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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 90
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A812/04
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NOTE BY LADY PATON
in the cause
MICHAEL McLETCHIE
Pursuer and
Reclaimer;
against
LOMBARD NORTH
CENTRAL PLC
Defenders and
Respondents:
ннннннннннннннннн
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9 June 2006
Pursuer; Party
Defenders; Shepherd & Wedderburn
[1] On
20 May 2006, I
received a request to provide a brief note in relation to two motion roll hearings which took place on 22 November 2005 and 2 February 2006. I have
endeavoured to do so, with the assistance of manuscript notes made at the time.
Introduction
[2] In
this action the pursuer seeks reduction of a sheriff court decree against him
for payment of г11,990.90. He also
seeks reduction and suspension of a charge following thereon.
[3] The
defenders aver that they entered into a conditional sale agreement with the
pursuer relating a Jaguar sports car.
The car was delivered to the pursuer.
The defenders sought payment in terms of the agreement. They ultimately raised an action for payment
in the sheriff court. After sundry
procedure, the defenders enrolled a motion for summary decree. Averments relating to that motion are
contained in Answer 3. Summary
decree was granted by the sheriff in December 2003. A charge was served on the pursuer.
[4] The
pursuer responded by instructing solicitors to raise the present action for
reduction in December 2004. In
Article 9 of Condescendence, it is averred that the pursuer in fact had a
defence to the action for payment.
Details of that defence are set out.
In Article 6 of Condescendence it is explained that the pursuer had
understood that solicitors were dealing with the sheriff court action on his
behalf. He had been unaware that decree
had passed against him until service of the charge. Those averments are disputed by the defenders
(Answers 3, 5, and 6). In
particular, the defenders aver that the pursuer did not instruct solicitors
until after summary decree was
granted (Answer 3).
[5] At the
outset of the present action, the pursuer sought interim orders suspending
further diligence. Interim orders were
granted on the basis of ex parte statements. Thereafter, although the pursuer's agents effected service of the interim orders, no steps were taken
to serve the summons. In May 2005
the defenders enrolled a motion to have the pursuer ordained to serve the
summons. They also enrolled a motion for
recall of the interim orders. The first
motion was granted; the second was
continued on the basis of assurances given in court that the sum due in terms
of the sheriff court decree would be paid.
[6] By the
time of the continued motion, the pursuer's solicitors had withdrawn from acting. The summons had not been lodged for
calling. On 28 June
2005,
the court granted the defenders' motion to have the pursuer ordained to lodge
the summons within 7 days. The
summons was then lodged. The defenders
timeously lodged defences.
[7] The
pursuer thereafter failed to lodge a record.
The defenders enrolled a motion for dismissal by default. On 12 August
2005,
the pursuer appeared in person to oppose the motion. The motion was continued to allow records to
be lodged. Records were then lodged, and
the defenders dropped their motion.
[8] There
were no adjustments by either pursuer or defenders. The record closed on the summons and defences
on 2 November 2005. The defenders then enrolled a motion (1) for
recall of the interim orders, on the basis that the pleadings in the Closed
Record disclosed no prima facie case; (2) alternatively, for caution in the
sum of г10,000. The motion was
intimated to the pursuer by Recorded Delivery.
Starred motion
on Tuesday 22 November 2005
[9] The
motion came before me on 22 November 2005. Mr Fairley, Advocate, appeared for the
defenders. The pursuer had previously
corresponded with the defenders by e-mail, stating that he wished to oppose the
motion, and that he would enrol his own motion.
However by 22 November, the pursuer had not marked opposition to
the defenders' motion, nor had he enrolled any motion of his own, nor did he
appear in court.
[10] Mr Fairley
invited me to recall the interim orders.
He began to address me on that matter, referring to Walker, Civil Remedies,
pages 184 and 185, and Campbell v McCance 1929
S.L.T 26. I indicated a reluctance
to recall the interim orders standing the pursuer's averments in
Articles 3, 5, 6, and 9, as to do so would in effect be to dispose of
the case in that diligence could then proceed against the pursuer. I invited Mr Fairley to make submissions
on the question of caution.
[11] Mr Fairley
then referred to the history of the litigations in both sheriff court and Court
of Session. He submitted that the
pursuer had repeatedly failed to comply with orders of the court, and had also
required to be prompted or forced into action at many procedural stages. Counsel stated that the pursuer had on
several occasions assured the defenders' agents that payment would be
forthcoming. At the hearing in the Court
of Session in May 2005, undertakings had been given in open court that
payment would be made to the defenders.
In the light of that undertaking, the court had agreed to continue the
defenders' motion for recall of the interim orders. However no payment had been made. Counsel explained that, in the light of the
pursuer's conduct to date, the defenders were concerned that the pursuer would
be unable to meet their expenses in the event that he was unsuccessful in the
contested action of reduction and suspension in the Court of Session (which
might well have to go to proof).
[12] I was
persuaded that the pursuer should be ordained to find caution for expenses in
the sum of г10,000 for the reasons advanced by counsel. I granted an interlocutor ordaining the
pursuer to consign that sum of money by 11 January
2006.
Further adjustment, and failure to consign г10,000
[13] The
pursuer enrolled a motion in early December 2005, seeking to have the
cause restored to the Adjustment Roll for a period of 2 weeks. The court allowed a period of
3 weeks. The record closed on 28 December 2005.
[14] By 11 January 2006, no sum had been
consigned. The defenders intimated a
motion seeking absolvitor in terms of rule of court 33.10. There was no indication that the motion would
be opposed, until 1 February 2006 (when the motion came
before Lord Glennie). The pursuer
handed counsel a note indicating opposition to the motion, and an intention to
seek leave to reclaim late.
Opposed motion
on 2 February
2006
[15] Lord Glennie
continued the motions to come before me on 2 February
2006. The pursuer appeared in person, and the
defenders were again represented by Mr Fairley.
[16] Mr Fairley
gave a brief introduction, recapitulating the procedural history to date. He referred to a recent Inner House decision,
The Bank of Scotland v Kunkel-Griffin, 15 February 2005. He also submitted that any motion on the part of the
pursuer to seek to reclaim late was incompetent as the date for the lodging of
caution (11 January 2006) had passed.
[17] The
pursuer then addressed the court. He
accepted that counsel had accurately narrated the history of the litigations up
until the time when his solicitors withdrew from acting. But it was part of his argument that he did
not "know the rules". He had managed to
attend one hearing, simply because he had called the General Department to ask
a question and had been advised of the hearing.
[18] Even
when represented by solicitors, the pursuer had found matters
unsatisfactory. The original solicitors
had not done what they were instructed to do.
The second set of solicitors had not pled the case as instructed. The important point was that the debt was not the pursuer's. That had not been included in the
pleadings. The pursuer had never
admitted that he owed the defenders anything.
He had simply admitted the existence of a debt - owed by the
Miclora Trust.
[19] The
pursuer acknowledged that he had been sequestrated. He was now discharged. He was trying to build up his
credit-rating. If decree of reduction
were granted, he would do what he could to see that the debt was paid on behalf
of the Miclora Trust. He asked the court
to grant leave to reclaim on the basis that the debt was not owed by him. He had been an undischarged bankrupt at the
time when he signed the conditional sale contract with the defenders. He had contacted the defenders, and asked if
he could have a loan to buy a car. He
was given to understand that it was the defenders' policy not to lend to a
bankrupt, whether discharged or not. An
application had then been made, involving a copy of the Miclora Trust
Deed. The loan had been passed. The pursuer pointed out that it was the
defenders who had made a mistake, allowing him to "slip through the net".
[20] When
asked why he had not attended court on 22 November
2005,
the pursuer stated that he had sent the defenders an e-mail indicating that he
wished to oppose their motion. However
he thought that he would be advised of a date.
The pursuer added that he was unemployed. He had not taken legal advice about what
action to take about the interlocutor of 22 November
2005. It was only on 1 February
2006
that he had come to realise that he could reclaim.
[21] The
pursuer advised the court that if the case came to an end that day (2 February 2006) the defenders would
sequestrate him. He wanted to continue
with the litigation. In the end of the
day, the debt was not his. He was trying
to keep his name clear, and to get a credit-rating. He did not deny that the Miclora Trust owed
the defenders money. The trust had been
set up by him in 1998, with a deed registered in the Books of Council and
Session. He was a trustee of the
trust. His trustee in bankruptcy had
been aware of his position in the trust.
The trust did not in fact have any money.
[22] Mr Fairley responded by submitting that, even if the
pursuer's motion was competent, nothing which the pursuer said suggested that
the court had erred in law in ordering consignation, given the material before
the court on 22 November 2005. Reference was made to Macphail, Sheriff Court
Practice, paragraph 18.51; Marsh v Baxendale, 1994 S.C.L.R. 239;
Walker, Civil Remedies, page 176;
and Forrest v Dunlop (1875) 3 R. 15. The summons did not explain why decree had
been allowed to pass in 2003, or why no appeal had been taken: Macphail, op.
cit. paragraph 18.55. The
standard set out in Forrest (a
"strong case of inadvertence") had not been met either in respect of the
passing of the decree, or the failure to appeal. The pursuer had not made out a prima facie case.
Decision
[23] The defenders sought absolvitor in respect that caution had not
been lodged. In view of the history of
the litigations, the terms of rule of court 33.10, and the defender's
failure to consign the sum of г10,000 as caution for expenses in
compliance with the interlocutor of 22
November 2005, I granted the defenders' motion. My interlocutor of 2 February 2006 also bears to refuse the
pursuer leave to reclaim against the interlocutor of 22 November 2005. Against the background narrated in this Note,
I certainly formed the view that the court's discretion should not be exercised
in favour of the pursuer. However I
accept that the question of reclaiming out of time is a matter for the Inner
House: rule of court 38.7 and The Bank of Scotland v Kunkel-Griffin, 15 February 2005 (Inner House).
