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Article

Bone of contention

13 March 06

Latest civil cases, including lodging of writ; diligence; delay; amendment; tenders; interim damages; recovery of evidence; expenses; family cases; summary causes

by Lindsay Foulis


When is a writ lodged?

In Superdrug Stores v Network Rail Infrastructure 2006 GWD 4-75 the Inner House overturned the decision of Sheriff Principal Stewart (see September article). Whilst agreeing with the sheriff principal’s observations as to the definition of making an application, the presentation of a summons in proper form together with the appropriate fee implied that the summons should be processed in the ordinary way and accordingly on the facts an application had been made.

Diligence on the dependence

In Gillespie v Toondale Ltd 2006 GWD 1-4, the Inner House expressed the view that in considering a motion for recall of diligence on the dependence, regard required to be had to all the averments of the parties. The grant of judicial security and interference with a party’s right to property required a higher test than a colourable case. In Anglo-Dutch Petroleum v Ramco Energy 2006 GWD 5-90 the omission of the words “for arrestment” in a warrant for diligence on the dependence was held by Lord Brodie to render an arrestment founded on the warrant ineffective. He further considered that if the error had been noticed, it was so fundamental that it could not have been remedied as a clerical error.

Delay in prosecuting an action

In McKie v MacRae 2006 SLT 43 an action was raised by children of a deceased in 1996, and sisted in 1997. The accident had occurred in 1986. The sist was recalled in 2003. In 2005 the pursuers sought to amend. The defenders argued that the action should be ended due to unwarranted delay in pursuing it, resulting in fair trial being impossible. Further, they had been prejudiced in their ability to defend the action. Absolvitor which failing dismissal should be granted. They argued that the Court of Session had an inherent jurisdiction to control actions to avoid abuse of process. Lord Glennie agreed that the court had such an inherent jurisdiction, which could be exercised to conclude actions in which there had been a delay causing prejudice or jeopardising a fair trial. If it could be shown that a party, through no fault of his own, had been denied a hearing within a reasonable time, even if the cause was the other party as opposed to the state, the court could not allow a hearing, which would not be fair, to take place. Whilst the institution of the present action was not delayed, there had been inordinate and inexcusable delay since. The action was dismissed. Lord Glennie further expressed the opinion that no criticism could be directed against the party seeking conclusion of the action as there was no onus on such a party to prosecute an action when the opposition showed no such inclination.     

Separation of proofs

In McFarlane v Thain 2006 SLT 107 one question before the Inner House was whether it had been appropriate to split proof of the issues of liability and quantum. A passenger on a motorcycle sought damages from his driver and another. His driver was uninsured and the MIB had sisted itself as a party. The MIB raised the issue of whether the pursuer knew his driver was uninsured. It also blamed the other driver and alleged that the pursuer was contributorily negligent. In the circumstances, the inevitable non-involvement of either the MIB or the other driver in the issue of quantum resulted in the splitting of proofs relating to liability and quantum at very least desirable.

Amendment

In Bremner v Martin 2006 GWD 4-73 the pursuer sought to amend in exactly the same terms as had previously been refused. The pursuer founded on a material change in circumstances in that the previous motion had been refused a little under three weeks prior to a proof. That proof had since been discharged with a fresh diet assigned for July 2006. Lord Macphail refused the amendment as incompetent. The motion was an attempt to recall a previous interlocutor. In reaching this decision he founded on section 18 of the Court of Session Act 1988, which provides for finality of interlocutors in the Outer House. Lord Macphail further referred to Lord Justice Clerk Ross’s opinion in Campbell v James Walker Insulation 1988 SLT 263 to the effect that the substance of an interlocutor generally cannot be altered once it is signed and issued. Whilst there is no statutory equivalent of section 18 in the sheriff court, the principle laid down in Campbell would apply. 

Minutes of tender

The form of words required to leave the issue of expenses open for the exercise of judicial discretion was again examined in Brackencroft v Silvers Marine 2006 SLT 85. The words used in the minute of tender were “such expenses as the court may deem appropriate”. The Inner House considered that this did not constitute the wording required for recognition as a judicial tender. The words to be used insofar as relating to expenses were “with the expenses of process to date”. Such an offer means that expenses will be determined by the court applying judicial principles in the circumstances of the litigation. Accordingly it still leaves the liability for expenses and whether these should be modified to the ultimate discretion of the court.

A further decision on tenders to an extent follows nicely from this case. In Gough v Glasgow City Council, 14 February 2006, the pursuer was awarded a sum in damages and interest which beat a second tender lodged by the defenders. The award, however, did not beat an earlier tender which had been withdrawn after a few weeks. Lord Bracadale had little difficulty deciding that the defenders could not rely on the first tender in accordance with normal practice. However, as respects the general judicial discretion on expenses, the defenders argued that the pursuer had acted unreasonably in refusing to accept the earlier tender when it was available. Lord Bracadale decided that this was not the case.

Interim damages

A question arose in Carling v W P Bruce Ltd, 20 January 2006 whether it was competent to move for interim damages after proof had commenced. Lord Macphail ruled that it was, the motion coming after defences had been lodged. The phrase “if the action proceeded to proof” in one arm of the rule of court did not affect this.

Recovery of evidence

In Williamson v Advocate General for Scotland, 3 February 2006 Lord Macphail was moved to grant commission and diligence in an action for personal injuries under the new Chapter 43, a less formal procedure with less detailed pleadings. An objection to one call was founded on lack of record. Lord Macphail allowed the recovery. He considered that the pursuer’s averments conformed with the Chapter 43 rules. If the party seeking recovery in those circumstances can explain the basis on which the order is sought, why it is believed the documents exist and why they would be of assistance, the call should be approved. In the sheriff court, this may be of some importance in summary causes and small claims, in which detailed pleadings are of less significance. 

Expenses

The decision of Lady Smith in Baker Hughes Ltd and Baker Hughes Inteq France SA 2005 SCLR 1084 is referred to simply as a reminder that in exceptional circumstances the court can order that an award of expenses be taxed at a higher level, namely agent/client, client paying, when the unsuccessful party’s conduct was unreasonable and disclosed substantial irresponsibility. In Phillips v Dumfries and Galloway Acute and Maternity Hospitals NHS Trust 2005 SCLR 1115 an award of damages was substantially less than an agreed figure of interim damages, in respect of which no interlocutor had actually been pronounced. The sheriff had found the defenders liable in expenses. The issue was ultimately appealed to the Inner House. Their Lordships observed that the fact that the ultimate award was less than the agreed interim award was of no significance, as a proportion of such an award was liable to be repaid if the final award did not exceed it. On the issue whether the pursuer’s entitlement to expenses should be modified because he acted unreasonably, they considered that in the circumstances he had not so acted. They made interesting observations on the effectiveness of extrajudicial offers made otherwise than by tender. To be of significance to the issue of liability for expenses, such offers require to be clear and unequivocal and the pursuer requires to have acted unreasonably in rejecting them. Factors such as whether the offer was in writing, and a reasonable time to consider it, required to be looked at.

Family cases

On occasions colleagues bring decisions to my attention which may be of interest and which I have missed. One such is RS v PQ, 23 July 2004. The pursuer sought final decrees for interdicts against removal of children and molestation. It is quite common for a pursuer to seek decree for interdict against molestation in absence. Lord Mackay of Drumadoon, adopting the dicta of Lord Macfadyen in Cunningham v Cunningham 2001 Fam LR 11, decided that such an order will not be granted simply as a result of the facts being established, or as a result of the facts so established the pursuer has reasonable grounds for the views held. The test is whether, assessed objectively, there are reasonable grounds for apprehension of future conduct similar to that complained of. Past events require to be considered in light of any relevant change of circumstances.

Summary causes

In Aberdeen City Council v Hendry, Aberdeen Sheriff Court, 14 February 2006 an appeal was taken against a decree for ejection. As is common in such actions, the cause had been sisted, no doubt to monitor payment of rent. This arrangement, one assumes, having fallen down, the pursuers intimated an incidental application to recall the sist and thereafter for decree. The defender failed to appear at the calling of this motion and decree was granted, under reference to summary cause rule 8.2. Sheriff Principal Young recalled the decree as the hearing had not been a hearing in terms of rule 8.2. I suspect this decision may cause concerns for those acting for landlords. If no defence has been stated, which is common in my experience, the action will have been sisted at the first calling or a continuation thereof. When the sist is recalled, the action will return procedurally to the same stage. In those circumstances does rule 8.2 still not apply? Further, the incidental application gave clear intimation as to the pursuers’ intentions.

The usual caveat applies.

Postcript

Since the last article Burnett v Menzies Dougal (September article) is reported at 2005 SCLR 1061, Singh v Singh (September) at 2005 SCLR 1000, O’Connor v Bullimore Underwriting Agency Ltd (September) at 2005 SCLR 1111, and Accountant in Bankruptcy v Butler (January) at 2006 SLT (Sh Ct) 2.