"147. Any sheriff to whom any application is authorized to be made, and before whom any judicial proceeding shall in consequence take place or become necessary under or by virtue of this or the special Act, or any Act incorporated therewith, shall and he is hereby authorized and required summarily to call before him all parties who appear to him to be interested therein, and to proceed forthwith to hear vivâ voce, and pronounce judgment regarding the matters mentioned in such application or proceedings, or to do the several matters and things required by this Act to be done by him, without waiting the ordinary course of the roll of causes before him, and without written pleadings or a written record or reducing any evidence which may be led by either of the parties to writing, unless and except where the said sheriff shall consider that the matters mentioned in such application or proceedings can with more advantage be decided with written pleadings and with a written record, in which case he shall proceed to make up a record, and bring the said matters to a conclusion with all convenient despatch; and the orders and judgments of the said sheriff when pronounced without a record shall be final and conclusive, and not subject to review by suspension or advocation, or to reduction, on any ground whatever.

...

150. In all cases which may come before any sheriff substitute under this or the special Act, or any Act incorporated therewith, in which written pleadings shall have been allowed, and a written record shall have been made up, and where the evidence which has been led by the parties shall have been reduced to writing, but in no other case whatever, it shall be competent for any of the parties thereto, within seven days after a final judgment shall have been pronounced by such sheriff substitute, to appeal against the same to the sheriff of the county, by lodging a minute of appeal with the sheriff clerk of such county, or his depute; and the said sheriff shall thereupon review the proceedings of the said sheriff substitute and whole process, and, if he think proper, hear the parties vivâ voce thereon, and pronounce judgment; and such judgment shall in no case be subject to review by suspension ... or to reduction, on any ground whatever."

In some, perhaps most, cases an application under s.61 will be dealt with informally by what he described as a process of "sniff it and see": see s.147. In other words, the sheriff might go onto the land accompanied by interested parties, look at the site, hear what parties had to say and make a decision without further procedure. However, the section also recognises that the sheriff may think that the matters raised in the application would be better decided with written pleadings and a written record. In such a case he is required to make up a record. In the "sniff it and see" type of process, the decision of the sheriff is final and conclusive, and not subject to review by any means or on any ground whatever. But in cases where the sheriff decides that written pleadings and a written record provide a better means of deciding the application, the terms of s.150 of the Act apply and there is given to a dissatisfied party, in certain circumstances, a right of appeal to the sheriff principal though not to the Court of Session. It is apparent from the fact that he acceded to an application for leave to appeal to the Court of Session that the sheriff did not have these sections brought to his attention. Indeed, no-one appears to have been aware of them. I was told that an appeal to the Court of Session was taken; and it proceeded as far as the preparation of an Appeal Print before someone realised that such an appeal was incompetent.

[11] I have already indicated that parties were agreed in argument before me that, in the particular circumstances of this case, any effective right of appeal to the sheriff principal is precluded. The parties were not agreed, however, on which circumstances led to this result. For Network Rail, Mr Howie identified the cause of the problem as being the terms of the interlocutor. Since there were written pleadings and a written record, he submitted, prima facie there should have been a right of appeal to the sheriff principal under s.150 of the Act. However, as that section makes plain, such an appeal can only be taken within seven days after a final judgment has been pronounced by the sheriff. While granting summary decree in respect of crave 1, the sheriff allowed a proof before answer on the other matters in dispute between the parties. His interlocutor was, therefore, not part of a final judgment in the matter; and no right of appeal arose at that stage. In practice there will not be a final judgment in the action until after the expiry of the 90 days within which the interlocutor requires the work to be done. In those circumstances the interlocutor has the effect of precluding any effective appeal to the sheriff principal. Any appeal would simply be too late. Since he did not have these provisions of the Act brought to his attention, and since in purporting to grant leave to appeal to the Court of Session he evinced an intention to allow his interlocutor to be brought under review by a superior court, it is clear that the sheriff could not have intended to preclude such an appeal. It is in these circumstances that Network Rail petition this Court for reduction of the decree in part so as to prevent what they say is an injustice.

Submissions
[12] Mr Howie and Mr Connal were broadly in agreement as to the circumstances in which a sheriff court decree pronounced in foro could be reduced. Under reference to MacPhail, Sheriff Court Practice, at para.18.05, Mr Howie submitted that reduction was permitted where the sheriff court decree was incompetent or where the sheriff had departed from the ordinary practice of the court; and where there was no other form of review available to the aggrieved party. There was reference in case law and commentaries to a requirement for "exceptional circumstances". Whilst this might be an apt description of the type of case to which he referred, the expression was more appropriately used to impose a limit upon the qualification that no other form of review was available. Reduction might be granted even if there were some other means of review "in exceptional circumstances". It was not necessary, in that sense, to consider exceptional circumstances in this case since there was no other effective right of review. In addition, Mr Howie accepted that the aggrieved party had to show that the procedural defect had deprived him of a stateable defence. The court would not reduce a decree if the same result would plainly have been reached by a competent or regular procedure. He referred me to Mitchell Construction Company (Scotland) Ltd v Brands Transport and Demolition Ltd 1975 SLT (Notes) 58, in which Lord Kincraig observed that departure from the ordinary practice of the court constituted such exceptional circumstances which would justify reduction of a decree; to Zannetos v Glenford Investment Holdings Ltd 1982 SLT 453 where Lord Ross drew together the relevant authorities; and to Bain v Hugh L S McConnell Ltd 1991 SLT 691 in which the Second Division referred to those same authorities, and Zannetos, with approval. Mr Connal, for his part, preferred to express the test in this way: that intervention by way of reduction of a decree of the sheriff court was authorised only in "fairly dramatic" circumstances. It was not justified simply because the decision on the merits of the case was challenged: Alexander Simpson v David Harley (1830) 8 Shaw 977. Nor could a complaint be taken in this way against mere procedural rulings made by the sheriff. Under reference to Bain v McConnell, he said the search was for something "pretty dramatic" giving rise to a miscarriage of justice. In the same vein he referred me to Alagon v Secretary of State for the Home Department 1993 SLT 381; to Cameron v Gibson 2006 SC 283 and to certain remarks of my own in Robert Bain v Andrew Robert Bain (13 December 2006, unreported).

[13] Mr Howie submitted that this was a case where the sheriff's interlocutor was incompetent or, in any event, involved a departure from the ordinary practice of the court. He took two discrete points. First, he submitted that it was incompetent for the sheriff to grant a summary decree. He pointed out that the debate before the sheriff was a debate on Network Rail's plea to the relevancy of the pursuer's averments. Network Rail had lodged a Note in accordance with Chapter 22 of the Ordinary Cause Rules 1993. On the basis of that Note, the sheriff had appointed the case to debate on the defenders' pleas-in-law. Mr Robertson had no plea to the relevancy of Network Rail's averments. At the debate, therefore, whilst it was competent for the pursuer to move at bar for summary decree in terms of Chapter 17 of the Ordinary Cause Rules, it was not open to him to seek decree on the basis that the averments by Network Rail in answer to crave 1 were irrelevant. Still less was it competent for the sheriff to accede to that motion for summary decree on that basis. This was consistent with well known pleading practice in the sheriff court and the Court of Session. In terms of Chapter 22, if a party tabled a preliminary plea but failed to lodge in process a Note of the basis for that plea within the required time, he was deemed to be no longer insisting on that preliminary plea and the plea fell to be repelled. It was not open to that party thereafter to challenge the relevancy of the defences. The position was a fortiori where a party had never tabled any preliminary plea at all - he could not be better off than if he had tabled such a plea and failed to insist upon it. The fact that a motion was made for summary decree did not overcome the need for a preliminary plea if the basis upon which summary decree was sought was the irrelevancy of the defences. Reference was made to Henderson v 3052775 Nova Scotia 2006 SC (HL) 85 at para.[15] and to Bain v McConnell at page 696E. If the grant of summary decree in such circumstances was not incompetent, it was certainly a departure from ordinary practice in the sheriff court.

[14] Mr Howie's second point focussed on the fact that the terms of the interlocutor had the effect of emasculating the right of appeal to the sheriff principal given by the 1845 Act for the reasons set out in para.[11] above. He submitted that it was incompetent to grant decree which by its terms precluded a party from availing itself of the rights of appeal given to it by Parliament. At the very least, to do so would be a radical departure from the ordinary practice of the sheriff court.

[15] In this case, Mr Howie submitted, it was quite clear that there was a genuine and arguable point raised by Network Rail in their defences. The sheriff had recognised this in distinguishing English Court of Appeal authority and purporting to grant leave to appeal to the Court of Session. In those circumstances it was clear that the procedural defects referred to above, whether amounting to incompetency or simply a departure from the ordinary practice of the sheriff court, had caused a real injustice in that they had prevented a genuinely arguable point from being considered on appeal.

[16] Addressing the question of whether it was competent for the sheriff to grant summary decree on relevancy grounds without there being a plea in-law, Mr Connal drew my attention to Chapter 17 of the Ordinary Cause Rules 1993. He pointed out that, in terms of Rule 17.2, the pursuer was entitled to apply by motion for summary decree at any time after a defender had lodged defences, i.e. even before adjusting his own pleading to include a plea to the relevancy of the defences. He submitted that the chapter dealing with summary decree cut across ordinary pleading rules. Although summary decree was not primarily concerned with relevancy, matters of relevancy could be raised. No particular pleas-in-law were required. Rule 17.2(2) provides that, in applying for summary decree, the pursuer may move the sheriff inter alia to pronounce an interlocutor sustaining or repelling a plea-in-law. But this was not the only order that the pursuer could seek. He could simply ask for decree in terms of the craves in the initial writ. This did not involve any consideration of pleas-in-law. The only question was whether the decision maker was satisfied that there was no defence to the action or part of it. In Frew v Field Packaging (Scotland) Limited 1994 SLT 1193 summary decree was granted, despite the defenders submitting that the more appropriate course where issues of relevancy were involved was to take the case to the procedure roll. It was not for the court to search for defences to the motion for decree. If the defenders had wanted to take the point that summary decree should not be granted because of the absence of a preliminary plea, they should have done so. He referred to Elaine Catherine Matthews v Scottish Legal Aid Board & Another 1995 SCLR 184. There was nothing incompetent about the decree, nor was it a departure from ordinary practice and procedure. He referred to the concession which the sheriff had recorded. He did not rely upon it specifically as a concession - its real importance was in highlighting the fact that no objection was taken by counsel for Network Rail to the procedure which the sheriff was invited to follow.

[17] In response to Mr Howie's second point, Mr Connal accepted that Network Rail had no effective right of appeal to the sheriff principal but argued that this was not a result of the terms of the interlocutor. It should not be assumed that Parliament intended there to be a right of appeal in a case such as the present. S.147 made it clear that there was to be no appeal at all in a case where the sheriff did not consider that written pleadings and a written record were necessary. That decision was left entirely to the sheriff. S.150 dealt with the position where the sheriff had formed the view that written pleadings should be allowed and a written record made up. But it also imposed a requirement, before any right of appeal was given, that evidence had been led by the parties and had been reduced to writing. In no other case was an appeal to the sheriff principal competent. Parliament had not provided for a right of appeal in a case where there was no evidence and the matter was determined on a point of law argued at debate. It followed that the form of the interlocutor did not deprive Network Rail of any right that it would otherwise have had. It had no right of appeal to the sheriff principal, not because of the form of the interlocutor, but because the matter was disposed of without hearing any evidence.

[18] At an early stage in his submissions, Mr Howie appeared to accept that it was competent for Mr Robertson to have proceeded in the sheriff court by way of an ordinary cause notwithstanding that the application under s.61 was a "summary application" within the meaning of s.3(p) of the Sheriff Courts (Scotland) Act 1907. This was so, he submitted, because the three craves containing applications under s.61 were accompanied by monetary craves which were not claims under the Act. He suggested that the position was analogous to that considered in Halifax Building Society v Arunabha Das Gupta 1994 SC 13. At a later stage in his submissions I pressed him again on whether Mr Robertson should have proceeded under the Summary Applications, Statutory Applications and Appeals etc. Rules 1999 ("the Summary Applications Rules"). Rule 1.4 of those Rules requires a summary application to be made in this way. Those Rules do not incorporate the Ordinary Cause Rules, save in one respect, and they do not provide for summary decree or debate (though under Rule 2.31 the Sheriff can make such order as he thinks fit for the progress of the summary application). Mr Howie candidly accepted that he could not take this competency point since it was not in terms raised in his petition; and he reminded me that it was not pars iudicis for me to take the point since it did not relate to the competency of the proceedings in the Court of Session. Nonetheless, he pointed out that the petition did refer to the oddity of the procedure in the sheriff court in that it averred that the application was one under the Act "albeit raised in the guise of an ordinary action", and he submitted that I could take this into account in considering what had gone wrong. For his part, Mr Connal submitted, under reference to Halifax v Gupta that it was competent to raise an ordinary action where the initial writ included claims which were not summary applications. He further submitted that no such point could now be taken since both parties, having proceeded in the sheriff court without objection, had acquiesced in the form the proceedings had taken. In this connection he referred me to James Comrie v J Gow & Sons 1931 Sh. Ct. Rep. 159, 162 and Cormack v The Crown Estate Commissioners 1983 SLT 179, 182.

Discussion

[19] I have come to the clear view that this is one of those cases where reduction is not only competent but necessary to prevent injustice. It seems to me that the proceedings have taken an unfortunate course, for which the sheriff is not to be criticised, which has resulted in Network Rail being deprived of their statutory right to appeal his decision to the sheriff principal. My reasons are as follows.

[20] There was no real issue on the test to be applied as to whether the court could interfere with an interlocutor of an inferior court by decree of reduction. The principles are well set out in Zannetos. One cannot define categorically the cases in which reduction is competent. Reduction may be justified if something has gone wrong procedurally and a miscarriage of justice has occurred as a result. It will not generally be allowed if the petitioner has failed to use other means of redress open to him, but there may be exceptional cases where it will be granted despite this. The pursuer must have a substantial defence or argument in opposition to the claim made in the action. These last two points are satisfied in this case. I address the disputed issues below.

[21] It is apparent from ss.147 and 150 of the 1845 Act that applications under the Act are intended to be dealt with "summarily" or, where that is not possible, at least "with all convenient despatch". In both cases, rights of appeal are limited. In the former case, s.147 not only entitles but requires the sheriff summarily to call before him all interested parties and to proceed "forthwith" to hear the parties and pronounce judgment, without written pleadings or a written record and without reducing to writing any evidence which may be led by either of the parties. His judgment and interlocutor are to be final and conclusive and not subject to any review whatsoever on any ground. This was the situation in Thomas Main v Lanarkshire and Dumbartonshire Railway Company (1893) 21 R 323, where the Inner House held that an appeal to the Court of Session from a decision of the sheriff (in proceedings without written pleadings) was incompetent. (It may be noted, though it does not affect the question at issue, that the decision in Main was based upon s.150, though that section was not brought to the attention of the Court. Since the proceedings before the sheriff were without written pleadings and a written record, it might be thought that s.147 was more precisely in point, but I suspect the Court did not have that section brought under its attention either.) In the latter case, there is a limited right of appeal under s.150. That is an appeal to the sheriff principal and must be exercised within seven days of final judgment in the action.

[21] One issue argued before me was whether, on a proper construction of s.150, there is a right of appeal to the sheriff principal in all cases where the sheriff has determined that written pleadings and a written record are desirable, as Mr Howie submitted; or whether, as Mr Connal submitted, it is limited to those cases where evidence has been led and reduced to writing. I prefer Mr Howie's submission on this point. S.150 must be read with s.147, which seeks to distinguish between, on the one hand, the simple case which merits summary disposal without any right of appeal and, on the other, the more complex or difficult case where written pleadings and a written record are appropriate. S.150 deals with rights of appeal in the latter type of case, by providing for a right of appeal to the Sheriff-Principal in all cases "in which written pleadings shall have been allowed, and a written record shall have been made up, and where the evidence which has been led by the parties shall have been reduced to writing". It seems to me that Parliament cannot have intended to draw a distinction between cases where evidence is led and cases where no evidence is led. It would mean that there was a right of appeal where the facts were disputed but not where they were agreed; appeal on questions of fact (or mixed fact and law) but not on questions of law alone. No reason was suggested to me as to why such a result might have been intended. I would construe s.150 as allowing a right of appeal where "where the evidence, if any, which has been led by the parties shall have been reduced to writing." There would have been a right of appeal to the sheriff principal in the present case had it not been for the peculiar circumstances to which I have referred.

[22] Mr Howie had an additional argument to the effect that even if the leading of evidence were a pre-condition to the existence of a right of appeal, that evidence did not have to relate to the issue which was to be appealed. It was sufficient that evidence be led in relation to other matters, for example in relation to craves 2 and 3. He submitted that the sheriff's interlocutor, in allowing a proof before answer on all remaining matters, contemplated that such evidence would be led and therefore that a right of appeal would arise in due course, albeit not in time to be effective in relation to the decree in terms of crave 1. I do not accept this. If, contrary to the opinion which I have expressed, Parliament did intend that there be no right of appeal unless evidence was led, it would be subverting that intention to allow parties to manufacture a right of appeal by leading evidence on issues irrelevant thereto.

[23] The procedure which was followed in this case had the effect, in practice, of depriving Network Rail of an effective right of appeal. There were essentially two things that went wrong. One was the adoption of a procedure in which the action was dealt with piecemeal, with the result that an order was made on crave 1 against Network Rail before final judgment and therefore before any right of appeal was triggered. The other was the fact that the interlocutor required the work to be done within 90 days, before the time at which final judgment in the action would be delivered and therefore before the accrual of the right of appeal. Neither of these things would matter were it not for the fact that s.150 restricts the right of appeal to a period of seven days after final judgment. But against the background that s.150 does just that, they produced a situation where Network Rail has, through inadvertence of the parties and contrary to the intention of the sheriff who pronounced the interlocutor, been deprived of the opportunity to exercise the right of appeal which Parliament intended a party in its position to have.

[24] How did this happen? In my opinion it happened in part because, from the start, the wrong procedure was adopted without either party being aware of the consequences. As I have indicated earlier, an application under the 1845 Act is intended to be resolved speedily. That is why an application under the Act is required to be brought as a summary application under the Summary Applications Rules. Those Rules are in mandatory terms. In terms of Rule 1.4, an application to which they apply must be brought as a summary application under those Rules. It seems to me be arguable - though because of the way the point developed I may not have had the benefit of full argument on the point - that it is incompetent to bring such an application in any other manner - the case of Halifax v Gupta is distinguishable for reasons canvassed briefly in argument - and it may therefore be that a summary application cannot be combined with another claim. I see no difficulty in this. Further, although I would not wish to lay down any general guidance, it is by no means clear to me that the Summary Application Rules envisage that the proceedings may include a number of separate applications. No doubt because they are addressed to providing a framework for summary applications, the Rules do not appear to envisage that the application will be determined otherwise than at the end of the process. Since the whole process is intended to achieve summary disposal, there is no separate procedure in the Rules for summary decree or debates. The decision on the application, even if it proceeds by way of written pleadings and a written record, will be by final judgment. If the procedure envisaged by the Rules is followed, there is little danger of arriving in the position in which parties now find themselves. If particular orders for procedure are made under Rule 2.31, they will be made in the context of an application commenced under the Rules; and both the parties and the court are likely to be aware of the implications of any decision that is made.

[25] I have questioned in the preceding paragraph whether the proceedings in the sheriff court were competent. I accept that in these proceedings it is not pars iudicis to take a point about the competency of proceedings in the sheriff court. I also accept that, if the issue before me were to turn on the issue of competency, there is force in the point made by Mr Connal about acquiescence. Ultimately, however, it does not seem to me that it does turn on a strict understanding of whether or not the sheriff court proceedings were competent or whether any incompetency has been waived. It is sufficient, in my opinion, simply to regard what has happened as a procedural mishap, or a series of procedural mishaps, for which both parties must take some part of the blame. It has led to injustice, or the risk of injustice, because it was not seriously in dispute that Network Rail's defence raises an arguable point of law which might prevail on appeal if that avenue were not closed to it. I was not addressed on the merits of that argument and do not express any view on it except to say, in reliance on the sheriff's own view, that it was deserving of consideration by a higher Court.

[26] Since I have decided to reduce the decree in part, for similar reasons I do not need, and do not think it appropriate, to make any decision on the two competency points argued by Mr Howie. The construction of Rule 17 of the Ordinary Cause Rules must await another occasion. Unless it were necessary for me to decide it, it would be wrong for me to express a view on a point of sheriff court procedure when I have not had the benefit of any prior decision on the matter at sheriff court level. Equally, I would not wish to express a view at this stage as to whether it was competent for the sheriff to pronounce a decree which, by its terms, prevented any effective right of appeal. Such matters are better decided first in the sheriff court as they arise.

[27] After some discussion, parties were agreed as to the extent to which I should reduce the interlocutor of the sheriff if I were in favour of Network Rail. I propose to reduce it to the extent of deleting the following parts:

(i) the words "Sustains the pursuer's first plea in law" in lines 1 and 2;

(ii) the whole passage from "Holds that Answers 1-13 inclusive ..." in line 3 up to and including the words "... (Vict. C33)" in line 11;

(iii) the passage from "Finds the defender liable ..." in line 14 to the end of the paragraph.

That leaves the interlocutor intact in so far as it repels Network Rail's first plea in law and quoad ultra allows a proof before answer of both parties' averments, together with its assigning the cause to a Diet Roll for the fixing of a proof. By doing this, I do not preclude Mr Robertson applying afresh for summary decree, though in that event it will be for the sheriff to decide, in light of such argument as may be addressed to him, whether such an application is competent or appropriate in this case.

Disposal

[28] I shall therefore grant decree of reduction to the extent indicated.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Network Rail Infrastructure Ltd, Re An Application For Judicial Review [2007] ScotCS CSOH_169 (19 October 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_169.html Cite as: [2007] ScotCS CSOH_169, [2007] CSOH 169

Scottish Court of Session Decisions

Introduction

Discussion