Back to top
Article

Inhibition on the dependence lives on

1 January 04

Latest civil cases, including diligence on the dependence; decree in absence; options hearings; mortgage payments and res judicata; tenders

by Lindsay Foulis

Diligence on the dependence

The much anticipated decision of the Inner House in Advocate General for Scotland v Taylor is now reported at 2003 SLT 1340. This was a report to the Inner House for a ruling on the effect of the European Convention on Human Rights on inhibition on the dependence, first considered in Karl Construction Ltd v Palisade Properties Ltd 2002 SLT 312, and indeed diligence on the dependence generally. The opinion of the court was given by Lord MacLean. Their Lordships decided that diligence on the dependence did not contravene article 6(1) of the Convention as the rights and obligations of an individual were not determined by the granting of a warrant to execute such diligence. Accordingly the grant did not require a fair and public hearing by an independent and impartial tribunal. By reference to the terms of the First Protocol relating to the peaceful enjoyment of possessions, their Lordships decided that the state had a wide margin of appreciation. In light of the terms of the article, consideration might require to be given to providing wider grounds for recall of such diligence and indeed for a remedy in the event of it being used by the unsuccessful party. However their Lordships considered that all that was required to render diligence on the dependence ECHR compliant was for the grant of a warrant for such diligence to be considered by a judge; a formal hearing was not necessarily required. In considering whether to grant such a warrant the judge would consider the averments and any other documentation, if necessary expanded by oral submission. The party applying would only require to establish a prima facie case. Any information as to the necessity of such a warrant was unnecessary although it clearly would strengthen any argument for granting it. The use of such diligence would require to be proportionate to the claim being made. There is an interesting postscript to this issue. In Amalgamated Roofing and Building Co v Wilkie 2003 GWD 40-1071 the argument put forward by the defender in opposing an action of reduction of a disposition was to the effect that the inhibition which was founded on to reduce the disposition was ineffective, having been registered in September 2000 on the dependence of an action for payment, the diligence falling foul of the Convention. In granting decree for reduction Temporary Judge T G Coutts QC decided that the inhibition as registered was unaffected by the Human Rights Act 1998. The inhibition was valid until recalled.

No reparation in absence

I have in the past made comment about decrees in absence being taken in reparation actions. In particular I have posed the question whether taking decree in such actions is to anyone’s benefit, particularly if a motion for decree is made promptly. In Wood v Aberdeen City Council, Aberdeen Sheriff Court, 25 November 2003 Sheriff Principal Young allowed an appeal against the refusal of a reponing note in such an action. Decree in absence had been taken following the defenders insurers’ failure to arrange timeous lodging of a notice of intention to defend. The reponing note was lodged almost three months after the induciae had expired. In this case it has to be borne in mind that the defenders had their own legal department who could at least have taken steps to lodge the notice. Further there had been an element of inaction and oversight on the part of those solicitors. Nonetheless the sheriff principal allowed the appeal. There was a substantive defence both on the merits and on quantum. I cannot help but feel that a telephone call could have resulted in the matter being remedied as opposed to requiring the lodging of a reponing note, an opposed hearing thereon, and the subsequent marking and arguing of an appeal with the attendant time and expenses.

Options hearings and pleading errors

In two recent decisions, East Lothian Council v Crane, 23 December 2003 and Gibson v Wood Group Engineering Ltd, 18 December 2003, points arose which should be borne in mind when preparing for and conducting such hearings. In the former decision Sheriff Principal Macphail observed in an appeal following the sustaining of a pursuer’s plea to the relevancy at a debate, that at an options hearing formal defects to pleadings should be advantageously remedied rather than having a debate fixed. In this case the defences lodged by a party litigant contained no pleas in law. To quote Sheriff Principal Macphail: “it would have been preferable for the court to encourage the remedying of those formal defects and at debate to decide any issues of relevancy on substantive grounds rather than to pronounce decree against the defender on points of pleading which the average party litigant could not be expected to meet on his or her own initiative”. However, formal defects in a record at an options hearing are not uncommon even with legal representation. In those circumstances a verbal motion to amend should be considered. In the latter case the problem facing Sheriff Principal Young was caused by a party’s preliminary plea seeking to exclude certain averments from probation. Notwithstanding this, the parties moved for a proof before answer. The sheriff understandably refused in light of the terms of the plea and assigned a diet of debate. This problem clearly can be overcome by amending the preliminary plea to one seeking dismissal. In short, when appearing at an options hearing ensure that the procedural goal sought accords with the pleas in law!

Mortgage payments and res judicata

Although properly a decision as to the plea of res judicata, an interesting point arose in Stuart v Stuart (No 2) 2003 GWD 40-1073 which may be of significance to family law practitioners. An action was raised for payment of one half of the mortgage payments made by a spouse over a period of seven years until 2002, the basis of the action being that the parties were joint obligants in terms of the mortgage. The issue of the mortgage payments had arisen in divorce proceedings, which had been concluded between the parties after a proof and appeal to the sheriff principal; the defender argued that the issue had been raised both before the sheriff and sheriff principal in the determination of the claim for a capital sum. Indeed there had been submissions before the sheriff principal concerning the present pursuer continuing to reside in the matrimonial home and paying the mortgage. In reaching a decision on the question of capital in the appeal, the sheriff principal had considered the payment of the mortgage. A plea of res judicata to the present proceedings was repelled. Whilst the question of payment of the mortgage was raised in the divorce action, the subject matter of the two actions was not the same. Further the defender was unable to establish that one of the matters decided in the divorce action covered the issue of liability for the mortgage payments. The implications in disputes as to financial provision are obvious if mortgage payments are being paid by one spouse for any length of time. What happens if no claim for financial provision is made on the basis that the other spouse has paid the mortgage for a significant period and accordingly the sale of the matrimonial home in joint names with the proceeds being divided equally is a fair division?

Getting the tender right

An interesting point arose in Hughes v Barratt Urban Construction (Scotland) Ltd 2003 GWD 40-1078. The defenders argued for a modification of the expenses awarded in favour of the pursuer. Although the sum tendered was beaten by the sum decerned when interest was added, this was only achieved following an amendment which resulted in interest running from an earlier date. The argument was rejected by Temporary Judge L J Dorrian QC. The sum originally sought was well in excess of that decerned and it would have been obvious to the defenders that interest as originally sought was from a later date than that which was correct. In assessing what was an appropriate sum to tender, parties generally had to take account of what was the appropriate measure of loss including interest, as opposed to what was actually sought. In short, there may well be instances in which account will require to be taken of the opposition eventually getting it right!

Although the actual decision is perhaps of real significance, in Tait v Campbell 2003 GWD 37-1026 the pursuer sought to argue that a subsequent tender brought about a material change in circumstances resulting in the previous tender being in effect withdrawn. This submission was rejected by Lady Paton. Whilst a subsequent tender may be ex facie more attractive to a party, an earlier tender may be more beneficial to that party and thus open for acceptance. Accordingly a subsequent tender did not constitute a change in circumstances resulting in the earlier tender being rendered inoperative.

The usual caveat applies. Belated best wishes to all for 2004.

Update

Since the last article Orca (Isle of Man) Ltd v Anite Scotland Ltd has been reported at 2003 SLT 1232, McNair’s Executrix v Wright’s Insulation Co Ltd at 2003 SLT 1311, Duncan v Beattie at 2003 SLT 1243, Martin v McGuinness at 2003 SLT 1424, Christie v Christie at 2003 SLT (Sh Ct) 115, and Mowbray v Valentine at 2003 SCLR 677.