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Appeals and extracts: sticking to the rules

15 January 18

A civil practice casenote on the importance of the procedure rules of court and the rules surrounding an appeal against an extract decree

by Euan McSherry, Jordan Gray

This short article concerns the opinion of Lady Clark of Calton in an application for leave to appeal under the Court Reform (Scotland) Act 2014, s 113 by Kenneth Scott, which was refused.

On 24 April 2017, Scott lodged his ground of appeal but failed to comply with rule 6.6(3) of the Sheriff Appeal Court Rules in that he did not specify whether the appeal should be a standard appeal or an accelerated appeal. A letter of the same date was sent on behalf of the Sheriff Appeal Court returning the note of appeal and indicating that Scott must decide whether the appeal should be a standard or accelerated appeal. Scott did not deny that he had received this letter, but claimed that his partner had kept the letter from him to safeguard him from further health problems and that he did not review the letter until a later date, by which time the decree had already been extracted.

The legal position: a brief overview

An appeal requires to be lodged within 28 days of the day after a decision, which in this case was 12 April 2017. Scott consequently had until 10 May 2017 to lodge the appeal at the Sheriff Appeal Court in Edinburgh; the appeal was re-lodged on 16 May. Scott claimed that his ill health prevented him from lodging his appeal timeously. The extract decree however had already been issued on 11 May to the first, second and fourth respondents (the third respondent having been previously released from the litigation). The question before the Inner House of the Court of Session was, could Scott's appeal be received late despite an extract decree having been issued?

The general rule which the courts require to consider is set out by the Inner House in Alloa Brewery Co Ltd v Parker 1991 SCLR 70; the relevant test to be considered is set out in s 113 of the 2014 Act, which states:

“(1) An appeal may be taken to the Court of Session against a decision of the Sheriff Appeal Court constituting final judgment in civil proceedings, but only –
(a) with the permission of the Sheriff Appeal Court, or
(b) if that Court has refused permission, with the permission of the Court of Session.

“(2) The Sheriff Appeal Court or the Court of Session may grant permission under subsection (1) only if the Court considers that –
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Session to hear the appeal”.

Scott relied on subs (2)(b) and put to the court that the “compelling reason” to allow the appeal was he had suffered a miscarriage of justice by being denied substantive justice. This approach identified two broad grounds of appeal:

  1. The sheriff erred in law by deciding that Scott failed to lodge his application within the 28 day time limit.
  2. The sheriff did not exercise the wide discretion available to him in terms of rule 2(1) of the Sheriff Appeal Court Rules 2014.

He drew attention to conjoined appeals cited as Hamilton v Glasgow Community & Safety Services 2016 SC (SAC) 5 and Macguire v Grant & Wilson Property Management Ltd [2017] SAC (Civ) 20, and submitted that because of a minor infraction of the rules, as to which he had no actual knowledge, he was left in a position where his substantive appeal had not been heard and determined by the Sheriff Appeal Court.

The key points: a legal analysis

Considering Alloa Brewery Co Ltd v Parker, Lady Clark accepted that there are recognised circumstances where the court has power to grant late leave to appeal even after a decree has been extracted, but the difficulty which faced Scott was that the recognised circumstances required there to have been an incompetence or irregularity.

Scott submitted that he had attempted to rectify matters by submitting his amended appeal as quickly as he could under the circumstances; indeed the delay was short, which was acknowledged by Lady Clark, but the position of the second and fourth respondents was that the reasoning of the Sheriff Appeal Court was of sound logic and there was no error in law nor a compelling reason to allow the appeal after the extracted decree had been granted.

It is clear that there are very few restricted circumstances under the law that allow for the court to grant late leave to appeal after a decree has been extracted. There was no incompetence or irregularity at play in this case, which effectively led to a legal checkmate. If the courts were to grant appeals against an extracted decree where none of the limited exceptions applied then the fundamental principle of legal certainty and justice would be undermined. Scott had an opportunity to remedy his error. His failure to do so should not result in the respondents being prejudiced.

Concluding remarks

Scott's failure was an ostensibly minor one, but nevertheless “the rules were not complied with”. There is no case law that supports an exception such as described by Scott and there was, as Lady Clark highlighted, no error on behalf of the Sheriff Appeal Court or of the respondents. In the final paragraph of Lady Clark's judgment, attention is briefly drawn to s 113 of the 2014 Act and particular focus is placed on understanding the definition of “compelling reason” and its particular legal meaning.

It was clarified by Lady Clark that the court will not apply the test in a general sense but will look to what may be a compelling reason that is an “arguable [or] material error of law”. Lady Clark was not persuaded that the Sheriff Appeal Court's administrative department made any such error. With some regret, she found that Scott's appeal could not succeed. The opinion of Lady Clark is an unambiguous reminder that even if the court has sympathy with a litigant, the rules are there to be followed and only under very limited circumstances will any exceptions be granted.

Click here to view the opinion.

Euan McSherry is a solicitor advocate and Head of Litigation in Scotland at DWF LLP, and appeared on behalf of the second and fourth respondents in the action. Jordan Gray is a trainee solicitor with DWF LLP.
All views expressed in this article are the independent views of the authors and do not represent those of DWF LLP.


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