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Through the hoops

19 September 11

Several recent civil cases have considered whether particular rules or statutory provisions have been complied with, or the effect of failure

by Lindsay Foulis

The decision of Sheriff Principal Dunlop in Simpson v Downie, Forfar Sheriff Court, 17 August 2011, covers a number of interesting points. The pursuer appealed against the allowance of a crave in defences for an order in terms of the Family (Scotland) Act 2006, s 28. The pursuer’s claim for a similar order had been raised timeously within one year of the parties ceasing to cohabit, but the defender’s claim appeared with the defences lodged outwith the one year period. The sheriff had allowed the defender’s claim on the basis that it was simply part of the opposition to the pursuer’s claim. The sheriff principal disagreed with this approach. There was no need to crave a s 28 award in order to resist the claim by a former cohabitee.

This seems to be another expression of the shield/sword analogy for defence/counterclaim. The sheriff principal was firmly of the view that, in terms of s 28, each cohabitant required to make a separate application within the statutory time limit. However, there was a problem for the pursuer. Although the sheriff had entertained the time bar argument, albeit it was rejected, there had been no supporting plea in law. The pursuer sought to remedy this by minute of amendment at the appeal.

The sheriff principal first considered that before the defender’s claim could be determined to be out of time, pleas in law had to be tabled to that effect, as the statutory time limit was a procedural bar. Failure to institute a claim timeously was not a question of competency. Thereafter he considered that the minute of amendment seeking to introduce the appropriate pleas in law was too late. A plea of limitation could be waived. The time for taking the plea was no later than the closing of the record. Failure to do so entitled the other party to assume the plea had been waived.

Repossession proceedings

In Santander UK plc v Gallagher 2011 GWD 25-556, Sheriff Mackie determined that when a calling-up notice was served by sheriff officers it required to be served personally on that person, to comply with the terms of s 19(6) of the Conveyancing and Feudal Reform (Scotland) Act 1970 regarding “delivery to the person on whom it is desired to be served”. Other methods of service by officer of court, as provided for in the ordinary cause rules, were not appropriate in light of the statutory provision.

Party litigants

In Lindsays v Senior-Milne, Edinburgh Sheriff Court, 24 August 2011, Sheriff Principal Stephen, in refusing an appeal against a summary cause decree for payment, observed that the court had a duty to secure the just resolution of a dispute brought before it. If a party represents itself, the court has an additional burden of explanation to that party, but does not have any duty to advise that party how to conduct its case. A party litigant requires to be aware of the rules of court, which apply equally to it as to parties with representation. The sheriff principal further observed that in responding to a summons, if a party did not intimate that it was challenging jurisdiction, a subsequent challenge might well not be entertained.

Inordinate and inexcusable delay

In Ross v Giles Insurance Brokers Ltd, Dumfries Sheriff Court, 22 July 2011, Sheriff Principal Lockhart upheld the decision to dismiss an action of the basis of inordinate and inexcusable delay. The action for payment had been raised in 2002. In October 2005, after two proof diets had been discharged, a further proof was allowed on a date to be afterwards assigned. Since then nothing had occurred for five years. The sheriff principal considered that a number of witnesses would now be unlikely to be traced. The memories of any who were traced were likely to be adversely affected by the passage of time. Documentary evidence might be unable to be retrieved. In addition, a proof at this stage would require detailed testimony relating to the pursuer’s various claims, which would take a considerable time.

The sheriff principal also commented that, having regard to the terms of OCR 15.7(5), the procedural consequences of allowing a further proof were considerable. Any proof would be lengthy and indeed lengthier than it might have been if delays had been avoided. Allocation of civil business was not easy due to the call on shrieval resources. A party could not expect resources to be allocated to his claim after such a lapse of time, particularly when he had failed to take advantage of the proof diets previously allocated. Other litigants would be prejudiced if the litigation was allowed to proceed.

It appears to me that this is the first time the issue of procedural consequences has been referred to in such plain terms when looking at the question of delay.

Diligence on the dependence

In Fish & Fish v Sea Shepherd UK [2011] CSOH 122; 2011 GWD 25-580, Lord Emslie refused to recall the arrestment of a ship. The claim far exceeded the assets of the prospective debtors when the ship was excluded. The debtors’ income was largely from donations and might be affected by knowledge of this potential liability. His Lordship further considered the diligence reasonable. Whilst the debtors were a charitable organisation and the diligence adversely affected their operations, the basis of the claim was a deliberate attack at sea causing substantial loss.

Recovery of documents

In LAM v A Scottish Local Authority [2011] CSOH 113 (30 June 2011), Lord Stewart considered whether persons named in documents, who were not parties to the action, should receive intimation as to the contents of the documents which would be made available to the party seeking their recovery.

The action was one for damages against a social work department arising from sexual abuse. The pursuer recovered a report on the investigation of instances of sexual abuse against herself and others. The documents had been placed in a sealed envelope. It was suggested by the havers that Lord Stewart should peruse the documents without disclosure to the parties. A further hearing would be assigned to consider intimation to any victims or perpetrators of the abuse referred to in the report, which would be compatible with their ECHR rights. Documents with suggested redactions would be lodged prior to that hearing and then, after submissions from all parties, the court would decide what redactions were necessary.

Lord Stewart considered that there were many ways in which the identity of others could be protected, from anonymisation of the findings in fact to reporting restrictions and hearing evidence behind closed doors. The pursuer was agreeable to the redaction of the report with the anonymisation of many individuals. Disclosure of the redacted report would be restricted. The judge decided that the report, redacted as he suggested, should be lodged and disclosed to the pursuer. Thereafter a hearing should be assigned to consider reporting restrictions and whether the opportunity should be given to persons mentioned in the report to make representations as to such restrictions, further redaction, or anonymisation.

Conduct of proceedings

In City of Edinburgh Council, Petr, Dundee Sheriff Court, 25 July 2011, Sheriff Pyle, in fairly clear terms, sets out the difficulties facing the court in endeavouring to case manage applications for permanence orders and the like in the manner anticipated by the Act of Sederunt. It is a heartfelt observation with which I concur. Sheriff Pyle’s observation as to the effect of the reduction in judicial resources is also well made. There are limits in what the system can achieve and Sheriff Pyle, in my opinion, hits the nail on the head in respect of such proceedings.

Expenses

In Douglas v MacAndrew, Banff Sheriff Court, 29 July 2011, Sheriff Mann refused a motion to certify the cause as suitable for the employment of junior counsel. Simply because a party to the action was a local solicitor was not sufficient justification for sanction. The action was not complex or valuable. Solicitors should be able to pursue a member of their profession in an appropriate manner. If it was felt this could not be done, another solicitor could be instructed. Sheriff Mann also correctly observed that the disposal of an action in a particular manner could not as far as the court was concerned be dependent on the ultimate decision regarding expenses.

Bankruptcy

In Fraser’s Tr, Noter, Edinburgh Sheriff Court, 24 May 2011, Sheriff Holligan considered it competent to grant an order in terms of s 63(1)(b) of the Bankruptcy (Scotland) Act 1985 to remedy an error in respect of the operation of s 14, in this instance the failure to send a memorandum to the Keeper of the Registers within three years of the date of sequestration.

                                                                                                                                                                

Update

Since the last article AXA General Insurance Ltd v Lord Advocate (May article) has been reported at 2011 SCLR 305, Child Maintenance and Enforcement Commission v Davies (March) at 2011 SLT (Sh Ct) 77, and Child Maintenance and Enforcement Commission v O’Donnell (March) at 2011 SLT (Sh Ct) 84.

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