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A caveat on witnesses

18 September 06

Latest civil court decisions, including jurisdiction in family cases; pleadings; witness lists; caution for expenses; decree by default; appeal; expenses

by Lindsay Foulis

Jurisdiction and parental rights

In Surowiak v Dennechy 2006 GWD|24-539 the minuter applied to vary a contact order post-decree. The respondent sought in answers to end contact. The child, sisted as a party, sought a similar order together with orders depriving the minuter of parental rights and responsibilities, and a change of surname. It was also claimed that Edinburgh Sheriff Court no longer had jurisdiction. All parties were now habitually resident in England although the respondent had lived most of her life in Scotland and had friends there. Sheriff McPartlin dismissed the minute. The child no longer had a substantial connection with Scotland. She and her family resided in England and she attended school there. Accordingly the terms of article 12(3) of EC Council Regulation 2201/2003 were not satisfied.

In B v B 2006 GWD 26-583 a plea of forum non conveniens was upheld in an action for residence. English courts had been dealing with issues of residence and contact. The defender and child had been in London since 2000. Virtually all the relevant witnesses were there.  

Extending the adjustment period

Although a Court of Session decision, it is perhaps worthwhile to note observations in a recent case. In Parkes v McGregor 2006 GWD 24-522 Temporary Judge M G Thomson refused a motion to extend the adjustment period to allow the pursuer to investigate certain case law and other factual matters. The results of any such investigations could be the subject of amendment.

Amending to restore averments

In Morris v Fife Council 2006 GWD 25-551 it was argued that it was incompetent to introduce by minute of amendment averments previously deleted by way of amendment in the course of a debate. Lord Uist decided that such an amendment was competent. As the previous averments had been deleted by way of amendment as opposed to a decision of the court, to allow the new amendment to be received did not amount to the recall of a prior interlocutor.

Witness lists

Both whilst in practice, and now on the bench, it is my general impression that compliance with OCR, rule 9.A3 is patchy to say the least. There are similar provisions applicable in the Court of Session, one being RCS, rule 43.6. To my knowledge there has never been any decision in the sheriff court relating to the operation of rule 9.A3 or its predecessor. Assistance can only be gained from looking at Court of Session decisions. One such is the recent decision of Lord Glennie in Quigley v Hart Builders (Edinburgh) Ltd, 28 July 2006. Whilst part of the decision is taken up with argument as to the interrelation between the rule of court and a practice note, the decision itself may be of some assistance in litigation in the

sheriff court.

The pursuer had intimated a list of witnesses late. The list named the pursuer, two GPs and a specialist. The motion to receive this list late was refused prior to the proof. The basis of opposition was the inclusion of the specialist and the evidence that might be led from that person. On the first day of the proof, the pursuer sought to lodge a fresh list naming four witnesses: the pursuer, two GPs and a neurosurgeon. This motion was again opposed, the first three witnesses because of the prior ruling, the neurosurgeon because, although he was on the defenders’ list, they now had no intention of calling him and his evidence could only relate to certain of the pursuer’s complaints. Lord Glennie refused to allow the list to be received. There had been no material change in circumstances since the previous ruling. However, he was prepared to allow the pursuer to give evidence. It was arguable whether a party required to be named on such a list, although better practice that he was. Further, the defenders must have anticipated that the pursuer would lead evidence. In addition, one of the GPs was on the defenders’ list, and a precognition taken from the other was provided to the defenders. On that basis, the GPs were allowed to give evidence. Turning to the neurosurgeon, Lord Glennie was not prepared to discharge the proof or delay it for a period. Instead, he allowed the neurosurgeon to give evidence but that was limited to the subject matter of his report to the defenders.

Caution for expenses

In Monarch Energy Ltd v Powergen Retail Ltd 2006 SLT 743 Lord Drummond Young granted a motion for caution for expenses. He did not consider that the granting of such a motion contravened article 6 of the European Convention as the right in the article was not absolute and the requirement to find security had been decided to be a permissible limitation on that right. Section 726(2) of the Companies Act 1985 rightly ensured that limited liability was not a means of avoiding the costs of litigation. An “after the event” insurance policy, which had been lodged in response to a prior motion, did not provide a guarantee that any expenses would be met, the terms of the policy being such that it was liable to avoidance in the event of misrepresentation or non-disclosure.

Decree by default

In Aberdeen City Council v Shauri 2006 GWD 22-467, the defender failed to appear in court when the case called for proof although he was within the court building. The granting of decree by default was appealed. Sheriff Principal Young considered that in normal circumstances the decree would have been recalled. However, the defender in the circumstances could not successfully argue it was unreasonable to grant decree of recovery. The sheriff principal further indicated that, although the defender’s solicitor withdrew at the proof diet and advised the court that the defender had been told to attend, the sheriff was correct to grant decree by default in terms of Summary Cause Rules, rule 22.1(1).

Rights of appeal

In Russell v Hoblyn 2006 GWD 24-535 Sheriff Principal Kerr decided that an order in terms of s 64(2)(b) of the Bankruptcy (Scotland) Act 1985 was an order ad factum praestandum and accordingly could be appealed without leave.

In East Ayrshire Council v Robertson 2006 GWD 26-581 Sheriff Principal Lockhart observed that an application to have an appeal marked out of time when an extract has already been issued, can only be entertained if the extract has been issued irregularly.

Issues on expenses

An issue with which I had some sympathy arose in McFarlane v Scottish Borders Council 2006 GWD 22-484. The defenders had been found liable in the expenses of the action. The interlocutor decerned that the defenders pay the expenses as taxed by the auditor. The pursuer prepared an account and the defenders offered to settle the expenses at a lower figure and lodged a tender in that figure. The pursuer refused the offer, but after taxation the figure of taxed expenses including the audit fee and the agent’s fee for attending the taxation failed to beat the figure offered. The defenders moved to be awarded the expenses of the taxation. This motion was refused by Lady Smith. The interlocutor awarding expenses was one for decerniture. Further the interlocutor dealt with not only the expenses to the date of pronouncement but also the expenses incurred in the taxation process. Her Ladyship did indicate that it might be possible for a party in a similar position to the defenders to invite the auditor to issue a draft report. If such a tender was not beaten, then submissions could be made to the auditor. As her Ladyship remarked, this approach seemed desirable. The party entitled to expenses should not assume that to proceed to taxation is free from cost in the face of such an offer. The expenses involved in taxation are significant!

In C v C 2006 GWD 23-509 Sheriff Cusine awarded expenses against a defender in a divorce action. His attitude had been unreasonable, resulting in potential settlement not being achieved and a proof requiring to be conducted. His attitude had resulted in numerous attempts at contact with the children at child welfare hearings failing. He further was able to meet the expenses from the proceeds of the house sale.

In Beaumont, Petr 2006 GWD 23-510 a solicitor failed to pay a reporter in proceedings relating to children. The reporter was nominated by the court and instructed by the solicitor by letter. An Extra Division of the Inner House decided that although the court had appointed the reporter and accordingly regulation 10 of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 did not apply, the solicitor had instructed the reporter as an expert. Further, the reporter had been instructed by letter. Accordingly, the solicitor was liable to meet the reporter’s fee.

The usual caveat applies.