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Civil law update of recent decisions

1 October 99

Latest civil cases, including pleadings; decree; third party procedure; expenses; proofs; family actions

by Lindsay Foulis

In Reid and Others v Shetland Sea Farms Limited 1999 SCLR 735, Eadie Carins v Programmed Maintenance Painting Ltd 1987 SLT 777 was again revisited.  Sheriff Principal Bowen endeavoured to clarify points arising from Eadie Cairns.  First he indicated by reference to Macphail’s Sheriff Court Practice, that where a document is founded on in pleadings, it must be produced and clearly described.  The critical provisions of the document can either be set out ad longum in the pleadings or expressly incorporated and held as repeated brevitatis causa.  If this is done the document can be considered at debate.  If not, a joint minute is needed dispensing with probation of the document.  In reaching this view, Sheriff Principal Bowen, disagreed with the Obiter of Lord Avonside in Eadie Cairns.  However if invoices are incorporated in the pleadings and a Pursuer’s averments only in effect refer to the invoices, it is essential that the invoices give sufficient specification as to the Pursuer’s claim.  In the present case, nothing was said about contractual rate or that the sum sought represented reasonable remuneration.  There was also no specification as to the breakdown between various charges.  Accordingly the Sheriff Principal held the pleadings to be irrelevant.

In Akbar v Crichton 1999 GWD 29-1356 the use of “believed and averred” was again considered.  A Proof before Answer was allowed when a hairdresser was sued for damages arising out of problems following coloured highlights dyed into the Pursuer’s hair.  The Pursuer “believed and averred” that certain tests would have revealed her hair unsuitable for the treatment for various reasons and that the treatment had not been carried out appropriately.  In allowing the Proof before Answer, Sheriff Bell indicated that it was difficult to ascertain whether the facts which were believed and averred, ought to have been within the Pursuer’s direct knowledge.  It went too far to say that believed and averred should not be used when the averment was material to a party’s case.

Summary Decree

In the case of Dougall v Lawrie 1999 SCLR 624 Seriff McInnes’s decision emphasised the difference between a Motion for Summary Decree and a Debate.  In considering the Motion for Summary Decree, Sheriff McInnes indicated that he was perfectly entitled to look at the Minute of Amendment proffered by the Defender, albeit no Motion had been made to amend the Record in terms of the Minute of Amendment.  In short, in considering the Motion for Summary Decree, he was entitled to look at all documentation before him.  Sadly for the Defender the proposed amendment did not alter the eventual outcome!

Third party procedure

An interesting point arose in the case of McGregor v Hutchison 1999 SCLR 506.  After a Proof had been allowed and a date assigned, the Defender had been allowed to bring in a third party who lodged Answers very close to the Diet of Proof.  The Sheriff at first instance pronounced an Interlocutor attempting to preserve the existing Proof Diet between Pursuer and Defender and followed the procedure set out in Rule 20.6 quoad the Defender and third party alone.  The Defender appealed arguing the Sheriff’s Interlocutor was incompetent.  Sheriff Principal Risk held that when a third party entered the Process, a new Options Hearing had to be fixed and accordingly where a third party was brought in after the Record closed, the case effectively had to restart with Chapter 9 Standard Procedure followed through to the Options Hearing.

Amendment

In C. & C. Joinery Services v Lakeside Design and Club Refurbishment Specialists Limited 1999 GWD 26-1224 the Pursuers were sub-contractors suing the Defenders in terms of two contracts for alleged sums outstanding.  The Defenders counterclaimed in respect of an alleged breach of one of the contracts.  At Debate, the Defenders sought leave to amend.  The Sheriff eventually refused leave to amend, dismissed the Counterclaim and deleted parts of the Defences.  On appeal, Sheriff Principal Risk indicated that amendment at the stage of Debate should be allowed, unless unfair prejudice was caused to the other party and in the present case the only prejudice was delay in bringing the matter to conclusion.  The action was not of a great age.  Interest running on the principal sum would compensate for the delay and expenses would otherwise compensate for amendment procedure.  If on the other hand amendment was not allowed, the Counterclaim and part of the defence would be lost, which although it could form the subject matter of a separate action, could cause prejudice at a Proof, if the Defenders were unable to fully set out their defence.  It is suggested that this case virtually gives authority for the proposition that leave to amend should almost always be allowed at a first Diet of Debate.

Caution for expenses

In Pioneer Sea Food Ltd v The Braer Corporation 1999 GWD 20-956 Lord Gill ordered the Pursuers, a company in receivership, to find Caution.  What is of interest here is that Lord Gill indicated that when making an Order in terms of Section 726(2) of the Companies Act 1985, a Court should sist the Cause pending Caution being found, rather than imposing a time limit for Caution to be found.  In Nguyen v Searchnet Associates Limited 1999 GWD 23-1106 a French national working in the Netherlands appealed against the granting of Decree of Absolvitor after he failed to find Caution.  The reasons for Caution being ordered were:

  1. The nature of proceedings.
  2. The Pursuer’s employment.
  3. His residence outwith the jurisdiction of the United Kingdom.
  4. His limited means.
  5. His liability to move at short notice to another country and a different job.

On appeal the Pursuer argued that inter alia the Order for Caution breached Article 12 of the Treaty of Rome dealing with discrimination on the grounds of nationality, there was no cogent evidence of difficulty in enforcing judgment in another member state, and there was nothing to indicate the Pursuer was about to move country.  The Defender argued inter alia that the appeal should not be allowed as the Interlocutor ordering the Pursuer to find Caution had not been appealed.  Sheriff Principal Nicholson allowed the appeal and his reasoning is of interest.  He first reaffirmed that it was always open to an Appellant to argue a new line at the Appeal, even although not presented at first instance.  The Treaty of Rome argument also found favour with the Sheriff Principal.  In passing, he indicated that both practitioners and sheriffs had to be more aware of any possible European dimension.  He further rejected the argument that the Interlocutor dealing with the finding of Caution had not been appealed, by reference to the decision in McCue v Scottish Daily Record and Another.  In Hurst Fuels Ltd v Dundonald House Limited 1999 SCLR 767 Lord McCluskey in giving the opinion of the Second Division, set out the following factors justifying an Order for Caution.  First he made it clear that the strength or otherwise of a case as disclosed in the pleadings was not the sole basis for the decision, the financial position of the litigant, the lack of success of previous litigations and the failure to satisfy previous awards of expenses being extremely relevant.  In the particular case, the failure of the liquidator’s professional body to find any misconduct on his part was of importance.  The failure of any other creditor to support the application was another factor.  Lord McCluskey also indicated that a Motion for Caution could be made at any time.

Minutes of tender

In Manson v Skinner 1999 GWD 25-1209 after Proof, the Sheriff’s award inclusive of interest beat the Tender by £47.  The Tender however had been lodged with the Defences and at the time, the value of the award made by the Sheriff, taken with interest accrued to the date of the Tender was less than that tendered.  In finding the Defender entitled to the expenses from the date of the Tender, Sheriff Horsburgh decided that the Tender had to be compared with the value of the award with interest at the date of the Tender and as the actual award only exceeded the Tender as a result of accrued interest, the cause of the continued litigation from the date of lodging of the Tender fell on the Pursuer, who should be penalised in expenses.  For a slightly different approach see Hodge v British Coal Corporation 1992 SCLR 529.

Expenses

In Clegg v Clegg 1999 SCLR 773 the Pursuer who was not legally aided raised a divorce action against the Defender, who was.  The defender did not defend the divorce action on the merits but sought a capital sum.  As a result of the Defender craving a capital sum, the Pursuer amended to include a capital sum.  At the conclusion of the case, the Pursuer, having been largely successful, sought the expenses of the action against the Defender, which were modified, as the Defender was legally aided.  The Pursuer then sought an award of expenses of the action against the Defender, which were modified, as the Defender was legally aided.  The Pursuer then sought an award of expenses against the Legal Aid fund, on the basis that the Defender had instituted proceedings by including a capital sum in his Defences.  Sheriff McPartlin found that the Pursuer’s Motion was competent in the face of opposition from the Legal Aid Board that the claim for a capital sum in the Defences, did not constitute the instigation of proceedings.  In Third v North East Ice and Cold Storage Company Ltd (No 3) 1999 GWD 26-1248 Lord Hamilton took the unusual step, because of the nature of the dispute and the conduct of the proceedings by the unsuccessful party, to find the Defender liable in the expenses of the action on an agent/client, client paying basis.  Clearly the circumstances where this might be applied for successfully would be very rate, but none the less the decision shows that such an application is competent.

Actions of Court Reckoning and Payment

In Headley v Drilltech Services (North Sea) Ltd 1999 SCLR 777 an Appeal was taken against a decision at Debate, whereby the Sheriff at first instance ordered the Defenders to lodge an accounting of their Intromissions.  In the Appeal, Sheriff Principal Risk reiterated that in an action of Count Reckoning and Payment, if no obligation to account is accepted, the question of obligation to account must be established first, if necessary by Proof, before any order for accounting is made.

Decree by Default

In Chan v To 1999 GWD 23-1082 Decree by Default had been granted as a result of the Defender’s agent’s failure to appear at a Diet of Debate, although the agent having discovered his failure at the last minute, instructed a local agent to appear, simply for the purposes of moving to discharge the Diet.  In recalling the Interlocutor granting Decree by Default, Sheriff Principal Kerr indicated that the Sheriff should have first considered the Motion for discharge and if that had been refused and the local agent then sought leave to withdraw, he should have considered whether it was appropriate for Decree by Default to be granted, bearing in mind the fault lay at the agent’s door.  He further indicated that the Sheriff at first instance had failed to take account of the fact that by granting Decree, the Defender was being deprived of the opportunity of testing his defence fully.  The problem of an agent withdrawing at a Diet also arose in the case of McGill Management Service v Splash of Colour, Greens Civil Practice Issue 29.  At a third Diet of Proof, the Defenders’ agents moved to discharge the Proof and, when this was refused, were granted leave to withdraw.  The Pursuers then moved for Decree by Default, arguing that the requirement to invoke Chapter 24 Procedure was unnecessary, the Defender effectively being unrepresented at the Proof.  The Pursuers’ agent further argued that Rule 24 only applied when intimation of withdrawal was by letter and in any event the purpose of a Peremptory Diet was to discover the Defenders’ position in the litigation, which was unnecessary, as the Defenders’ position was known.  Sheriff Bell formed the view that there was only a necessity to fix a Peremptory Diet in terms of Rule 24, where it was appropriate to intimate withdrawal by letter during the course of a Diet and in the circumstances granted Decree by Default.

Conduct of Proof

In Black v MacLeod 1999 GWD 26-1219 the Pursuer’s appeal to the Sheriff Principal challenged the conduct of the Sheriff during the Proof.  The conduct complained of was intervention by the Sheriff and an apparent acceptance of the Defender’s position.  Further at the conclusion of evidence, the Sheriff retired to give his oral judgment a short time later.  During the appeal it was further argued that the Sheriff had failed to take proper advantage in viewing the witnesses in the witness box.  Sheriff Principal Risk indicated that in a case involving a child, it was necessary for the Sheriff to take an inquisitorial role rather than the more traditional role.  Further it was observed that the decision was able to be reached fairly quickly as the facts in dispute were of short compass.

Family actions

In McGrath v McGrath 1999 GWD 20-915 the question arose as to whether parties to the action should be made aware of the child’s wishes.  The child had specifically asked that her views not be repeated to her parents and on the basis of the child’s views, the parties having agreed that they were prepared to leave the decision to the child, the Sheriff refused the Minute to extend contact.  In the appeal, Sheriff Principal Bowen indicated that each party to the Judicial Process should have an opportunity to answer any adverse material, which the Court might take into account, and the Children (Scotland) Act 1995 did not affect that basic principle, the welfare requirement relating to the making or otherwise of Section 11 Orders and not to the question as to whether a child’s views should be kept confidential.  Sheriff Principal Bowen recognised that it might be very difficult to reconcile the question as to whether a child’s views should be kept confidential against the right of a litigant to a fair hearing, but suggested that the starting off point was the fundamental principle that any party to an action was entitled to a disclosure of all materials in the case and then considering whether any information constituted a real possibility of significant harm to the child.

In Furber v Furber (No 2) 1999 SLT (Sh Ct) 67, Sheriff Principal Bowen again reiterated that he considered it perfectly competent to move ad interim for a Non Harassment Order.

Lindsay Foulis is a partner with Blackadder Reid Johnston