[2014] CSIH 93





in the Appeal



Pursuer and Respondent;



Defender and Appellant:

Act:  M Crawford;  Faculty of Advocates Free Representation Unit

Alt:  Absent

22 October 2014


[1]        This is a motion by the appellant and defender in an appeal from a decision of the Sheriff Principal of Lothian and Borders dated 30 July 2014 in a summary application at the instance of Jamie Boyd against Mark Fortune.  The summary application was brought in terms of regulations 9 and 10 of the Tenancy Deposit Schemes (Scotland) Regulations 2011 which provide that where a landlord has failed to pay a deposit to the administrator of an approved scheme as required by regulation 3 the sheriff must order the landlord to pay the tenant an amount not exceeding three times the amount of the tenancy deposit.  In this motion the appellant seeks to be reponed against the deemed abandonment of his appeal by reason of his failure to comply with the requirements of Rule of Court 40.7 (2).


Procedural history

[2]        The history of the application is that the matter went to proof before the sheriff at Edinburgh and the sheriff made an award in the sum of £1,005.  The appellant had represented himself and had given evidence before the sheriff at that proof.  He had been served a copy initial writ in the summary application by sheriff officers at an address in Corstorphine.  He had lodged Answers in response to that initial writ.  The sheriff’s decision was appealed by the current appellant to the Sheriff Principal.  At the hearing before the Sheriff Principal although the pursuer and current respondent was in attendance and represented, the defender and current appellant was not.  The appellant put certain information before the Sheriff Principal by way of email which included a form of medical report from a hospital in Nice date-stamped 17 June 2014 in explanation for his non-attendance.  For the reasons narrated in her Note dated 30 July 2014 the Sheriff Principal decided that the appellant’s failure to appear at the appeal or to be represented was a failure which could not be excused.  She accordingly dismissed the appeal to her for want of insistence.  It is that decision which is now the subject of an appeal to this court.

[3]        When the appellant marked an appeal to this court it would appear that he was in France and had not instructed representation.  Notwithstanding the terms of Sheriff Court Ordinary Cause Rule 31.3, the appellant printed a copy of the sheriff principal’s interlocutor of 30 July 2014 and marked an appeal on that copy.  While a question might arise as to whether or not that constituted strict compliance with the requirements of Ordinary Cause Rule 31.3, the appeal was accepted by the court and nothing now turns on that.  The appellant further lodged a note of appeal to the Court of Session repeating his designation by reference to the Corstorphine address but adding “[domiciled France]”.

[4]        The Court of Session received the Sheriff Court process in respect of the appeal on 19 August 2014.  In terms of Rule of Court 40.7(2) the appellant had 28 days after that date to lodge a process in accordance with Rule of Court 4.4, to lodge six copies of a print and to send a copy of the appeal print to the respondent.  On 19 August 2014 a letter was sent from the Inner House and Extracts Department of the Court of Session to the appellant at the Corstorphine address, setting out the requirements of the Rules of Court in respect of an appeal.  The requirements of Rule of Court 40.7(2) were not complied with by 16 September 2014.  Nor have they been complied with since in respect that no appeal print in proper form or full process has been received.  Accordingly, the appellant’s appeal was deemed to be abandoned in terms of Rule of Court 40.15(1). 

[5]        On the appeal having been deemed to have been abandoned, the appellant enrolled a motion in terms of Rule of Court 40.16 to be reponed from the deemed refusal of the appeal.  In terms of the rule it is open to a procedural judge to grant such a motion on such conditions as to expenses or otherwise as he thinks fit and that was the application which came before me on 22 October 2014.  The respondent  was present and represented by counsel, Mr Crawford.  The appellant was not present. Neither was he represented.  By way of explanation for the appellant’s failure to appear or be represented there had been sent to the offices of court an email sent on 22 October 2014 at 09:02.  The email did not bear the name of any individual but included a reference  to “4M Limited”, and the Corstorphine address by reference to which the appellant has been designated in the summary application.  The email was in these terms:

“We have been asked to send in the following: 


Email confirming intimation of motion on 20 September 14.  Dr letter confirming Mr Fortune still unfit to travel and is still abroad.  Mr Fortune had hoped to be able to return prior.


Please therefore can you arrange (a) to sist the appeal until counsel can be instructed or Mr Fortune can attend, (b) continue (as above) for 2 months, (c) to grant the motion and enter the appeal in process”.


The letter goes on to say:

“Being a confidential medical document a copy of same may NOT be passed to the pursuer Mr Boyd or his agents”.


There was attached to that email a scanned document in the form of a medical report which has the heading of a particular clinic in the Centre Hospitalier Universitaire De Nice.  It identified the appellant by reference to an address in Comely Bank.  It bears to be “in soul and conscience”.  The document is in precisely the same terms as the medical report which was before the Sheriff Principal on 30 July 2014.  However the document which was before the Sheriff Principal bore a date-stamp of the clinic dated 17 June 2014 whereas the document which was sent with the email of 22 October 2014 bore the date 20 September 2014.


Submissions of counsel

[6]        In these circumstances Mr Crawford moved that I should not continue the application but proceed to refuse to repone the appellant, the result of that being that the appeal would continue to be deemed to be abandoned.  He set out five reasons in support of his motion.  First, the grounds stated in the reponing note were insufficient.  Second, the appeal was in any event incompetent.  Third, when one contrasted the consequences for the pursuer and respondent on the one hand against the consequences for the defender and appellant on the other, fairness indicated that the appellant should not be reponed.  Fourth, this was yet a further failure to appear by the appellant where the circumstances of his failure to appear were almost identical to the circumstances of his failure to appear before the Sheriff Principal.  The appellant’s conduct did not merit the exercise of discretion in his favour.  Fifth, as had been the case before the Sheriff Principal, an entirely inadequate document had been put forward in explanation for the appellant’s non-attendance.  His non-attendance should not be excused and he should be taken to have failed to insist in his application to be reponed.


Issues and decision

[7]        Despite the absence of any identifiable individual author of the email sent on 22 October 2014 at 09:02 I considered that it had to be understood as a communication made on behalf of the appellant making an application to repone the appellant notwithstanding his absence and thereafter to sist the appeal.  Implicit may have been a motion to continue the application to repone to a future date in the event that I was not persuaded to repone the appellant immediately.  Accordingly, having regard to the position adopted on behalf of the respondent by Mr Crawford, the first issue arising was whether I should entertain the application to be reponed or, alternatively, hold it to have been abandoned for want of insistence.  That required me to consider the medical report bearing the date stamp of 20 September 2014 with a view to determining whether the appellant had put forward a sufficient explanation for his failure to attend or be represented.  That being so I felt unable to comply with the direction in the email not to pass a copy of the medical report to the respondent’s representative and accordingly I arranged for a copy to be made available to Mr Crawford.  I did so for the following reasons.  First, because I could not give consideration to what I took to be a representation on behalf of the appellant without reading the medical report and, having done so, a fair determination of the issue as to whether the appellant had put forward a sufficient basis to excuse his failure to attend or instruct representation on his behalf required that there be disclosed to Mr Crawford what was being put forward on the appellant’s behalf. Mr Crawford had to be given the opportunity to make any criticisms of the terms of the medical report which he thought appropriate.  Second, nothing appears in the medical report specifying presenting symptoms beyond “chest and head pains” or describing the results of examination or making a diagnosis or indicating proposed treatment beyond “rest and relaxation”.  Accordingly, disclosure of the contents of the report for the purposes of determining the appellant’s application intruded only very marginally upon the appellant’s privacy.  Third, the medical report was in exactly the same terms as the document which had been before the Sheriff Principal and which is summarised and quoted from in paragraphs 16 and 17 of her Note dated 30 July 2014.

[8]        Having considered the terms of the medical report and having heard Mr Crawford I was persuaded that the application to be reponed should be refused for non-insistence.  Had I not been so persuaded I would have refused the application as being without merit.

[9]        I turn first to the medical report. It is entirely inadequate to explain the appellant’s failure either to attend in person on 22 October 2014 or to instruct representation on his behalf.  There is the matter of date. I accepted that a date-stamp had been affixed to the report on 20 September 2014 by someone at the Nice hospital.  However, there is nothing in the report to suggest that it relates to circumstances later than 13 January (presumably 2014).  The report states that the appellant “is not fit to attend court until further prognosis is determined and his condition improves”.  Clearly there is scope for a further prognosis being determined and the appellant’s condition improving between 13 January and 22 October or between 17 June (when the date stamp was previously attached to what appears to be exactly the same report as submitted to the Sheriff Principal) and 22 October or between 20 September and 22 October.

[10]      Then there is the matter of the content of the report.  It is entirely inspecific as to presenting symptoms, diagnosis, treatment and prognosis.  It is therefore devoid of content which would allow any assessment of the position by the court. It is not for the author of a report to determine the issue of fitness to attend court; that is a matter for the court, but even if it were a matter for the author of the report the report simply does not address fitness to instruct representation.  It would appear from the steps that the appellant has taken in respect of the appeal, as narrated above, that he is capable of communicating with those in Edinburgh wherever his present whereabouts and whatever his state of health.

[11]      Finally in relation to the medical report, it bears what looks to be a signature but the document gives no indication whatsoever of whose signature it is. It may be a clinician.  It may be an administrator. It may be someone else associated with the Nice hospital. What is critical is that the court simply cannot know who it is that is claiming that the appellant is unfit to attend court “in soul and conscience”;  whose soul, whose conscience?   

[12]      In the absence of good reason for the appellant’s non-attendance and in the absence of any reason whatsoever for his not instructing representation in circumstances which include the same situation as having occurred before the Sheriff Principal, notwithstanding the terms of the email sent on the appellant’s behalf on 22 October at 09:02, I saw it as appropriate to treat the application to be reponed as abandoned for want of insistence and therefore to be refused.

[13]      Had I not treated the application as abandoned, I would have refused it on its merits as disclosed by the material before me.  It appeared to me that the points that Mr Crawford made were sound.  The reasons put forward in support of the application to be reponed are inspecific and ask more questions than they answer.  This is what is attached to the motion sheet:

“The motion is required due to the Royal Mail failing to deliver to the defender papers in relation the time frame.  3 Formal complaints over the previous month have been lodged with Royal Mail (The Gyle Sorting Centre) in relation mail not being delivered or going missing.


The defender whilst travelling abroad was made aware the documentation was submitted.  The defender had in the first instance lodged all paperwork with the original interlocutor when marking it for appeal and thus presumed the Sheriff Clerk had forwarded this to the Court.”


As Mr Crawford submitted, it is simply not apparent what are the relevant dates or the relevant documents and how any of this related to the requirements of the Rules of Court.  There is no explanation for the basis of any presumptions made by the appellant.  It is by no means clear how what appears attached to the motion sheet relates to what the court was invited to take from the medical report as to the appellant’s whereabouts and ability to travel.

[14]      Mr Crawford submitted that in any event the appeal was incompetent. He had two bases for that: first, that where an appeal was not insisted upon in the court below, it could not then be insisted upon in a higher court – Manchester and County Bank Ltd v Moore 1909 SC 246; and second, no cause not exceeding £5000 in value exclusive of interest and expenses shall be subject to review by the Court of Session – Sheriff Courts (Scotland) Act 1907 section 7, as amended. I was not persuaded that Manchester and County Bank Ltd was precisely in point.  There, the appellant in the Court of Session had abandoned his appeal to the Sheriff and consented to dismissal.  Here, the appellant’s complaint is that the Sheriff Principal had not continued the appeal hearing.  He was taken to have abandoned his appeal by virtue of non-insistence but he did not do so expressly in foro, as had occurred in Manchester and County Bank Ltd.  However, it appeared to me that Mr Crawford was on stronger ground with section 7 of the 1907 Act.  Fuller argument would be required before coming to a confident decision that the section has the result of keeping within the privative jurisdiction of the sheriff court all matters brought by way of summary application where the only remedy sought is pecuniary and the sum sued for is less than £5000.  However, it seemed to me that it was strongly arguable that section 7 has the effect contended for by Mr Crawford.  I would see that as a factor mitigating against allowing the appellant to be reponed.  As far as consequence for the parties were concerned, Mr Crawford pointed to the respondent having already been put to significant inconvenience by the appellant’s failure properly to engage with the legal process.  He would be faced by further inconvenience were the appellant to be reponed.  The consequences for the appellant in having his appeal dismissed, on the other hand, are purely financial.  I saw force in this, Mr Crawford’s third reason, although it rather ran into his fourth reason which related to the conduct of the appellant and I therefore considered them together.  Whereas the respondent had followed all procedural requirements and been represented at all significant diets, the appellant had not.  I did not suppose that to be due to any lack of sophistication on the part of the appellant.  The Sheriff Principal describes him as a “repeat litigant in these courts” who is “well aware of the need to be present or instruct a solicitor”.  The terms of the Answers which I take the appellant to have prepared in response to the initial writ in the summary application, would suggest an understanding of the nature of litigation.  In these circumstances I see it is appropriate to regard the appellant not only as someone who has not properly engaged with the court process but as someone who has chosen not to so engage.  For that conclusion it is unnecessary to go beyond the circumstances which emerged on 22 October 2014, although the circumstances surrounding the hearing before the Sheriff Principal and the casual approach to the procedural requirements of the appeal to this court would point in the same direction.  It was only at 0902 on 22 October when the court received an email (and not an email directly from the appellant) indicating that the appellant would not be attending and was not represented.  That is not the conduct of a conscientious and engaged litigant.  The appellant had presumably had the medical report on which he proposed to rely stamped on 20 September 2014.  The motion to repone was enrolled on 22 September 2014.  Again this constitutes a factor to which I would have had regard in the exercise of my discretion.  I granted Mr Crawford’s motion on behalf of the respondent for the expenses of the appeal.