The appellant's submissions
The appellants argued that no decision can be a “final judgment” until liability for the whole of the expenses of the process has been allocated on the basis of Baird v Barton (1892) 9 R 970, but it does not follow from that that once such allocation has occurred no subsequent interlocutor can be a final judgment. There is no restriction in section 110 or section 136 limiting the number of final judgments in a cause to one- once one decision qualifies as a “final judgment” any later one “taken together with” that one must necessarily also be a “final judgment” – and appealable without permission – unless some other rule stops it from being so.
The respondent's submissions
The respondents argued that the final interlocutor requires to dispose of the subject matter of proceedings in some way. They argued that the question of liability for the expenses of process is part of the subject matter of proceedings. The quantification of any such liability is not- and therefore, the later Interlocutor would not constitute a final judgement. . The January Interlocutor did not address the subject matter of the proceedings.
In a lengthy decision detailing the plethora of authorities on the subject, Sheriff Holligan found in favour of the respondents and held that the January 2019 interlocutor did not constitute a final judgment and that the appeal was marked out of time. In reaching that decision the Court analysed the circumstances around the issuing of each of the Interlocutors. Sheriff Holligan commented "it seems to me that where liability for expenses is determined but modification expressly reserved in the same interlocutor, it may be said that the ensuing interlocutor……..satisfies the statutory definition of a “final interlocutor” notwithstanding the fact that the earlier interlocutor may also do likewise. However, if, as in the present case, the interlocutor has dealt with liability for expenses without reservation the situation is different. Furthermore, this is not a case in which there was any dispute over a matter relating to expenses. When one examines the January 2019 interlocutor closely, the sheriff was not called upon to make a decision. There was no appearance before him (representation being described as “email”); the parties had resolved their differences as to the motion and it was simply granted in the terms sought by the parties themselves".
There are clear policy reasons for Sheriff Holligan's decision. As successfully argued by the respondents, if the Appellants' approach was correct - and there could be multiple 'final judgements'- then neither party would be able to ascertain the point at which the interlocutor finally disposing of the merits of the cause could not be appealed without permission. Secondly, if an unsuccessful party could appeal any interlocutor giving the quantification of expenses without leave the 28 day period provided for by rule 6.3 of the Sheriff Appeal Court Rules would be undermined. An unsuccessful party would simply refuse to agree the quantum of an expenses award made against it and take objection to the auditor’s report purely for the purpose of obtaining an interlocutor which would recommence the 28 day period in which he could submit the interlocutor disposing of the merits for review without permission.
The policy arguments advanced by the respondents are solid- certainty is one of the principles which underpins our legal system and if the appellant's approach was endorsed then the certainty for litigants that Parliament were presumably seeking to afford by way of the 2014 Act would most likely be lost- in terms of timescales for appeal and also in terms of when an unsuccessful party could seek to open up all prior interlocutors by way of section 116 of the 2014 Act . For a court to find that a interlocutor relating to the quantification of expenses (such as that allowing sanction for counsel or experts) , and crucially, not the interlocutor confirming parties' liability for expenses, is a final interlocutor would throw such certainty into jeopardy. Often accounts are not produced for months following the interlocutor disposing of the subject matter of the litigation and ascertaining parties' liability for expenses. It appears that the appellants sought to challenge the late interlocutor, and to categorise that interlocutor as a final judgement, as a means to 'get at' earlier interlocutors and ultimately challenge the substantive decision of the court after the 28 days from the date of the true final judgement had expired. The Court's reasoning also highlights that parties, if there is any risk that an Interlocutor will be appealed, must be cautious in terms of the agreement of expenses and any modification thereto. This is undoubtedly a welcome judgement for Professional Indemnity Insurers and their Insured, as it provides certainty in an often uncertain world.
For more information please contact, Alannah McGinley Solicitor
Professional Indemnity, D +44 141 228 8475 E 562475 Alannah.Ginley@dwf.law