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Civil law update of recent decisions

1 July 99

Latest civil cases, including pleadings; expenses; discharge of diet; family actions; non-harassment order; medical examination

by Lindsay Foulis

In two recent decisions Eadie Cairns v Programmed Maintenance Painting Limited 1987 SLT 77 has been referred to. In the Royal Bank of Scotland Plc v Holmes 1999 SLT 563 the Defender sought to give specification of allegations of fraud by incorporating two letters from his solicitors brevitatis causa into the pleadings. Whilst Lord Macfayden indicated that at Debate it was perfectly acceptable to refer to the correspondence incorporated into the Pleadings brevitatis causa, as the correspondence did not provide adequate specification of the allegations the pleadings were irrelevant. On a similar line in Steelmek Marine and General Engineers Trustee v Shetland Sea Farms Limited 1999 GWD 4-164 the Pursuers, in suing for payment, incorporated an Invoice brevitatis causa into the Pleadings. Sheriff Principal Bowen again held that the Invoices had been incorporated into the Pleadings and accordingly could be referred to at the Diet of Debate.

Again, however, the Invoices were totally lacking in specification when examined against the matters at issue in the case. Accordingly, whilst it is tempting to incorporate documentation brevitatis causa it is essential that the documentation is sufficiently specific in itself.

In the Royal Bank of Scotland Plc v Harper MacLeod 1999 GWD 16 733 the question of the relevancy of alternative and inconsistent averments arose. The bank sued the Defenders for professional negligence alleging that if they had been given certain information they would not have lent or alternatively would have lent a lower sum. The Defenders did not lay any foundation in averment as to what the Pursuers would have done if the Defenders had performed this obligation. Sheriff Principal Bowen in the appeal only allowed the alternative case to go to Proof. His basis for the decision was that the Pursuers’ case amounted to alternative and inconsistent averments of damage and where the Defenders mad no substantial averments challenging the Pursuers’ allegations of damage, the only evidence which could open up an alternative case for consideration must come from the Pursuers’ witnesses themselves. There must accordingly be an element of uncertainty in the Pursuers’ minds as to how the evidence would come out and in those circumstances it was inappropriate for them to be allowed to proceed to Proof on alternative basis. In Penman v Blue Cap Logistics Limited 1999 GWD 12:536 Lord Bonomy in excluding certain averments from probation ruled that certain averments of duty were irrelevant as the Pursuer did not offer to prove that it would have been possible to fulfil the duties averred or if the duties had been fulfilled they would have avoided the accident. In Devaney v Yarrow Shipbuilders Limited 1999 SLT 561 in an action for reparation the Pursuer failed to name the alleged negligent employee. The Temporary Judge in allowing the Proof before Answer indicated that the present case was distinguishable from the situation where the alleged delinquent employee was known. However, where the identity of the employee is not specified, the Temporary Judge envisaged difficulties at a Proof, if the Pursuer at that time was able to name the negligent employee. Further problems were evident where certain persons on site were the employees of the Defenders but equally certain persons were not. Finally, the use of believed and averred was examined again in the partnership of MFV Ocean Quest v Finning Limited 1999 GWD 15-684. The action related to damages for breach of contract and in the Defences, the Defenders prefaced certain averments by believed and averred. Sheriff Principal Risk again indicated that the Defenders’ averments did not disclose any primary facts from which the Defenders’ belief could be inferred. If the Defenders did have such information, then it should be the subject of averment. He further indicated that averment of belief which had no factual basis, did not allow cross examination of any expert witness led by an opponent. Another interesting point raised in the case was that the Pursuers sought support for their claim for damages on a letter from the Defenders waiving charges in relation to certain work.

The Sheriff Principal decided that the letter itself did not discharge the initial onus on the Pursuers as the letter was open to numerous constructions, one of which might have been simply the maintenance of good customer relations. Even if the letter could constitute an admission, the Defenders were entitled to give an explanation.

Caution for expenses

In McCue v Scottish Daily Record and Sunday Mail Limited and Another 1999 SCLR 380 the Pursuer, an undischarged bankrupt, successfully appealed against an Interlocutor ordaining him to find Caution for Expenses. The case is referred to as it re-emphasises that a factor which will be taken into account in deciding whether or not Caution should be ordained is the relative strengths of the parties cases. In this case taking this factor into account, the Lord Ordinary’s Interlocutor was recalled.

Expenses

In Beveridge and Kellas v Abercromby 1999 GWD 15-683 a Motion for uplift in terms of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 Regulation 5 (4) was enrolled after the case had settled and after Decree had been extracted. The competency of the Motion was questioned. The solicitors responded arguing that to deal with the Motion the action did not require to be in dependence, that since the Civil Legal Aid Rules required the Account of Expenses and the Statement of Grounds supporting the application to be lodged with the Motion as a matter of practicality, such a Motion could not be dealt with until after Decree had been extracted. It was further argued that there was no restriction in time as to when the Motion could be made in terms of the Regulations and Rules. Sheriff Macphail refused the Motion as incompetent as the words “by Motion in the Cause” imposed an implicit time limit which extended only to while the Cause was depending before a Court. As prior Interlocutors disposed of the merits of the case and expenses, the action was no longer in dependence. Further support for that view was gained from the fact that neither Regulations or Civil Legal Rules provided for a Motion to be made after an Interlocutor finally disposing of the case and in the absence of this the Motion required to be made whilst the action was in dependence.

Sist for arbitration

In Wyllie v Corrigan and Another 1999 SCLR 177 the Inner House indicated that failure to take a plea to have a Cause sisted for arbitration by a certain procedural stage did not necessarily mean that the right to insist on arbitration was abandoned. It all depended on the whole circumstances of the case. In other words, to fail to take the plea by the closing of a Record was not necessary fatal.

Discharge/Default

The case of Dennis Walton Construction v McKay 1999 SCLR 373 gives a salutary lesson about discharging a Proof and anticipating that the Motion will be granted. A Motion to discharge the Proof was presented by the Defenders and was consented to. The Sheriff refused to deal with the Motion in Chambers as he wanted an explanation for the discharge and consideration of the Motion was deferred until the Diet of Proof. On the day of the Proof, the Sheriff for a number of reasons refused the Motion. Notwithstanding that the Motion was the Defender’s and had been consented to, the Pursuer was now in a position that he had no option but to proceed to Proof. The problem was that the Pursuers’ witnesses were not present and in those circumstances, Decree by default was granted. The appeal was successful but the case illustrates the problems in anticipating that a Motion to discharge a Proof will be granted if made on the day of the Proof. Sheriffs are not bound to grant such a Motion and on occasions Sheriffs do not, even if the Motion is made of consent or at least not opposed. If the Motion is refused at the Proof Diet and as Pursuer your witnesses are not present, the Sheriff may have no option but to grant Decree of Absolvitor. Self preservation dictates that if a Proof is to be discharged the Motion should be heard prior to the actual Diet. If this is not possible the Pursuer should always ensure that one or two witnesses are present just in case.

Family actions

In McCulloch v Riach and Another 1999 SCLR 159 – in the special circumstances of that case a Sheriff’s decision at a Child Welfare Hearing to dismiss an action for residence was upheld by Sheriff Principal Maguire. Interestingly, in comparing Options Hearings with Child Welfare Hearings, the Sheriff Principal referred to Rule 9.12 (1) where a Sheriff requires to seek the expeditious progress of a case, whereas in Rule 33.22 A (4) a Sheriff at a Child Welfare Hearing requires to seek to secure the expeditious resolution of disputes. Sheriff Principal Maguire accordingly followed Sheriff Principal Risk in Hartnett v Hartnett. In Ross v Ross 1999 GWD 9-863 Sheriff Principal Bowen did not disagree with the reasoning in these two cases.

He indicated, however, that in this case as no indication had been given to the parents that there was no likelihood that the action would be dismissed at the Child Welfare Hearing, the Sheriff’s Interlocutor required to be recalled. Sheriff Principal Bowen indicated that it was unrealistic for parties attending a Child Welfare Hearing to cover every possible eventuality. Interestingly enough in this case letters had been sent by the elder children, the contents of which were not disclosed. Sheriff Principal Bowen indicated that whilst the views of children on occasions were appropriately confidential, regard also had to be given to the principles of open justice and the requirement to afford parties the opportunity of expressing their views fully.

Non Harassment Order

In Furber v Furber 1999 SLT (Sh Ct) 26 Sheriff Principal Bowen held that a Non Harassment Order could be made at any stage in the proceedings. He further indicated that normally an application for a Non Harassment Order, if done without Proof would require Affidavit evidence. In Heenan v Dillon 1999 SLT (Sh Ct) 32 Sheriff Morrison in Edinburgh tool a different view, holding that a Non Harassment Order was a determined Order and could not be granted ad interim. In Furber v Furber (No.2) 1999 GWD 19-866 Sheriff Principal Bowen on 13th May 1999 commented upon Sheriff Morrison’s views. Sadly, at the time of this article, Sheriff Principal Bowen’s full decision is not to hand.

Examination of a party

In Mearns v Smedvig Limited 1999 GWD 1-4 the Defenders sought to have the Pursuer examined. The Pursuer could not conclude whether the examiner had any medical or other relevant qualifications. Lord Eassie refused the Defenders’ Motion. He held that a Court could sist an action if a Pursuer was unreasonable in refusing to be medically examined. In considering this matter however, the Court had to bear in mind the competing considerations that medical examinations constituted an invasion of privacy, weighed against the Defenders not being deprived of the right to have an examination carried out. However an unqualified person might not know whether his examination was having a detrimental effect on the other party to the action. The Pursuer in the present case had intelligible grounds for refusing to undergo medical examination. In this particular case, the request was for the Pursuer to submit himself to examination using the Blankenship System, which appeared to be a novel and unorthodox method of assessing muscular and skeletal disabilities.

Conclusion

Once again the cases referred to in this article are those which, from a personal point of view, appear of interest/importance. Others may, and are perfectly entitled to, take a different view.

Lindsay Foulis is a partner with Blackadder Reid Johnston