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Family time

16 September 13

Latest civil cases, including family actions; adoption; appeals; title to sue; tenders; caution for expenses; case management; litigants' knowledge

by Lindsay Foulis

In M, Petr [2013] CSIH 69; 2013 GWD 25-473 it was determined that failure to pay aliment did not constitute a contempt of court. Albeit imprisonment was still available for non-payment of aliment, there was a prescribed procedure in s 4 of the Civil Imprisonment (Scotland) Act 1882 which could not be avoided.

Sheriff Morrison in L v L, Edinburgh Sheriff Court, 4 April 2013, made certain observations regarding reporters and curators ad litem in family actions. The former had to provide a report on matters for the court. The latter represented the child; they might write a report but, if provided, that was not the curator’s sole function. A curator should normally appear or be represented at hearings and proofs. Both might play a part in facilitating contact.

On considering what weight to be accorded to any report prepared by either, a court could attach such weight to assessments and opinions as was considered appropriate. If facts relied on by the author were not found proved, any assessment based on such facts could not be relied on. Evidence at any proof was the primary source of material on which a court would reach a decision. Any assessments or conclusions reached in such a report could be used to test evidence led. They were not binding on the sheriff presiding at any proof. If the views of a child were detailed in a report and the sheriff did not hear the views of the child in evidence or in chambers, the sheriff was entitled to treat the recorded views as being those of the child unless the sheriff accepted contradictory evidence.

In AY v MM, Dundee Sheriff Court, 26 July 2013, Sheriff Principal Dunlop observed that while a court can make an order in terms of s 11 of the Children (Scotland) Act 1995 which no party seeks, there must be an evidential basis. The parties’ attitude is a relevant consideration, in part because it is the parties that have brought their dispute to the court, and further as a result of the non-intervention principle in s 11(7). A court should be hesitant in making an order which goes against the wishes of all parties.

In L, Petr, Dumfries Sheriff Court, 12 August 2013 certain procedural issues were considered by Sheriff Ross in respect of an adoption petition. A permanence order had been made with authority to adopt. That order had not extinguished the natural parents’ rights to contact, although clearly that would be the consequence of the grant of the adoption order. Sheriff Ross considered that for that reason intimation of the adoption application required to be made on the natural parents. He referred to East Lothian Council, Petrs [2012] CSIH 3; 2012 FamLR 7. The requirement to intimate arose irrespective of whether any provision for contact had been made in the permanence order or not. In the latter case, article 8 of ECHR was engaged. Any opposition to the adoption petition was limited to that issue, and did not necessarily require evidence to be heard. There would be a wealth of information already before the court and the issue of continuing contact might well be able to be determined by reference to that information.

Appeals based on an assessment by the court at first instance of the credibility of witnesses pose significant challenges. In McGraddie v McGraddie [2013] UKSC 58; 2013 GWD 25-471 the Supreme Court observed that where the court had to decide between two irreconcilable accounts, credibility was of primary importance. Evidence adverse to a party’s credibility had to be considered in the context of all the evidence. The manner in which witnesses gave evidence was always a matter to be considered.

In Hill of Rubislaw (Q Seven) v Rubislaw Quarry Aberdeen [2013] CSOH 131 (6 August 2013), one issue was whether the pursuers had title to sue. The pursuers had entered into missives to buy subjects, but had no real right at the time the action was raised. They sought declarator in relation to the legal position regarding a number of disputed issues. It was argued that as the pursuers were not the owners of the subjects, they could not insist on the action. Lord Malcolm determined that where the pursuers were seeking a determination of the proper meaning of an agreement which was relevant to their acquisition of the subjects, they had a manifest and legitimate interest.

In Chas Stewart Plumbing & Heating v Henderson 2013 GWD 21-411, the pursuers accepted a minute of tender in identical terms to an earlier tender which had subsequently been withdrawn. The sheriff at first instance had only awarded expenses to the date of the first tender, concluding that the pursuers had acted unreasonably in refusing to accept that tender.

Sheriff Principal Dunlop reversed that decision. The defender was not entitled to be protected by the tender he had subsequently withdrawn, thus prolonging the proceedings. While it could be argued that the pursuers had had a change of mind, the same could be said of the defender in withdrawing the first tender then lodging a second in the same terms. Proceedings had ebbed and flowed, and matters should be looked at when they concluded. The withdrawal of the first tender indicated that the defender continued to contest the pursuers’ claim and was no longer prepared to settle matters on those terms. It denied the pursuers the opportunity to accept that offer. It was open to either party thereafter to attempt to settle matters extrajudicially. The second tender was thus the equivalent value of the first. There were no good and compelling reasons for the normal rules regarding expenses and tenders not applying when the second tender was accepted.

In Forrest v Fleming Builders [2013] CSOH 105 (21 June 2013) Lord Hodge heard counter motions to recall an order for caution, and for decree of absolvitor in light of caution not having been found timeously. The basis for the motion for recall was the pursuer being granted legal aid. The basis for the motion for absolvitor was that the grant did not constitute the material change in circumstances required to justify the pursuer’s motion, as her liability for expenses for the period she had no legal aid cover remained.

Lord Hodge recalled the order for caution, for a number of reasons. Mere impecuniosity did not justify such an order. Numerous factors had to be considered including the nature of the action, the strength of a party’s case as disclosed, the party’s conduct, and likely cost. Pursuit of a statable case should not generally be prevented. The provision of legal aid now meant that the pursuer’s case in a complex matter could be presented in a coherent and efficient matter. It was impossible to determine the prospects of the parties’ cases. His Lordship noted that caution provided protection for future expense. He further indicated that now that the pursuer had legal representation, she could not expect the indulgence previously shown to her by the court in management issues.

In Logan (Johnston’s Guardian) v Johnston [2013] CSOH 109; 2013 GWD 25-474 Lord Glennie considered the operation of the case management provisions introduced to personal injuries actions in the Court of Session. His observations may be worth noting in light of case management undoubtedly becoming a significant issue in any future litigation. Lord Glennie noted that it was preferable that differences regarding the procedure in a case were resolved in advance. Parties then were better able to assess the evidence to be led and the live disputed issues. The time required was easier to estimate. Greater certainty regarding such matters also gave a party a better basis to consider any offer to settle. In considering issues regarding late productions or amendment, the consequences on the time required for a proof were relevant. The introduction of such matters tended to render obsolete any time allocated for a proof.

Interesting observations were made in this regard in two recent decisions. In Tods Murray v Arakin [2013] CSOH 134 (29 July 2013) Lord Woolman observed that parties in a litigation were expected to check the court rolls to see when cases were calling. This presumably covers inquiring whether motions have been granted in chambers and the like.

In McDermid v D & E MacKay (Contractors) [2013] CSIH 65; 2013 GWD 25-472 Lord Carloway, delivering the opinion of the Second Division, observed that when new agents were instructed in a litigation there was no immediate requirement on them to ascertain the procedural position unless they were aware of a particular urgency. The agents were entitled to determine whether they could properly act and also satisfy themselves as to funding arrangements. 

Sheriff Lindsay Foulis

Update

Since the last article, Smith v Sabre Insurance (May article) has been reported at 2013 SLT 665, H v B (May) at 2013 SLT 681, and Tortolano v Ogilvie Construction Ltd (March) at 2013 SCLR 271.

 

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