UK: It´s Never Too Early To Contact Your Lawyer!

A party wishing to oppose a court action should take effective remedies to ensure proper and accurate legal representation or face dire consequences. This is well illustrated in the July 2002 Scottish Court of Session appeal decision in The Performing Rights Society Limited against Hugh Shaw, formerly trading as the The Venue Bar.

The history of the case is quite straightforward. The Performing Rights Society Limited raised an action in Edinburgh Sheriff Court against Mr Shaw for nearly £50,000 in respect of royalties following the public performance of various pieces of music.

The Society obtained a Decree (Judgment) and thereafter proceeded to enforce this by instructing a Charge for Payment (this being the first stage of Scottish Judgment enforcement).

Mr Shaw, thereafter appealed to the Court of Session asking for the Sheriff Court Decree to be reduced and interdicting the Society against taking further Judgment enforcement against him.

Basically what happened was that upon receipt of the sheriff court writ, Mr Shaw’s employee, a Mr. Sinclair who was his general manager, completed a Notice of Intention to Defend and sent this ultimately to an associate of his, a Mr. James MacDonald, who held him out to be a practicing lawyer to deal with the matter.

As it turned out Mr. MacDonald was not a lawyer and, perhaps, not surprisingly did absolutely nothing. He never lodged defences, the failure of which prompted the Society to enrol a Motion to seek Decree by default. Mr MacDonald did not oppose this Motion and Decree by default was thereafter forthcoming following which the Charge was served.

What Mr. Shaw said was the first thing he knew about the court action was only after service of the Charge. As a side issue he also said that Mr. Sinclair had been removing cash from the business for his own purposes to the extent of £96,000.00.

Notwithstanding Mr. Shaw's protestations that he had a valid defence to the Society's action the court refused to reduce their Decree. This was because the reduction process was a remedy which did not exist as of right and would only be granted in exceptional circumstances where no other means of review were available. However, Mr Shaw did have the right to review the sheriff court decision to grant decree by default. He could have appealed the sheriff's decision but he did not do this. So it was not the case that he did not have a remedy to overturn the Sheriff Court’s decision at some prior stage. He simply failed to avail himself of this opportunity.

Counsel for the Performing Rights Society Limited submitted that Mr. Shaw could not avoid responsibility for the actings of Mr. Sinclair, his employee, and that Mr. Shaw was, in fact, the author of his own misfortune. He neglected to take care of his own business, ignored invoices and had employees deal with Sheriff Court action incompetently by instructing a person who was not a solicitor to deal with it.

The Judge, Lord Menzies, said "It will not do, in my opinion, for him to state that he was not aware of the fact that Decree had passed against him until it was too late to appeal against that Decree. He was only aware of the Decree because he failed to take the normal steps which any prudent person would take to protect his interests".

The moral of the story certainly is that failure to deal with court papers properly could be fatal in a disputed litigation.

If you are ever involved in defending a court action you must ensure you contact your lawyer as soon as possible with all the relevant facts to ensure effective representation. Simply burying your head in the sand will lead to judgment passing against you and subsequent enforcement measures.

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