The importance of engaging in the court process in Scotland … and following court rules
Case comment: General All Purpose Plastics Ltd v. John Young
The decision by the court in the case of All Purpose Plastics ltd v John Young has reiterated the importance of parties (including, in particular, parties not instructing a solicitor) familiarising themselves with and following court rules, and of newly instructed solicitors taking their own steps to establish what stage of procedure a case has reached.
The case was an appeal from the Sheriff Court, where the pursuers’ motion for decree by default was granted as the defender had failed to intimate his defences, oppose the motion or appear at court.
The defender appealed. He argued that he was unaware of the requirement to lodge defences by a particular date, and had consulted with solicitors after decree was granted. Consequently, he put it to the sheriff appeal court that they should exercise their discretion and recall the decree by default.
The respondents’ position was that although the appellant had now lodged defences, they were skeletal and did not properly answer the respondents’ averments.
Sheriff Principal Stephen’s first issue of law was to decide what approach the sheriff appeal court should take when reviewing a sheriffs’ decision to grant decree. In this case, Sheriff Principal Stephen ruled that whether or not the decree should be reponed involves a broad consideration of the circumstances surrounding the default and whether there is a proper defence to the action. As a result, the question that should be asked was whether the interests of justice require that the appellant be reponed.
Sheriff Principal Stephen expressed her displeasure for the lack of candidness in the appellant’s grounds of appeal. The appellant had contradicted himself in his written and oral pleadings. It became apparent that the appellant was aware of the necessity in lodging defences and had consulted with a solicitor, but still failed to take action. The sheriff described this attitude to the rules as “cavalier”, which was perhaps a little kind.
Further, by the time of the appeal hearing itself the appellant had drafted defences which were very skeletal and gave the pursuers and the court little information as to what the actual defence was intended to be. Those defences appeared to have been prepared prior to the motion hearing for decree by default, but were not intimated to the pursuers prior to the hearing on the motion (which the appellant’s solicitor was apparently unaware of). Instead the solicitor has intended to submit them at the options hearing and move that they be received although late. This approach by the solicitor was criticised by Sheriff Principal Stephen. Had the solicitor made an attempt to engage with the other side, the urgency of the case (being, as there was, an outstanding motion for decree by default) would have come to light.
The Sheriff Principal then considered the position of the pursuer. She pointed out that they strenuously oppose the appeal. Their position was that the appellant was trying to delay the inevitable consequence of the proceedings. The appellant had only put forward his defence at the appeal hearing. This failure to engage in the court process, together with the failure to follow procedure and delay, seemed to be deciding factors for the court. Sheriff Principal Stephen ruled against the appellant and did not exercise her discretion to repone the order.
Lessons from this decision
In brief, the Sheriff Principal reiterated that failure to engage in the court process and follow the court rules will not be taken lightly by the court. Further, unnecessary delays without reasonable excuse will not be tolerated.
From a solicitor’s perspective, this case highlights the need for newly instructed solicitors to take urgent steps to appraise themselves of the circumstances of a case without relying solely on the information provided by the client. If a client appears to be in default (as in this case), immediate steps ought to be taken to purge the default and preserve the client’s position. A failure to do so could result in additional challenges and expense, even where the proper ability to repone through appeal exists.
Full text of the decision is available here.
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