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Observations on remedy of interdict

1 October 01

Latest civil cases, including citation; jurisdiction; interdict; arrestment; res judicata; witness lists; recovery of documents; abandonment; judgment; expenses

by Lindsay Foulis

Since the last article, I have been advised that Lord Bonomy’s decision in Amec Construction has been overturned by the First Division of the Inner House without any written decision being issued. Further, in a further report of Sheriff Taylor’s decision in Semple Fraser v Qualye in the July edition of Green’s Civil Practice Bulletin, it was noted that Sheriff Taylor made certain observations as to relevancy. These were that when solicitors sue for fees they require to provide specification as to details as to the work done, the content of instructions, with possibly a breakdown of the sum sought including the number of hours worked and the charge-out rate. Another point of interest gleaned from the full decision, which was published on the Scottish Courts website, is the observation made by Sheriff Taylor by reference to whether the decision of a preceding Sheriff Principal from his Sheriffdom was binding upon him.

He decided that such a decision was only of persuasive authority. T v  A is now reported at 2001 SCLR 647.

Citation

In Ross & Bonnyman Ltd v Hawson Garner Ltd 2001 GWD 25- 922, Sheriff Veal refused to grant decree in an undefended action where service appeared to have been effected by Royal Mail special delivery letter. The Pursuers’ agent in moving for decree produced a copy of the Royal Mail’s “track and trace” which confirmed delivery was presented. The rules of citation applicable provided for recorded delivery or registered letter. The method of purported citation was not the equivalent, “track and trace” only confirming delivery and not whether Rule 5.3(3) (information on envelope) had been complied with.

Jurisdiction

In Bank of Scotland Cashflow Finance v Suffolk Carpet Weavers 2001 GWD 27-1108 the Pursuers raised an action for payment in Glasgow Sheriff Court against the Defenders, the Pursuers being assignees in terms of a debt factoring agreement. The action was in respect of goods supplied to the Defenders who were based in Suffolk. The assignors and suppliers of the goods were based in West Yorkshire. The Defenders pled that there was no jurisdiction founded in Glasgow. The Pursuers averred that on intimation of the assignation, the Pursuers’ address in Glasgow was specified together with details of an account there. It was also averred that the Defenders had been advised that payment required to be made in Glasgow and certain payments had subsequently been made to the Pursuers in Glasgow. The Defenders argued that the place of performance, once fixed on a contract being entered into, could not be altered. Further, the Pursuers’ rights did not arise from “matters relating to a contract” but rather the assignation. Sheriff Taylor decided that in the absence of specific provision, it was implied that payment required to be tendered at the creditor’s place of business. The place of performance could alter during a contract. The Pursuers were standing in the place of the assignors and vindicating their entitlement for payment and thus fell within the terms of Article 5(1) Schedule 4 of the 1982 Act.

Can you be interdicted to do something?

In Hampden Park Ltd v Dow and others 2001 28- 1116 the Defenders sought the recall of an interim interdict preventing the Defenders from maintaining in place or placing obstacles in or near a roadway. The Defenders argued that the interim interdict was being used as a means to remove the obstacles which might involve substantial works. The interim interdict amounted to a positive order. Lord Drummond Young refused the motion for recall. In considering the decision of Church Commissioners for England v Abbey National plc 1994 SLT 959, his Lordship made various observations concerning the remedy of interdict. Interdict was a preventive remedy, which was normally the appropriate means of enforcing a negative obligation. As a result it was not competent to use interdict directly to enforce a positive remedy. The distinction between what was a positive and a negative remedy was a matter of substance. Interdict could be used not simply for threatened wrongful acts but also these acts which are continuing. As a result in certain circumstances to prevent a continuing wrong the Defender may be interdicted resulting in the Defender being required to take positive action. In those circumstances Lord Drummond Young considered that the original order had been competently granted.

Arrestment

In Granite Properties v City of Edinburgh Council 2001 GWD 28-1115 Sheriff Bell granted a motion for summary decree in an action of furthcoming against a company in liquidation which was the common debtor and its liquidator. The arrestment on the dependence was served ten months before the company went into liquidation. The liquidation unlike a sequestration did not operate as an automatic vesting of the funds in the liquidator and there was no reason for the arrested funds to pass through the liquidator’s hands.

Res judicata

The vexed question of recovery of insured and uninsured losses in two separate actions arose again in Thomson v Coutts 2001 GWD

25-923. The Pursuer sought recovery of uninsured losses, a previous action for insured losses having resulted in decree in foro being granted in a previous action. Sheriff Buchanan upheld the plea of res judicata following Stevenson v Pontifex & Wood 1887 15R 125 and McPhee v Heatherwick 1997 SLT (Sh Ct) 46. The decision in McSheehy  v MacMillan 1993 SLT (Sh Ct) 10 was not followed.

Witness lists

In Peden v Lothian Regional Transport 2001 SLT 985 objection was taken to the Pursuer seeking to add additional witnesses to his list lodged in terms of the Optional Procedure in the Court of Session. In the Sheriff Court I am unaware of any decision, even reported in note form, relating to Ordinary Cause Rules 9.13 and 9.14. It may accordingly be of some assistance to note Lord Carloway’s views on the Pursuer’s motion. Firstly, if witnesses additional to those on a party’s list became apparent, it was useful for the appropriate motion to be dealt with pre proof to deal with any objections. Secondly, the greater the notice particularly when accompanied by a reasonable explanation for prior omission, the more likely the motion would be granted. Perhaps the safe course to adopt is to intimate and lodge the lists timeously (is this often done in practice?) and if further witnesses or documents appear give informal notice to your opponent at that time and ascertain as to whether there will be opposition. If there >is to be opposition enroll the appropriate motion.

Recovery of documents

In O’Sullivan v O’Sullivan 2001 SCLR 696 Sheriff Principal McInnes was asked to consider the validity of allowing commission and diligence to recover documents, the sole purpose for their recovery being to discredit a witness who had completed his evidence. Aside from the fact that it would be extremely unusual for documents to be recovered in the circumstances of this case, Sheriff Principal McInnes indicated that following the decision in French v Purnell 1931 SLT 85 documents may not be recovered purely for the purpose of cross-examination.

Abandonment

In Masson v Masson 2001 SCLR 501 the Pursuer, having raised an action for contact, after various Child Welfare Hearings, indicated that he was not proceeding further. The Defender sought expenses arguing that the Pursuer had abandoned in terms of Rule 23(1)(b). The Pursuer argued that he had abandoned at common law and that having regard to the conduct of the Defender, the Sheriff had discretion as to awarding expenses. Sheriff Cusine considered that the conduct of the Defender could be taken into account and found the Defender liable to the Pursuer in the expenses of this action.

Form of judgment

In Kublin v Fotheringham 2001 GWD 29-1153 an appeal was taken from a decision given after proof. The criticism of the judgment at first instance was to the effect that the sheriff had failed to resolve a conflict of evidence and instead simply rehearsed the evidence rather than making findings. Sheriff Principal McInnes, in remitting the case to the sheriff at first instance, observed that the sheriff at first instance was required to determine the facts established from the evidence. The findings in fact and law should justify the conclusions reached and the orders made. The judgment should not contain a narration of evidence. Rather the note required to explain the facts determined from the evidence which was accepted and any inferences drawn from the facts. The judgment further did not summarise the submissions nor deal with these on the merits. The case not only acts as a reminder as to what is expected from the court at first instance, but also highlights a means whereby a decision can be attacked at appeal.

Expenses

In McDougall v Tawse 2001 GWD 29- 1164 Sheriff Cusine granted sanction for counsel to be employed in an action notwithstanding counsel had not appeared at the proof nor at any procedural stage. He noted that whilst it might be more difficult for a party to obtain such sanction if counsel did not appear at a diet, such an appearance was not a precondition for sanction to be granted. In reaching this decision Sheriff Cusine declined to follow Sheriff Kelbie in Williams v Fraser 1991 SCLR 307. This decision it is suggested also supports the view that sanction for the employment of counsel should not be dealt with as covering the whole process but rather be looked at stage by stage. In short, a complex debate justifying the employment of counsel may be followed by a straightforward proof, the complex issues having been resolved at the debate

Once again it is hoped this “pot pourri” of recent decisions on civil practice is of some assistance in the every day practice