Party litigant loses appeal against sheriff’s decision to grant decree by default

The Sheriff Appeal Court ruled that the appellant had “failed to engage with the court process” and that the sheriff’s decision was “unsurprising”.

Sheriff Principal Mhairi Stephen QC heard that the pursuers General All Purpose Plastics Limited raised an action in Edinburgh Sheriff Court in March 2017 for payment of unpaid invoices in respect of the supply of plastic and other products to the defender John Young, who lives at an address in Edinburgh.

They craved the sum of £6,800 being the total of the outstanding unpaid invoices together with an administration fee chargeable under their terms and conditions, as well as the sum of £70 being the statutory charge for late payment together with expenses of the action.

Motion for decree by default

The defender lodged notice of intention to defend the action on March 30, which prompted the court to make an order in terms of Ordinary Cause Rule (OCR) 9.2 setting out the timeline which parties had to adhere to.

The last date for lodging defences was April 20, but no defences were submitted and the pursuers lodged a motion on April 26 asking the court to grant decree in terms of their craves together with expenses.

The motion was duly intimated to the defender, who lodged a notice of opposition with the court, but when the motion called on May 25 there was no appearance by or on behalf of the defender to oppose the motion nor had defences been lodged.

The sheriff granted the pursuers’ motion in terms of OCR 16.2, which provides that where a party fails to lodge, or intimate the lodging of, any production or part of process within the period required under a provision in the rules, that party shall be in default; and that where a party is in default, the sheriff may grant decree as craved with expenses.

Grounds of appeal

But the defender appealed against the sheriff’s decision on the basis that he was “representing his own interests”, and was “unaware” of the requirement to lodge defences by an appointed date.

The grounds of appeal also stated that he had “intended to consult with solicitors but only did so after decree by default was granted on May 25”.

The appellant was unable to point to any error in the sheriff’s approach and it was conceded that he was in default; that no defences had been lodged by the last date for lodging or by the date of the hearing of the opposed motion, although draft defences were produced for the appeal.

The court was told that the appellant’s solicitor had in fact met with him on May 21 and defences were drafted.

The appellant’s position was that he “did not order the plastic items” and that he had “no contractual relationship” with the pursuers despite the averments in the writ.

As a matter of law the appellant argued that the appeal court’s function in an appeal against decree by default was to “exercise its discretion” as to whether the appellant could be reponed.

The respondents’ position was simply that the sheriff was entitled to grant decree by default, as the appellant failed to identify any error of law to satisfy the court that the decree should be recalled.

Failure to follow court procedure

Refusing the appeal, the court observed that the appellant had taken a “cavalier approach” to the rules of court.

Delivering the opinion of the court, Sheriff Principal Stephen said: “A party who appeals a decree by default is, in effect, seeking to be reponed or to have the case put back on track with further procedure allowed. Whether or not the appellant should be reponed involves a broad consideration of the circumstances surrounding the default and whether there is a proper or meritorious defence to the action. The correct question is whether the interests of justice require that the appellant be reponed.

“Turning to the appeal and the circumstances of the default it is necessary for me to consider whether I should exercise my discretion in the appellant’s favour. It is difficult to avoid the conclusion that the appellant has been less than candid in his grounds of appeal.”

The Sheriff Principal highlighted a number of inconsistencies between the grounds of appeal and the oral submissions.

She added: “In all the circumstances it is difficult to avoid the conclusion that the appellant is simply failing to engage with the court process; has failed to follow regular procedure; and has delayed these proceedings on account of these failures. The court has a real interest in ensuring that its rules are followed.

“Rules of court have the clear objective not only of regulating procedure but also to provide parties with a just resolution of the dispute between them. Non-compliance with the rules of court undermines those objectives and inflicts delay and expense on the party who follows proper procedure.

“The lack of a coherent explanation of the steps taken by the appellant and indeed his solicitor to deal with the failures to comply with regular court procedure and the lack of a candid and proper defence to the action lead me to the conclusion that matters cannot simply be mended by an award of expenses against the appellant.

“In all the circumstances, I am unable to exercise my discretion in favour of the appellant in order that he be reponed and accordingly I propose to refuse the appeal.”