Sheriff Appeal Court dismisses three connected simple procedure actions by party litigant seeking to recover money from council

About this case:

• Citation:
  [2022] SAC (Civ) 10
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Mhairi Stephen QC

Chaza Afandi raised three claims with a combined value of around £14,000 each relating to three consecutive periods of hotel residence which she claimed the council said it would pay for. The council argued that as all three claims arose from the same cause of action their aggregate value exceeded the claim limit for simple procedure.

The appeal was heard by Sheriff Principal Mhairi Stephen QC. The appellant represented herself, with the respondent being represented by Mr Scott, solicitor.

Entitled to be reimbursed

The appellant, a severely disabled person, was evicted from a private rented tenancy at the beginning of 2016. She stated that when she became homeless, an officer of the respondent told her to stay in hotels and send the bills to the council until she found new accommodation. It was the appellant’s position that the law entitled her to be reimbursed as a person in receipt of benefits and severely disabled.

In relation to her various hotel stays, the appellant lodged three simple procedure claims with the court covering consecutive time periods from 25 February 2016 to 19 November 2016. The respondent denied in each case that it had an obligation to reimburse the money. Considering all three claims jointly, the sheriff dismissed them as incompetent, stating that it was not competent to split the amount over three periods.

In her appeal submissions, the appellant argued that the rule as to raising all claims in one action related to damages arising from delict or breach of contract, but not to any of her claims. As reasoning for why she had raised simple procedure claims, she explained that no solicitor had been willing to take on her case as they were “not keen” on supporting a foreigner against the local council.

Counsel for the respondent submitted that the relevant legal principle applied to any action raised in respect of any wrong or obligation to make payment. As the appellant claimed the council was obliged to reimburse her, her actions fell within the scope of the principle. The sheriff had been correct to notice the incompetency and dismiss the action.

Multiplicity of litigation

In her decision, Sheriff Principal Stephen observed: “There appears to be little dispute as to the basis upon which this case proceeds against the council. The cause of action is identical to the other cases which Ms Afandi has lodged. The only difference is that the three cases relate to different periods of time in 2016 and for slightly different monetary claims.”

Examining the role of the sheriff in this case, she commented: “Simple Procedure Rule 1.8 sets out the sheriff’s powers. In particular 1.8(12) is in the following terms: ‘If a claim, or part of a claim, obviously will not succeed because it is incompetent, the sheriff may dismiss the claim or that part of it at any time.’ Accordingly, the sheriff is not only entitled to consider questions of competency but has a duty to do so.”

On the scope of the rule that all losses from a single cause must be recovered in one action, she said: “The purpose of the rule is obvious and is designed to avoid a multiplicity of litigation directed at the same defender or in different courts leading to the risk of double counting. Repetitive actions in respect of the same underlying legal cause lead to unnecessary expense and inconvenience particularly for the defender but also for the court.”

Sheriff Principal Stephen concluded: “Applying the doctrine that any payments due to the appellant by the respondent must be recovered in one action it is not competent to proceed to recover the sum said to be due by way of multiple simple procedure actions. This action and the associated actions therefore fall to be dismissed.”

However, she added: “Ms Afandi is not deprived of a remedy. She may raise proceedings by ordinary procedure in terms of the Ordinary Cause Rules 1993. However, it is also well settled that party litigants require to comply with rules of procedure in the same manner as represented parties. It would be prudent if Ms Afandi sought legal advice and representation notwithstanding the observations which she repeats in the body of these cases and in her correspondence with the court about the unwillingness of solicitors to represent her.”

For these reasons, the appeal was refused.