This recent decision from the Sheriff Appeal Court in Ravensby Glass Company Limited v Lifestyle Glass Design Limited provides some helpful clarification on the Simple Procedure rules and powers of the Sheriff.
Ravensby Glass Company Limited (“Ravensby”) raised a claim for payment of money due for the provision of glass. Lifestyle Glass Design Limited (“Lifestyle”) admitted receipt of the glass and the price but sought to set off sums they claimed were due for faulty glass supplied under a separate order.
After a number of case management discussions, the sheriff encouraged parties to use the in-court mediation service. When that failed, the sheriff granted an award for payment. The Sheriff was satisfied that there was no defence as the contractual relationship was governed by conditions of sale which specifically excluded set off. Lifestyle would have to take separate proceedings to recover sums which they considered to be due as a result of the faulty glass.
Lifestyle appealed this decision on a number of grounds being:-
- That the sheriff erred in not allowing a hearing to consider the agreed admissions that credits were due to the applicants;
- The sheriff erred in allowing the lodging of the conditions of sale on 12 September (at the mediation), which were not in accordance with the rules;
- The sheriff erred in not allowing a continuation to allow Lifestyle to seek advice on the conditions of sale; and
- The sheriff ordered the provision of information which Ravensby did not provide and erred by not imposing a sanction.
Ravensby submitted that they had complied with the court’s orders in so far as they could. Further, until the first case management discussion, the set-off argument had not arisen.
In response to Lifestyles’ submission that the conditions of sale had been lodged late, Ravensby submitted that as no hearing had been fixed there was no breach of the court rules.
Ravensby’s submission was that the sheriff exercised her discretion properly in relation to the materials she had and that she was satisfied that the conditions of sale excluded set-off and there was no other defence. Therefore, the appeal should be refused.
The starting point for the Court was that the conditions of sale were clear. They provided that “The Buyer shall not under any circumstances be entitled to defer payment or set-off any claim or counterclaim against monies due to the Seller”. Therefore, it was not possible for Lifestyle to argue set-off.
With regard to Lifestyle’s contention that the conditions of sale were lodged too late and in breach of the rules, it was held that there was no breach. Rule 10 of the Simple Procedure Rules provides that documents only have to lodged in advance of a hearing. As no hearing had been fixed, there was no obligation for anything to be lodged in terms of Rule 10.
With regard to appeal point 4, it was observed that none of the orders made by the sheriff were an ‘unless order’ in terms of Rule 8.4. Under Rule 8.4, if the sheriff makes an unless order and that party does not do the thing or take the step that was ordered, then the Court will do that which it said it would do unless the order is satisfied. As no unless orders were made, the court held that there was no issue arising in this case about any purported failure to comply with the orders made. When discussing unless orders, Sheriff Cubie commented that “if the appellant is suggesting that the sheriff should have used an ‘unless order’ to regulate the provision of the information, then I reject such a suggestion. Such an order should be used sparingly”.
On addressing appeal point 1, the Appeal Court held that the sheriff was entitled to dispose of the matter in the way she did. With reference to the case of Cabot v McGregor it was stated that the rules make clear that the court controls how the case progresses and takes an active role in identifying the issues in dispute and deciding what factual information and legal argument the court requires in order to determine the case.
There is no right or entitlement to a hearing. A hearing will only take place in circumstances where the hearing will help the sheriff resolve the dispute between the parties. In this instance, it was held that the sheriff exercised control in accordance with the principles and rules of simple procedure. There was no error in the approach adopted by the sheriff in either procedure or law. Accordingly the appeal was refused.
This case provides some guidance and clarity on a few of the Simple Procedure Rules. In pertinent part:-
- the power of the sheriff to control and progress a case (reference to Cabot v McGregor);
- the power of the sheriff to make a decision at a case management discussion (Rule 7.7);
- the requirement on parties to lodge documents (Rule 10); and
- the distinction between a standard order and an unless order under Rule 8.
On May 3, 2019