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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clarke v. MacKenzie & Anor [2005] ScotCS CSIH_7 (14 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_7.html Cite as: [2005] ScotCS CSIH_7, [2005] CSIH 7 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Macfadyen Lord Reed Lord Drummond Young
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[2005] CSIH 7 XA142/03 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL From the Sheriffdom of North Strathclyde at Dunoon in causa ROBERT ANTHONY CLARKE, Pursuer and Appellant; against IAN K. MACKENZIE, O.B.E., First Defender and Respondent; and THE CHURCH OF SCOTLAND GENERAL TRUSTEES, Second Defenders and Respondents;
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Pursuer and Appellant: Party
First Defender and Respondent: Webster; Balfour & Manson
Second Defenders and Respondents: Hodge Q.C.; Miss S. Killean, Solicitor Church of Scotland Law Department
14 January 2005
Introduction
[1] In September 1985 the pursuer purchased Inverlutha House, Achnamara, Argyll. Inverlutha House was formerly a manse. In 1986 the pursuer obtained an agricultural tenancy of part of the adjoining glebe land, which belonged to the second defenders. The lease was for an initial period of three years and continued thereafter by tacit relocation. It contained an obligation on the pursuer to reside no further from the holding than he did at the commencement of the lease. In practical terms, that required the pursuer to reside in Inverlutha House, since any other residence would have been further away from the holding. That obligation was fenced with an irritancy clause. At various times during the currency of the lease, the pursuer in fact resided elsewhere. In September 1999 he sold Inverlutha House. In August 2000 the second defenders raised in the Sheriff Court at Dunoon an action of declarator of irritancy and removing, founding on an allegation of breach of the residence condition. After sundry procedure in that action, the first defender was appointed under section 60 of the Agricultural Holdings (Scotland) Act 1991 as arbiter to determine whether the second defenders had acquiesced in any breach of the residence condition and, if so, whether that precluded irritancy. A hearing in the arbitration took place on 24 April 2002, and the first defender issued his decision on 30 April. [2] Thereafter the pursuer made a summary application to the sheriff under paragraph 24 of Schedule 7 to the 1991 Act. That application was not lodged until the end of February or the beginning of March 2003. (Before us there was a question as to whether it was lodged on 21 February or 5 March, although the latter date appears to have been a matter of agreement before the sheriff. In any event, the difference is immaterial.) In the application the pursuer sought to have the first defender's decision set aside on a number of grounds. The second defenders included in their answers to the summary application a plea to the effect that the application was incompetent in respect that it was out of time in terms of Rule 2.6(2) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999. The pursuer responded by seeking to make out special cause for the application to be heard out of time, as provided for in Rule 2.6(3). The sheriff heard the parties on that issue, found that special cause was not established, and accordingly by interlocutor dated 2 July 2003 dismissed the application. It is against that interlocutor that this appeal is taken.The competency of the application
[3] Before we turn to the substance of the appeal, it is appropriate to take note of one incidental matter. Before the sheriff there was some discussion of whether, aside from the question of time, the application was a competent application under paragraph 24 of Schedule 7 to the 1991 Act. That paragraph provides:"When an arbiter has misconducted himself, or the arbitration or award has been improperly procured, the sheriff may set the award aside."
The pursuer's application does raise an issue of alleged misconduct, but it also puts forward other grounds for setting aside the first defender's award, which do not appear to us to fall within the scope of "misconduct", as that word is normally understood in the context of arbitration. No question of improper procurement arises. The sheriff took the view that it was at least arguable that he had jurisdiction to entertain grounds of attack on the first defender's award other than misconduct (paragraph 7 of the Note appended to his interlocutor of 2 July 2003), and therefore proceeded to address the effect of the time at which the application was made. The question whether the application was in part one that could not competently be brought under paragraph 24 of Schedule 7 was not re-opened before us. In these circumstances we wish to reserve our opinion on that matter. The fact that we proceed to deal with the appeal against the sheriff's decision on the question whether the pursuer had made out special cause for hearing the application despite its having been presented out of time must not be taken as an endorsement of the proposition that the application, so far as it is not based on alleged misconduct, properly falls within the scope of paragraph 24 of Schedule 7.
The Rules
[4] Rule 2.6 provides as follows:|
"(1) |
This rule applies to a summary application where the time within which the application may be made is not otherwise prescribed. |
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(2) |
An application to which this rule applies shall be lodged with the sheriff clerk within 21 days after the date on which the decision, order, scheme, determination, refusal or other act complained of was intimated to the pursuer. |
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(3) |
On special cause shown, the sheriff may hear an application to which this rule applies notwithstanding that it was not lodged within the period prescribed in paragraph (2)." |
The sheriff's decision
[5] The sheriff recorded that it was a matter of agreement before him that the pursuer's summary application was one to which Rule 2.6 applied. Three relevant dates were also not in dispute. The first defender's award was intimated to the pursuer on 2 May 2002. The summary application therefore ought in terms of Rule 2.6(2) to have been lodged by 23 May 2002. It was actually lodged on 5 March 2003. It was therefore, the sheriff calculated, about ten months late. [6] The sheriff set out in paragraphs 10 to 14 of his Note the submissions made on the pursuer's behalf in support of the proposition that there was special cause for allowing the application to proceed although it had not been lodged timeously. The submissions identified three factors. First, it was said that the question of whether an appeal was available to the pursuer against the first defender's award was a complex matter of law. Reference was made to the obtaining of advice from two counsel in succession, and the need to clarify that advice, which was initially unclear. It appears, however, that the pursuer's solicitor did not give the sheriff a clear and detailed chronology of these matters. (In contrast, the pursuer, before us, was able to obtain and provide a much more detailed account of the sequence of events.) Secondly, reference was made to the fact that the original action of declarator and removing was continued on a number of occasions to allow counsel's opinion to be obtained. It was suggested that these continuations could almost be seen as approval by the court of the delay. Thirdly, reliance was placed on the fact that the pursuer was resident in France, which had contributed, albeit to a modest extent, to the delay. [7] The defenders' submissions were recorded by the sheriff in paragraphs 16 to 18 of his Note. In the first place, the second defenders' solicitor informed the sheriff that she had, on 20 June 2002, written to the pursuer's solicitor indicating that any summary application was already by that date out of time. In these circumstances it was submitted that the pursuer's solicitor had been put on notice that an issue was to be raised as to the time of presentation of the application. Despite that, a further period in excess of eight months elapsed before the application was lodged. Secondly, it was submitted that, whatever difficulty or complication there may have been about whether a summary application was competent, it was entirely clear that it required to be lodged within 21 days of the first defender's decision. Thirdly, she submitted that the delay had caused prejudice to the second defenders. They had been denied the opportunity of bringing the irritancy proceedings to a conclusion, and had been forced to incur costs in attending a number of hearings in that action. [8] The sheriff's reasons for his decision were set out in paragraphs 19 to 27 of his Note. He began by expressing the view that:"the lengthy delay of nearly ten months in lodging the summary application requires to be explained by convincing reasons before it can be overlooked."
He then proceeded to deal with the submissions made to him. He accepted the complexity of the issue of the competency of the summary application, and that it may well have been desirable to consult counsel. He noted, however, that on the information offered to him by the pursuer's solicitor, counsel's opinion appeared to have been sought in July 2002, and observed that the lapse of time from then until February 2003 appeared "unduly long given the urgency of the matter". He also observed that it was unclear what, if anything, happened between the issue of the first defender's award and the instruction of counsel. He noted that, although the application was lodged reasonably quickly after the action of declarator of irritancy was sisted on 7 February 2003, the lapse of time even at that stage exceeded the 21 days allowed by the Rules. He accepted that the fact that the pursuer resided in France must have caused some difficulty, but did not regard that as a strong factor in the pursuer's favour. He did not accept that the continuations granted in the original action could be regarded as sanctioning the delay in lodging the summary application. He accepted that the matter had to be judged in the context of already protracted litigation. He regarded it as important that the second defenders' solicitor had in June 2002 drawn attention to the time limit. He also concluded that the defenders' submissions of prejudice were well founded. He pointed out that the application could have been lodged timeously then sisted to allow investigation of the competency issue. He concluded (at paragraph 27 of his Note):
"In the whole circumstances ... the reasons put forward by the pursuer in support of the contention that there is special cause such as to allow the summary application to be received late are not sufficient to have the dispensing power exercised in his favour. It seems to me that far too much time was allowed to elapse before the summary application was lodged for it to be allowed to proceed."
The pursuer's submissions
[9] In making his submissions to us, the pursuer set out the background circumstances in helpful detail. We do not, however, require to reiterate them here. He recognised that the appeal involved an attack upon a discretionary decision by the sheriff, and that it was therefore necessary for him to make out a case that the sheriff had abused his discretion. In that connection, reference was made in the Grounds of Appeal to the observations of Lord Reid in Thomson v Glasgow Corporation 1962 SC (HL) 36 at 66. [10] The first point made by the pursuer in that connection was focused in paragraph (1) of the Grounds of Appeal in the following terms:"The Sheriff erred in law in the weighing of factors in the exercise of his discretion by taking into account 'prejudice to the Second Defenders' which was in the circumstances an irrelevant factor in that the prejudice re which the Second Defenders made submissions was prejudice submitted already to have been suffered by them as a result of a summary application not having been lodged earlier than it was, not prejudice that they submitted they would suffer if the Sheriff exercised his discretion in favour of hearing the summary application that had been lodged."
"The Sheriff erred in law in the weighing of factors in the exercise of his discretion by failing to take into account the relevant factor of the prejudice the pursuer would suffer if the Sheriff exercised his discretion against the hearing of the summary application that had been lodged in circumstances where the Pursuer had no other right of appeal against the arbiter's award."
"In any event the Sheriff exercised his discretion unreasonably and unjudicially in his weighing of the factors of respective prejudice that would arise from his hearing or not hearing the summary application."
The defenders' submissions
[14] The principal response to the pursuer's submissions was made by Mr Hodge for the second defenders. Mr Webster, who appeared for the first defender, adopted Mr Hodge's submissions. [15] Mr Hodge emphasised that this appeal was taken against a decision of the sheriff which involved an exercise of his discretion. Whether the sheriff had exercised his discretion properly could only be determined by reference to the circumstances laid before the sheriff. In so far as fuller information had been placed before us, principally in relation to the chronology of events in connection with the obtaining of advice from counsel about the competency of the summary application, that material was irrelevant to an assessment of the propriety of the sheriff's exercise of his discretion. [16] In relation to paragraph (1) of the Grounds of Appeal, Mr Hodge submitted that the point there expressed was misconceived. Prejudice already suffered by the second defenders as a result of the delay which occurred before the sheriff heard the application under Rule 2.6(3) was a relevant consideration to which the sheriff was entitled to have regard. [17] In relation to paragraph (2) of the Grounds of Appeal, Mr Hodge submitted that it was self-evident that refusal of the application under Rule 2.6(3) would deprive the pursuer of the opportunity of bringing the arbiter's award under review before the sheriff, and that such refusal would therefore be prejudicial to the pursuer. The point was, he submitted, too obvious to require to be expressly articulated by the sheriff. [18] Mr Hodge's main submission was, however, developed in response to paragraph (3) of the Grounds of Appeal. That paragraph disclosed the fallacy underlying the pursuer's whole approach to the case. The pursuer approached the appeal to this court as if the sheriff's task was simply to balance the prejudice which the second defenders would suffer if the Rule 2.6(3) application was granted against the prejudice which the pursuer would suffer if that application was refused. That did not address the test set by Rule 2.6(3), which was whether special cause had been shown for allowing the application to be heard notwithstanding that it was not lodged within the period prescribed in Rule 2.6(2). Strong grounds for allowing the application to proceed out of time were required if "special cause" was to be made out. More than the prescribed period had elapsed before the second defender's solicitor drew the time limit to the pursuer's solicitor's attention. It appeared that it was only after that that counsel's advice was sought. There was no adequate explanation laid before the sheriff of the time that elapsed before counsel's advice was received and clarified. Even after the action of declarator and removing was sisted, a further period in excess of the time prescribed in Rule 2.6(2) was allowed to elapse before the summary application was finally lodged. In these circumstances, the sheriff's conclusion, as expressed in paragraph 27 of his Note, was clearly within the proper scope of his discretion.Discussion
[19] Our task is to decide whether the pursuer has demonstrated that the sheriff, in his interlocutor of 2 July 2003, failed to make a decision which was within the proper scope of the discretion conferred upon him by Rule 2.6(3). We must therefore begin with the terms of Rule 2.6. Paragraph (2) of the rule sets a time limit for making an application of the relevant sort, namely 21 days from the date of intimation of the decision. Paragraph (3) permits a late application to be made "[on] special cause shown". We must consider whether, in the whole circumstances laid before him, the sheriff was properly entitled to come to the conclusion that special cause had not been made out for allowing the application to be heard. [20] It is, in our view, clear that, in considering the question of special cause, the sheriff was entitled, indeed bound, to bear in mind not only the fact that the application was late, but also the length of time by which it was late. The later the application is, the more onerous the task becomes of showing special cause why it should nevertheless be heard. Against the period of 21 days provided for in Rule 2.6(3) must be set the fact that the pursuer's application was not lodged for almost ten months. [21] The sheriff was, in our view, fully justified in examining critically the reasons put forward for the delay. The principal reason advanced was the complexity of the issue of the competency of appeal by summary application. That did not explain why more than the period allowed by Rule 2.6(2) was allowed to pass before the advice of counsel on the competency issue was even sought. Nor did it explain why, when the time limit was drawn to the attention of the pursuer's solicitor by the second defenders' solicitor in her letter of 20 June 2002, no steps were taken to lodge the application promptly. On the information placed before him, the sheriff was in our view fully entitled to make the comment (in paragraph 19 of his Note) that "the time taken from then [July 2002] until February 2003 in obtaining and considering Counsel's opinion appears unduly long given the urgency of the matter." Although we accept Mr Hodge's submission that the matter must be tested by reference to the information available to the sheriff, we do not think that any different result would have followed if the sheriff had had the fuller account of events placed before us. Essentially, the delay remained inadequately explained. As the sheriff further noted (paragraph 20), more than 21 days were allowed to elapse between the sisting of the declaratory action on 7 February 2003 and the eventual lodging of the summary application. The sheriff did not accord great weight to the fact that sundry continuations were granted in the declaratory action. He took, and in our opinion was entitled to take, the view that it could not be inferred that the court was thereby sanctioning the delay in presenting the summary application. He was also entitled, in our view, to attach little weight to the fact that the pursuer was resident in France. Given the availability of modern means of communication, that fact can have made no more than a minimal contribution to the time taken to lodge the summary application. Putting the factors relied upon on the pursuer's behalf before the sheriff together, we are of opinion that the sheriff was entitled to reach the conclusion expressed in paragraph 27 of his note, quoted in paragraph [8] above. [22] In our opinion, the pursuer is mistaken in his approach to this appeal. His grounds of appeal concentrate on a balancing of the prejudice which he and the defenders would respectively suffer if the application were refused or granted. That is not the correct approach. As Rule 2.6(3) makes clear, the question is whether special cause has been made out for hearing the application out of time. Prejudice may have some bearing on that question. In particular, a party resisting an application made under Rule 2.6(3) is entitled in our view to point to prejudice which he has suffered or will suffer as a result of the delay. The presence of such prejudice may make it harder for the party making the application to show special cause. Thus in the present case, the sheriff was, in our view, entitled to take into account the prejudice claimed by the second defenders, and to treat it as a factor adverse to the establishing of special cause. On the other hand, the party making the late application cannot simply bring into a balance of prejudice the fact that if his application is not heard late he will lose the opportunity of bringing the arbiter's decision under review. That prejudice is self-inflicted by his failure to present the application timeously, and forms an inevitable background to any application under Rule 2.6(3). We do not consider that in this context the pursuer is entitled to distance himself from his solicitor's delay. In the circumstances, we are not persuaded that the sheriff misdirected himself as to the proper scope of his discretion, as to the factors to be taken into account, or as to the weight to be given to them, in the account that he took of the question of prejudice.Result
[23] For these reasons we are of opinion that the pursuer's attack on the sheriff's decision fails. We therefore refuse the appeal and adhere to the sheriff's interlocutor of 2 July 2003 dismissing the action.
