SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A2529/04

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	MAUREEN McGILL
	Pursuer and Respondent
	against
	THOMAS McGILL AND MARGARET McGILL
	Defenders and Appellants

 

Act: J MacDonald, of Messrs John Y Robertson

Alt: R Brown, of Messrs Hay Cassels

 

HAMILTON: 7 June 2006

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor of 27 July 2005 wherein he allowed parties before answer a proof of their respective averments; remits the cause to a Procedural Hearing on Wednesday 28 June 2006 at 10.00 am in order that a proof before answer may be fixed; finds the defenders and appellants liable to the pursuer and respondent in the expenses of the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report; refuses the motion to sanction the employment of counsel in respect of the appeal.

 

 

NOTE:

 

Background to the appeal

 

1.             This is an appeal against the Sheriff's interlocutor of 27 July 2005 wherein, having allowed the Record to be amended in terms of the pursuer's Minute of Amendment No 12 of process and the defenders' Answers thereto no 14 of process, he of new closed the Record and allowed parties, before answer, a proof of their respective averments, the defenders having intimated that they were seeking a diet of debate. The defenders and appellants stated a preliminary plea to the relevancy of the pursuer and respondent's pleadings and lodged a note in terms of Rule 22 on 7 February 2005. The Options Hearing on 10 February 2005 was continued on the pursuer and respondent's motion until 15 March 2005. On that date the case was appointed to the additional procedure roll in terms of chapter 10. That additional procedure concluded on 10 May 2005 without adjustment by the pursuer and respondent. The Record was then closed and the case appointed to a procedural hearing on 15 June 2005. On 14 June 2005 the pursuer and respondent intimated a Minute of Amendment. The Sheriff on 15 June 2005 allowed the Minute of Amendment to be received, allowed the defenders and appellants to lodge Answers, allowed a period of 15 days for adjustment, and assigned 27 July 2005 as a Rule 18(3) Hearing.

 

2.             The defenders and appellants lodged Answers to the Minute of Amendment on 15 July 2005 and with them a Rule 18.8 Note. The defenders and appellants instructed local agents to appear on their behalf at the Rule 18(3) Hearing on 27 July 2005. They were provided with copies of the pleadings and the defenders and appellants two notes to which I have referred. They were instructed to move for a debate to be fixed. Solicitor from the local agents instructed on behalf of the defenders and appellants moved the Sheriff, after the amendment procedure had been completed, to fix a diet of debate. The Sheriff refused to do so and allowed a proof before answer. It is against the allowance of a proof before answer by the Sheriff that the defenders and appellants now appeal.

 

3.             It was agreed by parties at the appeal that what took place on 27 July 2005 after the amendment procedure had been dealt with in terms of Rule 18(3) was in fact a Procedural Hearing in terms of Rule 10.6. That Rule is in the following terms:

 

(1) At the Procedural Hearing, the Sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3). (2) It shall be the duty of parties to provide the Sheriff with sufficient information to enable him to conduct the hearing as provided for in this Rule. (3) At the Procedural Hearing the Sheriff shall- (a) Appoint the cause to a Proof and make such orders as to the extent of the proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; (b) After having heard the parties and considered any note lodged under Rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of the proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or (c) After having heard parties and considered any note lodged under Rule 22.1 appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree ..."   It is to be noted that this Rule is in identical terms to Rule 9.12 which relates to Options Hearings.

 

4.             The Sheriff in his note on 19 August 2005 records what took place at the Procedural Hearing as follows:

 

"Parties were in agreement that the Record should be opened up and amended in terms of that Minute of Amendment and Answers. I allowed that, and allowed time for the lodging of an amended Record ... In relation to further procedure, the defenders' agent invited me to fix a diet of debate. The agent for the pursuer sought a proof before answer.   I invited the agent for the Defender to address me on the question of why a diet of debate was the appropriate procedure in this case. She did not address me in any further detail. Mindful that, before appointing a cause to debate, I should be satisfied that there is a preliminary matter of law which justifies a debate, viz: a substantial argument which, if successful, would lead to decree in favour of one of the parties or would limit the extent of proof to a considerable degree, I did not consider that anything had been said to satisfy me in that regard. Accordingly, I refused the Defenders' Motion for a diet of debate and fixed a diet of Proof Before Answer."   The Sheriff then continued:   "The Defenders have now lodged a detailed Note of Appeal, setting out arguments tending to suggest that a diet of debate might result in dismissal of the action. I do not propose to comment here on the validity of these arguments. I do however wish to make it clear that none of these arguments were rehearsed before me in support of the Defenders' Motion. No mention was made of the Notes lodged in terms of Rule 22 of the Ordinary Cause Rules. I note that, while the Answers for the Defenders (Number 14 of Process) contain a preliminary plea, no Note has been lodged in terms of Rule 18.8, supporting that plea.   It is regrettable that the Solicitor appearing for the Defenders failed to present the court with detailed submissions along the lines of those now contained in the Note of Appeal. Had she done so, it is possible that my decision in relation to allowing a diet of debate might have been different. However, given the lack of information presented, I was not, at the time of refusing the Defenders' Motion, satisfied that a diet of debate was appropriate."

 

5.             It would accordingly appear to be the position that the solicitor instructed as local agent on behalf of the defenders and appellants did not make any oral argument to the Sheriff in support of her motion that a diet of debate be fixed. There were in process on behalf of the defenders and appellants at that time a Rule 22 Note lodged on 7 February 2005, and a Rule 18.8 Note lodged on 5 July 2005. It was accepted at the hearing before me that, when making oral submissions, the solicitor for the defenders and respondents did not in fact refer to the two notes which had been lodged and which were in the process. She merely asked the Sheriff to fix a debate. She did not amplify that submission in any way.

 

6.             The question which arose in this appeal whether there was material before the Sheriff at the Procedural Hearing on 27 July 2005 as a result of which, the Sheriff should have pronounced himself satisfied that there was a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to a limitation of proof to any substantial degree.

 

Submissions for the defenders and appellants

 

7.             Solicitor for the defenders and appellants referred to Rule 10.6(1) which imposed at the Procedural Hearing a duty on the Sheriff to seek to secure the expeditious progress of the cause by ascertaining from parties the matters in dispute and information about any other matter referred to in paragraph (3). There was also a duty imposed in terms of Rule 10.6(2) on the parties to provide the Sheriff with sufficient information to enable him to conduct the hearing as provided for in that Rule. It was submitted that the primary duty in terms of Rule 10.1 was on the Sheriff to seek to secure the expeditious progress of the case. Rule 10.6(3)(c) (which I have set out in paragraph 3 of this note) required the Sheriff to hear parties and consider any note lodged under Rule 22 (there were two notes lodged, one of which was a Rule 18.8 Note). It was submitted that the Sheriff did not require to be referred to the notes by the solicitor. They were in process and the Sheriff should have had regard to their contents when he was moved to fix a debate.

 

8.             I was referred to the cases of Gracey v Sykes 1994 SCLR 909 and Blair Bryden Partnership v Adair 1995 SLT (Sh Ct) 98. It was submitted that both of these cases deal with a consideration of notes lodged in terms of Rule 22 and confirmed that a debate could only by allowed if the court was satisfied that there was preliminary matter of law which if established following debate would lead to decree in favour of any party or limitation of proof to any substantial decree.

 

9.             I was referred to the opinion of Sheriff Principal Maguire in Gracey v Sykes supra at page 911D-E:

 

"The third destination is a debate. That is because there is a matter of law which justifies a debate. What does the latter phrase mean "which justifies a debate?". I consider that this must mean that the Sheriff is persuaded that there is a substantial argument which, if successful, would lead to decree in favour of the pursuer or the defender or would limited the method or extent of the proof to a considerable degree. How is the Sheriff to be satisfied on this point? He is addressed by the parties and has before him a note in terms of Rule 22.1. He has to make a decision at that time as to whether or not at a later stage fuller arguments would disclose a substantial point ... he has then to decide on these arguments. This is a question of law. It is not a matter of discretion. It is open to me to consider whether the Sheriff erred in his decision on the question of law whether there was a preliminary matter of law justifying a debate and to review that decision ... An appellate tribunal should, in my view, be tentative and cautious in considering whether a Sheriff erred in making such a decision. The court should be quite certain that there is or is not a substantial matter of law at stake before interfering with a Sheriff's judgment expressing a different view ..."

 

10.         In this case it was submitted on behalf of the defenders and appellants that the Sheriff did not get to the stage envisaged in the case of Gracey because he did not consider all that he was required to consider in terms of the Rules, namely the contents of the Notes lodged.

 

11.         I was referred to the dicta of Sheriff Principal Kerr in CYMA Petroleum (UK) v Total Logistics Concepts Ltd 2004 SLT 113 where, referring to the case of Blair Bryden Partnership supra the Sheriff Principal said at page 114:

 

"I agree with the view taken by my learned predecessor to the effect an appellate court should not entertain further or different arguments from those addressed to the Sheriff in deciding an appeal of this type and the Sheriff's decision should be open to challenge only on the basis that he reached the wrong conclusion as a matter of law on the material placed before him at the Options Hearing whether written or oral."

 

12.         It was submitted that the question arose as to whether on the basis of the material placed before the Sheriff, namely the verbal motion to fix a debate and the material contained in the two notes lodged on behalf of the defenders and respondents, his decision was correct or incorrect. If it was incorrect, it required to be reversed.

 

13.         It was submitted that there was nothing in the Sheriff's note to indicate that he gave proper consideration to the written submissions in the two notes. The grounds on which the relevancy of the pursuer and respondent's case was attacked were laid out in the two notes. It was accepted that, as far as this appeal was concerned, I was restricted to the material placed before the Sheriff and could not consider further arguments.

 

14.         During the course of the hearing the solicitor for the defenders and appellants conceded that points 1(b) and (c) of the original note lodged on 7 February 2005 had been dealt with by amendment and that the argument in 1(a) would not in itself justify a debate. He submitted that what did justify a debate was his argument under point 2 of the Note of 7 February 2005 which was in the following terms:

 

"Pursuer's claims for both sums craved are in any event time barred in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973 as amended. The action was raised in September 2004. The relevant date for the purposes of prescription is the date when the defenders are alleged to have been enriched. The pursuer pleads that "in exchange" for each payment she was "to obtain a proportionate share in the defender's property." The date the alleged obligation became enforceable is the date of the enrichment given rise to the obligation and the only way to read the pursuer's pleadings is that this was March 1997 for the repayment of £30,000 and 24 June 1996 for repayment of £10,000. Both dates predate the raising of the action by more than 5 years."   The matter of prescription was an important matter which required a debate. I was referred to grounds 1, 2 and 4 of the note of appeal which, it was said, essentially amplified that argument.

 

15.         After the amendment procedure, there was lodged on behalf of the defenders and appellants a second note in which they stated:

 

"There is insufficient specification of matters of crucial importance to the pursuer's case. In condescendence 4 the pursuer pleads that said sums have been held unjustly since on or around September 2001. The pursuer does not state the terms of the alleged contract as regards the date when the disposition of the said share was to take place. Consequently reference to September 2001 is irrelevant."

 

16.         It was submitted that it was clear from the material in the two notes that a debate was required to consider the question of prescription. It was submitted that, from the terms of the note which the Sheriff had written, he had clearly given no consideration at all to the contents of the two notes lodged on behalf of the defenders and appellants. He had contented himself by stating that the solicitor appearing for the defenders and appellants had failed to present to the court detailed submissions and made no reference to the notes lodged in court. The Sheriff had failed to properly consider the material properly before him. He was wrong in law, on the basis of the material before him, not to allow a debate on the question of prescription. The appeal should accordingly be allowed and the case returned to the Sheriff for debate.

 

Submission for pursuer and respondent

 

17.         Counsel for the pursuer and respondent asked me to adhere to the Sheriff's interlocutor of 27 July 2005 and to remit the case to the Sheriff to proceed with a proof before answer. Counsel accepted that what took place on 27 July 2005 was a Procedural Hearing in terms of Rule 10.6 of the Ordinary Cause Rules 1993. He pointed out that Rule 10.6(3), when originally promulgated, had read:

 

"After having heard parties and considered any note lodged under Rule 22.1, appoint the cause to a debate if satisfied that there was a preliminary matter of law which justified a debate."   This Rule was altered on 23 May 2004 to read:   "After having heard parties and considered any note lodged under Rule 22.1 appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree."   He noted that this alternation followed the decision of Sheriff Principal Maguire in the case of Gracey v Sykes supra.

 

18.         Counsel submitted that the manner in which this case should be dealt with was as suggested by Sheriff Principal Maguire in the case of Gracey v Sykes supra. He founded on the passage commencing at page 911C as follows:

 

"As far as I am aware this is the first time that the meaning of Rule 9.12(3)(c) has been raised in an appeal. One has to ask what it is that the Sheriff has to do in an Options Hearing. In Rule 9.12(1) the Sheriff is admonished as to what he has to try to achieve. He has to try and progress the case quickly by finding out what is the nub of the dispute. To enable him to do so, parties are to supply him with sufficient information for that purpose. Rule 9.12(3) provides the Sheriff with a number of destinations towards which to send the case. The first is a Proof that would indicate that the case involves a straight forward factual dispute with no preliminary pleas reserved. The second is a Proof Before Answer. That would arise, it seems to me, when, having considered any notes under 22.1 the Sheriff takes the view that one has to ascertain all the facts before deciding on preliminary pleas and matters of law. The third destination is a Debate. This is because there is a matter of law which justifies a Debate. What does the latter phrase mean "which justifies a Debate"? I consider that this must mean that the Sheriff is persuaded that there is a substantial argument which, if successful, would lead to decree in favour of the pursuer or defender or would limit the method or the extent of the Proof to a considerable degree. How is the Sheriff to be satisfied on this point? He is addressed by the parties and has before him a note in terms of Rule 22.1. He has to make a decision at that time as to whether or not at a later stage fuller arguments would disclose a substantial point. Presumably the arguments are not set out in full before him, otherwise in fact he would be hearing a Debate at the Options Hearing, which is not the proper procedure. One would expect that he would receive a précis of a summary of the arguments to be put forward at Debate along with a note of the basis of the plea and would hear arguments from the other side that the point in issue did not merit Debate. He is then to decide on these arguments. This is a matter of law. It is not a matter of discretion. It is open to me to consider whether the Sheriff erred in his decision on the question of law, whether there was a preliminary matter of law justifying the Debate, and to review that decision. I quite accept that there is an area in which judges may well differ in deciding whether there was a preliminary matter of law justifying a Debate i.e. in deciding whether there was likely to be a point to be decided. An appellate tribunal should, in my view, be tentative and cautious in considering whether a Sheriff erred in making such a decision. The court should be quite certain that there is or is not a substantial matter of law at stake before interfering with the Sheriff's judgment expressing a different view. This, it seems to me, is inevitable if, as suggested by the Rules, the arguments presented to the court had been about the likelihood of there being a substantial matter to be debated and ex hypothesi not about the substantial matter itself."

 

19.         Counsel submitted that Sheriff Principal Maguire's approach should be adopted. The question was whether there was a preliminary matter of law which, if established following the debate, would lead to decree in favour of either party or to limitation of proof to any substantial agree. It was submitted that it was for the solicitor instructed on behalf of the defenders and appellants to address the court on whether a debate was justified.

 

20.         It was submitted that in this case the Sheriff had the pleadings which had just been extensively amended and answered that day, the Rule 22 Note, and the second Rule 22 Note (which was in fact a Rule 18.8 Note). He had before him competing motions, one for a debate and one for a proof before answer. It was submitted that the agent for the defenders and appellants did not carry out her duty to provide further information about why a debate was necessary. It was submitted that Sheriff Principal Maguire had indicated that he would expect the Sheriff to receive a précis or summary of the arguments because Rule 10.6(2) provided that it was the duty of parties to provide sufficient information to the Sheriff to allow him to conduct the hearing. The Sheriff in his note had indicated that he was given insufficient information by the agent for the defenders and appellants to enable him to be satisfied that there was a preliminary matter of law which, if established, would lead to decree in favour of one of the parties or would limit the extent of proof to a considerable extent. The Sheriff had before him the pleadings and the two Rule 22 Notes were in process, however there was no indication by argument at the bar as to why the Sheriff should be satisfied that there was a preliminary matter which, if established, would lead to decree for one of the parties or would limit the extent of proof to a considerably degree.

 

21.         It was conceded that there may be cases where it would be perfectly evident from the terms of the note itself, taken together with the pleadings, that there was a good debate point. However, it was submitted that that was not the situation in this case. It was submitted that the defenders and appellants had come to court at appeal effectively seeking relief in circumstances where they had failed to obtemper their duty to the court under Rules 10.6(2) and 10.6(3)(c).

 

22.         Counsel then referred to the case of Blair Bryden Partnership v Adair supra where, it was suggested, the circumstances were similar to the present case. Sheriff Principal Hay referred to the views of Sheriff Principal Maguire in Gracey v Sykes supra and then said at page 100J:

 

"I respectfully adopt these views which, in my opinion, clearly express how the policy aimed behind Rule 9.12(3)(c) should be applied in first instance and on appeal. In my view, there is no need to express the matter more widely. In particular, I am not persuaded by the argument that when a responsible agent says that there is a point to be debated and refers to a note lodged in terms of Rule 22.1, that should be sufficient for the Sheriff to appoint the cause to debate without further inquiry. In my opinion, that approach would defeat the purpose of Rule 9.12(3)(c) by in effect withdrawing the decision from the Sheriff ... The whole thrust of Rule 9.12(3)(c) is that the Sheriff must be satisfied that there is a preliminary point of law which justifies a debate. There may be cases in which it is so clear from the terms of Rule 22.1 Note, without which there can of course be no allowance of debate, that the only proper course will be to allow a debate, and in such a case very little may be required by way of oral submission at the Options Hearing. In most cases, however, the Sheriff will reach his decision on the basis of the written material before him and the oral submissions of the parties at the Options Hearing. It is therefore essential that the agent appearing and moving for a debate should be fully instructed and in a position to satisfy the Sheriff that there is a preliminary matter of law which justifies a debate."   The Sheriff Principal went on at page 101B   "... The Sheriff held on the basis of the written material and the oral submissions before him that a debate was not justified. I have had the benefit of much more detailed submissions on appeal, and it may be that if the Sheriff had had a similar advantage he might have reached a different decision on the allowance of a debate. I put it no higher than that. He had to reach a decision on the material before him, however, and I am not persuaded that it would be appropriate for the appellate court to interfere with the decision on the basis of new arguments which could have been submitted at the Options Hearings but which were, for whatever reason, omitted at that stage."

 

23.         It was submitted that I should take from that case the following propositions.

 

a.              Sheriff Principal Hay followed Sheriff Principal Maguire's decision in Gracie in all respects. b.             He emphasised the importance of the parties addressing the Sheriff on the debate question at first instance. c.              He confirmed that the appellate court should be slow to interfere with a Sheriff's decision on the basis of new arguments which were not presented to the Sheriff, at least when the Sheriff had allowed a proof before answer.

 

24.         Thirdly counsel referred to the case of CYMA Petroleum (UK Ltd) v Total Logistics Concepts Ltd 2004 SLT 113 where, as I set out earlier, Sheriff Principal Kerr at page 114F said:

 

"I agree with the view taken by my learned predecessor to the effect an appellate court should not entertain further and different arguments from those addressed to the Sheriff in deciding an appeal of this type and the Sheriff's decision should be open to challenge only on the basis that he reached the wrong conclusion as a matter of law on the material placed before him at the Options Hearing whether written or oral."

 

25.         Counsel took from that case that on appeal it is for the appellant to satisfy the appellate court on the basis only of the arguments presented to the Sheriff that the Sheriff erred in law in refusing the motion for a debate. The appellant was not entitled to a second bite of the cherry and to bring new, better and more advanced arguments. The decision on whether or not the Sheriff erred in law was to be made only on the basis of the material presented to the Sheriff.

 

26.         Counsel then discussed what in fact took place in court on 27 July 2005. He referred to the Sheriff's note where he said:

 

"... In relation to further procedure, the defenders' agent invited me to fix a diet of debate. The agent for the pursuer sought a Proof Before Answer.   I invited the agent for the Defender to address me on the question of why a diet of debate was the appropriate procedure in this case. She did not address me in any further detail. Mindful that, before appointing a cause to debate, I should be satisfied that there is a preliminary matter of law which justifies a debate, viz: a substantial argument which, if successful, would lead to decree in favour of one of the parties or would limit the extent of proof to a considerable degree, I did not consider that anything had been said to satisfy me in that regard. Accordingly, I refused the Defenders' Motion for a diet of debate and fixed a diet of Proof Before Answer."

 

27.         It was submitted it was clear from that paragraph that the Sheriff had in mind the terms of Rule 10.6. It was submitted it was clear that from that passage of the Sheriff's note that he clearly understood that he had to make a decision in terms of Rule 10 and that he was aware of the terms of Rule 10.6(3)(c). He said that he asked the agent acting for the defenders and appellants to address him on why a debate was appropriate. It was submitted he was inviting the contribution which he was entitled to expect from the agent for the defenders and appellants. On page 3 of his note the Sheriff stated that he had seen the detailed note of appeal but none of these arguments were rehearsed before him in support of the motion. He stated that no mention was made of the notes lodged. It was submitted that what he was saying was that he was aware that two notes were lodged. Referring to the note of appeal the Sheriff said:

 

"I do however wish to make it clear that none of these arguments were rehearsed before me in support of the Defenders' Motion."

 

28.         It was submitted that the gist of what the Sheriff was saying was that he was asked to fix a debate but heard no argument along the lines contained in the note of appeal, neither did he hear any argument along the lines set out in the two Rule 22 Notes. It was suggested that his note should be interpreted as meaning that he knew that there were Rule 22 notes in process but he heard no oral argument upon them. It was submitted that this interpretation was to be preferred to an interpretation that he did not consider the contents of the Rule 22 Notes.

 

29.         It was submitted that no proper material was placed before the Sheriff to allow him to fix a debate. It was submitted that the Sheriff applied in full the terms of the Rule 10. He was unassisted by the agents for the defenders and appellants and, faced with a somewhat diffuse set of pleadings and Rule 22 Notes which were far from being a model of clarity, he decided that the best way forward was to send the matter to a proof before answer which would have the advantage of avoiding any prejudice to the defenders and appellants but would also have the effect of securing the expeditious progress of the case. The case had been ongoing for a year and expedition was now required.

 

30.         It was suggested that the court should take the view that there had been no detectable error in law in what the Sheriff did given the material placed before him, especially having regard to the dicta in the cases of Gracie, Blair Bryden and CYMA Petroleum (UK) Ltd supra. I was accordingly asked to support the decision which the Sheriff made on the material before him.

 

31.         However, if I was not disposed to accept the pursuer and respondent's primary submission, it was accepted that the pursuer and respondent required to make submissions on the basis that the Sheriff had before him the material in the two Notes lodged in process.

 

32.         It was pointed out that the solicitor for the defenders and appellants conceded that he now only relied on point 2 of the original Rule 22 Note. It was submitted that this Rule 22 Note related to pleadings which were out of date when the Sheriff had to consider it. It was submitted that what in fact happened was that the pursuer and respondent realised there was a defect in the pleadings regarding the date of enrichment. A Minute of Amendment had accordingly been lodged to cure the matter. Before amendment it was accepted that the defenders and appellants had properly been able to say in their Note:

 

"The date the alleged obligation became enforceable is the date of the enrichment giving rise to the obligation and the only way to read the pleadings was that this was March 1997 for the payment of £30,000 and 24 June 1996 for the payment of £10,000".   The debate point raised by the defenders and appellants in their first note was essentially that the pleadings did not set out the date on which the pursuer said the defenders became liable to make recompense by way of repetition. This was an important defect. However this was rectified by the pursuer when they lodged their Minute of Amendment. In Article 4 of condescendence at page 7 of the amended closed Record (no 18 of process) the pursuer avers:   "The pursuer and the defenders agreed that on payment of the sums of money aforesaid, the pursuer and her late mother would obtain a share of the house at 5 Foxgrove, Motherwell. There was a contract between the pursuer and the second defender. The pursuer and her mother paid over the sum of £40,000. The defenders did not dispone the proportionate share in the said property to them. In or around September 2001 the defenders repudiated the contract by indicating that they no longer intended to be bound by same. The defenders were in breach of contract at that time. The pursuer accepted repudiation by the defenders as at September 2001. The pursuer are entitled to damages as a result of the said breach of contract. The pursuer has suffered a loss to the extent of the sums paid by her to the defenders. The pursuer is entitled to recover her one half share of £40,000 under deduction of sums already paid ..."

 

33.         There was further specification provided at Article 4 page 3 of the amended closed Record where the pursuer and respondent avers:

 

"In or around September 2001 the pursuer became aware that the defenders did not intend to apply the sum in accordance with the purpose for which the money had been paid to the defenders. This was as a result of a conversation initially between the pursuer and the second defender whereby the pursuer became aware that the defenders intended selling the property. Thereafter the said Joseph McGill confronted the first defender and indicated that he should pay back the sum of money already paid as a share of the property had not been transferred to the pursuer and her mother. The first defender refused to do so. The pursuer accepted that the defenders would no longer honour the terms of the agreement ..."

 

34.         It was submitted that, as the case was now pled as one of breach of contract, the start date for prescription was the date of the alleged breach. It was averred that the breach of contract took place in September 2001. This action accordingly required to be raised within the prescriptive period of 5 years from September 2001. This had been done. There required to be evidence before any decision on the question of prescription could be made.

 

35.         It was submitted that it was significant that it appeared the defenders and appellants accepted these propositions as there was no mention in any of their notes that a claim based on breach of contract was time barred. It was accordingly submitted that this head of claim for damages for breach of contract was relevant and should go forward. Whether it could be established was a matter for evidence at the proof.

 

36.         Counsel referred to an esto case which was in the following terms:

 

"Esto et separatim there was no contract the payment of said sums was made by the pursuer and her late mother were made in anticipation that they would receive a share in said property. The pursuer is entitled to repetition of the monies paid by her under condictio causa data causa non sectua. The said sums of money have been held unjustly since on or around September 2001."

 

37.         It was submitted that this put an alternative basis for analysing the same facts - in the event that the claims under contract were not paid, the pursuer has standing behind the claim on contract what used to be called a quasi contractual claim. It was submitted that it was proper to do so as there were cases in the past where a pursuer failed in a case under contract and there was no alternative basis of claim based on quasi contract or recompense. This point had arisen in the case of N. V. Devos Gebroeder v Sunderland Sportswear Ltd 1990 SC 291 where the pursuers did not plead an alternative unjust enrichment case.

 

38.         The primary submission for the pursuer and respondent on prescription, on which the defenders and appellants relied in their original Rule 22 note, had been met by the amendment of the pleadings which took place immediately prior to the procedural hearing on 27 July 2005. It was on the basis of the original Rule 22 note that the defenders and appellants had sought to send the case to debate. There was no reference in either note to the question of prescription applying to a case of breach of contract. In their esto case, the pursuer now states clearly and without ambiguity that the date of any unjust enrichment was September 2001 which was of course the same date on which the breach of contract was averred. Whether the pursuer would be able to prove that unjust enrichment occurred in September 2001 or on any other date was a matter of evidence. This related to pleas in law 3 and 4 for the pursuer and respondent in respect of repetition and recompense. There required to be evidence before the question of prescription could be considered.

 

39.         The pursuer's case was that unjust enrichment occurred at the point when the defenders made it clear to them that they had no intention of conveying any part of the subjects to the pursuer and her now deceased mother. Prior to that time there was no unjust enrichment because the pursuer believed that the defenders would be giving value for the sums that they had received.

 

40.         It was submitted that in these circumstances the consequence was that any plea to prescription as regards the claims on the basis of repetition or recompense could not be determined until evidence had been heard. Accordingly a proof before answer was the appropriate way of dealing with the matter.

 

41.         In respect of the matter of specification of the alleged breach of contract, which was taken by the defenders and appellants in their second note, I was referred to page 3 and Article 2 of condescendence where the pursuer avers in the amended pleadings:

 

"In or around September 2001 the pursuer became aware that the defenders did not intend to apply the sum in accordance with the purpose for which the money had been paid. This was a result of a conversation initially between the pursuer and the second defender whereby the pursuer became aware that the defender intended selling the property. Thereafter the said Joseph McGill confronted the first defender and indicated that he should pay back the money already paid as a share in the property would not be transferred to the pursuer and her mother. The first defender refused to do so. The pursuer accepted that the defenders would no longer honour the terms of the agreement ... The pursuer is entitled to the return of her share of the money paid to the defenders ... The defenders have retained said sum unjustly and have had the benefit of same since it was paid over on or around 1 March 1997."   This, it was submitted, gave adequate specification of the alleged breach.

 

42.         Solicitor for the pursuer and respondent submitted that, even if the time bar point as regard unjust enrichment was a good one and the Sheriff upheld the defenders and appellants' time bar plea as far as the alternative cases were concerned, this would not affect the case at all as there would require to be a proof on exactly the same facts in respect of the breach of contract case. The repelling of the pleas in respect of the alternative case of unjust enrichment would accordingly not have the effect of leading to decree for either party, nor would it lead to a limitation of proof to any substantial degree. Accordingly a debate was not appropriate.

 

43.         In these circumstances it was submitted that Rule 10.6(3)(c) would not have been satisfied and that the correct disposal was a proof before answer in terms of Rule 10.6(3)(b) which was exactly what the Sheriff did.

 

44.         I was asked to adhere to the interlocutor of 27 July 2005 allowing a proof before answer. I was asked to find expenses followed success in respect of the appeal and to certify the cause as suitable for the employment of junior counsel. It was submitted that the case was complex, not only on the basis of the facts, but also in terms of the interpretation of the Sheriff Court Rules. It was not unreasonable for the pursuer and respondent to employ counsel, having regard to the large sum of money at stake relative to their income.

 

Decision

 

45.         It was accepted by parties that what took place on 27 July 2005 after the amendment procedure had been dealt with in terms of Rule 18(3) was in fact a procedural hearing in terms of Rule 10.6. I have set out the terms of Rule 10.6 in paragraph 3 of this note.

 

46.         The Sheriff was required in terms of Rule 10.6(1) to seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in sub-paragraph (3). To this end the Sheriff invited the agent for the defenders to address him on the question of why a diet of debate was the appropriate procedure in this case. She did not address him in any further detail, having merely invited him to fix a diet of debate.

 

47.         In terms of Rule 10.6(2) it is the duty of parties to provide the Sheriff with sufficient information to enable him to conduct the hearing as provided for in the Rule. There was accordingly a duty on the agent for the defenders to state, all be it briefly, the grounds on which a debate was sought and, if any reliance was to be placed on any notes which had been lodged, to bring the court's attention to either the whole or any part of these notes thought to be relevant. The agent acting for the defenders clearly failed in the duty imposed upon her by Rule 10.6(2). She did not address the Sheriff on the question of why a debate should be fixed and she did not, in support of her submission, refer to either of the notes lodged in process. Sheriff Principal Maguire stated in the case of Gracey supra:

 

"How is the Sheriff to be satisfied on this point? He is addressed by the parties and has before him a note in terms of Rule 22.1. He has to make a decision at that time as to whether or not at a later stage fuller arguments would disclose a substantial point ... one would expect that he would receive a précis or a summary of the arguments to be put forward at debate along with a note of the basis of the plea and would hear arguments from the other side that the point in issue did not merit a debate"   Sheriff Principal Hay in the case of Blair Bryden Partnership supra stated:   "There may be cases in which it is so clear from the terms of the Rule 22.1 note, without which there can of course be no allowance of debate, that the only proper course would be to allow a debate, and in such a case very little may be required by way of oral submissions at the options hearing. In most cases, however, the Sheriff will reach his decision on the basis of the written material before him and the oral submissions of the parties at the options hearing. It is therefore essential that the agent appearing and moving for a debate should be fully instructed and in a position to satisfy the Sheriff that there was a preliminary matter of law which justifies a debate."

 

48.         In this case the agent for the defenders and appellants did not provide the Sheriff with sufficient information to enable him to conduct the hearing. She did not provide him with a précis or summary of her argument, and she did not draw his attention to the whole of any part of the notes lodged on which she founded. At the very least she could have said something to the effect that she sought a debate and referred the Sheriff to point 2 of the Rule 22 note lodged on 7 February 2005 and the Rule 18.8 note lodged on 15 July 2005 (which was the appellants' position at the appeal). It was for the agent to present her case for a debate. It was not for the Sheriff to examine the whole process to try to extract from it what the defenders and appellants' argument might be said to be.

 

49.         Following the Sheriff's original inquiry of the agent for the defenders and appellants in terms of Rule 10.6(1), and the agent's failure to obtemper her duty in terms of Rule 10.6(2), I do not consider the Sheriff required to proceed further in terms of Rule 10.6(3). If the defenders and appellants were relying at the time on any of the matters set out in the notes lodged, I take the view it was for them to being the particular parts of the notes on which they relied to the Sheriff's attention and this they did not do. No information had been brought to his attention to allow him to make a decision that a debate was appropriate as there was a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree. I consider the Sheriff was entitled to take the course which he did and fix a proof before answer.

 

50.         However, in my view, at appeal I am entitled to take into account the fact that the agent instructed by the principal solicitors for the defenders and appellants did not place before the court the material with which she had been provided by the principal solicitors and on which a debate was sought. The agent appearing had been provided with copies of the two Notes and the pleadings. At the very least, it can be surmised that she had been instructed to move for a debate and to refer the Sheriff to the contents of the Notes lodged. In these circumstances, in the interests of justice and in fairness to the defenders and their principal solicitors, I am prepared to deal with the question of whether a debate should have been fixed on the basis of a consideration of the contents of the two Notes lodged. I am prepared to put myself in the position which the Sheriff ought to have been placed at the time he made his decision, on the basis of instruction by the principal solicitors to the local agents, namely having before him a motion to fix a debate, the amended pleadings, and the contents of the two Notes. I am prepared to consider the issue of whether, having regard to the amended pleadings and the contents of the Notes, there is sufficient material to allow me to be satisfied that there is a preliminary matter of law which, if established following debate, would lead to decree in favour of any party, or to limitation of proof to any substantial degree.

 

51.         The appellant's rely only on point 2 of the Note lodged on 7 February 2005 and to the Note lodged on 27 July 2005. Point 2 of the first note lodge on 7 February 2005 is in the following terms:

 

"Pursuer claims for both sums craved are in any event time barred in terms of section 6 of the Prescription Limitation (Scotland) Act 1973 as amended. The action was raised in September 2004. The relevant date for the purposes of prescription is the date when the defenders are alleged to have been enriched. The pursuer pleads that, "in exchange" for each payment she was "to obtain a proportionate share in the defenders' property". The date the alleged obligation became enforceable is the date of the enrichment giving rise to the obligation and the only way to read the pursuer's pleadings is that this was March 1997 for the payment of £30,000 and 24 June 1996 for the payment of £10,000. Both dates predate the raising of the action by more than five years."

 

52.         As was explained by counsel for the pursuer and respondent, what in fact happened was that those advising her realised that there was a defect in the pleadings regarding the date of enrichment. A Minute of Amendment was accordingly lodged. The basis of the action was thereby changed to breach of contract. The pursuer's position was set out in Article 4 of condescendence at page 7 of the amended closed Record as follows:

 

"The pursuer and the defenders agreed that on payment of the sums of money aforesaid, the pursuer and her late mother would obtain a share of the house at 5 Foxgrove, Motherwell. There was a contract between the pursuer and the second defender. The pursuer and her mother paid over the sum of £40,000. The defenders did not dispone the proportionate share in the said property to them. In or around September 2001 the defenders repudiated the contract by indicating that they no longer intended to be bound by same. The defenders were in breach of contract at that time. The pursuer accepted repudiation by the defenders as at September 2001. The pursuer are entitled to damages as a result of the said breach of contract. The pursuer has suffered a loss to the extent of the sums paid by her to the defenders. The pursuer is entitled to recover her one half share of £40,000 under deduction of sums already paid ..."   It is in my view clear that the defenders' position is now that the contract between the parties set out in the amended Record was repudiated by the defenders in September 2001 when they indicated they no longer intended to be bound thereby.

 

53.         In the second Note lodged on 22 July 2005 the defenders and appellants stated:

 

"There is insufficient specification of matters of crucial importance to the pursuer's case. In condescendence 4 the pursuer pleads that said sums have been held unjustly since on or around September 2001. The pursuer does not state the terms of the alleged contract and regards the date when the disposition of the said share was to take place. Consequently the reference to September 2001 is irrelevant."

 

54.         However further specification of the circumstances of repudiation are contained in Article 4 page 3 of the amended closed Record as follows:

 

"In or around September 2001 the pursuer became aware that the defenders did not intend to apply the sum in accordance with the purpose for which the money had been paid to the defenders. This was as a result of a conversation initially between the pursuer and the second defender whereby the pursuer became aware that the defenders intended selling the property. Thereafter the said Joseph McGill confronted the first defender and indicated that he should pay back the sum of money already paid as a share of the property had not been transferred to the pursuer and her mother. The first defender refused to do so. The pursuer accepted that the defenders would no longer honour the terms of the agreement ..."

 

55.         There is nothing in either of the notes lodged on behalf of the defenders and appellants to address the amended claim based on breach of contract. It was submitted that what was set out was a relevant case under breach of contract. If the pursuer and respondent's averments regarding breach of contract were proved, no question of prescription would arise. I accept that argument. There is no submission in either of the notes to the contrary.

 

56.         As far as the pursuer and respondent's alternative cases under quasi contract based on repetition (plea in law 3) and recompense (plea in law 4) are concerned, I accept the submission made on behalf of the pursuer and respondent that whether the pursuer would be able to prove that unjust enrichment occurred in September 2001 or any other date was a matter of evidence and that evidence would be necessary before the question of prescription could be considered. Even if the question of prescription of the quasi contractual claims could be dealt with at debate, I accept the further submission made on behalf of the pursuer and respondent that the upholding of the plea in respect of unjust enrichment would not have the effect of leading to decree for either party or lead to a limitation of the proof to any substantial degree. There will still have to be evidence in respect of the circumstances of the contract in respect of the breach of contract case which would cover the same ground as the quasi contractual case Accordingly there would be no limitation of the proof to any substantial degree. In these circumstances a debate is not appropriate.

 

57.         Accordingly, having considered the amended Record and the two notes lodged on behalf of the pursuer and respondent, I take the view that the correct course is to proceed by way of a proof before answer. I am not satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party or to limitation of proof to any substantial degree.

 

58.         For these reasons I adhere to the Sheriff's interlocutor of 27 July 2005 wherein he allowed parties before answer a proof of their respective averments. I have remitted the cause to a Procedural Hearing in order that an appropriate diet may be fixed.

 

59.         I consider that the pursuer and respondent are entitled to the expenses of the appeal. I am not disposed to certify the appeal as suitable for the employment of counsel. While I was assisted by the very clear way in which counsel set out his argument at the appeal, I was similarly assisted by the clear way in which solicitor for the defenders and appellants addressed the court. As was made clear in Macphail Sheriff Court Procedure at paragraph 12.25:

 

"The test appears to be whether the employment of counsel is appropriate by reasons of circumstances of difficulty or complexity, or the importance or value of the claim ... It has been said that where the case is one of serious difficulty, or one of very large value, or one which relates to personal character, the employment of counsel may generally be sanctioned, and the onus is thrown on the other side to show why it should not be. Sanction may, however, be refused where the case is not intrinsically difficult or complex ..."

 

60.         I take the view that the matters raised in this appeal are not intrinsically difficult or complex. I accordingly refuse sanction for counsel in respect of the appeal. That is, of course, without prejudice to the question of whether the employment of counsel would be suitable in respect of the proof. That would be a matter for the presiding Sheriff.