The timetabling requirements for motions intimated and lodged by email in sheriff court ordinary procedure are mandatory, and it is not within the power of a party lodging a motion to vary them unilaterally, a sheriff has held.
Sheriff Kenneth McGowan in the All Scotland Personal Injury Court gave the decision in relation to a number of motions by a firm of solicitors which were lodged late in relation to the date of intimation, due to the firm being closed between Christmas and New Year. A hearing on the motions took place at the solicitors' request, after the motions were dropped by the court.
In the test case, Gardiner v Abellio Scotrail Ltd, a sist was due to expire on Wednesday 23 December. A reminder was issued to the solicitors and a hearing fixed for 5 January. On 21 December the pursuer's agents intimated to the defenders a motion to discharge that hearing and to fix a new timetable.
In terms of chapter 15A of the Ordinary Cause Rules, the deadline for opposition should have been 23 December and the motion should have been lodged on 24 December. The form G6A issued by the pursuer's agents indicated that opposition should be intimated by 31 December. The motion was not lodged until 5 January. The court was closed on Friday 25 and Monday 28 December, and Friday 1 and Monday 4 January, but otherwise open on weekdays. The pursuer's solicitors had chosen to close between Christmas and New Year.
The solicitors submitted that while the practice here did not comply with chapter 15A, it was used without objection in the Court of Session, and had been accepted to date in the Personal Injury Court.
Ruling that the requirements in chapter 15A were mandatory, Sheriff McGowan said that to allow a party to vary them unilaterally “would be a recipe for uncertainty where certainty is necessary”. A decision to close for business on a court day “cannot be allowed to constrain the business of other practitioners or the court itself”.
While he was clear that it had never been the policy of the court to grant motions in these circumstances, he could not say that it had never happened.
“In these circumstances, I accept that the pursuer’s agents may have come to believe (wrongly) that the procedure followed here had the imprimatur of the court. So on this occasion only, I shall treat what has happened as arising from an excusable cause under OCR 2.1(1) and direct that the motion lodged by the pursuer’s agents... be processed and granted.”
He added: “If practitioners decide to organise their business in a way which means they are not in a position to deal with matters which require to be dealt with or otherwise arise on court days, they do so at their peril.”