O'Callaghan v. Simpson

[1] This is a pursuer's appeal against two interlocutors. The first is a decree of dismissal pronounced by default at a continued options hearing on 8 January 2004. The second is an interlocutor of 15 January 2004 finding the pursuer's solicitor personally liable to the defender in the expenses of the cause. This judgment deals only with the appeal against the earlier of these interlocutors. I shall hear parties on the appeal against the later interlocutor at the hearing appointed in the interlocutor above.

[2] The material facts are not in dispute. The following summary is derived from the Sheriff's note, the pursuer's amended grounds of appeal (no 13 of process), the file note of the continued options hearing compiled by the solicitor who then appeared for the defender (no 6/1/1 of process) and the parties' submissions at the hearing.

[7] On 7 January 2004, the day before the continued options hearing, the defective state of the record no 10 of process came to the attention of the pursuer's Paisley solicitors. They arranged for a correct version of the record to be faxed to the office of their then Edinburgh agents on the morning of 8 January 2004. On that morning the solicitor who was to appear for the pursuer at the continued options hearing left the office for court before the fax arrived.

The pursuer's agent was unable to suggest any other procedural course which I could take and with the greatest reluctance I felt obliged to dismiss the cause.

[14] The third factor is that the defender had admitted in the defences that something was due by him to the pursuer. Be that as it may, a primary question for the Sheriff was whether the cause was fit to be sent to proof. It was therefore essential that he should be able to understand the pleadings. In DTZ Debenham Thorpe the Court said at 287A-B: