Sheriff Court within the Sheriffdom of Lothian and Borders. I pointed out to counsel, and it was accepted by them, that, as this was an action relating to damage to heritable property in Montrose, there appeared to be no basis for jurisdiction in any Sheriff Court within the Sheriffdom of Lothian and Borders. I therefore remitted the action to Arbroath Sheriff Court, that being the Sheriff Court within whose jurisdiction it could have been brought. [8] This action seemed to me to be one which was typical of the sort of actions routinely brought in the Sheriff Court and which was entirely appropriate for that forum. It was a claim arising out of damage to heritable property caused by water infiltration. The averments of loss were, to say the least, vague and inspecific, and there was no calculation or vouching of any head of loss. There was therefore no way of knowing, at the stage at which I heard the motion, what the true value of the claim was likely to be. In these circumstances I proceeded to consider the motion on the basis that the claim was worth the sum sued for, namely, £10,000, as I had no basis for concluding that it was worth any lesser sum. Nevertheless, I accepted the submission of Mr Heaney for the defenders that the claim could appropriately be classified as a low value one. In my view the expenses in the Court of Session, if the case proceeded to proof, were likely to exceed the sum sued for. I also accepted Mr Heaney's submission that the action was straightforward and simple on the facts and the law. Mr Lindhorst did not submit that the action raised any specific legal questions of difficulty or novelty and, having considered the pleadings, I could see nothing difficult or complex in the determination of the facts. I considered that Mr Heaney's third reason in support of a remit, namely, that the Sheriff Court procedure made it more appropriate to litigate there, while not of great weight, was a factor which was in the defenders' favour.Leave to reclaim
[9] After I had granted the motion, Mr Lindhorst moved for leave to reclaim, which I granted. I did so in order not only that my decision could be reviewed but also in order that the decision in McIntosh, or at least some of the dicta therein, could, if thought appropriate, be reconsidered. The present action differs from the action in McIntosh in that it is not a personal injuries action and it was never suggested that it was a union-backed case in which there were practical and procedural advantages to the pursuer of bringing the action in the Court of Session. The approach of the court in McIntosh, upon which Mr Lindhorst strongly relied in opposing the motion, seems to be that a pursuer is entitled to raise in the Court of Session any action whose value is beyond the privative jurisdiction of the Sheriff Court and it is not for the Court of Session to deprive him of his choice to litigate there on grounds which could apply generally to every case of that type. At pages 343-344 Lord President Hope stated as follows:-"There was some discussion before the Lord Ordinary and again before us of the question whether a pursuer has the right to choose the forum in which his action should proceed. The Lord Ordinary said that the power to remit negates any such general right, but in our opinion this is not so. Parliament has deprived the Court of Session of jurisdiction in cases which are within the privative jurisdiction of the Sheriff Court, but in all other cases there is a concurrent jurisdiction. The pursuer is entitled to avail himself of the jurisdiction of whichever court he finds more convenient or appropriate to his own circumstances. It is not for the court to deprive him of his choice on grounds which could apply generally to every case of that type. No doubt this right is subject to the power to remit which each court has under the relevant statute, but that power should only be exercised on grounds which are particular to the case. There may well be sound practical reasons for choosing one court as against another, and unless Parliament directs otherwise the court which is chosen must deal with the case which is before it".
On one view what is stated on that passage puts a gloss on the terms of section 14 itself, which appears to confer an unfettered discretion to remit an action to the Sheriff Court where, in the opinion of the judge, the nature of the action makes it appropriate to do so.
[10] Further, the First Division in McIntosh dealt at page 345 with the power of the Court of Session to modify any award of expenses in an action where only a small sum is awarded. Lord President Hope stated as follows:-"Nothing in what we have said so far is intended to restrict in any way the power of the court to modify an award of expenses to a pursuer at the end of the case. A pursuer who raises his action in the Court of Session and seeks to take advantage of the practices and procedures of this court must take account of the risk that if the sum which he recovers is small he will be confined to expenses on the Sheriff Court Summary Cause scale or on the Sheriff Court Ordinary Court scale with or without sanction for counsel according to the circumstances: e.g. Smith v British Rail Engineering Ltd 1985 SLT 463. At this stage, when all the facts are known and all imponderables are out of the way, the court can reflect its view as to whether in the event the Sheriff Court was the appropriate court for determination of the case. It does so with the advantage of then knowing the result, which is an advantage not usually enjoyed by the pursuer's advisers at the start of the case. This is a valuable safeguard in the defenders' interest again their being exposed to claims in this court where the awards are trivial in relation to the expenses. But it would be wrong, in our opinion, to employ section 14 as if it were a means to the same end, unless it were clear from the pleadings at the outset that on no possible view could the pursuer recover a sum in excess of the privative limit for actions in the Sheriff Court".
This passage appears to deny to the Court of Session any power to remit an action to the Sheriff Court where it is considered that the likely expenses to be incurred will be in excess of the sum at stake. While it is true that at the end of the day the court has a power to modify any award of expenses, a defender in a small value claim will be likely to have to provide in advance the necessary funds for the instruction of solicitors and counsel in a case which is really unworthy of the Supreme Court. In such a situation a defender may be forced to settle a claim which he would not otherwise have settled in order to avoid having to fund a defence in the Court of Session.
[11] Moreover, it appears to me that there is an issue which was not considered by the First Division in the case of McIntosh. It is well known that the Court of Session is at the present time under considerable pressure of business and from time to time proof diets have to be discharged in high value cases due to lack of available judicial resources. If small value claims raising no difficulties of fact or law which could easily have been raised in the Sheriff Court are permitted to proceed in the Court of Session notwithstanding the power to remit contained in section 14 of the 1985 Act, the effect may be that scarce judicial resources will be further stretched, to the detriment of pursuers in high value, difficult or complex cases which have appropriately been raised in the Court of Session. [12] No case other than McIntosh was referred to in the course of submissions.