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No warrant for refusal

1 May 04

Latest civil cases, including warrant to cite; sist; suing an association; reponing; appeals; pleadings; preliminary proofs; decrees; tenders

by Lindsay Foulis

When warrant should be granted

This question was the subject of an appeal to Sheriff Principal Macphail in Fitzpatrick v Advocate General, Edinburgh Sheriff Court, 5 April 2004. The sheriff clerk and sheriff had refused to warrant an initial writ. The sheriff principal confirmed in light of the authority of Davidson v Davidson (1891) 18R 884 that an appeal against the refusal was incompetent. No action had started as no writ had been served upon any defender. He noted however that if no appeal is available, there is a potential breach of article 6 of the European Convention on Human Rights, as an individual could be denied access to justice. Whilst such a right is not absolute, a warrant should be granted if the court has jurisdiction, the remedy is one which can be competently granted, and the writ is in proper form, does not contain any scandalous averments and is signed. Any argument as to the competency of the writ which requires reference to a number of statutory provisions and case law, can be entertained by the court at a later date. It should not form the basis of a decision to refuse to warrant a writ, which is essentially an administrative action.

Sisting pending another action

In Maley v Scottish Ministers, Glasgow Sheriff Court, 31 March 2004 Sheriff Principal Bowen examined the situations in which it was appropriate to sist one action to await the outcome of another. The pursuer sought damages as a result of the conditions at HM Prison Barlinnie. A similar action was at avizandum before a Lord Ordinary. On a review of authorities, the sheriff principal observed that it was normally accepted that it was inappropriate for an action to be sisted to await the decision in a similar action before the pleadings in the second action have been focused by the closing of the record. If an action was to be sisted prior to that point, the question to be asked was whether special circumstances existed justifying the interruption of progress in the action. He accepted that the onus of establishing that the action remained sisted lay on the party proposing that course. He was also aware that the action was one based on an alleged breach of human rights and that there was a strong presumption that the defenders should disclose the full nature of their defence. However there were a large number of similar cases before the courts with extensive but identical pleadings raising the same public law issues. As a result considerable court resources and time were potentially to be required in circumstances in which a decision in the litigation at avizandum might well reduce the areas in dispute. The action accordingly remained sisted.

Member can’t sue association

In Harrison v West of Scotland Kart Club, 30 March 2004, it was made quite clear by the Inner House that a member of an unincorporated association could not sue the association in delict. It was akin to a party suing him/herself. There was no place for the operation of vicarious liability.

Reponing after inexcusable failure

The decision in Forbes v Johnstone 1995 SLT 158 made it clear that it was not necessary for a sheriff to be satisfied as to whether the reason for failing to lodge a notice of intention to defend was reasonable. A balancing exercise was required with regard being had to both the proposed defence and the reason for the failure to defend the action timeously. In Thomson v Jardine, 19 March 2004, Lord Osborne, giving the opinion of the court, noted that the failure to defend in the circumstances of that case could never be excused. The failure was due to staff shortages, pressure of business, and a resultant unfortunate oversight. Nonetheless, the Inner House, on considering the proposed defence, allowed the appeal thus allowing the decree to be reponed. Accordingly, it might be suggested that provided a statable defence is set out in the reponing note then no matter how weak the reason for failing to defend the action timeously, a reponing note should be granted. The Inner House in the course of their opinion further indicated that it was unnecessary to enquire as to the prospects for proof of the defence.

Appealing prior interlocutors

The marking of an appeal can have the effect of submitting for review prior interlocutors pronounced. However there are limits. If the interlocutor appealed is one of decree by default and the purpose of appealing is to bring a prior interlocutor under review, such a plan will fail: Winning v Napier 1963 SC 293. This was recently reiterated in Urquhart v Sweeney 2004 GWD 11-242. Incidentally in this decision the Inner House made it clear that a general denial in defences did not necessarily result in any motion for summary decree being unsuccessful.

Amending out of time

In Stephen v Peters 2004 GWD 9-195 the pursuer, in response to a minute of amendment by one of the defenders, sought to introduce an esto case to the effect that even if the speed of the vehicle he was driving was as averred in the minute of amendment, the accident had been caused by the defective tachograph as opposed to a faulty load. Lord Carloway indicated that as the potentially time barred averment had been introduced in response to the averments in the minute of amendment, it was a legitimate response to a new line by the defenders. The case was still pled on the same factual basis and all that had happened was that the pursuer had added a new ground of fault. Lord Carloway also observed that if an amendment introduced averments which were potentially time barred, these should be answered notwithstanding that the amendment may well be opposed in due course.

Preliminary proofs and their effect

In Noble v De Boer, 4 March 2004, the Inner House inter alia examined when a preliminary proof should be allowed. Lord Marnoch indicated that a preliminary proof should only be allowed in circumstances where the matters to be determined are wholly distinct from other issues raised by the litigation. Lord Osborne agreed, saying that if the subject matter of a preliminary proof extends in such a way as to have a bearing on the merits, a preliminary proof is unwise. The next issue was the status of any findings in fact made in the preliminary proof. Lord Marnoch was firmly of the view that unless there was an agreement reached to the contrary, any findings in fact made in such a proof could not be binding at any subsequent proof. In one proof, the facts might be peripheral to the issue to be decided at that stage and as a result might not even be challenged. At the later hearing the facts might be central to the issue. It would be inappropriate if findings in the preliminary proof were binding at the later hearing. Lord Hamilton held a similar view. Any findings made after the preliminary proof were made solely for that purpose, not the litigation as a whole. Lord Osborne, however, felt that the views expressed by his colleagues were a recipe for confusion and conflict. Clearly, this matter may be revisited in the future.

Craves available to court

An interesting submission was made by the defender in Christie v Christie, Paisley Sheriff Court, 8 March 2004. In a divorce action the pursuer sought transfer of property orders, a pension sharing order and a capital sum. In submissions at conclusion of proof, she only insisted on her craves for transfer of property. At appeal before Sheriff Principal Kerr the defender argued that by this approach the pursuer had removed the court’s power to award a capital sum or pension sharing order. Sheriff Principal Kerr observed that as long as the craves were in the record they were available to the court for any final decision.  

No service, no recall

A interesting point arose in North Lanarkshire Council v Kenmure, Hamilton Sheriff Court, 2 April 2004. In an action for recovery of heritable property, the appellant, arguing that he was a “qualifying occupier” in terms of the Housing (Scotland) Act 2001, sought to lodge a minute for recall against a decree for recovery granted in absence. He had not sought to sist himself as a party. He accordingly first had to recall the decree in absence. He was not a party to the action at the time decree was granted. Sheriff Principal McInnes considered that the pursuers required to make such enquiries as were reasonably practicable to ascertain whether there were “qualifying occupiers” in respect of a property, and their identities. It was accepted that the decree required to be recalled before the application to be sisted as a party could be dealt with. The sheriff principal decided that only a party who had had proceedings served on them was entitled to apply for recall of the decree. The appellant did not fall within that category and the minute for recall could not be entertained.

Tendering revisited

The Inner House in Hughes v Barratt Urban Construction (Scotland) Ltd allowed a reclaiming motion against the temporary judge’s decision noted in the January article. The Division (2004 GWD 8-188) decided that it could not be considered a general principle that a defender, when tendering, required to anticipate any amendments to the pursuer’s claim and make the necessary allowances. Further, a judge at first instance, when considering the operation of the usual rule as to expenses and the effect of a tender lodged, should decide this issue at the date of the decision in the proceedings at first instance and not by any amendment in the appellate process.
The usual caveat applies.