Keeping a rein on child cases
Latest civil cases, including diligence on the dependence; interim interdict; remit to person of skill; delay; along with an overview of the new court rules concerning child cases
DILIGENCE ON THE DEPENDENCE
In Prosper Properties Ltd v Scottish Ministers  CSIH 54 (18 June 2013) the Inner House upheld the decision of Lord Boyd to the effect that arrestments on the dependence were valid.
Delivering the opinion of the court, Lord Menzies noted that de minimis clerical or typographical errors did not invalidate diligence. The real issue to be determined in deciding on validity was whether the error was likely to give rise to a mistake, misunderstanding or misapprehension in the reasonable observer as to the identity of the arrestee or the scope of the arrestment. The test was whether the reasonable observer would be under any such disadvantage when faced with the terms of a particular arrestment.
In Mirza v Salim  CSOH 73 (16 May 2013) Lord Woolman reiterated the requirements for a successful claim for damages as a result of the grant of interim interdict, namely: interim interdict is obtained periculo petentis; an award of damages depends on an assessment of the whole circumstances of the case; damages will be awarded if the interim interdict was nimious and oppressive; a false statement by the party obtaining the interim order is likely to be of that nature; a person who obtains a possessory judgment which was lawful at the time will not be liable in damages; and malice or ill will do not require to be averred.
REMIT TO MAN OF SKILL
In Alexander Reid Civil Engineering Services v Leatham 2013 GWD 1-4 (31 October 2012), a man of skill had been appointed by the court to report in respect of disputed works. The report was lodged in process, and on the defender’s unopposed motion the report was accepted and the findings and conclusions adopted. In an appeal against the granting of decree of absolvitor, Sheriff Principal Pyle confirmed that the acceptance of the report being unopposed, the findings of the report were binding on the parties.
In Abrahm v British International Helicopters Ltd  CSOH 69; 2013 GWD 17-347, Lord Drummond Young upheld a submission of inordinate delay and dismissed an action. The action was raised in December 1990 in respect of a helicopter accident in November 1988. Following the raising of the action, nothing had occurred for over four years, for which delay no explanation was given. Between 1996 and 1998, there was slow progress. Between 2002 and 2004, there was inordinate delay on the part of the pursuer’s solicitors, and culpable delay between late 2005 and early 2007 due to inaction by the solicitors. From mid-2008 to date, delay had been caused by the Scottish Legal Aid Board, but this was attributable to the pursuer’s early inaction. Delay was attributed to 13 of the 24 years since the action was raised. The delay had resulted in unfairness. There was a substantial likelihood that evidence available to resist the claim was now lost and the ability to challenge the expert evidence was significantly diminished.
FAMILY ACTIONS: CASE MANAGEMENT
The Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No 2) 2013 (SSI 2013/139) came into force on 3 June 2013, affecting actions raised on or after that date. This introduces the requirement of assigning case management hearings in actions in which s 11 orders in terms of the Children (Scotland) Act 1995 are sought.
These hearings are to be assigned when a proof or proof before answer is assigned at an options hearing or procedural hearing. In such actions, when a minute is lodged and is opposed, the sheriff, having considered measures set out in a new OCR, chapter 33AA, relating to expeditious resolution of the cause, may make such orders as are considered appropriate to ensure the expeditious resolution of the cause.
In actions involving applications for s 11 orders, at pre-proof hearings, the sheriff is required to assign a case management hearing. In terms of rule 33AA.2, a case management hearing can be assigned in addition, on the motion of a party or ex proprio motu. The case management hearing will normally take place between 14 and 28 days of the interlocutor allowing proof. Prior to this hearing the parties are required to hold a meeting called a pre-hearing conference. At this meeting the parties require to discuss settlement, agree matters which are not in dispute, and discuss matters which shall be covered at the case management hearing. Prior to that hearing, the parties require to lodge a joint minute of the pre-hearing conference, or explain why such a joint minute is not available. If a party is not present at the conference, their representative requires to be able to contact the party and be in full possession of the relevant facts.
At the case management hearing, the parties must provide the sheriff with sufficient information to enable the sheriff to ascertain: (a) the nature of the issues in dispute, including any questions of admissibility of evidence or any other legal issues; (b) the state of the pleadings and whether amendment will be required; (c) the state of preparation of the parties; (d) the scope for agreement of facts, questions of law and matters of evidence; (e) the scope for use of affidavits and other documents in place of oral evidence; (f) the scope for joint instruction of a single expert; (g) the number and availability of witnesses; (h) the nature of productions; (i) whether sanction is sought for the employment of counsel; (j) the reasonable estimate of time needed by each party for examination-in-chief, cross-examination and submissions.
At the hearing the sheriff will fix a diet for proof or proof before answer, and a pre-proof hearing in accordance with chapter 28A. The proof or proof before answer (a) shall be assigned for the appropriate number of days for resolution of the issues, with reference to the information provided to the sheriff and subject to rule 33AA.4(4); (b) may only be extended or varied on exceptional cause shown and subject to such orders (including awards of expenses) as the sheriff considers appropriate.
Under rule 33AA.4(4) the sheriff may make such orders as thought fit to ensure compliance with rule 33AA.4 and the expeditious resolution of the issues in dispute, including: (a) restricting the issues for proof; (b) excluding specified documents, reports and/or witnesses from proof; (c) fixing other hearings and awarding expenses. The case management hearing may be continued on cause shown, and is a diet for the purposes of the rules regarding decrees by default.
The adoption rules are also amended by this Act of Sederunt. The form of response to the adoption petition must now be intimated to the petitioner when it is lodged. Within 14 days of that response being intimated, the petitioner requires to lodge and intimate a brief statement setting out facts which will be relied on, in relation to considerations applying to the exercise of powers, the terms and conditions of any adoption order, and parental consent.
When the response is lodged, at the preliminary hearing the court requires to ascertain the nature of disputed issues, including admissibility of evidence and legal issues, and the names of all witnesses, including experts who are intended to give evidence; consider the possible use of affidavits and other documents instead of parole evidence, the possible involvement of counsel, and the likely duration of any proof, including submissions; order lodging of joint minutes, expert reports and other documents; assign a proof not later than 16 weeks away unless on cause shown a longer period is needed, and a pre-proof hearing no more than eight weeks prior to the proof; order answers to be lodged within 14 days; and ascertain whether expert evidence will be led and the possibility of joint instruction of a single expert. This preliminary hearing can be continued if it may assist the expeditious resolution of the dispute.
Lists of witnesses require to be lodged and intimated not later than seven days prior to the pre-proof hearing. The same applies to documents to be relied on. Notices of agreed facts and disputed issues require to be similarly lodged and intimated. At the pre-proof hearing, the sheriff requires to consider the extent of compliance with any orders made at the preliminary hearing, the preparation of the parties, the availability of witnesses, and the nature of the productions. The sheriff will also ascertain the likelihood of the proof proceeding on the dates assigned, and whether further dates are required. The sheriff can consider restricting issues for proof, and on the motion of a party or ex proprio motu exclude documents, reports, or witnesses from the proof. The proof requires to take place on the assigned days, and parties require to adhere to their estimates although power is given to adjourn. Witnesses other than those intimated can only be called on direction of the sheriff. Similar rules are introduced for permanence applications.
The intention behind these provisions is like a certain wood preservative – to do what it says on the tin! The question remains whether parties will be sufficiently up to speed, and perhaps more importantly, whether sufficient space in a court programme, including preparation time, will be found for these hearings to achieve what they are intended to.
I considered that when the provisions of OCR, rule 28A were introduced in 2006 they could be very useful for a party in preparing tactically for the proof. I rarely experience the rules being used in the way they could. Further, I feel that what has been enacted can, in many respects, already be achieved by the provisions of rule 33.22A(4) in actions in which a s 11 order is sought.