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Speaking for the firm

1 July 04

Latest civil cases, including appearance for a firm; joint and several liability; pleadings; expenses; criminal convictions; family reports; supplementary notes; decrees

by Lindsay Foulis

Rules amendments

I had been intending to cover the amendments to the Ordinary Cause, Summary Cause and Summary Application Rules, but for any reader who has not had the chance to look at the June edition of the Journal, at page 29 Graeme Halligan, Assistant Secretary of the Sheriff Court Rules Council discusses these in some detail.

Partner appearing for the firm

This issue was the subject of an appeal before Sheriff Principal Bowen in Clark Advertising Ltd v Scottish Enterprise Dunbartonshire, Glasgow Sheriff Court, 9 June 2004. Notwithstanding the designation of the pursuers shown on the Scottish Courts website, the pursuers were in fact designed as a firm, a partnership between two spouses. The action was raised under the commercial cause rules and the pursuers had been represented by Mr Clark accompanied by his wife. The arguments which Sheriff Principal Bowen considered of interest were, first, that to fail to allow Mr Clark to represent the pursuers contravened the pursuers’ rights under article 6 of the European Convention on Human Rights. Further a firm or company as a commercial entity had an inalienable right to be represented by one of its partners. Thirdly, as Mr Clark had an intimate knowledge of the case this countered the advantage the defenders had in securing high calibre legal representation. In dealing with the European dimension, the sheriff principal indicated that access to the courts was not absolute and could be subject to limitation. He expressed difficulties with the justification for the requirement of an artificial person to be legally represented in litigation on the basis of having a person subject to the discipline of a branch of the legal profession and familiar with the law. He felt, however, that it was unacceptable for non-qualified persons to conduct unfounded litigation on behalf of artificial persons without being liable for the consequences of such a litigation. Further, it was presumed that a legal representative would act on behalf of the client in light of instructions given with due regard for the duties imposed by the court on such a representative. A similar confidence did not exist in the case of a lay person representing such a concern. Mr Clark further sought to distinguish the accepted rule in circumstances in which the partners in the firm were natural persons, one of whom sought to represent the partnership. Sheriff Principal Bowen considered that it would be inappropriate to allow any departure from the general rule standing the sources of that rule. The action accordingly was sisted pending the appellants obtaining legal representation.

Joint and several liability

In Woodland v Advocate General 2004 GWD 12-257, Temporary Judge Gordon Reid ruled that it was competent to sue a number of defenders jointly and severally where the pursuer offered to prove that he had contracted a condition as a result of each defender causing or materially contributing to the condition. It was averred that an injury was caused by a number of factors operating together, the consequence of breaches of duty by a number of defenders. In circumstances in which it is impossible for the pursuer to ascertain the proportion to which each possible breach caused the injury, provided the breaches materially contribute to the injury, if they do so cumulatively it is immaterial whether they do so concurrently or consecutively. It remained open to any defender to offer to restrict his contribution. The fact that the defenders were all sued in one conclusion did not cause a problem.

“Believed and averred” not enough

This dreaded phrase was again the rock upon which an action foundered in Burnett v Menzies Dougal 2004 GWD 15-344. The defenders were sued for damages and the pursuer averred: “having regard to the surrounding circumstances… it is believed and averred that Mr Burnett instructed the solicitor to implement the handwritten note of instructions”. Temporary Judge Macdonald decided that it was essential to aver clearly and specifically the instructions given to the solicitor. In the circumstances a clear averment was required.

Seeking exclusion of averments

In University Court of the University of Glasgow v Melville Dundas Ltd 2004 GWD 17-368 the pursuers sought to argue that a preliminary plea “The pursuers averments being irrelevant et separatim lacking in specification the action should be dismissed”, prevented a defender arguing at debate that certain averments should be excluded from probation. Temporary Judge Macdonald did not entertain this. It is suggested that the days of particular pleas directed at the exclusion of particular averments from probation are gone. The underlying principle in the Ordinary Cause Rules is to get a dispute to proof. Pleas in law seeking to exclude averments from probation may require to be amended at the bar at an options hearing if the case is otherwise appropriate for proof. Further, the necessity to give notice of arguments in support of the plea in a rule 22 note avoids a pleader being caught by surprise. If memory serves me correctly, this was the thinking behind more specific pleas attacking the relevancy and specification of certain averments.

Abandoning pursuer wins expenses

When a pursuer abandons at common law, the court has a discretion as to how to deal with expenses. In Drummond v British Gas Trading Co 2004 SCLR 291, the sheriff awarded expenses in favour of the pursuer in the special circumstances of that case. After the raising of the action, for implement and damages, the defenders performed the actions which the pursuer had sought them to perform. Accordingly the sheriff decided that the pursuer had been vindicated in raising the action and he was entitled to expenses.

Explaining a conviction

An interesting point arose in Cronie v Messenger, 25 June 2004. Reference was made in the pursuers’ averments to the conviction of one of the defenders under section 3 of the Road Traffic Act 1988. That defender sought to explain the circumstances surrounding his pleading guilty to this offence. Suffice it to say he faced a contravention of section 1 of the Act and pled to the lesser charge on the advice of his legal representative. Temporary Judge MacAulay observed first that as the extract conviction gave no details as to the libel, a copy of the complaint or indictment would require to be lodged, perhaps with a record of the proceedings if a plea had been tendered to an amended charge. Further he observed that unless the actual circumstances which had resulted in the charge were being disputed (ie how the accident occurred), he did not consider that it had been intended that section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 could be used to undermine a conviction which had not been appealed by attempting to explain the circumstances in which the conviction had been recorded, in this case a reluctant plea of guilty in the face of legal advice.

Family report not led

In Young v Logan 2004 GWD 16-350 an interesting point arose. A report had been obtained as to the circumstances of the children who were the subject of the proceedings. As the report had not been introduced in evidence, the content of the report had to be disregarded. The decision had to be based on the evidence given in the proof and not on anything not spoken to in evidence. Sheriff Evans suggested that the existing law relating to such reports was unsatisfactory. It would be worth considering whether such reports should be looked at without the necessity of calling the reporter to speak to the content of the report.

Requesting supplementary note

In Richardson v Rivers, Edinburgh Sheriff Court, 7 May 2004 an issue which was raised before Sheriff Principal Macphail was whether the sheriff principal could seek a supplementary note from the sheriff at first instance. This had become desirable due to amendment of the grounds of appeal. Counsel for the appellant argued that having regard to the terms of OCR, rule 31.4(2)(d) the circumstances in which a sheriff was required to write a note were restricted. There was no power to seek a supplementary note. Further, the request for such a note might create unfairness or at least that semblance and contravene article 6 of the European Convention on Human Rights. The sheriff principal had little difficulty in concluding that he had an inherent power to remit the cause to a sheriff in an appeal to take such further steps as were necessary in the interests of justice. In those circumstances, it was clearly in the interests of justice to seek a further note from the sheriff to cover the matters not originally covered in the note of appeal. Further, Sheriff Principal Macphail considered that whilst there was no specific power to seek a further note, rule 31.4 was not exhaustive.

Recalling decree competent?

In City of Edinburgh Council v Porter, Edinburgh Sheriff Court, 2004 GWD 16-358, Sheriff      R J D Scott came to a different conclusion to that of Sheriff Principal McInnes in North Lanarkshire Council v Kenmure, referred to in the May article. Sheriff Scott concluded that it was perfectly competent for a qualifying occupier in terms of sections 14 and 15 of the Housing (Scotland) Act 2001 to apply by way of minute for recall of decree in a summary cause action for recovery of possession. In reaching this conclusion Sheriff Scott considered the terms of the Summary Cause Rules. The person seeking recall was not a defender and had not been called as a party. He had not lodged a form of responses to the summons or appeared at the calling date. The decree granted had been in absence as far as that person was concerned. Further, the fact that the defender had previously recalled the decree was of no consequence. The qualifying occupier had not previously applied to have the decree recalled. In City of Edinburgh Council v Ure 2004 SCLR 306 Sheriff Principal Macphail agreed with the decision at first instance: if a defender fails to lodge a response to a summary cause summons but appears at the calling date and the sheriff grants decree against the defender, it is incompetent for the defender to seek to recall the decree granted by a minute for recall.

The usual caveat applies.