The Sheriff Appeal Court considered how reponing notes should be dealt with in Byres v Moore [2018] SAC (Civ) 17 (Sheriff Principal Pyle, 29 June 2018).

The pursuer/respondent raised an action for damages for injuries sustained in a road traffic accident. No appearance was entered by the defender and decree in absence was granted. A reponing note was lodged around six weeks later. The failure to lodge a notice of intention to defend was said to be due to human error, as correspondence from the defender's solicitors had been passed to the wrong team within the insurers’ administrative structure. The reponing note was refused and the defender appealed.

Sheriff Principal Pyle noted the terms of OCR, rule 8.1, which provides that the reponing note should set out the proposed defence and an explanation of the failure to appear. The Inner House decision of Forbes v Johnstone 1995 SC 220 was considered and it was noted that the decision confirmed that, from 1990, there had been no requirement in the rules for the sheriff to be satisfied with the defender's explanation. However, it was also noted that, as the decision was one for the sheriff’s discretion, the court was entitled to take account of “all the circumstances and to balance one consideration against another in deciding whether to allow the reponing note” (Forbes v Johnstone). Although the appeal sheriff suggested that it was likely that any such “circumstances” would relate to the failure to enter appearance, he pointed out that the Inner House in Forbes had explicitly excluded a test of the quality of the failure – in other words, whether the explanation was satisfactory or reasonable.

When deciding whether to grant the reponing note, the sheriff in the present case had followed the approach taken by Sheriff Principal Stephen in Bialas-Krug v EUI Ltd [2014] SC EDIN 38, and had considered a number of factors, but the appeal sheriff stated that the difficulty with these factors was that they were matters that should be regarded as testing the reasonableness of the explanation for the failure to enter appearance. He considered himself bound by the decision in Forbes – or at least his interpretation of it – but highlighted that, if he was wrong in his view on the construction of rule 8.1, he would readily agree with the approach taken in Bialas-Krug. The appeal was allowed.