I.S.T. MARINE LTD v. KEVIN DILLON
| A505/04 | JUDGEMENT OF SHERIFF PRINCIPAL BA KERR, QC in the cause I S T MARINE LTD Pursuers/Respondents Against KEVIN DILLON Defender/Appellant ________________ |
Act: Mr McClelland (Maclay Murray & Spens)
Alt: Ms O'Donnell (Henderson Boyd Jackson)
GREENOCK, 16 September 2005
The Sheriff Principal having resumed consideration of the cause Allows the appeal and Recalls the interlocutor of the sheriff dated 4 April 2005 save insofar as the record was thereby closed; Appoints the cause to debate on the preliminary pleas of both parties and Directs the sheriff to assign a diet thereof; Finds the pursuers and respondents liable to the defender and appellant in the expenses of the appeal procedure; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report thereon; Remits the cause to the sheriff to proceed as accords.
BA Kerr
NOTE:
In this action the pursuers seek compensation for damage sustained by their vessel "Skorpion" which was moored at Kip Marina on 30 November 1999 when the yacht moored next to her caught fire; the said yacht "Viviante" had then been owned by the defender for not less than fourteen months. They seek damages on the basis of alleged fault and negligence on the part of a person or persons unknown for whose actings they maintain the defender is liable at law. The person or persons unknown are alleged to have interfered with, or perhaps misfitted, a piece of equipment attached to an exhaust flue designed to remove hot gases from a heater at a date not specified. When the heater was turned on (by a friend of the defender who was there alone carrying out work) the hot gases escaped to heat up nearby woodwork and start the fire on 30 November 1999. The pursuers aver that the defender had exclusive management and control of the yacht "Viviante" at the material time, which the defender has seen fit to admit. The pursuers maintain that the circumstances averred give rise to a presumption of negligence on the part of the defender and in this connection they invoke expressly the maxim or brocard res ipsa loquitur. In particular they aver in the final sentences of article 9 of their condescendence: "The defender as owner of Viviante had the exclusive management and control of Viviante. The circumstances of the case raise a presumption by application of the principle of res ipsa loquitur that the negligence of the defender or those for whose acts or omissions he was responsible caused the pursuers' loss.". They have on record a plea to the relevancy of the defences and the defender in turn has a standard preliminary plea seeking dismissal of the action on the ground of the irrelevancy of the case pled by the pursuers.
After sundry procedure including a period of extended adjustment under Chapter 10 of the Ordinary Cause Rules the case came eventually before the sheriff at the equivalent of a procedural hearing in terms of OCR 10.6 on 4 April 2005. The defender had lodged previously a note in terms of OCR 22 setting forth the basis on which he sought to have the action dismissed and the pursuers had lodged two such notes making a series of small points in support of their preliminary plea to the effect that various of the defender's averments lacked specification and so should not be remitted to probation. It was explained to me that at that stage in the action the agents for the defender had been strongly desirous of having the case sent to debate and the attitude of the pursuers' agents was one of not wishing to stand in the way of that strong desire but at the expected debate they would take the opportunity to argue their lesser points too. The pursuers' agents accordingly instructed their local correspondent at Greenock to appear on 4 April 2005 and concur in a motion to be made on the defender's behalf for the case to be sent to debate on the preliminary pleas of both parties while the defender's agents instructed their Greenock correspondents to appear and move the court to send the case to debate "on the basis of the rule 22 note which had been lodged and of the pleadings on record" (or words to similar effect). Neither local agent was given any fuller indication by the principal agents of any arguments to be advanced in favour of the motion to send the case to debate nor did either seek any fuller instructions. On 4 April 2005 therefore the sheriff was faced in effect with a joint motion to send the case to debate under OCR 10.6(3)(c) (which is in terms identical to those of OCR 9.12(3)(c) discussed in other reported decisions referred to below). The sheriff however took the view that the case was "not very complicated" and that the proper procedure should best be by way of proof before answer: these I was told were the words attributed to the sheriff by both local agents in reporting back to their principals the result of the hearing on 4 April 2005.
Against the sheriff's interlocutor of 4 April 2005 sending the case to proof before answer the defender, but not the pursuers, has appealed to the sheriff principal (having first obtained leave to appeal, which was not opposed). The attitude of the pursuers and respondents is that, although willing initially to concur in the defender's motion for a debate, they are now in the events which have happened happy with the sheriff's disposal and content that the case should now go to proof before answer for which reason they now oppose the present appeal.
In reminding me as background of the law applicable to a decision on further procedure required of a sheriff at an options hearing/procedural hearing the agents appearing at the hearing of the appeal referred me to the following authorities (in chronological order):-
Gracey v Sykes 1994 SCLR 909 (a decision of Sheriff Principal JJ Maguire, QC);
Blair Bryden Partnership v Adair 1995 SLT (Sh.Ct.) 98 (a decision of Sheriff Principal RC Hay, WS);
MacFarlane v Falkirk Council 2000 SLT (Sh.Ct.) 29 (a decision of Sheriff Principal JF Wheatley, QC); and
CYMA Petroleum (UK) Ltd v Total Logistic Concepts Ltd 2005 SLT (Sh.Ct.) 112 (a decision of my own).
I was referred not surprisingly to several passages in my own opinion in the CYMA Petroleum case and, having heard the full submissions of the procurators before me in the present appeal, I am not inclined to alter or modify anything which I said there. Nor do I think it necessary to repeat here substantial sections of that opinion verbatim but instead refer the reader to the report of that decision for the full text if required. It was accepted before me on both sides that, as the opinions in the decisions listed above indicate, the decision of a sheriff at an options hearing/procedural hearing on appropriate further procedure in a case is to be viewed not as a discretionary one but as a judgement made by the sheriff on the materials available to him as a matter of law. The fact therefore that the sheriff's approach to the decision required of him may be correct, as it was here, does not mean that his decision becomes thereby unassailable on appeal because if the wrong result has been arrived at that constitutes an error of law which requires to be rectified by the appellate court. It was also accepted before me that it is inappropriate for new material or submissions to be placed before the appellate court in an appeal against a decision of this type, the proper question being whether or not the sheriff reached a correct conclusion on the material available to him at the options hearing/procedural hearing and on that material alone.
For the defender and appellant is was stated that a three-pronged attack was intended to be mounted at debate on the adequacy of the pursuers' pleadings to cover (i) their failure to identify those persons said to owe a duty of care toward the pursuers, (ii) their inapposite reliance on the maxim/brocard res ipsa loquitur and (iii) their inappropriate but oft-repeated use of the phrase "believed and averred" to introduce many of the factual assertions made. These matters were raised by the rule 22 note (number 11 of process) lodged by the defender on 25 November 2004 as read with the pleadings on record and the sheriff should have but erroneously had not recognised that they constituted matters appropriate to justify a debate in terms of OCR 10.6(3)(c). It was explained to me that one element of criticism contained in the rule 22 note had been superseded by subsequent adjustment of the pursuers' pleadings during the extended period of adjustment which had occurred during the early months of 2005, namely the assertion that the pursuers had no relevant averments to support their belief and averment that excess heat in the exhaust flue caused the fire. The solicitor for the appellant was at pains to emphasise that, although she clearly was addressing me at much greater length than her local correspondent had addressed the sheriff, she nevertheless was not placing before me material additional to that contained in the rule 22 note and pleadings which had been before the sheriff. The arguments to be deployed for the defender at debate would she said lead if sustained to dismissal of the whole action and I was moved to recall the sheriff's interlocutor and remit the cause to him with a direction to appoint it to a diet of debate.
The position adopted on behalf of the pursuers and respondents was that there existed as it now turned out no good point for debate in this case because the sheriff was correct in his suggestions made in the final paragraph of his note written for the purposes of this appeal that the matters raised could be properly considered only after proof; but that even if there were proper matters for debate as claimed by the appellant's solicitor she had in effect jettisoned the opportunity to have them debated by failing to set them out in her rule 22 note in a sufficiently coherent manner to impress them on the sheriff who was understandably unable to grasp what the defender's points were supposed to be when the incoherent rule 22 note was not supplemented by any persuasive argument for a debate presented by the local agent who appeared for the defender on 4 April 2005. The defender's rule 22 note was examined in some detail before me and it was said to be quite unclear what it meant. The sheriff accordingly had no adequate material before him whereon to order a debate in terms of OCR 10.6(3)(c) and the more coherent presentation now made to me amounted in effect to the placing before the appellate court of material and submissions which had not been before the sheriff, thus offending against the basis on which an appeal against a decision of this type ought to proceed as indicated by four sheriffs principal in the authorities cited to me. The appeal should therefore be refused and the cause remitted to the sheriff to fix a diet for the proof before answer ordered by him.
The sheriff has kindly furnished a full note of his recollection of events on 4 April 2005 and his reasons for arriving at the conclusion that the case should be sent to proof before answer. With many things said by him in that note (dated 2 June 2005) I agree but not with everything in it. The sheriff correctly states that although the motion for debate was a joint one it was nevertheless necessary for him to satisfy himself that a diet of debate would be appropriate. He states that before deciding against a debate he considered the terms of the pleadings and in particular the terms of the rule 22 notes which had been lodged. He points out that in sending the case to proof before answer he did not repel the parties' preliminary pleas but left them standing for later disposal. He narrates that little if anything was placed before him by the local agents appearing on 4 April 2005 by way of argument in support of the joint motion for the case to proceed to debate and suggests that reliance on local agents uninstructed with appropriate arguments may be insufficient to achieve the object if a debate is strongly desired. In particular I consider the final sentence of his penultimate paragraph to be a correct statement of the position where he says that it is for the court to be satisfied that there is likely to be a substantial matter for debate on its own appreciation of the pleadings and the content of any rule 22 notes as expanded upon at the options hearing if necessary. I do not however find myself in agreement for the reasons given below with his conclusion on 4 April 2005 and reiterated in his note that the content of the pleadings and the rule 22 notes is insufficient to satisfy the court that there is here a substantial matter for debate in the sense indicated by Sheriff Principal Maguire in Gracey v Sykes, nor with his suggestion that the application in this case of the res ipsa loquitur doctrine is a matter which can be properly ventilated and considered only after proof. Nor am I inclined to agree readily with his concluding remark that the prospect of saving "a great deal of time and effort" may not be a proper consideration in deciding whether to send a case to debate: if there exists a substantial argument which could result in the dismissal of a case at debate the time and effort (and expense) of a proof, which in some cases might be great, may be avoided to the benefit of all parties (as I observed in the CYMA Petroleum case at 115B).
From my own consideration of the pleadings on record (number 16 of process), even without the assistance of the defender's rule 22 note (number 11 of process) and without the benefit of any additional arguments having been advanced to the sheriff or of those which were presented to me, I am left in no real doubt that there exists here a substantial argument which if successful would lead to decree of dismissal in favour of the defender, namely an argument on the question whether the pursuers' pleadings taken as a whole and taken pro veritate go far enough to raise a presumption of negligence on the part of some person or persons for whose actings the defender is legally liable at law. The pursuers have averred, largely on an inferential basis, a cause of the fire which occurred and that some person(s) must have misaligned at some stage a "Venturi piece" so as to allow hot exhaust gases to escape which then affected a wooden carlin and set fire to it. They do not name or identify the person(s) and seemingly are not in a position to do so. They aver therefore that the defender had exclusive management and control of Viviante and that in such circumstances a presumption is raised that their loss (stemming from the fire) was caused by negligence on the part of the defender or person(s) for whose acts or omissions he was responsible: to this proposition they attach the tag "res ipsa loquitur", which they call a "principle". Whether the case so averred be regarded as "complicated" or not it is clearly at least arguable that the circumstances averred by the pursuer are not sufficient to raise such presumption and, since the pursuers plead no other basis on which to bring home liability to the defender, the success of that argument would result in the dismissal of the action. The applicability to different sets of circumstances of the maxim res ipsa loquitur has been endlessly debated over the past century and a half in many cases, as is apparent from useful summaries of the position in (eg) Walkers on Evidence (1st ed at para 80; 2nd ed at para 2.10) and Gloag & Henderson's Introduction to the Law of Scotland (11th ed) at para 32.13. What may be the prospects of success for that argument at debate is of course something on which I cannot and should not express a view beyond saying that in my opinion they are not negligible or nugatory: if they were so slight then the proper course for the sheriff would indeed have been to refuse the motion for the case to be sent to debate.
I am moreover not in doubt that it is reasonably maintainable that such an argument, if sound, could and should be sustained at debate without need for the facts and circumstances to be fully explored first at proof. The averments tabled by the pursuers are full, as they probably have to be in such a situation, and can be argued to give if taken pro veritate a sufficiently complete picture of the circumstances relied on by the pursuers to enable a decision to be made on the question whether a presumption of negligence is thereby raised on the part of the defender or persons for whose actings he is legally responsible. A possible outcome of the debate may be that suggested here by the sheriff in the final paragraph of his note, namely that before answer on the point of law there will have to be a proof, but I am not at all convinced ab ante (ie before the debate is heard) that that will be the inevitable result and it would require to be crystal clear, or at least appear very probable, to the sheriff at the options hearing that such would be the outcome of a debate before a motion for a debate could properly be refused at that stage. The need for proof before that answer can be given is not in my opinion anything like clear enough for the parties, and especially the defender, to be deprived of the opportunity to present at debate an argument which might end the case there and then.
The sheriff on 4 April 2005 was faced, as sheriffs usually are, with the need to decide the matter of further procedure in the midst of a busy court: he says in his note that the hearing took place during a busy ordinary court roll. Nevertheless he presumably had perused the whole pleadings and read the defender's rule 22 note, all of which he says he considered, albeit he was not further assisted by arguments advanced by the local agents appearing before him. In these circumstances the question arises whether the pleadings and rule 22 note alone should have led him to the conclusion that the case should be sent to debate. As indicated above it was submitted to me on behalf of the pursuers and respondents that the defender's rule 22 note (number 11 of process) failed to set out the defender's position in terms sufficiently coherent for a sheriff to understand what the point for debate was supposed to be, but with that proposition I do not agree. The rule 22 note would of course have to be read along and in conjunction with the pleadings on record: it is not in my view supposed to be a "stand alone" document giving the whole picture within its own four corners. The defender's rule 22 note in terms seeks dismissal of the action and it states clearly the contention to be that the pursuers' averments are irrelevant and fail to support the remedy sought and reference is made to the defender's first plea, which seeks dismissal, as being insisted in or on. It states inter alia that there are no relevant averments to support the contention that the fire was caused by actings of the defender or persons for whom he is responsible; that there are no pleadings to the effect that the heater was in fact serviced or who did it or when or why the defender should be liable for their actings; and that the reliance placed on the maxim res ipsa loquitur in article 9 of the pursuers' condescendence is irrelevant generally and also for the particular reason that the pursuers have averred a likely cause of the fire. These assertions, when read in conjunction with the pleadings on record and in particular those in and toward the end of article 9 of the condescendence, convey to me without undue difficulty the notion that the whole basis of the pursuers' attempt to bring home liability to the defender founded on the "principle" of res ipsa loquitur in the circumstances averred and especially by reference to others for whose acts and omissions he is held responsible is under challenge and will be attacked at debate. Certainly the rule 22 note could be more elegantly or directly phrased but in my opinion it conveys with tolerable clarity, particularly in the passages to which I have referred above, the message that the basis on which the pursuers seek to suggest that a presumption is raised of negligence on the part of person(s) for whose actings the defender is legally liable is being challenged as inept. A sheriff perusing the pleadings should have thought that such a challenge might be made and on perusing the defender's rule 22 note he should have seen it confirmed that it would be made and then considered whether that challenge might be sustainable even before a proof on a re-reading (if necessary) of the pleadings: overall the pleadings and rule 22 note when read together are in my opinion sufficient, without need for presentation of further oral argument, to show that a substantial argument can be mounted which if successful would lead to dismissal of the action. I therefore find myself unpersuaded by the respondents' submission that the defender's solicitor had thrown away her chance of having a debate by failing to present her position to the sheriff in a sufficiently coherent fashion: I consider the position to have been clear enough on paper not to require further substantive embellishment by oral argument from the local agent.
Nor do I regard myself as having been presented with extra material or submissions beyond those placed before the sheriff on 4 April 2005. It is of course true that the defender's principal agent has addressed me in support of this appeal at much greater length than the sheriff was seemingly rather perfunctorily addressed by those local agents who moved the joint motion before him, but it is almost always necessary to set out the basis of an appeal at greater length and I do not think that anything (with one minor exception: see below) was said to me on the question whether there exists a substantial argument which could at debate lead to the dismissal of the action that was not already apparent to me from my own understanding of the pleadings and rule 22 note (number 11 of process), ie the same material as was available to the sheriff on 4 April 2005.
The "minor exception" to which I refer immediately above is the brief mention which was made to me by the appellant's solicitor of an intention to attack the pursuers' repeated employment of the phrase "believed and averred" (properly employed to introduce an averment drawn by inference from prior averments of fact). Of this I find no sufficient trace in the defender's rule 22 note and so, whatever preliminary view might be formed by the reader on an initial perusal of the pleadings alone, it is not a matter properly raised by the rule 22 note for attention of the court or of the pursuers and accordingly not a matter which on present showing can be raised for discussion at debate. I have therefore left it out of account and my decision that the sheriff should have recognised the case as one suitable for debate is not at all founded on it.
For the reasons given I have come to the conclusion that the sheriff should have seen from the material available to him that this was a case in which a substantial argument could and should be heard at debate, being an argument which if successful would lead to the dismissal of the action. His failure to see that was an error of law which requires his interlocutor of 4 April 2005 appointing the case to proof before answer to be recalled and the cause will be remitted to him with a direction to assign instead a diet of debate. On a minor procedural matter a question remains as to whether the cause should be appointed to debate on the preliminary pleas of both parties or on that of the defender alone. I omitted to canvass this question with parties at the hearing but will adopt the safer course of directing the sheriff to assign a debate on the pleas of both parties which will leave it open to the pursuers to argue their lesser points if they continue so to desire.
Parties were not agreed on the matter of expenses. It was proposed for the pursuers and respondents that in the event of the appeal being allowed disposal of its expenses should await the outcome of the resultant debate. I consider however that the appeal should be treated as a discrete episode in the course of the action: it was opposed but allowed in the face of that opposition and in my view its expenses should follow success in favour of the defender and appellant.
BAK