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Long-term solutions

18 July 11

Latest civil cases, including interim interdict; amendment; damages for catastrophic injury and for children; family actions (including expenses); liquidation

by Lindsay Foulis

Interim interdict

There are elements of the decision being special to the facts of the case. Nonetheless, one observation by Lord Brodie in Holden v The Royal Bank of Scotland [2011] CSOH 84 (17 May 2011) is worth noting. The pursuer sought interim interdict against the defenders applying for or obtaining an award of sequestration. Lord Brodie was not persuaded to deviate from the general view that once a debtor’s apparent insolvency has been established, it is too late to seek to challenge the debt and seek suspension of the charge. That should have been done prior to the charge expiring. Exceptional circumstances may persuade a court to take a different course, but such circumstances were not present in the instant case.

Amendment

In Marine Harvest (Scotland) Ltd v NEMI Forsikring ASA [2011] CSOH 91 (31 May 2011), Lord Hodge refused to receive a minute of amendment tendered during a three-month gap in the evidence in a proof. He considered that the minute came too late. If it was received, witnesses who had given evidence might require to be recalled. Further investigations might be required, with additional witnesses called and the proof extended. The facts which were to be the subject of averment should have been known or ascertainable from an early date. Further, there were questions as to the relevancy of the averments sought to be introduced.

By comparison, in Shetland Health Board v Kelly [2011] CSOH 67; 2011 GWD 15-357 Temporary Judge Reid allowed a minute of amendment to be received which resulted in the discharge of a debate. The action had been raised in 2005 but there were reasonable explanations for the slow progress. There appeared no issue of prejudice. Any delay occasioned by the amendment could be measured in months, whereas refusal of the amendment would have resulted in a debate being conducted on the basis of artificial pleadings as the pursuers’ unamended pleadings were inadequate. Thus the interests of justice were served by allowing the amendment. A new claim was not being introduced. The new statutory case had the same factual basis.

It was also observed that disputes regarding the potential relevance of the averments in the proposed amendment were generally now argued when the record was sought to be opened up, rather than at the time the amendment was received. The exception arose if the amendment was tendered very close to a proof.

In Continental Tyre Group Ltd v Robertson 2011 GWD 14-321, following the dismissal of the action at debate, the pursuers appealed and lodged a minute of amendment. At the appeal, Sheriff Principal Bowen observed that the tendering of the minute of amendment was effectively a concession that the decision at first instance was well founded and the only issue for him to consider was whether the amendment should be allowed.

Reference to documents

In Aberdeenshire Council v Bruce Plant Ltd 2011 GWD 15-353 Sheriff Mann observed that if documents are simply referred to for their terms in pleadings, they are not being founded on and incorporated into the pleadings. Thus, such documents do not require to be produced at the stage the relevancy of the averments is being tested. Perhaps the real lesson to be learned from this decision is to avoid the indiscriminate use of “brevitatis causa” in averments!

Damages for catastrophic injury

In D’s Parent and Guardian v Greater Glasgow Health Board [2011] CSOH 99 (16 June 2011), Lord Stewart granted decree in terms of a joint minute in a case of damages for catastrophic injury, a style of which is appended to his note. His Lordship observed that the problem with lump sum settlements in such cases was that depending on the period the victim survived, the award might either be exhausted prior to the victim’s demise or that person’s estate might benefit ultimately from the balance of the award. The main problem from the claimant’s viewpoint was that periodical payments, fixed now for perhaps several decades to come, were at risk of being eroded by inflation. Linking payments to the Retail Prices Index was not a solution in light of the fact that wage inflation has for many years outstripped price inflation and a substantial part of the award was in respect of care costs represented by the future wages of carers.

Damages for children

In C v Kemp [2011] CSOH 43 (4 March 2011) a tender had been accepted on behalf of the child pursuer. The pursuer then sought, inter alia, the defender being found liable for the expenses of the court procedure relating to the payment and management of the damages for the benefit of the child in terms of s 13 of the Children (Scotland) Act 1995. Lord Brailsford considered that such expense was not properly a judicial expense but rather was a head of damage which should be sought from the defender.

Expenses

The issue of how a party’s conduct of proceedings should be reflected in expenses in family actions was considered in M v M [2011] CSOH 70 (5 May 2011). The facts upon which Lady Clark gave her decision are very much case specific. However, it is worthwhile noting that in her Ladyship’s opinion, if any argument was to have any prospect of success when founded on extrajudicial offers, written offers were really the only ones which could be usefully considered. Further the terms of any such offer had to be in clear terms.

Liquidation

In Spicer and Cork [2011] CSOH 87 (17 May 2011), Lord Glennie required to consider an issue arising following the removal of the noters as liquidators. Pending resolution of their remuneration, the noters withheld £400,000 of liquid assets of the company from the new liquidators. Lord Glennie had little difficulty in determining that the noters did not have such a right in light of the terms of rule 4.21 of Part 4 of the Insolvency (Scotland) Rules 1986. His Lordship further concluded that in fixing the remuneration for a liquidator by use of the court’s general discretion, a court could take account of any breach of duties on the part of the liquidator. In short, the conduct of the liquidator can be taken into account.

Family actions

The circumstances of A v B, Aberdeen Sheriff Court, 11 May 2011, may be somewhat unusual but nonetheless are worthy of noting, particularly Sheriff Principal Young’s suggested solution to a clearly urgent problem. Following a report prepared by a child psychologist on a child, at a child welfare hearing, on the basis of the report, without giving the parties the opportunity to address the court or having sight of the report, the sheriff granted a final decree for residence which altered the status quo. The appeal was upheld. While a sheriff’s powers at a child welfare hearing were wide, parties were still entitled to a fair hearing. The circumstances in this case had been very concerning: the psychologist had contacted the sheriff direct to express extreme concern for the safety of the child. Nonetheless the order had to be overturned. Sheriff Principal Young suggested that the sheriff could have granted an interim award and assigned a further child welfare hearing a few days later when parties could have addressed the court in light of the content of the psychologist’s report.


Update

Since the last article Ruddy v Chief Constable, Strathclyde Police (May article) has been reported at 2011 SLT 387, and AXA General Insurance Ltd Petrs (May) at 2011 SLT 439.

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