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Definitive view

14 September 09

Latest civil cases, including jurisdiction; sist; pleadings; interim damages; remit to sheriff court; recovery of documents; leave to appeal; party litigants; liquidation; small claims

by Lindsay Foulis

Jurisdiction

In J S Swan (Printing) v Kall Kwik UK [2009] CSOH 99 jurisdiction was founded on the place of performance of the contract. The pursuers were registered in Scotland, the defenders in England and domiciled there. In relation to the sale of goods and services, by EC Regulation 44/2001 the place of performance, unless otherwise agreed, is where the goods or services were provided. The pursuers averred that there was an implied term that the place of performance was in Scotland, where they had their business, on the basis of business efficacy. In any event, such had been the parties’ intention.

Lord Hodge concluded first that the issue of jurisdiction required to be determined by the lex fori, Scots law.

He did not consider that there was any basis for implying the term sought. At best it could be argued that the services would be provided in Scotland, but it was not possible to extract from that a wider contractual obligation, part of which was to be provided in Scotland. The court had to decide whether the obligation in the contract would be exclusively performed in one jurisdiction. This was required for certainty. In any event the European case law made it clear that article 5 jurisdiction should be used restrictively, to avoid undermining the main ground of jurisdiction, domicile. Accordingly the Court of Session did not have jurisdiction.

In Mackie v Askew, Ayr Sheriff Court, 11 August 2009, the pursuer, from Troon, sought damages for breach of copyright as a result of photographs which he had taken and then displayed on his website appearing on the defender’s website. The defender was in Largs. It was argued that the delict occurred anywhere the defender’s website could be seen, following Bonnier Media Ltd v Smith, 2002 SCLR 977. Sheriff Principal Lockhart, referring to European decisions and following Bonnier, observed that both the place of the event at the origin of the damage and the place where the damage occurred were significant in relation to jurisdiction, and a party could sue in the courts of either location.

Sist for other proceedings

In McKenzie v Carillion (Singapore)

and other cases, [2009] CSOH 100A, Lord Hardie was moved to sist actions for damages based on the development of pleural plaques, in light of the proceedings for judicial review in respect of the Damages (Asbestos-related Conditions) (Scotland) Act 2009. Enquiry had revealed that there might be an issue of time bar. If the judicial review was successful, time bar would be a relevant issue. The motions were granted. The pursuers’ agents had delayed the litigations until the legislation was passed; thus it was appropriate that no further procedure take place until its validity was determined. There was little prejudice to the pursuers, and to allow them to proceed would unnecessarily waste court resources and expense.

Averment and objection

In McFarlane v Thain [2009] CSIH 64 the Inner House required to determine issues arising in a reparation proof. It was argued that the Lord Ordinary had erred in concluding that there was no fair notice of a case based on the sound of a motorbike; in any event objection had been taken too late. The pursuer had no averments on the matter, which only became an issue when raised spontaneously in evidence by a witness.

Their Lordships were of the view that if there had been averment, acoustics experts would have been instructed or at least the accident investigators asked to consider this issue. The second defender would have been precognosced on it. No fair notice had been given. As regards timing, the matter had been raised by a witness spontaneously. Objection was taken when attempts were made to investigate the issue in more detail with a further witness. In the circumstances objection had been taken timeously.

vInterim damages

 

vIn Gellatly v AXA Corporate Solutions Assurance SA 2009 SLT 721, an application for interim damages, the driver allegedly at fault had not been insured as he had been driving without the policyholder’s permission. The insurers were however obliged to satisfy any determination of damages by virtue of s 151 of the Road Traffic Act 1988. Lord Malcolm rejected the argument that the driver was not a person insured in respect of a claim by the pursuer.

 

The rule simply requires an identifiable insurer being liable to make payment.

Remit to sheriff court

 

In McIntosh v First Glasgow Ltd [2009] CSOH 117 the pursuer sued for £9,000 in the Court of Session in respect of damage to a vehicle in a road accident. The defenders sought a remit to the sheriff court on the basis that the only issue was the reasonableness of the sum sought. Lord Brodie was sympathetic, particularly when proof was likely to take place earlier in the sheriff court and the expense would be lower. However, he considered he was bound by McIntosh v British Railways Board 1990 SC 338, where Lord President Hope observed that the power required to be exercised by reference to the particular litigation, as opposed to the general distribution of work between the courts. The fact that a claim was small and straightforward was not generally sufficient to justify a remit unless it was clear from the averments that the value of the cause could not exceed the privative limit of the sheriff court. Leave to reclaim was granted. I would venture that in light of the pressure on judicial resources, a fresh approach requires to be taken to this problem, albeit it may require legislation.

Orders for recovery

In Manning v Manning 2009 SLT 743 the Inner House considered an appeal in respect of an application under s 1 of the 1972 Act. The application had been dismissed as incompetent and irrelevant as it failed to comply with the terms of rules 3.1.2 and 3.1.3 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999. It was argued that these provisions only applied to the “dawn raid” scenario. The present application was to recover documents with a view to a future action. Their Lordships considered that prior to the Act there was no power to recover documents otherwise than in an action in dependence. Thus the application had to conform with the terms of that legislation, primary and secondary.

Leave to appeal

In Robertson Petr (No 2) [2009] CSIH 59, an application for an order under s 459 of the Companies Act 1985, the applicant sought leave to reclaim an interlocutor out of time. Their Lordships were prepared to accept that the reclaiming motion had not been enrolled timeously due to mistake or inadvertence. However, the motion was refused. Significant prejudice would be suffered by the company if proceedings were prolonged. This is a reminder that the exercise of the dispensing power involves judicial discretion even if the qualifying criteria are met.

Party litigants

In Wilkie v Direct Line Insurance [2009] CSIH 70 Lord Carloway, giving the opinion of the Inner House, made a number of observations regarding party litigants. A court will always try and bear in mind that such litigants are unfamiliar with rules of procedure and often the law. Being personally involved, they may be under stress. However, party litigants do not have licence to conduct proceedings in any way they wish and require to conduct themselves with due decorum both to the court and any opponent. A court cannot take the place of legal adviser, especially regarding what evidence to lead and when: the party litigant is responsible for the conduct of his case and any procedural choices to be made.

I am tempted to say that every party litigant should be advised of these observations, particularly when they appear to be reluctant to resolve a small claim/summary cause at first calling. Their Lordships also observed that it was perfectly acceptable for a judge in assessing credibility to consider not only demeanour in the witness box and how their evidence related to other evidence, but also the party’s general conduct in the litigation.

Liquidation

In Pec Barr (Holdings) v Munro Holdings 2009 GWD 24-391 the respondents lodged a caveat against

a first order being granted in a liquidation. They disputed that they were unable to pay their debts when they fell due. They stated that some of the debts had been satisfied and disputed liability in respect of the balance. Sheriff Holligan granted the first deliverance. To refuse to do so in effect prejudged the issue of ability to pay. There was insufficient information for him to take that course with any confidence. The respondents could still challenge the basis for the petition. The lodging of the caveat was a procedural step. It did not determine the court’s approach to a particular issue.

Sheriff Holligan further observed that the fact that a first deliverance had already been pronounced in another petition did not prevent the deliverance being granted. Rule 21 of the Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986, which allowed another creditor to be sisted in lieu of the original petitioner in a liquidation, was permissive. It did not require such a creditor to be sisted.

Small claim expenses

In Teviotdale v Norwich Union Insurance, Dumfries Sheriff Court, 23 June 2009 the issue was whether the sheriff had correctly determined that the modification provision relating to small claims should not apply. The action arose out of a traffic accident in a car park. The sheriff awarded expenses on the summary cause scale. The defenders had made no offer to settle and to have any prospect of success would have required clear evidence of excessive speed on the part of the pursuer. No such evidence had been led. The information in the defenders’ hands indicated that their insured had not seen the pursuer’s vehicle.

Sheriff Principal Lockhart considered that the defenders had acted unreasonably in refusing to attempt to resolve matters. The pursuer came from Liverpool and had incurred substantial expense in prosecuting her claim. The sheriff principal emphasised that his decision was reached in the particular circumstances, namely the clear indication that the defenders’ insured was at fault and their refusal to negotiate. I would observe that I often find at the first calling of small claims, those appearing for one side have no instructions regarding any possible compromise. I suggest that in those circumstances, if an evidential hearing is assigned and at a later date settlement is negotiated or liability established, this decision gives a potential basis for the successful pursuer seeking expenses on the summary cause scale.


 

Update

Since the last article Van Klaveren v Servisair UK Ltd (July article) has been reported at 2009 SLT 563; Gerrard Petr (July) at 2009 SLT 659; Glasgow City Council v Ferguson (July) at 2009 SLT (Sh Ct) 47; Primary Health Care Centres (Broadford) Ltd v Ravangrave (May) at 2009 SLT 673; Emerson v The Edrington Group Ltd (May) at 2009 SLT 681; Gaelic Seafoods (Ireland) Ltd v Ewos Ltd (May) at 2009 SCLR 417; and Sovereign Dimensional Survey Ltd v Cooper (March) at 2009 SCLR 448. Further, M v M (July) was upheld by the Inner House, as reported at 2009 SLT 750.

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