Man ordered to return television to neighbour wins appeal challenging sheriff’s unless order
The Civil Division of the Sheriff Appeal Court has remitted a claim made under Simple Procedure rules for the return of a television to its original owner back to the sheriff after it was ruled that he was not entitled to determine that its prospective purchaser had failed to comply with an unless order requiring him to respond to the claimant’s assertions.
Nathan Blair, the appellant and original respondent, entered into a hire purchase agreement with the respondent and original claimant, Heather Baird, in terms of which he was required to make 156 weekly payments of £17.99. He claimed that he had never received any correspondence informing him of certain court dates.
The appeal was heard by Sheriff Principal Murray, who noted that the case raised a potential issue with the Simple Procedure rules. No appearances by counsel were required for either party.
Never received order
The parties were described as neighbours and former friends who had fallen out shortly after entering into the hire purchase agreement. Following the disagreement, the claimant requested that the respondent return the television to her, which he refused to do. She thereafter made a claim under Simple Procedure rules for the return of the television or, failing that, the sum of £2,806.44 due under the agreement.
In the response form to the claim, the respondent averred that he had been harassed by the claimant and that this was affecting his mental health. He failed to attend a case management discussion on 21 February 2020 and then was unable to attend a continuation after he was required to self-isolate due to members of his household exhibiting symptoms of Covid-19.
By order of 20 March 2020, the respondent was required to provide written submissions within two weeks setting out the reasons why the television should not be returned to the claimant, making clear that unless he did so, decree would be granted. No reply was received by the court within this period, but the respondent’s wife emailed the sheriff clerk’s office in April 2020 to explain that the family was still prohibited from leaving the house and that payments totalling £400 had been made to the claimant until she became aggressive and abusive.
Due to the court administrative pause imposed by the pandemic, the claimant was required to contact the sheriff clerk’s office by 3 July 2020 to indicate what she wanted to happen to the case following its having been paused. By letter received 22 June 2020 she requested the case be progressed by the television being returned to her by order of the court.
An unless order dated 29 June 2020 was made by the sheriff ordering the respondent to respond to the claimant’s assertions and clarify the basis upon which the claim the television should be returned is disputed. Following no response from the respondent, an order was made for the return of the television.
In his grounds of appeal, the respondent stated that he had not been told when the court date was as he received no email or letter informing him of the date and that he had never received the unless order. He also stated he was willing and able to pay £30 every two weeks towards the cost of the television.
In his decision, Sheriff Principal Murray said of the summary sheriff’s approach to the case: “I commend the summary sheriff for his efforts to case manage this case during the pandemic. I find there to be no error in his decision to issue an unless order. The respondent’s principal ground of appeal is that he never received that order.”
Evaluating the case’s procedural history, he said: “In the response form the respondent indicated that he should be contacted by post. The court process contains no verification that the unless order was sent to him. In the circumstances it cannot be demonstrated that the respondent was aware of the terms of the unless order.”
For these reasons, the decision of the sheriff was recalled and the claim remitted back to him. The respondent was ordered to respond to the unless order by 22 March 2021. In a postscript, Sheriff Principal Murray noted “a potential lacuna” raised by the case concerning the Simple Procedure rules.
He explained: “Rule 8.4 which provides for an unless order omits to specify how an unless order is to be intimated where it is made in the absence of a party. I shall draw this matter to the attention of the Scottish Civil Justice Council who may wish to consider an amendment to the rule to clarify how intimation should be made on a party.”
He concluded: “Pending that review I consider that given the importance of an unless order and the consequence of noncompliance it is desirable that where an order is made when the party on whom the order is made is not present the order should include a direction that it is to be formally served upon them in terms of rules 18 and 19 of the simple procedure rules so the court may be satisfied they have knowledge of the order.”
© Scottish Legal News Ltd 2021