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Article

Hearsay: admissibility revisited

1 January 01

Latest civil cases, including jurisdiction; arrestment; settlement; decrees; caution; debates; family actions; hearsay; evidence; pleadings

by Lindsay Foulis

Since the last article Sharif v Singh appears at 2000 SLT (Sh Ct) 188, Miller (William) Plumbing Contractors v James Lumsden Ltd at 2000 SLT 1425, Manson v Skinner at 2000 SLT (Sh Ct) 161, Fallimento La Pantofola D’Oro SpA v Blane Leisure Ltd at 2000 SLT 1264 and Steill Ltd v Riema Control Systems Ltd at 2000 SLT 1102.

Jurisdiction - Place of performance of a contractual obligation

In Montague Evans v Young 2000 SLT 1083 surveyors sought payment of an introduction fee for a number of properties which were in various parts of the United Kingdom. The defender pled that there was no jurisdiction and this was met with the argument that the place of performance of the contractual obligation was Scotland as the work was undertaken by members of the pursuers’ Scottish staff with the partner dealing with the matter also based in Scotland. The pursuers had several offices throughout the United Kingdom and there was no provision as to the place of payment. Lord Hamilton held that the place of performance was not obliged to be Scotland, although the defender could choose to make payment in Scotland. Accordingly there was no jurisdiction. A more specialised case on this point is the decision of Lord Eassie in Eddie v Alpha Sri 2000 SLT 1062 which revolved round bills of lading! Of perhaps more assistance for most day to day practice is the observation that this ground of jurisdiction cannot be used for a claim for recovery of money as that was a claim based on unjustified enrichment not contract.

European Convention reasonable time

Although it has nothing to do with civil practice as such, Lord Hardie in Lafarge Redland Aggregates Ltd v The Scottish Ministers 2000 SLT 1361 did note that in considering the question of reasonable time for the purpose of Article 6, regard had to be had to the complexity of a case, and the length of the evidence. The issue in part related to the delay in a decision being issued following the planning enquiry. This could have significance in due course on a number of matters involving the administration of civil disputes in the Courts.

All parties not called

In Royal Bank of Scotland v Home 2000 GWD 29-1109 it was held that to sue the judicial factor of a dissolved partnership sufficed. It was not necessary to call the judicial factor in such capacity on the individual estates of the former partners.

Arrestment on the dependence

In the Advocate General for Scotland v John D Reid Joinery 2000 GWD 31-1213 a motion was made before Lord Hardie to recall arrestments on the dependence. The basis of the motion was that the arrestments had no effect, the defenders having granted an all assets floating charge in 1994, the arrestments being served in late 1999, and the defenders having been wound up in March 2000 thus crystallising the floating charge. The motion was refused. On liquidation the rights of a floating charge creditor were similar to those of the holder of a fixed security. They did not however affect the rights of someone having done diligence. As the arrestment had been executed more than 60 days prior to the winding up they were effective.

Evidence of ownership of moveables

In the Video Shop Ltd v Peterhead Snooker Co Ltd 2000 GWD 33-1296 the ownership of video tapes was at issue. The pursuers sought possession of the videos on the basis that they were the owners of the items. The defenders did not claim ownership and simply required the pursuers to prove they were the owners. The videos were in the shop owned by the defenders but let to third parties. These persons left the shop and a person who later became the sole director of the pursuers tried to take over the third parties business. The pursuers sought recovery of videos in the shop. They founded on certain agreements which were between persons associated to the third parties and the pursuers. The claim failed as the documentary evidence did not disclose the pursuers were owners nor was there evidence that the pursuers had occupied the shop and taken delivery of the videos. It was noted by Sheriff Cusine in viewing the agreements that one agreement was not a contract of sale as no provision for payment was made. Further, although there was no requirement for a contract of sale to be in writing, if there were written agreements regard had to be had to their terms. Finally, in certain of the contracts transferring the videos they were subject to condition and there was no evidence that these conditions were fulfilled.

Extra judicial settlement

In Gowans v Teneco (Polbeth Packaging) Ltd 2000 GWD 34-1301 the question of whether an extra judicial settlement had been reached. On the evidence it was held by Lord Eassie that the pursuer’s instructions to reject the offer made had only been given after agreement had been reached with the defenders, the pursuer having previously given instruction to settle. Lord Eassie observed that the matter had been approached on the basis that the pursuer’s solicitors had had actual authority to settle. The question of a solicitor who had clear authority to conduct a litigation acting within ostensible authority quoad the opposition by settling an action was left for another day.

Decrees ad factum praestandum

In Gardner v Macneal 2000 GWD 38-1430 the Inner House confirmed that in the appropriate circumstances a court could order that work carried out should be undone. This action related to common repairs in flatted property.

Sequestration

In Clydesdale Bank plc v Grantly Developments 2000 SLT 1369 it was held by Lord Nimmo Smith that in seeking to sequestrate a firm it was not necessary to name the partners and all that was required was the firm’s descriptive name. Further oath from the petitioning creditor only required to be lodged in sufficient time for it to be considered when deciding whether sequestration be awarded.

Caution for expenses

In Thomson v Ross 2000 GWD 35-1341 a number of issues arose in an action of damages for defamation. The action had been dismissed by the Lord Ordinary and following the marking of an appeal, the defenders sought an order for the pursuer to find caution for expenses insofar as the appeal. The grounds of the motion were that previous awards of expenses had not been met and the pursuer’s financial circumstances were perilous, the action was devoid of merit, and the competency of a joint and several decree was ill founded. The Inner House reiterated that as the action was not so wholly devoid of merit as to justify caution being ordered for that reason alone, an impecunious litigant should be allowed to present a case without finding caution. Insofar as previous awards of expenses were concerned these could be set off against any damages if the pursuer was successful. Insofar the argument about joint several liability was concerned, the Inner House held that having regard to the relationship between the parties, the Law Society and the Discipline Tribunal, and that the thrust against each party was to the same effect, a joint and several decree might be appropriate.

Debates – the afterthought

In Lyons Laing v Land 2000 GWD 38-1423 a sheriff following a debate considered that the action should be dismissed but not by reference to any submission made at the diet. He proposed issuing a draft interlocutor and note and invite parties to make further submissions if they considered it appropriate so to do. The Sheriff Principal heard of the proposed course of action and instructed the sheriff to issue the interlocutor as further procedure was inappropriate. The Inner House considered in the circumstances that it was clearly appropriate to allow the parties the opportunity to make submissions on matters not discussed at the debate and the procedure proposed by the sheriff was entirely appropriate. To do otherwise prevented the parties the opportunity of making submissions on points previously not argued. I wonder whether to do otherwise might not breach the European Convention of Human Rights and the obligations upon the Court not to act in a way inconsistent with those rights. It was further observed that decisions as to further procedure were for the Sheriff at first instance and not the Sheriff Principal who might in due course hear an appeal.

Family actions

In McEwan v McEwan 2000 GWD 29-1111 the question of the competency of a separate action for inter alia residence when the parties had been divorced in a separate process arose. It was argued that the proceedings should have been by way of Minute in the divorce process by reference to rule 33.44. The pursuer attempted to argue that the action was competent as it did not seek to vary or recall an existing order notwithstanding that rule 33.44 also refers to applications for a section 11 order as well as its variation or recall. It was also argued that Sheriff Principal McInnes should also adopt the Girvan v Girvan approach. Sheriff Principal McInnes indicated that the terms of rule 33.44 were mandatory and proceedings required to be by Minute. He distinguished Girvan as the parties had not been in the same jurisdiction, the proceedings had been raised in the same court as the divorce, and the issue of competency had been taken at the earliest stage. He further considered that it did not matter that the pursuer also sought delivery and interdict in respect of the child, the orders sought were all properly section 11 orders.

Admissibility of hearsay

In T v 2000 SLT 1442 the question of the admissibility of hearsay was revisited by a bench of five. It was decided that the word ‘admissible’ in s2(1) of the Civil Evidence (Scotland) Act 1987 referred to particular types of evidence from ex hypothesi admissible witnesses. In the case of a child, whilst a child might be an incompetent witness having regard to age etc., what a child had said to a person such as a police officer might be extremely important and have a ring of truth. In deciding whether to admit such evidence the correct test was whether the hearsay evidence was admissible in terms of s2(1)a of the 1987 Act. In this case it did not relate to a matter upon which direct evidence would have been inadmissible. Another interesting observation made in this case was that whilst written proposed findings in fact for a party were helpful, a judge must be careful not to adopt these without considering the findings in detail or considering the reasons for making the findings. Lord Bonomy also indicated that when a child gave a statement to someone in authority it was helpful if the child’s understanding was explored with the interviewer.

Civil evidence – previous convictions

In Ameen v Hunter September 2000 Greens Civil Practice Bulletin the matter of using criminal convictions in civil proceedings was considered by Lord Kingarth. The pursuer pled that the defender drove his car into the rear of the pursuer’s vehicle. It was averred that as a result the defender was convicted of a contravention of a s3 of the Road Traffic Act. The complaint was produced which indicated that the defender’s vehicle collided with that of the pursuer. Lord Kingarth rejected an argument that there was insufficient evidence to establish that the defender was convicted of the whole charge. In the absence of there being evidence of a restricted plea it was to be inferred that the defender had been convicted as libelled. He indicated that before a criminal conviction could be of use in subsequent civil proceedings it was necessary that the case on record was similar to the terms of the charge.

Written pleadings

The limited use of the phrase ‘believed and averred’ was underlined in Partnership of Ocean Quest v Finning Ltd 2000 SLT (Sh Ct) 157. In this action for damages relating to unsatisfactory repairs to the gearbox of a fishing vessel, the defenders pled that they believed and averred that external misalignment of the propeller shaft had caused the gearbox failure.  Sheriff Principal Risk confirmed that the averments disclosed no primary facts from which the belief could be inferred. The averment was accordingly irrelevant and could not be the basis of cross examination. In Caledonia North Sea Ltd v London Bridge Engineering Ltd 2000 SLT 1123 a point arose in the appeal as to the Lord Ordinary having allowed the defenders to argue a point of relevancy when it was not mentioned in their pleadings not focused in a specific plea in law. Lord President Rodger, and Lords Sutherland and Coulsfield were of the view that the defenders were quite entitled to raise the point as it related to relevancy and was not a substantive defence being argued, which would have required specific pleading and pleas. In effect the defenders were arguing that the pursuers had not established their case on record. Various observations are made by their Lordships as to the propriety of such an approach. Lord President Rodger indicated at 1133 that it would have been open to the pursuers to seek to lead additional evidence if they were prejudiced by lack of notice. Lords Sutherland and Coulsfield observe that this litigation by ambush approach might have a bearing on expenses. Lord Gill observed that in his view the defenders were lucky to have been allowed to argue the point on the basis that it was not supported by a specific plea in law and accordingly the pursuers did not have notice of the defenders case on this point. These observations are interesting in view of the provisions of Rule 22 both before and after the October 2000 amendment. In Callaghan v Southern General Hospital NHS Trust September 2000 Greens Civil Practice Bulletin, the defenders’ pled that the pursuer had told their psychologist that she had no such problems prior to her accident whereas in fact she had suffered pre and post accident from anxiety. Objection was taken to a line of questioning to the effect that the pursuer was exaggerating or feigning her problems. Lord Gill ruled that this was a new and independent point not covered on record.

Once again it is hoped that the foregoing provides some assistance/interest in the daily challenge of civil litigation.