SEAMLESS ROOFING v. MR JAMES SMITH and MRS RENA SMITH
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
SC32/18(99)
| | | JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC |
| | | in the cause |
| | | SEAMLESS ROOFING |
| | | Pursuers and Appellants |
| | | MR JAMES & MRS RENA SMITH |
| | | Defenders and Respondents |
Act: C Pettigrew, T J & W A Dykes
Alt: J Roberts, Trading Standards Department
HAMILTON: 11 April 2000
The Sheriff Principal having resumed consideration of the appeal remits the cause to Sheriff Powrie to enable her to issue a draft stated case within fourteen days of the date hereof and thereafter to proceed as accords.
NOTE:
This is a small claim in which evidence was led before Sheriff Powrie on 27 January 2000. At the conclusion of the hearing the learned Sheriff absolved the defender from liability and found no expenses due to or by either party. A note of appeal was lodged on behalf of the pursuers against that decision. The learned Sheriff considered that note of appeal and expressed the opinion that there were no points of law on which an appeal could proceed. She therefore expressed the opinion that she was unable to prepare a draft stated case. This appeal is concerned with whether the learned Sheriff should be directed to prepare such a case. Rule 29(1) of the Small Claims Rules provides that an appeal to the Sheriff Principal shall be by note of appeal requesting a stated case and specifying the point of law upon which the appeal is to proceed. If the provisions of rule 29(1) have been complied with then in terms of rule 29(3):
"The Sheriff shall, within fourteen days of the lodging of a note of appeal, issue a draft stated case containing -
- findings in fact and law or, where appropriate, a narrative of the proceedings before him;
- appropriate questions of law; and
- a note stating the reasons for his decisions in law ..."
The question at the heart of this appeal is whether the note of appeal is in proper form. That question centres on whether the note of appeal specifies a point or points of law upon which the appeal is to proceed.
In the course of his submissions on behalf of the appellants Mr Pettigrew said more than once that he was unaware of the basis of or reasoning for the Sheriff's decision. He said that she gave a very brief account of why she reached the conclusions which she did and, in particular, did not indicate which facts she had found or which witnesses she believed or disbelieved. He maintained that in these circumstances it was very difficult for him to focus questions of law. He accepted that the first paragraph of the note of appeal did not contain any questions of law. However he maintained that paragraphs 2 and 3 of the note of appeal did raise such questions. Although Mr Pettigrew's position was that the Sheriff did not state what she had found to have been proved, paragraph 2 commences:
"On the basis of the facts found to have been proved, on the balance of probabilities, the Sheriff was not entitled to find in law that the pursuers had failed to discharge the onus of proof resting upon them."
There follow three sub-paragraphs, the first of which plainly does not raise any question of law. That paragraph is to the effect that there was a difference between the defences which had been put forward on behalf of the defender and her case at the full hearing. The complaint is that the Sheriff ought to have placed more weight on this discrepancy. That does not raise any issue of law. Sub-paragraph (b) is to the effect that the Sheriff ought to have found in law that there was a contract between the pursuers and Mrs Smith for which the pursuers are entitled to remuneration. That is a statement to the effect that the Sheriff should have arrived at a different conclusion from the conclusion at which she did in fact arrive. It does not explain why she should have arrived at a different conclusion nor does it focus any question of law which would enable her to draft a stated case. Sub-paragraph (c) proceeds on the assumption that there was no agreement as to price. On that hypothesis:
"The Sheriff ought to have found that the pursuers were entitled to decree ... on the basis of quantum meruit which failing quantum lucratus."
Once again there is no indication of the basis for this assertion nor any indication of any question of law which could be considered in the course of an appeal.
The third paragraph of the note of appeal is as follows:
"In all the circumstances no Sheriff acting reasonably on the facts as found could have reached the decision to assoilzie the defender."
Mr Pettigrew accepted that he could not challenge the facts found by the Sheriff on appeal but maintained that he could argue that on the facts found the Sheriff could not have reached the conclusions in law which she did. In these circumstances the appeal could succeed. Both he and the court required to know what facts had been found by the Sheriff, to which questions of law she had addressed herself and the answers which she had given to these questions.
On behalf of the respondent Mr Roberts, a Trading Standards Officer who had not appeared on behalf of the respondent at the hearing, was not in a position to comment on what the Sheriff had said at the conclusion of that hearing. He submitted that the Sheriff could only draft a stated case if there were points of law to which that stated case could be directed. He submitted that there were no such points set out in the note of appeal and that the appellant had embarked on a fishing expedition with a view to prolonging the case.
The Small Claims Rules require the party wishing to appeal to specify the point or points of law upon which the appeal is to proceed. There is a similar requirement in Rule 81(1) of the Summary Cause Rules. In terms of Rule 81(3) of the Summary Cause Rules, within fourteen days of the issue of the draft stated case, each party is required to lodge with the Sheriff Clerk a note of the questions of law which he wishes to raise during the appeal, along with any adjustments which he desires to have made on the draft stated case. The questions of law may relate to matters which were not raised during the proof or at the hearing thereafter. In Gilbey Vintners Scotland Limited v Perry 1978 SLT (Sh Ct) 48 Sheriff Principal Bryden said in relation to a summary cause:
"On the general question of how questions of law should be stated in a stated case ... my view is that each such question ought to set out precisely and concisely a point of law to which the argument for the parties stating the question will be directed at the hearing of the appeal. A question of law should not raise issues of fact or contain argument."
The grounds of appeal in a summary cause require to be specified because, if they were not, the Sheriff would be unable to draft the stated case so as to concentrate on, and deal adequately with, the issues which it was desired to bring under review. The Small Claims Rules require the Sheriff to issue a draft stated case containing appropriate questions of law. In relation to a small claim therefore it is even more important that the requirement to specify the point or points of law upon which the appeal is to proceed is complied with. If it is not the sheriff will be unable to draft appropriate questions of law.
Although paragraph 2(b) and (c) of the note of appeal could be turned into questions of law the drafting of these paragraphs does not give any indication of what the basis for such questions might be. So far as paragraph 2(b) is concerned it could be that the Sheriff reached the decision which she did because of insufficiency of evidence or because the evidence, though sufficient, was not believed. In this case the Sheriff may have found that the work in dispute was work carried out as part of the work done in terms of a separate contract as to which the parties were not in dispute. These would all be likely to be issues of fact and would not be likely to raise any questions of law. Similarly, in relation to paragraph 2(c) where the basis of claim is different the evidence which was led on behalf of the appellants may not have persuaded the Sheriff that there was a quasi-contractual obligation of the sort contended for. Once again it is not clear that any question of law arises.
I have however come to the conclusion, albeit with hesitation, that the third paragraph does potentially raise an issue of law which justifies remitting the cause to the Sheriff to enable her to prepare a draft stated case. What is alleged in that ground of appeal is that no sheriff acting reasonably could have reached a decision to absolve the defender from liability. It is possible to conceive of cases in which a sheriff would find certain facts to be established but nonetheless arrive at a conclusion in law which was not justified. Without knowing what facts were established by the evidence it is not possible to state that this is not such a case. It may be that the issues in paragraph 2(b) and (c) have a bearing on this but that is a matter for the learned Sheriff to consider when drafting the stated case.