LYNNE EWEN AGAINST GEORGE SMART
2015SCABE66
SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN
SC135/14
JUDGMENT
by
SHERIFF PRINCIPAL DEREK C W PYLE
in causa
MRS LYNNE EWEN, 158 Provost Rust Drive, Aberdeen AB16 7YN
Appellant
against
MR GEORGE SMART, 179 Sheddocksly Drive, Aberdeen AB16 6PL
Respondent
Aberdeen, 28 August 2015
The Sheriff Principal, having resumed consideration of the cause, Refuses the appeal; Finds the appellant liable to the respondent in the expenses of the appeal and remits an account thereof to the Auditor of Court to tax and to report.
[1] This is an appeal from the decision of the sheriff to dismiss a summary cause action in which the appellant claimed damages arising from a road traffic action which it was agreed had occurred on 1 September 2013. Prior to the first calling, the respondent had put the appellant on notice that the only live issue in dispute was that the respondent maintained that he was not the driver of the vehicle which it was alleged collided with the appellant’s vehicle. At the first calling on 29 August 2014, the appellant’s local agent moved the court not to fix a proof but rather to continue the case so that the appellant could clarify with the insurers on what basis they maintained that the defender was the driver. The sheriff granted that motion. At the continued calling on 31 October 2014 it appears that no progress had been made since the appellant’s local agent again moved for a continuation, which the sheriff granted. At the next continued calling on 12 December 2014, the case was again continued “for proper instruction to be taken by the pursuer”. The case again called before the sheriff on 23 December 2014. The events at that calling are described by the sheriff in his stated case as follows (para [2]):
“The pursuer was represented by Mr Howie, solicitor, acting as local agent for the pursuer’s solicitor and the defender by Mr Anderson, solicitor. Mr Howie was unable to provide any information about the pursuer’s case and clearly had inadequate instruction. On realising his position he requested a further continuation of the first hearing. I refused that request and dismissed the action as I could not properly conduct the first hearing as a result of the pursuer’s solicitor’s inability to provide requested information about her case.”
The sheriff amplified his reasons for the course he took as follows (para [4]):
“I was unable to properly conduct the hearing as the pursuer’s solicitor was not in a position to answer any questions nor clarify any points arising which would then enable me to properly assess the case and make the appropriate notes on the summons. In particular, given that the stated defence was that the defender was not the driver of the vehicle, I wished to know whether the quantum of the claim could be agreed and what steps had been taken in that direction. I wished to know the basis for the pursuer’s claim that the defender was the driver. Did she know him? Could she identify him as the driver? Did she have any other evidence pointing to that conclusion? Was there a police report and if so why had it not been produced? I am aware that it is not unknown for pursuers to conflate the concepts of registered keeper and driver. This information was required to enable me to carry out the proper conduct of the hearing to ascertain what might be agreed and what points, if any, required to be sent to proof.”
The sheriff gave the reasons for his decision as follows (para [6]):
“In exercising my discretion I took into account that the pursuer had already caused three continuations and seemed in no better place than at the outset when her solicitor was to investigate the position. I noted that the issue requiring investigation and clarification was the extremely simple one of whether the defender was or could be proved to be the driver. I noted that the last continuation appeared to have been specifically to enable the pursuer’s solicitor to appear in court properly prepared and that the solicitor had chosen not to comply. I also noted that the cause was not one where dismissal would result in a loss of action. There was no issue of limitation or of time bar.”
[2] In presenting the appeal, it might be thought that the appellant’s solicitor would be in a position to explain what steps were taken by him during the period of nearly 17 weeks from the first calling. He was unable to do so. The original instructions from the appellant’s insurers had come in skeletal form. He did not know what clarification was sought from the insurers at any point from the first calling. Indeed, he could not say whether any clarification had been sought at all. Instead, he sought to criticise the sheriff for asking any questions about the evidential basis for the appellant’s averment that the respondent was the driver. That, he submitted, was a matter for proof. A sheriff is not entitled to ask questions about the evidence underpinning an averment of fact. If that were so, it would be necessary for the insurers and the insured to attend the first calling in order to ensure that any likely question posed by a sheriff can be properly answered.
[3] In my opinion, this appeal falls to be refused. The consequence of the appellant’s submission was that her agent should have not sought any continuations and should have simply refused to answer any questions from the sheriff at the first calling about the basis upon which the appellant averred that the respondent was the driver. Rule 8.3(2) of the Act of Sederunt (Summary Cause Rules) 2002 is in the following terms:
“At the hearing, the sheriff shall –
- ascertain the factual basis of the action and any defence, and the legal basis on which the action and defences are proceeding; and
- seek to negotiate and secure settlement of the action between the parties.”
MacPhail (Sheriff Court Practice, 3rd edition, para [31.140]) adds the following explanation of the rule:
“If the sheriff is unable to secure a settlement he must identify and note on the summons the issues of fact and law which are in dispute. This is a most important provision. In order to comply with it the sheriff will almost certainly have to read the statement of claim and the form of response prior to the hearing, and at the hearing he will have to ask detailed questions of the parties or their representatives. The sheriff must also note on the summons any facts which are agreed.”
I agree with that. In my opinion, the sheriff was well entitled to enquire of the appellant’s agent what was the evidential basis for the averment that the respondent was the driver. Of course, the court must be careful not to stray into areas which properly ought to be dealt with at a proof, but in order to “ascertain the factual basis of the action” and to “seek to negotiate and secure settlement” it is inevitable that in some cases, such as the instant one, the sheriff will wish to establish on what basis, albeit in general terms, either party intends to prove essential but disputed facts. I do not agree with the proposition that such an interpretation of the rule means that parties and their insurers should be present. The key to compliance with the rule is for the solicitor to ensure that his instructions to his local agent are full and complete. Any competent solicitor experienced in this area of practice knows full well what the court is likely to seek by way of clarification of the disputed issues and its obligation to negotiate and secure settlement. The clue is in the name of the cause: such actions are supposed to be summary in nature and Rule 8.3(2) is merely a further expression of that important principle. That, it seems to me, is in the interests of the parties. But it is also in the interest of the smooth administration of justice. Substantial efforts have been made by the sheriffs in Aberdeen in recent years to provide litigants with a quick and efficient system for the conduct of civil litigation. They have been successful in achieving that, but it is a constant challenge to maintain standards in the face of a general tightening of public expenditure. It is therefore essential that the litigants’ representatives also play their part, which means for example that unnecessary callings of cases should be avoided. Agents from elsewhere in the country must ensure that their local correspondents are fully instructed. Inadequate instruction of local agents is not a new problem, but solicitors are now on notice that in this sheriffdom at least the sheriffs will expect proper compliance with the rules and that failure to do so may have unfortunate consequences.
[4] Ultimately, the sheriff was making a discretionary decision. I cannot fault his approach or his reasoning.
[5] In his stated case, the sheriff also records in passing that in his opinion the summons was not in proper form in that it did not identify the name of the solicitor who was acting for the appellant. Instead, the summons merely records the name of the firm of solicitors. It is certainly true that the prescribed form of summons states “Name, full address, telephone no, and e-mail address of pursuer’s solicitor or representative (if any) acting in the case”. I reserve my opinion on whether that means that an individual solicitor, rather than his or her firm, should be named. Nevertheless, that is the practice in Aberdeen and is one which has been accepted by the local Bar. It has much to commend it, particularly for the sheriff clerk’s office who may wish to communicate directly with the solicitor and, in extremis, for the sheriff who may wish to call that solicitor to account for any failures in his or her conduct of the litigation. The appellant’s solicitor said that the day to day conduct of road traffic claims in his firm is done by experienced claims handlers. How a solicitor wishes to conduct his business is of course a matter for him, but it does not detract from his duties to the court for which he must be personally responsible.