Simple Procedure – right of appeal?
Appeal by DAVID BELL against STEPHEN FARMER and HELEN FARMER
A while ago, Whyte Fraser & Co acted on behalf of the Appellant in the Appeal. We hadn’t acted when the action was first raised.
The Appeal’s central question was whether there is a right of appeal against the refusal to grant an application for recall in Simple Procedure actions.
Background
The Mr Bell (a decorator) carried out work for the Farmers. The respondent sought re-payment of the sums paid to Mr Bell, the cost of remedial works and certain other losses, totalling £4,338.
Mr Bell failed to lodge a Response Form (defences) to the action and Decree (a court order) was granted against Mr Bell for payment.
Mr Bell lodged an application for recall (a request to be allowed into the action although late), explaining that he had instructed (previous) solicitors to act on his behalf but due to an administrative error the Response Form had not been timeously lodged.
The appellant sought to appeal that decision.
The sheriff hearing the application to appeal decided that an appeal is competent from a “decision” in terms of the Simple Procedure Rules, but the refusal of an application to recall was not technically a “decision.” The sheriff refused the appeal. Had the summary sheriff erred in finding that attempted review to be incompetent?
Whyte Fraser & Co argued that the sheriff’s interpretation of a “decision” in terms of the Simple Procedure Rules was too narrowly construed and the sheriff had misinterpreted the Rules.
The heading to Rule 13.7 specifically refers to what happens when a sheriff “decides” to recall a decision.
The Appeal Court agreed with us that if in allowing recall, a sheriff makes a decision, a refusal to do so must also constitute a “decision” which is applying the normal usage of that word. The sheriff had erred in law as to his role. He had no locus to refuse an appeal and had failed to provide adequate reasons for his decision or specify the principles he had applied to that decision.
The appellant submitted that where the sheriff has made a decision following the failure to lodge a Response Form, a party may apply to have that decision recalled and the only avenue open to a respondent who wishes to defend a claim and who has failed to lodge a Response Form, is to proceed by way of an application to recall.
The Appeal Court also found that a decision to refuse an application to recall falls within the definition of a “final judgment in a simple procedure case.”
Where a party has applied unsuccessfully for recall, the sheriff’s decision on the application constitutes a final judgement in a simple procedure case. The alterative to this practical rule application would be delay, multiple court actions expense and uncertainty.