Aberdeen sheriff rules periods to allow decree in absence against three connected defenders ran separately

About this case:

• Citation:
  [2025] SC ABE 27
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Andrew Miller

Screwfix Direct Ltd raised the action against the firm of Northdeko and two partners in the firm, Renars Sprogis and Toms Puris, for payment of £4,954.53 plus other sums in administration fees, on the basis of joint and several liability between all the defenders. None of the defenders lodged a notice of intention to defend, with the pursuer thereafter lodging a minute for decree.

The case was considered by Sheriff Andrew Miller. Foyle, solicitor advocate, appeared for the pursuer while the defenders made no appearances.

Year and a day

The pursuer’s action was for payment in respect of building and construction materials and related products supplied by the pursuer to the defenders. The initial writ was warranted on 24 October 2023. A certificate of intimation subsequently lodged by the pursuer confirmed that the action was served on the first and second defenders by post on 17 November 2023, the papers being delivered on 18 November.

The pursuer had difficulty tracing the third defender and, according to the certificate of intimation subsequently lodged in relation to him, postal service was not effected upon him until 10 September 2024, with the papers delivered to him on 16 September. After none of the defenders lodged a NID, the pursuer’s solicitors lodged a minute for decree in absence. Despite the minute being dated 25 October 2024, a year and a day after the expiry of the first and second defenders’ period of notice, it was not lodged with the court until 25 February 2025.

Following receipt of the minute for decree, a concern arose as to its competency so far as the first and second defenders were concerned, given that the minute was not lodged with the sheriff clerk until over a year and a day after the expiry of the period of notice relating to those defenders. At the hearing before the sheriff, counsel for the pursuers noted that the issue before the court was whether, given that the action had been raised against three defenders jointly and severally, there was only one process against all three defenders or whether there were three separate processes which were capable of separate analysis.

It was the position of the pursuers that, as all three defenders had a common interest, it made logical sense that the year and a day period ran from when the last defender received intimation, i.e., the date on which all the defenders had the action brought to their attention and were placed in a position to defend it if they wished to. While no authority directly supported this proposition, Mr Foyle founded on obiter comments of the sheriff in RBS v Mason (1995) that the rule demanded the minute required to be endorsed within a year and a day of the “last period of notice”.

Certainty and finality

In his decision, Sheriff Miller said of the case relied on by the pursuer: “Both the reasoning of the sheriff at first instance in RBS v Mason and the opinion of the sheriff principal on appeal appear to focus solely on the procedural history of the case in relation to the second defender. The report records that the first defender had initially defended the action before consenting to decree against him in terms of a joint minute. Thus, there were clearly striking differences between the procedural history of RBS v Mason and that of the present case.”

He said of the rule generally: “It seems to me that its application serves to provide some measure of certainty and finality to the legal position of a non-compearing defender, who can expect the pursuer, if intending to seek decree in absence against him, to take practical steps to do so within a reasonable time after the end of the period of notice relating to him, calculated according to the date on which the action was served on him. I recognise the practical attraction of the pursuer’s argument in a case such as this, which was raised against a number of defenders jointly and severally.”

Considering the demerits of the pursuer’s position, the sheriff noted: “In a case involving multiple defenders in which one defender receives intimation of the initial writ and elects not to lodge a NID, the period of a year and a day in relation to that defender for the purposes of this rule would commence on the expiry of the period of notice relating to that defender if the pursuer is never able to, or elects not to, effect service on the other defender(s). Where, as in this case, the pursuer has difficulty in tracing and effecting service on the final defender, the application of this rule to the original non-compearing defender could potentially remain uncertain for a very significant period.”

He concluded: “It appears to me to be most consistent with the underlying significance of this rule for its application to be considered separately in relation to each non-compearing defender, according to the date of expiry of the period of notice relating to that defender. This approach is consistent with the practical guidance given in Macphail’s Sheriff Court Practice to the effect that it is open to a pursuer to minute for decree in absence against a non-compearing defender even where the action continues against another defender and that it is regarded as a prudent course for the pursuer’s solicitor to minute for decree in absence as soon as possible after the expiry of the period of notice.”

Sheriff Miller therefore refused the pursuer’s minute in relation to the first and second defenders, but granted it in relation to the third.