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Article

Reasons essential when rejecting evidence

1 April 01

Latest civil cases, including pleadings; evidence; jurisdiction; abandonment; interest; appeals; family actions; expenses; diligence

by Lindsay Foulis

Since the last article McEwen v McEwen is now reported at 2001 SLT (Sh Ct) 8 and Waydale Ltd v DHL Holdings (UK) Ltd appears at 2001 SLT 207.

Written Pleadings

In a tripping in the street case, Sheriff Taylor in Fox v City of Glasgow Council 2001 GWD 3-131 decided that a pursuer required to aver the precise difference in levels between two parts of a broken or uneven pavement to enable it to be concluded that there was a foreseeable hazard, there being no duty to maintain pavements at a uniform level. If repairs were carried out prior to detailed inspection, this would require to be averred.

Civil Evidence

In Cheltenham & Gloucester Plc v Royal & Sun Alliance Insurance Co Plc 2001 SLT 347 a question arose as to the status of a decree in foro in a previous action in which decree had been granted by default and accordingly there were no findings in fact nor note. Lord Carloway held that the decree was determinative as to liability between parties. He observed that it would be unduly burdensome if specific findings in fact were required where decree was granted by default.

Jurisdiction

In Noble v De Boer 2001 GWD 11-396 an action for damages for personal injury was raised against two defenders, one of which was subject to the jurisdiction of Aberdeen Sheriff Court, jurisdiction being established against the other in terms of Schedule 8 rule 2(15)(a). The action was abandoned against the defender who was subject to the jurisdiction of the Court on the morning of a proof before answer. In response to an argument that the court no longer had jurisdiction over the other defender, Sheriff Veal held jurisdiction having been established against that defender could not be lost if there was a seriously arguable case against the anchor defender and in circumstances in which at the raising of the action there was a sufficient connection between the defenders and the circumstances resulting in the action. Further when the action was raised there was justification for the action proceeding in the same court.

Abandonment

In Europools Ltd v Clydeside Steel Fabrications Ltd 2001 5-178 an interesting point arose following the abandonment of an action in which the Defenders had convened a third party. The third party argued that in order for the Pursuer to be granted decree of dismissal, not only did the defenders’ expenses have to be met but also the third party’s expenses. Sheriff Principal Bowen rejected this argument on the basis that it was logical the Pursuer should only be held liable for the expenses of the party against whom he had directed his action. The liability of the third party’s expenses would be dealt with by the Sheriff exercising judicial discretion.

Entitlement to Interest

In Gaelic Assignments Ltd v Sharp 2001 GWD 5-175 Lord Hamilton held that a declaratory conclusion on its own seeking a determination that money was due gave intimation for a claim for payment and was accordingly a judicial demand.

Appeals

In Wilson v Wilson 2001 SLT (Sh Ct)55 the question at issue was whether an appeal could be taken to the Sheriff Principal without leave against a decision of the Sheriff in an application under section 2(4)(b) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 for a contribution towards mortgage repayments. Sheriff Principal Kerr decided that the matter was so close to one of interim aliment that leave was required. In short it was an order to provide interim financial support to the family. In Barbour v Grieve 2001 GWD 2-81 Sheriff Principal Bowen followed the decision of Sheriff Principal Cox in Ian Gordon Commercials v Richmond Light Transport 1998 SLT (Sh Ct) 69 in holding that leave to appeal was not required when appealing an interlocutor recalling an arrestment. He further observed that when a Note of Appeal was lodged it should be taken as being an Appeal against the Interlocutor in total an the terms of Rule 31.4(3) did not change this although it was now necessary to specify in the Note the matters which were to be brought under review in the Appeal. This decision is of considerable interest bearing in mind the effect of an Appeal is also to bring prior Interlocutors under review - McCue v Scottish Daily Record and Another 1998 SLT 983. Accordingly provided an interlocutor contains something which is able to be appealed without leave, then it is not only able to appeal that interlocutor, but also bring under review a prior interlocutor. The decision by Sheriff Principal Cox in Anderson v Perth and Kinross Council 2000 SCLR 987 is worthy of note in that it emphasises that certain circumstances in which a Sheriff’s findings in fact can be successfully amended by the appellate court. The amended findings were based on evidence which was not contravened by other evidence. The Sheriff in his note had not given any reason for rejecting this evidence. In those circumstances the findings in fact were amended. The importance of giving reasons for rejecting or accepting evidence was stressed in T v T 2000 SLT 1442 and can sometimes be overlooked with proposed findings in fact becoming more common.

Family Actions

In McLean v Dornan 2001 GWD 4-145 it was held that a local authority to which intimation had been given in terms of Rule 33.7(1)(g) had no title to enter the process by Minute in circumstances in which the action in relation to the child was between a grandparent and parent. This was the case even in a situation in which an application for freeing for adoption of the child was in dependence.

Expenses

The decision of Laing v Scottish Arts Council 2001 SLT 298 is worthy of note for two reasons. the first is that if the Defender wishes an award of expenses against the Pursuer when a tender has not been beaten or timeously accepted, the motion should be made when the Pursuer moves for decree in terms of the Minute of Tender and Acceptance. To fail to do so at that stage, then the door is almost certainly shut against such a motion at a later stage. Further the word ‘corrected’ in the Rule of Court did not mean ‘altered’. What was envisaged was a power to enable an interlocutor to reflect the Court’s original intention. The terms of Ordinary Cause Rule 12.2(2) use the word ‘correct’. In William Dow (Potatoes) Ltd v Dow 2001 SLT (Sh Ct) 37 a number of matters relating to an order for caution for expenses were argued on appeal before Sheriff Principal McInnes. The Defender had been ordered to find caution in an action for payment in which he had lodged a counterclaim. The Defender was sequestrated. The Sheriff Principal decided that the defender was required to find caution. Whilst the defence to the principal action was little more that a denial, it was inappropriate to decide questions of relevancy in deciding the question as to whether caution should be ordered. Caution could be competently ordered for the counterclaim alone. In this case that course was appropriate. The counterclaim appeared to be dubious. There was further no breach of Article 6(1) to order caution in circumstances in which the defences appeared limited to denial of the Pursuers’ case and the counterclaim was for large sums, involved issues requiring considerable investigation, and if the Defender wished to pursue these, it was reasonable that the Pursuers have some security for expenses. In Royal Bank of Scotland plc v Kinnear 2001 GWD 3-124 a Sheriff’s decision to award expenses against the Pursuers was upheld by Sheriff Principal Kerr. Although the Sheriff Principal indicated that the case turned on its own facts and there was no principle at issue it is worthwhile noting that in this case the heritable creditor knew the property was being sold and closing date imminent and offers were sufficient to clear the secured debt. The Defender had lodged defences to prevent decree passing despite having no stateable defence. The Pursuers had refused to undertake not to minute for decree. Sheriff Principal Kerr indicated that the Sheriff was entitled to take account of the prematurity of the action. By contrast in Doherty v Jaymarke Developments (Prospecthill) Ltd 2001 SLT (Sh Ct) 6 Sheriff Kelbie found the Defenders liable in the expenses of an action notwithstanding the principal sum was paid after the action was raised. Sheriff Kelbie came to this decision as the interest was not paid at the time nor the expenses to that date. The fact that the Pursuer was seeking interest from a date prior to the action being raised did not matter. Now to a complex tale! In Brolly v Bank of Scotland 2001 GWD 11-380 the pursuer’s solicitor was found personally liable for the expenses of part of the procedure. After the account was taxed the solicitor failed to pay the expenses. within time. After a further calling of the case the interlocutor awarding expenses was amended to reflect that payment of the expenses was condition precedent of further procedure. The expenses not having been paid timeously by the pursuer’s solicitor, decree of dismissal was granted. An appeal not unexpectedly followed. In allowing the appeal Sheriff Principal Nicholson held that Rule 16 had no role in this case, the default being occasioned not by a party, but by the legal representative. The Pursuer was not required to implement any order of court and indeed could not implement the order. He further ruled that if a solicitor incurred personal liability for expenses, it was inappropriate to make payment of these condition precedent in the action at the instance of the client. In another decision of Sheriff Principal Nicholson, Graham (Preservation) Ltd v Douglas 2001 GWD 8-295 the decision which had been appealed was an award of the expenses of the principal action action to the Defender. In this case the Defender had counterclaimed and the counterclaim was resolved by the Defender accepting a Minute of Tender in the counterclaim. The principal action was resolved with the Defender undertaking informally to pay a sum of money to the Pursuers. It was argued before the Sheriff Principal that the principal action and counterclaim should be treated separately and the Pursuers had been successful in the principal action. The Sheriff Principal decided that the principal and counterclaim were closely linked and could be looked at as a whole and looked at in its entirety the Defender had made the gain and was accordingly entitled to the expenses of the principal action. Perhaps the real lessons from this decision is to try and negotiate the resolution of questions of expenses in litigation such as this and further if negotiation fails be aware of the number of permutations available to the bench when exercising its discretion in deciding liability of expenses.

Diligence

Although perhaps not within the normal ambit of this article there are two decisions which are of practical interest for civil practitioners. In McLaughlin v Allied Irish Bank 2001 SLT 403 it was held that a bank did not have an obligation to account to its customer on lodgement of a cheque. This only occurred when the cheque was honoured. In City of Glasgow Council GWD 3-108 it was held that an earnings arrestment could competently be served by an employer in its own hands to attach the earnings of one of its employees.

Once again it is hoped that at least some of the foregoing is of interest and some practical assistance.