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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Gemmell v. MWB Argyll Ltd [2007] ScotSC 71 (16 May 2007) URL: http://www.bailii.org/scot/cases/ScotSC/2007/71.html Cite as: [2007] ScotSC 71 |
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A3239/05
NOTE BY SHERIFF PRINCIPAL
JAMES A TAYLOR
in the cause
Arthur Gemmell
APPELLANT
against
MWB Argyll Street Ltd
My Lords,
[2] The main ground of the action at Mr
Gemmell's instance is that damage was occasioned to his property by building
works taking place on an adjoining property. The building works complained of
were preparatory to the construction of the Radisson Hotel,
"The sheriff principal insisted on proceeding with the appeal despite the pursuer's motion to have the appeal discharged to a later date."
The second ground is:-
"The sheriff principal ignored the appellant's plea that he was unprepared for the hearing due to ill-health and the defenders being allowed to consider the new evidence that came to light. During the hearing it was appallingly obvious that the pursuer was unprepared."
[3] Mr Gemmell moved me to discharge the
hearing because, he submitted, he had been unable to prepare for the appeal due
to his ill-health. He informed me that
he had become unwell in
[4] Furthermore, in support of the motion to adjourn, he informed me that new evidence had come to light to the effect that in 1999 the damage which had been sustained to his property had not been accidental. He required more time to ingather the necessary evidence and then amend his pleadings.
[5] In reply Mrs Wolffe suggested that if
new evidence had come to Mr Gemmell's attention his remedy was to raise a new
action. A motion to amend his pleadings to introduce a further ground of action
had been refused on
[6] I afforded Mr Gemmell an opportunity to respond. He indicated that the bundle of authorities had arrived after he canvassed with the defenders' solicitors the possibility that the appeal hearing should be discharged. My note then states that Mr Gemmell said that he would go along with my decision if I decided to refuse the motion.
[7] Given Mr Gemmell's final comment which I have just narrated, I am a little surprised by the terms of the grounds of appeal. In any event I came to the view that we should start the appeal. If it became apparent that Mr Gemmell was disadvantaged in any respect and such disadvantage could not be compensated for by adjournments I would have been prepared to consider a later motion to adjourn. I was conscious of the fact that this action had been ongoing for some two years, that if I had to discharge the appeal I would inevitably have to find Mr Gemmell liable in expenses given the late intimation of the motion and that in the interests of justice we had to proceed. I was not prepared to discharge the hearing to allow further evidence to be ingathered with the inevitable amendment procedure. I was not told why the new evidence was only now available.
[8] Mr Gemmell was granted two adjournments in the course of the morning to enable him to gather his thoughts. I did not form the impression that he was unprepared. He was very articulate. He took me through a considerable number of productions displaying his intimate knowledge of the case most adequately. He summarised his position thus: if he engaged a tradesman to carry out work to his property and in the course of carrying out that work the tradesman damaged his neighbour's property then under the law of Scotland he, Mr Gemmell, was liable to his neighbour for making good the damage occasioned by the tradesman always providing that Mr Gemmell carried the requisite insurance cover. He put his proposition in a slightly different form later in his submission: since the respondents benefited from the work carried out by Blyth & Blyth, they must pay the damage occasioned by Blyth & Blyth's operations. No matter how much time Mr Gemmell had to prepare for the appeal I doubt very much if he would have been able to persuade me that either of these propositions properly represented the Law of Scotland. His difficulty was not any lack of preparation but the basis of his action. I had read the learned Sheriff's judgment in advance of the hearing. Mr Gemmell at no time referred me to it. The issue is dealt with by the learned Sheriff in paragraph 21 of his Note. When giving my judgment ex tempore I indicated to Mr Gemmell that the normal course is for a party whose property has been damaged by the negligent actings of others to sue the allegedly negligent party. If he had evidence that the engineers who caused the damage had been negligent his remedy might be to sue them.
[9] Mr Gemmell took all morning to make his submissions. He did not strike me as a man who was underprepared. At all times he was courteous and respectful to the bench. It was only when he started to attack the integrity of Semple Fraser, the defenders' solicitors, that he overstepped the mark. I indicated to Mrs Wolffe that I did not require her to address me.
[10] Given that the grounds of appeal are directed solely at my refusal to grant the motion for an adjournment I have not narrated at length Mr Gemmell's submissions. In my opinion they were irrelevant covering matters such as a) stilicide, in respect of which there was no record following the refusal of the minute of amendment on 20 November 2006, b) having the hotel building removed for which he had no crave and c) an attack on the integrity of Semple Fraser. At one time I was addressed on what Mr Gemmell referred to as common sense in that there was a moral obligation on the respondents to make good damage caused by their agent or contractor. I must also record that Mr Gemmell accepted that Sheriff Noble was entitled to criticise Mr Gemmell's pleadings in the manner in which he had done. Mr Gemmell was of the opinion that all of the information was there if one just looked for it. He also took exception to the fact that correspondence from his own engineers had not been adequately dealt with by Blyth & Blyth. Accordingly I refused the appeal.
[10] There was no opposition to the motion by
Mrs Wolffe for the expenses of the appeal procedure.