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Article

Pragmatic approach in going to proof

1 November 02

Latest civil cases, including pleadings; appeals; interim possession; petitions for liquidation; expenses

by Lindsay Foulis

Since the September article Sellers v Caledonian All Trades Ltd now appears at 2002 SLT (Sh Ct) 110, Bee v T & N Shelf Twenty Six Ltd at 2002 SLT 1129, Donnachie v Happit Ltd at 2002 SLT 1141, Fab Tek Engineering Ltd v Carillon Construction Ltd at 2002 SLT (Sh Ct) 113, Irving’s Curator Bonis v Skillen at 2002 Slt (Sh Ct) 119, Barry D Trentham Ltd v Lawfield Investments Ltd at 2002 SLT 1094, Bain v Bain at 2002 SLT 1177, V P Packaging Ltd v A D F Partnership at 2002 SLT 1224 and MacDonald v MacDonald at 2002 SLT (Sh Ct) 144.

PLEADINGS

In the opinion of Lord Macfadyen in Gillies v Lynch dated 17th October 2002, his Lordship ruled that in claims by surviving relatives arising from the death of an individual a relevant claim for grief could cover all ranges from moderate grief to a deterioration in psychiatric health.

AMENDMENT

In Chalmers v Chalmers 2002 GWD 32 – 1091 Sheriff Principal Young upheld a Sheriff’s refusal to allow the Record to be amended which proposed to amend the statutory basis of the Pursuer’s claim for periodical allowance from section 9(1)(d) to 9(1)(c) of the Family Law (Scotland) Act 1985 in circumstances in which the motion to amend was made at the conclusion of the proof. The reasons for refusal were that firstly the claim for periodical allowance had been argued on the basis that the award was sought by reference to section 9(1)(d), and secondly on that basis the parties pre proof had resolved issues of capital and accordingly neither expenses nor other conditions could adequately compensate the Defender if the amendment was allowed.

REMIT TO THE COURT OF SESSION

In Donnelly v Safeway Stores plc 2002 GWD 34 – 1134 the fact that a jury trial was available in the Court of Session was considered of doubtful relevance when considering whether a remit should be granted. This was particularly the case when the case had been in dependence for four years and a remit would occasion further delay.

APPEALS

Drever v Drever 2002 GWD 28-958 is another example of a party failing to check whether leave to appeal was required before an appeal was taken. On this occasion the Appellant marked an appeal from the Sheriff Principal to the Inner House. No leave to appeal was obtained and accordingly the Inner House refused the appeal as incompetent. The Appellant then sought leave to appeal from the Sheriff Principal although late. This motion was refused. The Appellant had already exercised the right of appeal albeit the appeal was refused as incompetent. In Bain v Bain (No 2) 2002 GWD 32 – 1082 Lord Macfadyen considered the certain criteria for granting leave to appeal. While leave should not be granted simply because new information placed a new angle on the motion, on considering the matters which had been before the Court when the decision was made, Lord Macfadyen considered that it was possible that there had been a misinterpretation of information on the part of the Court at first instance thus undermining the basis of the original decision. In Irving’s CB v Skillen 2002 GWD 34 – 1130 Sheriff Principal Bowen considered that leave to appeal the refusal to recall an arrestment laid on the dependence should not have been granted when the arrestment had been in place for a year and the proof was only three weeks away, notwithstanding that the point was of some interest. Pragmatism dictated that the matter should simply have proceeded to proof. Another interesting observation arose from the decision of Sheriff Principal Kerr in H L Friel & Co Ltd v G T Demolitions Ltd 2002 GWD 33 – 1098. The Defenders appealed the granting of decree by default resulting from their failure to appear at a Proof Diet with a competent representative. An unsigned Note of Appeal was lodged 25 days after decree was pronounced and 6 days before the decree was extracted. Sheriff Principal Kerr held that the issue of the extract decree rendering the appeal incompetent was perfectly proper as the actings of the Defenders did not constitute the taking of proper steps in the appeal procedure, the Note of Appeal being unsigned. Proper steps would have been constituted by the lodging of a valid Note of Appeal, a motion to receive a Note of Appeal late, or equivalent documents.

ORDERS FOR INTERIM POSSESSION PENDING APPEAL

The particular circumstances of Robertson v Baxter Dundee Sheriff Court 22nd October 2002 are of little importance. However Sheriff Alastair Stewart decided that the terms of OCR 95 (now OCR 31.10) were wide enough to enable him to make an order on interim possession albeit his interlocutor had been appealed to the Sheriff Principal and thereafter to the Inner House of the Court of Session, the Sheriff Principal having adhered to his decision. Accordingly the decision which was being appealed was his rather than that of the Sheriff Principal, who had adhered to the Sheriff’s decision.

APPLICATIONS FOR WARRANT TO EJECT

In The Hoy Trust v Thomson 2002 GWD 33 – 1100 it was decided that such warrant if sought alone without any further remedy had to be raised as a Summary Cause in accordance with section 35(1)(c) of the Sheriff Courts (Scotland )  Act 1971.

PETITIONS FOR LIQUIDATION

The provisions of section 122(d) of the Insolvency Act 1986 provide that a company may be wound up if it is unable to pay its debts. Section 123 details inter alia that a company shall be deemed unable to pay its debts if it fails to satisfy a demand for a debt of £750 within 21 days of a notice demanding payment being served. Against this background Yell Com petitioned for the liquidation of Internet Business Centres Ltd as a result of a demand served for payment of a debt for £244.62 not having resulted in payment within the prerequisite period. They further averred that a striking off notice had been issued against Internet Business Centres Ltd. The issue, which Sheriff Principal Bowen had to determine in his judgment issued on 29th October 2002, was whether the Sheriff had correctly found Yell Com liable in the expenses of the petition, payment of the debt having been made after the demand was served but before the hearing on the petition. Whilst Sheriff Principal Bowen did not commit himself on the matter, he indicated that petitions based upon inability to pay debts of £750 and the service of a demand would only succeed if there were other circumstances. The use of petitions to recover low level debts was to be discouraged. In view of the fact that the debt could have been recovered by a Small Claims action he was not prepared to interfere with the Sheriff’s decision holding  the Petitioners liable for the expenses of the Petition.

EXPENSES

In Robertson & Son v Pinkerton (No 2) 2002 GWD 32 – 1088 the Defender, an assisted person, sought modification of his liability in expenses to nil. Decree for a sum in sterling had been granted after the account of expenses was taxed. Sheriff Evans decided that the decision in Gilbert’s Trustee v Gilbert 1988 SLT 680 should be followed. It did not matter that the Sheriff Clerk had submitted the taxed account for approval before the period for lodging objections to his decisions at taxation had elapsed. An interesting decision came from Sheriff Cusine arising from a Note of Objections taken in relation to decisions of the Auditor of Court at taxation. The Auditor taxed off Junior Counsel’s fees for the drafting of the Initial Writ, a proportion of the conduct of Proof fee, and one day of the Proof fee contrary to Court of Session practice. In relation to the first matter, the Sheriff ruled that as a result of the cause having been certified as suitable for the employment of Counsel, then such certification extended from the commencement of the action. In relation to the other matters, the auditor had failed to give reasons for taxing off the amounts and such reasons were required.

TAXATION OF EXPENSES
I have placed the following decision under a separate heading as it seems to me that the observations made by Lord Eassie are worthy of highlight to the practitioner in these days when it appears the great majority of judicial accounts are prepared by independent or in house law accountants. Accordingly the difference between expenses awarded on the basis of solicitor and client, third party paying and expenses awarded on a party and party basis may be something, which may not immediately be apparent to newer members of the profession. Lord Eassie approved of the definition of the former namely the expenses, which a prudent solicitor without special instruction from his client would incur in the knowledge that the account would be taxed. The later simply covers those expenses, which were absolutely necessary for the litigation. By specific reference to the instruction of Counsel during litigation, party party expenses entitle the recovery of Counsel’s fees for elements of work for which Counsel would be instructed in accordance with normal practice. The level of the fee recoverable for such work would be what is considered a reasonable fee by someone who did not actually instruct Counsel for the element of work and accordingly had no control over the level of fee charged. This should in all probability be the same level of fee nowadays as the fee recoverable on the basis of agent client, third party paying.