Sheriff Principal Stephen has issued an Opinion in the Sheriff Appeal Court case of General All Purpose Plastics Limited v John Young (2007) SAC (Civ) 30.
This was an Appeal from the Sheriff Court. The Pursuers had moved for Decree by Default because the Defender had failed to intimate Defences. In addition he hadn’t opposed the Motion nor had he appeared in Court. Decree by Default had been granted.
On appeal the Defender’s argument was to the effect that he wasn’t aware of the need to lodge Defences by a particular date and had consulted a firm of Solicitors after the grant of Decree. His argument was essentially that the Sheriff Appeal Court should exercise its discretion and recall the Decree.
In essence, the Pursuers’ (Respondents’) argument was that although Defences had now been lodged they were skeletal in nature and the Defender was simply delaying.
The Sheriff Principal set out the detailed history of the Action and went on to consider the proper approach when the Appeal Court was reviewing a decision to grant Decree by Default.
She said that the relevant Rule of Court clearly indicated that a Sheriff had a discretion as to whether or not to grant a Decree by Default. Accordingly it was open to her to exercise her discretion. Whether or not the Decree should be recalled involved “a broad consideration in the circumstances surrounding the default and whether there is a proper or meritorious defence to the Action.” Did the interests of justice require that the Decree be recalled?
The Sheriff Principal was unhappy about the Grounds of Appeal in that there was a contradiction between the Appellant’s written and oral case. A consideration of a background had disclosed that the Appellant had been aware of the need to lodge Defences and had actually consulted a Solicitor. Despite this he hadn’t taken any action. This resulted in the Sheriff describing his approach as “cavalier”.
Although Defences were now available these provided little in the way of information as to what defence the Appellant was putting forward. They seemed to have been prepared before the Hearing where Decree by Default was granted but hadn’t been intimated to the other side before that Hearing. Apparently the Solicitor instructed at that stage had proposed to lodge them at the Options Hearing. Not surprisingly the Sheriff Principal was critical of that approach.
Finally, she looked at the Pursuers’ position. They took the view that the Appellant was effectively using delaying tactics and the defence had only appeared at this Appeal Hearing.
Given all these circumstances the Sheriff Principal refused to exercise her discretion and recall the Decree.