JOSEPH ANTHONY GERARD CAPURRO v. GRACE BURROWS AND OTHERS
SHERIFFDOM OF LOTHIAN AND BORDERS
B250/03
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
JOSEPH ANTHONY GERARD CAPURRO
Applicant
against
GRACE BURROWS AND OTHERS
Respondents
_________________________
Act: Revel; BMK Wilson, Glasgow
Alt: McConnell; F M McConnell SSC
EDINBURGH, 9 February 2004
The Sheriff Principal, having resumed consideration of the cause, refuses the respondents' motion no 7/1 of process to allow the answers lodged on 27 October 2003 to be received; appoints a hearing on the application and assigns as a diet
2004 at 10.30 am within the Appeal Court, Court no 9, Sheriff Court House, 27 Chambers Street, Edinburgh.
NOTE
Introduction
[1]This is an application for a commission as a sheriff officer in this Sheriffdom. It is brought under rule 8 of the Act of Sederunt (Messengers-at-Arms and Sheriff Officers Rules) 1991 ('the 1991 Rules'). By an interlocutor of 11 September 2003 I ordered intimation and advertisement of the application in terms of rule 8(3) and I appointed any person who intended to object to lodge answers with the Sheriff Clerk within 30 days of the date of intimation or advertisement. The application was duly intimated on the walls of the courts of the Sheriffdom and it was also duly advertised in The Scotsman of 19 September 2003, which was a date later than the various dates of intimation on the various walls of court.
[2]The period of 30 days for answers was specified in accordance with rule 8(4), which provides:
'(4) A person who intends to object to such an application shall lodge answers to the application with the sheriff clerk within 30 days from the date of such intimation and advertisement.'
The period of 30 days was also specified in the advertisement, which followed the language of Form 3, as required by rule 8(3)(b).
[3]The solicitor for the respondents tendered answers to the application on 27 October 2003, which was more than 30 days from the date of the advertisement in The Scotsman. The answers were sent to the Court on Friday 24 October 2004 and reached the Court on Monday 27 October 2003. On 11 November 2003 the respondents' solicitor lodged a motion (no 7/1 of process) in these terms:
'The respondents respectfully move the Court to allow the answers lodged on 24 October 2003 to be received late.'
The applicant opposed the motion, and I heard parties on the motion on 4 February 2004.
Submissions
[4]The respondents' solicitor explained that he had been on holiday when the advertisement appeared. Having been instructed, on 15 October 2003 he wrote to the applicant's solicitor requesting a copy of the application and he sent a fax message to the Court intimating that he had been instructed and that his clients wished to object to the application. He received a copy of the application on 16 October 2003, took full instructions and prepared the answers which, he said, had been lodged on 24 October 2003. He now moved for the answers to be received late, for the following reasons. (1) The Court and the applicant had been advised within the 30-day period of the respondents' intention to lodge answers. (2) The answers had been lodged only five days late. (3) There was no real or material prejudice to the applicant. (4) It was in the public interest that the respondents' objections be heard.
[5]In support of the latter reason the respondents' solicitor pointed out that the applicant was a sheriff officer with an office in Glasgow. He held commissions in the Sheriffdom of Glasgow and Strathkelvin; throughout the Sheriffdom of South Strathclyde, Dumfries and Galloway; and throughout the Sheriffdom of North Strathclyde excluding the sheriff court districts of Oban and Campbeltown. He had also applied for a commission as a sheriff officer throughout the Sheriffdom of Tayside, Central and Fife. Objection had been taken to the latter application. The Sheriff Principal had allowed answers to be lodged late, had held a hearing and had made avizandum on 9 January 2004. If that application and the present application were granted, the Sheriffdom of Grampian, Highland and Islands would be the only sheriffdom in which the applicant did not hold a commission. That raised a question of public policy. It was incumbent on this Court to consider the present application on its merits. It would assist the Court if the respondents' solicitor could act as a contradictor and support their objections with appropriate reference to authority.
[6]Opposing the motion, the applicant's solicitor founded on the fact that the answers had been late: the respondents had failed to obtemper my interlocutor of 11 September 2003 and failed to adhere to the time-limit in rule 8(4). She observed that the answers, having been tendered on 27 October 2003, had been eight, not five, days late. Further, she submitted that I had no discretion to allow the answers to be received late. There was no applicable statutory power to relieve the applicant from the consequences of failure to comply with rule 8(4). The 1991 Rules did not confer any dispensing power comparable to that contained in rule 2.1 of the Ordinary Cause Rules 1993. The power to grant relief conferred by rule 2.3 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 ('the 1999 Rules') could be exercised only in the event of a failure to comply with a provision in Part II of Chapter 2 of the 1999 Rules. Nor did the 1991 Rules make provision for the prorogation of the time for lodging answers, similar to the provision made by rule 16.3 of the Ordinary Cause Rules 1993. Nor could the answers be received late in the exercise of the inherent jurisdiction of the court (Hall v Associated Newspapers 1979 JC 1 at page 9), because the inherent jurisdiction could not be exercised in a way that would be inconsistent with statutory rules of court. There had been no gap or defect in the procedure, and no injustice to the respondents.
[7]The applicant's solicitor further submitted that even if I had a discretion to allow the answers to be received late, I should not exercise it in the respondents' favour. The five respondents were sheriff officers in a firm which was the largest employer of sheriff officers in this Sheriffdom, with two offices in Edinburgh and one in Galashiels. The application had been displayed on the walls of courts throughout the Sheriffdom and the respondents had had ample opportunity to have sight of it. They could have obtained copies of the application from the Sheriff Clerk. They had also had ample time to instruct their solicitor within the time allowed by my interlocutor. No adequate explanation had been offered which would entitle me to exercise any discretion. While the application would be unopposed, the Court would nevertheless be able to consider the application and refer to the relevant authorities.
[8]In response to the submission for the applicant that I had no discretion to grant the motion, the respondents' solicitor maintained that this was an administrative process in which I was the master of the procedure. I had an inherent power to grant relief unless specifically prohibited from doing so by statute.
Discussion
[9]The primary question for decision is whether I have any discretion to allow the answers tendered to be received late, notwithstanding the terms of rule 8(4) and the absence of any statutory power to prorogate the time for lodging answers or to grant relief from the consequences of failure to comply with that rule. In the modern statutory codes of sheriff court procedure it is commonplace to find a rule conferring a dispensing power: Ordinary Cause Rules 1993, rule 2.1; Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, rule 2.3 (see also rule 2.6(3)); Summary Cause Rules 2002, rule 3.1; Small Claim Rules 2002, rule 3.1. The 1991 Rules, however, do not contain any such power.
[10]In the absence of such a power, may the court disregard the respondents' failure to comply with rule 8(4)? Since the present application is a summary application (1991 Rules, rule 8(1)), I have considered my power to make such order as I think fit for the progress of a summary application in so far as it is not inconsistent with section 50 of the Sheriff Courts (Scotland) Act 1907 (1999 Rules, rule 2.31). I do not think that that rule can be properly construed as enabling me to make orders which are inconsistent with the provisions of other primary or secondary legislation. Accordingly, in my view, it does not entitle me to make an order which is inconsistent with rule 8(4). I am also clear that the inherent jurisdiction of the court cannot be invoked to justify the making of such an order.
[11]I have also considered the following passage in Macphail, Sheriff Court Practice (2nd ed), vol 1, page 759, paragraph 25.17:
'It may be that [the sheriff] has a discretion at common law to disregard failure to comply with a time-limit provision which is only directory and regulative of procedure, provided that no substantial prejudice has been caused to the opposite party, and the lateness of the application is due to exceptional circumstances of such a nature that it would be grossly unfair to enforce the time-limit strictly.'
That statement is supported by a reference to National Commercial Bank of Scotland v Assessor for Fife 1963 SC 197. I refer to the opinions of Lord Patrick at page 202 and Lord Kilbrandon at page 205. It may be, however, that the observations made in that case are not of general application: see the comments of Sheriff Principal J A Dick, QC, in T v Secretary of State for Scotland 1987 SCLR 65 at page 71. In any event, even if rule 8(4) could be construed as only directory in character, I would be unable to find anything exceptional in the circumstances founded on by the respondents in the present case. The essence of the answers tendered is simple: that the applicant is not in a position to improve or enhance the level of service for this Sheriffdom, and that the number of officers already commissioned and capable of discharging any duties incumbent on them is adequate. The answers are in short compass and there has been no satisfactory explanation of why they were not drafted and lodged between the time of receipt of the copy of the application and the expiry of the 30-day period.
[12]I have concluded, therefore, that the respondents' motion must be refused. I am not satisfied that I have any discretion to allow the answers to be received and, as I have just indicated, even if I had such a discretion I would not be disposed to exercise it in this case. The application will accordingly be undefended. That does not mean, however, that the considerations stated in the respondents' answers, in so far as they are relevant to the decision on the application, will be disegarded. On the contrary, I shall expect them to be addressed at the hearing. I shall also expect a full citation of relevant authority. In addition, I consider that since the appointment of a sheriff officer is a discretionary act of administration I may, if I so require, take such means as I may consider proper for obtaining further information, and give the applicant an opportunity to consider and contradict or comment upon such information before the disposal of the application. I have fixed a date for the hearing of the application.