Journal Online

Article

16 January 12

Always something new

by Lindsay Foulis

Latest civil cases, including personal injuries procedure; right to be heard; party litigants; and expenses; along with new rules on certification for counsel

In Syme v East Lothian Council, Haddington Sheriff Court, 14 November 2011, Sheriff Braid required to consider the new personal injuries procedure in the sheriff court, and in particular the effect the new procedure had on the standards of pleading, particularly insofar as relating to specification. The action was raised shortly before the expiry of the triennium and a debate was assigned.

Sheriff Braid observed that there was no provision for such a hearing in terms of Chapter 36 of the Ordinary Cause Rules. He considered that having regard to the terms of Chapter 36, there was a fundamentally different approach taken in relation to pleadings in actions brought under that chapter. Brief facts as to the establishment of the claim, the injuries sustained, and the heads of claim were required. A statement as to whether the claim was based on common law or statute, and if the latter the relevant statutory provision, was required. Detailed averments of duty were not required as a result. Pleadings were to be concise. It was incompatible for points as to specification to be taken. Such points were to be dealt with at proof, with the potential at that point for a line of evidence to be disallowed. Actions under Chapter 36 were to be decided at proof.

Can I be heard?

An interesting point arose in Glynhill Ltd v Dundas & Wilson [2011] CSOH 195 (8 November 2011). An action for damages had been raised against the defenders. An advocate sought leave of the court to enter the process. This advocate’s interest in the proceedings was limited to having the right to be heard in order to protect his professional reputation. He had no interest in the action per se.

It was conceded that there was potentially an inherent power in the court to grant the application, and that a right to reputation was a right which could be protected in civil proceedings. The advocate had drafted a minute of amendment in an action of damages by an individual against the present pursuers. That action subsequently settled. It was averred in the present action that the minute of amendment did not accurately reflect the information in precognition. Lady Clark took the view that there was no issue in the pleadings as presently before her which undermined the professional reputation of the advocate. She accordingly refused the application. Lady Clark did, however, express the view that even if the pleadings did undermine the reputation of the advocate, it was an issue collateral to those raised in the action. As such it did not automatically give a third party the right to enter a process to protect a reputation. Although the issue was not decided on the issue of competency, I would have thought that if any such application was to be entertained, the instances would be extremely unusual and rare. The alternative raises a new meaning to the phrase that a litigation “has grown arms and legs”!

Party litigants

The problems party litigants can pose were the subject of observation by the Inner House in Parkes v MacGregor [2011] CSIH 69 (11 November 2011). Lord Bonomy observed that as a result of party litigants being totally immersed in the complexities of a case and its accompanying emotional turmoil, good points can often be missed by such litigants.

Expenses

In AB v BB [2011] CSOH 198 (2 December 2011), Lord Bannatyne decided that expenses in a family action relating to a dispute regarding contact should not be dealt with on a “no expenses due to or by” basis. He concluded that the defender should be found liable for a proportion of the expenses of process.

The pursuer had been successful in being awarded residence and resisting the defender’s claim for contact. In addition, the behaviour of the defender had resulted in unnecessary expense. She had made serious and unfounded allegations against the pursuer and his family. Allegations of a similar nature, which were likewise unfounded, were made against the curator ad litem and experts led by both the pursuer and the curator. Time had been taken up unnecessarily at the proof countering these allegations. Certain motions enrolled by the defender had been wholly unnecessary. Finally, the defender had not co-operated to certain perfectly reasonable requests.

An unusual point arose regarding expenses in Anderson v Shetland Islands Council [2011] CSOH 187 (15 November 2011). The defenders were awarded the expenses of certain procedure, but sought that the pursuer’s attorney be found personally liable for these expenses. The attorney was not a party to the action, and the issue was whether he was dominus litis in relation to the pursuer. The concept of dominus litis required interest in the subject matter of the litigation, and control and direction of it. On considering matters, Lady Smith considered she could not hold that the attorney had real interest in the litigation, although he was controlling and directing it.

Certification for counsel

The Act of Sederunt (Sanction for the Employment of Counsel in the Sheriff Court) 2011 comes into force on 1 January 2012. In its terms, sanction for the employment of counsel can be granted by a sheriff or sheriff principal, on the motion of either party or ex proprio motu, in relation to the appearance at any hearing or the preparation of any document to be lodged in the proceedings. Sanction can be granted before, at, or after the hearing or preparation of the document, as well as at or at any time before the disposal of the proceedings. If sanction is refused prior to any hearing or preparation of any document, application for sanction can be renewed at or after the hearing or after the document has been prepared. Sanction can be granted for the employment of more than one pleader, one or more hearings or preparation of documents. Restrictions can be imposed on the sanction.