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Over the border

17 September 12

Latest civil cases, including abuse of process; delay; abandonment; permanence orders; recovery of heritage; intimation; insolvency

by Lindsay Foulis

I do not think I have ever actually drawn attention to an English decision in the years that I have contributed to the Journal. However it struck me that the decision of the Supreme Court in Fairclough Homes Ltd v Summers [2012] UKSC 26; [2012] 1 WLR 2004 is worthy of mention.

The claim arose from an accident at work. A few months afterwards the insurers admitted liability. The appellants were found liable to pay damages. Thereafter doubts were raised as to the veracity of the claim and undercover surveillance of the claimant was undertaken. The basis of the appeal, which sought to have the claim struck out as an abuse of process, was that the appellants’ insurers alleged that the claim was fraudulent and that such claims were rife.

The Supreme Court concluded that the court did have the power to strike out a claim on the grounds of abuse of process even after a determination of matters with the leading of evidence. However, such a power could only be exercised in exceptional circumstances. The power could be exercised in less exceptional circumstances either before or during the determination of the facts. After trial, the abuse of process required to be of such a character that the party forfeited the right to have the claim determined. It was in the public interest that such a power existed.

Before deciding to exercise that power, it added, the court must examine the circumstances scrupulously to ensure that to strike out the claim was proportionate to achieving the goals of controlling the process and deciding cases justly. It was a step of last resort. Normally a balance would be struck by fairly assessing liability and quantum and giving judgment accordingly. Dishonest claims could also be deterred by awards of expenses and the criminal law. Interest awards could also be modified. On the facts, striking out was not appropriate.

Following on nicely from the above is the issue of inordinate delay. In Hardie v Morrison 2012 GWD 25-509 an appeal was taken against a first instance decision to uphold such a plea. The facts surrounding Sheriff McCulloch’s decision have been set out in a previous article (November 2011, 26). The pursuer appealed. One argument was that obligations which were imprescriptible were excluded. Sheriff Principal Dunlop rejected the argument, although it was a factor to be considered in determining whether there had been inordinate and inexcusable delay. If a claim was imprescriptible, a new action could always be raised.

In Morris v Eason [2012] CSOH 125; 2012 GWD 27-564 Lord Woolman concluded that a plea of no title to sue was not open to a defender who was a squatter in subjects with no legal right to occupy.

In Gemmell v Marleybone [2012] CSIH 57; 2012 GWD 25-512 the pursuer had lodged a minute of abandonment. The defenders were ordered to lodge accounts of expenses, but not all did. After a significant period of time when the accounts which had been lodged had been taxed and notes of objections relating to the auditor’s decision disposed of, the pursuer moved to withdraw the minutes, which the sheriff allowed. However, he granted motions on behalf of the defenders for absolvitor because the pursuer had failed to display good faith in respect of the withdrawal.

Lady Paton, delivering the opinion of the Inner House, upheld the granting of the decrees of absolvitor. The pursuer had no valid reason for withdrawal of the minute of abandonment, thus questions marks arose as to his good faith. The pursuer should have moved to ordain the relevant defenders to lodge their accounts of expenses. The pursuer’s actions in seeking to withdraw the minute were approaching abuse of process.

In Tor Corporate AS v Sinopec Group Star Petroleum Co Ltd [2012] CSOH 112; 2012 GWD 25-513 Lord Menzies confirmed that the plea of competent and omitted could only be stated in circumstances in which there had been a prior decree in foro.

In the petition by Dumfries and Galloway Council 2012 GWD 27-561 the parents opposing applications for permanence orders with authority to adopt, enrolled motions for contact to enable a psychologist to observe the parents with the children. It had been a condition of the supervision requirement in respect of the children that there should be no such contact.

Sheriff Ross considered that the true nature of the motion was for a report to be prepared which might be used in evidence in the hearing on the permanence application. It was a procedural application made in terms of rule 36 of the Adoption Rules 2009. The submissions before the sheriff however did not follow that route. Rather the issue was whether the application was competent in terms of s 97(2) of the Adoption and Children (Scotland) Act 2007.

Sheriff Ross, after considering the terms of the relevant legislation, concluded that such an application for contact in a permanence application at the instance of parents who had not been deprived of their parental responsibility and right to maintain personal relations and direct contact with a child, was competent. The court had a wide discretion in considering whether such an application should be granted and regard had to be had to the interests of the child, which might include the expeditious determination of the permanence application and providing the court with information which would be of assistance to the court in determining such an application.

Accord Mortgages Ltd v Edwards, Sheriff Braid, Haddington Sheriff Court, 25 June 2012 considered the competency of an action for declarator that the defenders were in default of the conditions of the standard security, that the subjects were not used for residential purposes, and that the pursuers had the right to sell. The two issues were whether the action could proceed as an ordinary action or had to be a summary application, and whether the pursuers were entitled to proceed by means of declarator alone, thus avoiding the necessity of pre-action requirements under s 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970.

The subjects in the present action were unoccupied following the death of the debtor. It was held that whether subjects were used for residential purposes had to be determined at the time of enforcement. In this case, the subjects were not so used, and thus it was competent to proceed simply for declarator in an ordinary action.

In Bank of Scotland plc v Stevenson, Dumfries Sheriff Court, 1 June 2012, Sheriff Jamieson concluded: that where the issue was whether a calling-up notice had been served competently, entering the process did not preclude objection to the method of service if the stated methods of service were exhaustive; that depositing the notice through the letter box did not equate to personal service; but that s 19(6) of the Conveyancing and Feudal Reform (Scotland) Act 1970, in its use of “may”, set out a number of optional, non-exhaustive methods of service of a calling-up notice, and a sheriff officer was entitled to serve a calling-up notice as an officer of court in accordance with the rules of citation in legislation and rules of court.

Another decision of Sheriff Jamieson, Duff v George Wimpey West of Scotland Ltd 2012 GWD 27-557, concluded that a party litigant could only personally serve or intimate items of process if given specific legislative authority so to do. If not, the responsibility fell to sheriff officers or a solicitor. The fact that a party objected to the validity of intimation did not amount to appearance such as to waive the right to object. It was objection to the competency as opposed to objection to the merits of the application.

In Royal Bank of Scotland plc v Hill [2012] CSOH 110 (3 July 2012) Lord Pentland determined, in relation to the use of a statutory demand as a precursor to insolvency proceedings, that such demands could only legitimately be served if the purported creditor could truly be so described in relation to the debtor.



Since the last article Hamilton v Ferguson Transport (Spean Bridge) Ltd; Thomson v Dennis Thomson Builders Ltd (July article) has been reported at 2012 SLT 715. 


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