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  4. Sheriff Appeal Court can take fresh look in reviewing decree by default

Sheriff Appeal Court can take fresh look in reviewing decree by default

16th October 2017 | civil litigation

In reviewing the grant of decree by default, the Sheriff Appeal Court is not restricted to considering the information available to the sheriff but should consider whether the interests of justice  require that the appellant should be reponed, the President of the court has ruled.

Sheriff Principal Mhairi Stephen QC gave her decision in refusing an appeal by John Young, a party litigant, against decree for payment of £6,870 in an action against him at Edinburgh Sheriff Court by General All Purpose Plastics Ltd in respect of outstanding invoices and other charges.

The defender had failed to lodge defences in accordance with the timetable set by the court. The pursuers' solicitor lodged a motion for decree and the defender intimated opposition, but failed to appear on the date set for hearing of the motion and the pursuers moved for and were granted decree by default under OCR, rule 16.2.

In his grounds of appeal the defender said he had been unaware of the requirement to lodge defences by an appointed date, had intended to consult with solicitors, and produced draft defences. These were conceded to be deficient in not fully explaining his position. Before the court he maintained he did not order the items in question and there had been no contractual relationship.

Sheriff Principal Stephen said that although the parties' written submissions had differed as to whether the Appeal Court was restricted to the usual principles for review of the exercise of judicial discretion, the respondents conceded that "an appeal against decree by default involves the question whether the appellant should be reponed, which in other words means that the appellate court should exercise its own discretion having regard to all the circumstances".

She continued: "A party who appeals a decree by default is, in effect, seeking to be reponed or to have the case put back on track with further procedure allowed. Whether or not the appellant should be reponed involves a broad consideration of the circumstances surrounding the default and whether there is a proper or meritorious defence to the action. The correct question is whether the interests of justice require that the appellant be reponed."

However, in the present case, "It is difficult to avoid the conclusion that the appellant has been less than candid in his grounds of appeal. Indeed, the grounds of appeal contradict the appellant's position as stated in his opposition to the pursuers' motion for decree by default... The appellant... appears to have taken a dilatory, if not cavalier approach, to the rules of court. It cannot be argued that the appellant was unaware of the need to lodge defences... Of course, the lack of legal representation does not absolve the appellant of the need to have proper regard to the rules of court which are available online and the crucial parts are clearly flagged up in the notices from court."

Contradictory information had been given to the court, and "In all the circumstances it is difficult to avoid the conclusion that the appellant is simply failing to engage with the court process; has failed to follow regular procedure; and has delayed these proceedings on account of these failures... The lack of a coherent explanation of the steps taken by the appellant and indeed his solicitor [consulted before the date set for hearing but who had taken no steps by that date] to deal with the failures to comply with regular court procedure and the lack of a candid and proper defence to the action lead me to the conclusion that matters cannot simply be mended by an award of expenses against the appellant."

Click here to view the sheriff principal's opinion.

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