In the course of preparing my judgement I noticed the decision of Sheriff Principal Mowat QC in Cairney v Bulloch 1993 SCLR 901 (also 1994 SLT (Sh Ct) 37). This turned upon the proper construction of rule 18(1) of the Ordinary Cause Rules 1983 which provided: "A party who appears may not state any objection to the regularity of the service upon himself, and his appearance shall remedy any defect in the service". In that case (which was an ordinary cause) a purported form of citation of the defender took place which in the view of his solicitor was ineffective. The defender did not lodge a notice of intention to defend and the pursuer minuted for decree in absence. The sheriff clerk, having been informed by the defender's solicitor of the objection to citation, wrote to both parties' solicitors informing them that a hearing had been fixed before the sheriff and stating: "Please ensure your firm is represented at said hearing". At the hearing the sheriff, although accepting that on the face of the service copy initial writ the citation was flawed, held that the presence of the defender's solicitor at the hearing had cured any defect in the citation.
The defender appealed, arguing that his appearance at the hearing had not amounted to an appearance within the meaning of rule 18(1). He submitted that, since the word "appearance" was not defined anywhere in the rules, it was necessary to go back to the original Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907, and in particular to rules 13 and 22. Rule 13 was in similar terms to rule 18(1) in the 1983 Rules, and rule 22 provided: "If the defender intends to state a defence he shall (except in a summary cause) before the expiry of the induciae lodge with the sheriff clerk a notice of appearance in the following terms ....... ". It was submitted that the word "appearance" in rule 13 must mean appearance as provided for in rule 22, i.e. the lodging of a notice of appearance and that, since there was no provision in the 1983 Rules for the lodging of a notice of appearance but instead a provision for the lodging of a notice of intention to defend, the word "appearance" in rule 18(1) of the 1983 Rules must mean the taking of the steps necessary to allow a defence to be stated, in other words the lodging of a notice of intention to defend. No such notice had been lodged and it followed that the attendance of the defender's solicitor at the hearing before the sheriff had not constituted an appearance within the meaning of rule 18(1). At page 904 Sheriff Principal Mowat stated:
In any event (should they be deemed to differ), which would take priority, or would they both be in effect?