RBS INVOICE FINANCE LTD v. A.S.C. ANGLO SCOTTISH CONCRETE LTD

The sheriff principal, having resumed consideration of the appeal, Refuses same; Adheres to the sheriff's interlocutor dated 23 August 2013; Finds the defenders liable to the pursuers in the expenses of the appeal; Allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon.

[1] Counsel for the defenders opened his submissions by explaining that the defenders' managing director, Mr Lawrie Clark, dealt with all legal matters relating to the company. Any documentation or information relating to the current litigation would have been passed to him. Counsel acknowledged the fact that the defenders had previously instructed lawyers to act on their behalf. However, he referred to communication problems although did not provide any specific detail in that regard.

[5] Had the intimation been properly directed to the defenders' registered office (as opposed to the depot adjacent to it) counsel asserted that it would have found its way directly to the managing director, Mr Clark. With the passage of time, however, the intimation apparently found its way to the defender's Beith office in Ayrshire. It reached there on 22 August and that was when it first came to the attention of Mr Clark. Counsel informed the court that, according to his information, when the pursuers made previous contact with the defenders they had regularly written to the Beith office.

[6] In inviting the court to allow the appeal and to recall the sheriff's interlocutor granting decree by default, counsel submitted that there was a substantive defence to the action. He also referred to the case of McKelvie v The Scottish Steel Scaffolding Company Ltd 1938 SC 278 which he submitted supported the defenders' position in the present action. The writ had been warranted in December of 2012 and, accordingly, there had been limited delay as far as overall procedure was concerned.

[8] Mr Sinclair suggested that further detail required to be added to the chronology of events provided by counsel for the defenders. He pointed out that towards the end of April 2013, settlement between the parties had been agreed. It had been agreed by way of a telephone conversation between the pursuers' agent and the defenders' then agent. Reference was made to a copy letter dated 3 May 2013 which in turn referred to a joint minute and motion associated with settlement of the case.