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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mullan v. Les Brodie Transport Ltd [2005] ScotCS CSIH_9 (21 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_9.html Cite as: [2005] CSIH 9, [2005] ScotCS CSIH_9 |
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Mullan v. Les Brodie Transport Ltd [2005] ScotCS CSIH_9 (21 January 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Osborne Lord Hamilton Lord Kingarth
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[2005CSIH9] XA101/04 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause JEAN MULLAN Pursuer and Appellant; against LES BRODIE TRANSPORT LIMITED Defenders and Respondents: _______ |
Act: Party (Pursuer and Appellant)
Alt: Marney; Simpson & Marwick, W.S. (Defenders and Respondents)
21 January 2005
[1] In June 1995 the appellant was involved in a road accident in Glasgow. The vehicle she was driving was halted at traffic lights behind a vehicle driven by an employee of the respondents. When the traffic lights changed to green, the respondents' employee engaged the wrong gear and reversed into the front of the appellant's vehicle. [2] In May 1998 the appellant raised, in Glasgow Sheriff Court against the respondents, an action for reparation for loss, injury and damage which she averred she had sustained as a result of that accident. At that stage she was legally represented. In their defences the respondents admitted the circumstances of the accident and their liability for any loss, injury and damage sustained by the appellant as a result of it. They denied that she had sustained the loss, injury and damage claimed. At that stage the sum sued for was £75,000, comprised in part by certain financial losses; the appellant also made certain general averments of pain which she had suffered and continued to suffer as a result of the accident. [3] Despite the matter at issue being restricted to the proper quantification of damages, the action made slow progress. In the course of the proceedings the appellant dispensed with the services of four separate sets of solicitors. On various occasions the action was sisted to allow her to apply for legal aid. Ultimately she acted on her own behalf. In March 2003 the appellant, at that stage legally represented, lodged a Minute of Amendment (No. 17 of process) by which she sought to increase the sum sued for to £150,000 and to expand significantly her averments of personal injuries. The proposed averments related to both physical and psychological damage; they also included claims of loss of potential earnings as a qualified advanced driving instructor and other financial claims. The respondents ultimately lodged answers (No. 21 of process) in which they responded in detail to the Minute. On 11 July 2003 the sheriff allowed the record (No. 13 of process) to be amended in terms of the appellant's Minute and the respondents' Answers. The interlocutor of that date did not specifically appoint a new closed record to be lodged. The action was by the same interlocutor, on the appellant's opposed motion, again sisted for legal aid. The appellant's then solicitors withdrew from acting in about September 2003. On 30 October 2003, at a peremptory diet, which the appellant attended in person, the sheriff recalled the sist and assigned 23 February 2004 (with reservation of the following day) as a diet of proof in the action. [4] On 4 February 2004 the appellant appeared in person before Sheriff Reith in relation to a motion enrolled by her to amend her pleadings to allow an insurance company to be convened as an additional defender. Her motion was refused. The appellant not having lodged a record reflecting the amendment allowed in July 2003 and the proof being imminent, Sheriff Reith pronounced an interlocutor ordaining the appellant to lodge an updated record within 14 days of that date. By the same interlocutor the sheriff continued the cause to the proof diet previously assigned for 23 February. Accordingly, the last day for lodging the updated record was 19 February (a Thursday, immediately preceding the diet of proof fixed for the following Monday). [5] The appellant then lodged a further "Minute of Amendment". This document reiterated the application (which had just been refused) to add the insurance company as an additional defender. It also included an application to discharge the diet of proof. This application was heard by another sheriff (Sheriff O'Grady) on 20 February. Again the appellant appeared in person. The sheriff refused the appellant's applications and, on the respondents' motion, granted decree of absolvitor. He did so on the ground that the appellant had failed to lodge a record as ordained in the interlocutor of 5 February. [6] Against that interlocutor, in so far as it granted absolvitor, the appellant appealed to the sheriff principal who, on 22 June 2004, refused her appeal. She has now appealed further to this court. [7] The basis on which the respondents sought decree of absolvitor is fully set out in the sheriff's Note. In summary, it was to the effect that, against the background of a litigation protracted by the appellant's failure to instruct solicitors or refusal to be represented and the wide-ranging nature of the appellant's complaints as expressed orally, the respondents were put to significant disadvantage in relation to an imminent proof by the appellant's failure to obtemper the interlocutor of 5 February. The sheriff heard the appellant at some length in response. It is sufficient to say that, having listened to a number of inconsistent accounts from her, he was not satisfied that she was being frank with him. He took the view that, in the whole context, the appellant was abusing the court process"using it as an opportunity to complain vociferously about the slights and injustices (real or imagined) which she had suffered at the hands of insurers, defenders, her various solicitors and the court".
The respondents, he considered, were being put to significant disadvantage by conduct for which the appellant was personally responsible.
[8] At the hearing of the appeal to the sheriff principal the appellant submitted, the sheriff principal tells us, a bundle of documents "which did nothing other than vouch a persistent history of complaints by her about the way in which she had been treated and 'demeaned'". While expressing a measure of sympathy for the appellant, the sheriff principal concluded that the complaints made did nothing to address the issue of whether the sheriff was correct in law in granting the respondents' motion. [9] Before us the appellant again appeared in person. Her appeal was presented in essentially the same way as she had presented her appeal to the sheriff principal. She tendered a large number of documents which had no bearing on the issue whether the sheriff was entitled to take the course which he did. [10] When the record was allowed to be amended in July 2003 the sheriff did not specify a particular time within which an amended record should be lodged. But, given that the Minute of Amendment and the Answers to it were each substantial and sought to focus the essential issues between the parties on the quantification of damages, it was clearly important that there should be available for the proof an updated record incorporating these amendments. Sheriff Reith no doubt recognised that need when, on 5 February 2004, she made, in the personal presence of the appellant, an order that she lodge such a record within 14 days of that date. There is no suggestion that the appellant was unaware of the making of the specific order upon her. She failed to comply with that order. By 20 February no updated record had been lodged. Nor does it appear that such a document was sought to be tendered on that date, notwithstanding that the proof was scheduled to be heard on the following Monday. [11] Failure by a party to implement an order of the sheriff within a specified time results, in terms of Rule 16.2(1) of the Ordinary Cause Rules, in that party being in default. One of the sanctions available to the sheriff in that event is the granting of decree of absolvitor (Rule 16.2(2)). The sheriff is not obliged to impose that sanction but he has a discretion in the matter. In the present case Sheriff O'Grady heard parties on that matter and decided, in all the circumstances, to impose that sanction. [12] An appeal court may interfere with such a decision only when it has been demonstrated that the sheriff has misdirected himself in law, failed to take into account a relevant and material factor, left some relevant and material factor out of account or reached a result which was wholly unreasonable. The appellant's written grounds of appeal set forth a large number of complaints but do not in any way address the question whether, on the basis of the material before him, the sheriff erred in any of these respects. Nor, despite being directed by the court to the matter, did her oral representations before us address that question. On the face of the sheriff's Note there is no obvious error of that kind. While the granting of a decree of absolivitor by reason of default on the part of a pursuer is a radical step, particularly in the case of a party litigant in an action in which there is no dispute as to liability, we are unable to say that this was a course which the sheriff, who appears to have listened patiently to the appellant's representations, was not entitled in the circumstances to take. The sheriff principal came to the same conclusion. We are accordingly unable to interfere with his interlocutor or with that of the sheriff. This appeal must be refused. [13] It remains only to add that, while this appeal was at avizandum, the appellant enrolled a "motion" by which she sought to place before the court copies of two documents, namely, the record prior to its amendment in July 2003 (No. 13 of process) and her Minute of Amendment (No. 17 of process). Both these documents were already before the court and are referred to above. Production of further copies of these does not advance matters.
