Summary cause action against solicitors’ firm for delivery of files was not incompetent, Sheriff Principal rules

Sheriff Principal Mhairi Stephen QC allowed an appeal against a decision of a sheriff at Livingston, who held that the action ought to be dismissed as “incompetent”.

The court heard that the appellant David Kirkham had raised a summary cause action against Livingston-based solicitors Sneddon Morrison, seeking delivery of certain files, records and documents held by the firm in connection with actions pending in the Court of Session.

The defenders acted for a Mrs Margaret Sneddon, a party to the Court of Session actions, but did not act for the appellant.

The appellant sought delivery of the files by having them transmitted to his own solicitors McArthur Stewart in Fort William.

The appellant asserted that his right to bring an action for delivery derived from an assignation in his favour by Mrs Sneddon’s trustee in bankruptcy.

After certain procedure the summary cause action called before the sheriff, but after hearing parties’ submissions on the basis in law for the claim the sheriff decided that the action was incompetent and dismissed the case with expenses in favour of the defenders.

The sheriff appeared to take the view that the action was suitable for summary cause procedure as it sought a decree ad factum praestandum in the sense that the principal crave was one for delivery, but ultimately considered that the action was incompetently raised in the sheriff court as there were more appropriate methods open to the appellant to obtain the remedy sought.

He could have brought a summary application to obtain the property in terms of section 1 of the Administration of Justice (Scotland) Act 1972, or, according to the sheriff, the most appropriate vehicle for the recovery of the documents relating to the pending Court of Session actions was by means of a specification of documents lodged in those processes.

The question for the sheriff principal was whether the sheriff was correct in holding that the action ought to be dismissed as incompetent.

The appellant argued that his title to sue and claim delivery of the files was predicated on the assignation in his favour granted by the trustee in bankruptcy to Mrs Sneddon.

The defenders acted for Mrs Sneddon (and her husband) in the proceedings in the Court of Session and the files and documents which the appellant sought to recover were those held by the defenders on behalf of Mrs Sneddon.

It was submitted that in terms of section 35(1)(c) of the Sheriff Courts (Scotland) Act 1971 actions ad factum praestandum shall be brought by way of summary cause and in the absence of a crave for payment (in excess of £5,000) the action required to be brought under this procedure.

The sheriff appeared to accept that but then fell into error by dismissing the action as incompetently brought on account of there being other procedures of which the pursuer could have availed himself.

It was argued that this was irrelevant to the question of competence and misunderstood the basis upon which the action proceeded.

The respondents adopted the reasoning of the sheriff as being the correct approach standing that the appellant in his pleadings clearly stated that the purpose and arguably the sole purpose in seeking delivery of the files was for the purpose of the appeals to the Inner House.

Accordingly, the sheriff was entitled to take the view that the appellant’s remedy was either recovery by way of commission and diligence or an application under section 1 of the 1972 Act, it was submitted.

In a written judgement, Sheriff Principal Stephen said: “In my view, the sheriff has fallen into error by dismissing an ex facie competent action simply on the basis that other methods of proceeding were available to the pursuer. The existence of separate or alternative or more expeditious procedure cannot, in my view, justify dismissing as incompetent proceedings which are ex facie competent. That is the short answer to the appeal.”

She added that when the arguments advanced on behalf of the defenders, and accepted by the sheriff, were analysed the result was a “misunderstanding” of the basis upon which the action proceeds and a “less than satisfactory appreciation” of the purpose of recovery or preservation of documents under the 1972 Act or by commission and diligence.

The sheriff principal concluded: “Accordingly, as the only issue in this appeal relates to competency I answer the question of law in the negative and allow the appeal.”

The action was remitted back to the sheriff at Livingston and the appellant was awarded the expenses of the appeal and also of the debate on competency heard by the sheriff.