Dispute Resolution

The Hallowe’en costumes have been packed away, the guisers have finished their stash of sweets, and the smell of the fireworks from Guy Fawkes Night no longer lingers in the air. Now attention turns to Christmas as streets, shops and homes begin to be decorated with tinsel and fairy lights. Gifts are being bought for family and friends. Young children (and some not so young!) will be feeling the temptation before Christmas morning to peek at presents, shake a parcel or two, and guess what a gift may be. But it seems that it’s not just children who give in to temptation as a recent court decision has shown.

The Sheriff Appeal Court has just issued a judgment in two actions where sheriffs got involved before they should have. Both cases related to the supply of motor vehicles under conditional sale agreements. The Pursuer asked the courts for orders requiring the delivery of the vehicles and, at the same time, decree (judgment) for payment of the balance due under the agreements. Each case was undefended but, before granting decree, the sheriffs queried whether all the orders could be made at the same time. For slightly different reasons, they came to the view that they couldn’t and granted decree for the return of the Pursuer’s vehicles only. If necessary, the Pursuer could come back to court at a later date for money decrees. The Pursuer appealed both decisions.

The Sheriff Appeal Court found that both sheriffs had looked too deeply into the merits of the actions. It took the opportunity to restate the role of a sheriff in undefended actions. Sheriffs may only refuse to grant decree if the action has obviously been raised in the wrong court or the remedy requested is incompetent. It may, or may not, be competent to order the return of a car and payment of all sums due under an agreement at the same time. But that didn’t matter to the court if the action was undefended. The Pursuer had raised its actions in the correct court. Each order requested was, individually, competent. The sheriffs should therefore have granted all the orders the Pursuer wanted. It wasn’t for the sheriffs to defend the actions if the actual defenders had not done so.

So the lesson is, if you receive service of a court action, don’t rely on the court looking out for your interests: seek legal advice as soon as possible and before the deadline stated in the court papers. And don’t open your presents before you’re supposed to!

Craig Donnelly

Craig is a senior solicitor within the Business Disputes and Asset Recovery Team and specialises in commercial litigation and debt recovery matters.
Craig Donnelly