Sheriff Appeal Court allows appeal against refusal to recall simple procedure decision

About this case:

• Citation:
  [2023] SAC (Civ) 6
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Appellant David Bell argued that the sheriff had erred in law in determining that he had no right to an appeal. Respondents Stephen and Helen Farmer opposed the appeal on the basis that they had been entitled to seek a decision of the sheriff when no response was lodged to the application within the time limit.

The appeal was heard by Sheriff Principal Aisha Anwar in the Sheriff Appeal Court. The appellant was represented by Buttery, solicitor, and the respondents appeared as party litigants.

No express provision

The respondents had raised a simple procedure action seeking payment of £4,338 from the appellant. He did not lodge a Response Form to the claim within the time limit, allowing the respondents to apply for a decision in terms of Simple Procedure Rule 7.4(2). The appellant sought recall of this decision, explaining that he had instructed solicitors to act on his behalf but owing to an administrative oversight they failed to lodge the form timeously.

At a hearing concerning the application for recall the sheriff, dissatisfied with the information provided about the administrative error, refused the application. In a report prepared for the Sheriff Appeal Court, the sheriff explained that he formed the view that the refusal of an application to recall was not a “decision” in terms of the SPR as would allow for an appeal to be competent. He further explained that Part 13 of the SPR contained an exhaustive account of the decision-making powers of the sheriff, which did not include a refusal of an application to recall.

On behalf of the appellant it was submitted that, while there was no express provision relating to such an appeal, the sheriff had erred in law. It was reasoned that, since a sheriff made a decision in terms of allowing a recall, a refusal to do so must also be a “decision”. The oversight by his solicitors ought to have permitted relief from compliance with the SPR in the circumstances.

It was further submitted that the sheriff had failed to specify the principles he applied to his decision to refuse the application to recall or why he considered the explanation provided to have been unsatisfactory and failed to apply the principle of simple procedure to treat the parties even-handedly. The respondents agreed with the sheriff’s conclusion on the question of competency and invited the Sheriff Principal to refuse the appeal.

Not intended to exclude

In her decision, Sheriff Principal Anwar observed: “Simple procedure replaced small claims and most summary cause actions in the sheriff courts. In both small claim and summary cause procedure, the sheriff was obliged to recall the decree, upon the first such application by a party; a right of appeal was unnecessary and the circumstances in the present case would not arise. No doubt, the intention behind these rules was to prevent unnecessary appeals and the resultant delay and expense to litigants.”

She continued: “There is no such mandatory provision obliging the sheriff to recall a decree (or decision) in simple procedure, instead whether to allow recall is a matter for the sheriff in the exercise of his discretion. In my judgment, in the exercise of that discretion, the sheriff is clearly making a ‘decision’ as that term is properly understood in terms of the Courts Reform (Scotland) Act 2014 and the SPR.”

Explaining her reasoning further, Sheriff Principal Anwar said: “The sheriff referred to the definition of ‘decision’ in Paragraph 3 of the Act of Sederunt (Simple Procedure) 2016. That provision defines particular types of decision (for example ‘a decision which absolves the respondent’). It does not assist. The sheriff’s description of Part 13 of the Rules as containing an ‘exhaustive account’ of the decision-making powers of the sheriff is incorrect.”

She went on to say: “I am not persuaded, in the absence of an express provision, that Parliament intended to exclude a right of review against a decision to refuse recall, nor that a right of review has been excluded by a clear or necessary implication of the provisions of the 2014 Act or the SPR.”

The Sheriff Principal continued: “I accept that this conclusion may sit uncomfortably with the definition of a ‘final judgment’ contained in section 110 of the 2014 Act. However, section 110(1)(a) applies to final judgments in ‘civil proceedings’, whereas section 82(1) applies to ‘final judgments in simple procedure cases’. The appeal provisions relating to simple procedure must be understood and applied having regard to the provisions of the SPR.”

The appeal was therefore allowed, with the application for recall granted and remitted to the sheriff to proceed as accords.