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Get the basics right

17 November 14

Latest civil procedure cases, including written pleadings and proof; appeals; suspension of diligence; family actions; summary causes

by Lindsay Foulis

Written pleadings and proof

Spare a thought for the judge! I can do no better than repeat these paragraphs from Sheriff Principal Pyle’s decision in Gutcher v Butcher, Kirkwall Sheriff Court, 23 September 2014:

“[2] The sheriff was faced with a difficult task at the proof. The written pleadings in the form of the record leave much to be desired. They extend to 15 pages of tight script, but could easily have been reduced to less than half of that. The pleaders for both parties appear not to have a grasp of the fundamental rules of pleading. They both plead evidence, rather than confining themselves to making averments which they would each then seek to prove. There is a liberal and usually inappropriate use of calls upon the opponent to produce vouching. The respondent’s pleader in particular does not understand the difference between denial of the appellant’s averments and the use of the term ‘not known and not admitted’. And, perhaps most obviously, both pleaders are guilty of considerable repetition of the same averments of fact. All of this means that it must have been very difficult for the sheriff in the course of the proof and in preparing his judgment accurately to assimilate the evidence he heard to what each party offered to prove.

“[3] This lack of proper focus on the task in hand also extended to the selection of witnesses to be led at the proof and what those witnesses might contribute to an understanding of the relationship between the parties for the purposes of the Act. As the sheriff describes in his note to his judgment, it is plain that for him many of the witnesses were of little and sometimes of no assistance.”

It has been said before, and no doubt may be repeated in future, but the discipline of pleading a case properly means the issues are focused and the number of witnesses limited. It ultimately means the judgment is easier to frame and should be issued more quickly. It may also avoid a trip to the appellate jurisdiction!


In Donaldson v Donaldson [2014] CSIH 88 (28 October 2014), although there was an issue as to whether the interlocutor under attack was a final one, it comes as no surprise that the Inner House concluded that it was. A matter of greater interest was the consequences of an appeal being marked against a later interlocutor in circumstances in which the later interlocutor was not the one to be attacked, but rather an earlier one on the basis that a later appeal opens all prior interlocutors to review.

Lady Smith, in delivering the opinion of the court, observed that the mere fact of appealing the later interlocutor did not render the earlier interlocutor susceptible to review. That may be at odds with observations made in McCue v Scottish Daily Record 1998 SC 811, to the effect that an interlocutor for which leave to appeal had been refused could be subsequently subject to review in an appeal against the final judgment. The present decision may well be based on the fact that the Inner House determined that the earlier interlocutor was a final one and it should have been appealed timeously, as opposed to attempting to engineer an appeal by marking one against the later interlocutor, which, her Ladyship accurately observed, the appellant had neither title nor interest to challenge.

Suspension of diligence

In McGovern v Scottish Ministers [2014] CSOH 134; 2014 GWD 20-567, Lord Carloway, sitting in the Outer House, observed that an application for suspension of diligence was competent even in circumstances in which the decree which was the foundation for the diligence was not subject to review by suspension. However, in such circumstances it was necessary to specify that reduction of the decree was to be sought, and the basis in law for such.

Assessment of evidence on appeal

In Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd [2014] UKSC 41; 2014 SLT 775, the Supreme Court observed that an appellate court could only interfere with the first instance assessment of evidence if satisfied that it was plainly wrong. “Plainly” was not a reference to the confidence with which the appellate court considered it would have come to the same decision. It simply referred to whether the decision was one a reasonable judge could have reached. “Plainly wrong” could be understood as meaning a decision which could not be reasonably explained or justified.

Family actions

In the decisions in T v K 2014 GWD 26-522, 523 and 524, the pursuer sought residence of his children. The parties had separated in 2004. The children had been made the subject of a supervision requirement whilst resident with the defender. This was varied in 2011 to the effect that the defender would reside in England with the parties’ children, and she left Scotland thereafter with them. The pursuer had applied for residence in June 2011.

Sheriff Jamieson observed that s 41 of the Family Law Act 1986, extending the deemed habitual residence of the children in Scotland, did not apply only if children had been removed in contravention of a court order. Because of the terms of the supervision requirement, the pursuer’s failure to apply for interim interdict did not amount to agreement to their removal, nor did failure to appeal the amendment of the supervision requirement. Agreement was constituted by consent or subsequent acquiescence.

It was further argued that Dumfries Sheriff Court was forum non conveniens. This plea was repelled. The action had been ongoing since 2005. There was a significant amount of information available in that process compared to the minimal information in the English process.

In Scottish Borders Council, Petrs 2014 SLT (Sh Ct) 140, Sheriff Principal Stephen determined that a curator ad litem and reporting officer in a permanence application was not limited to charging the fee laid down in the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 2001. The court had power to make orders as to remuneration of such persons and to determine which party or parties should be responsible for making payment. When this power was exercised by the court, it was appropriate for the claim for remuneration to be subject to taxation by the auditor of court.

Summary causes

In BBM v Younger, Lerwick Sheriff Court, 15 October 2014, Sheriff Mann considered that a minute for recall of decree was competent in circumstances in which a defender had not lodged a response to the summons but had joined in a joint incidental application to discharge the preliminary hearing and have the action sisted. When the sist was recalled and a further preliminary hearing took place, decree was granted when the defender failed to appear. The joint incidental application was the equivalent of a form of response. Therefore at the subsequent hearing the only basis for decree was SCR, rule 8.2(5). The minute for recall was competent. The note of proposed defence accompanying the minute for recall did not require to give fair notice of that defence.

Lindsay Foulis, sheriff at Perth


Since the last article Mirza v Salim (July article) has been reported at 2014 SLT 875, and Shad v Irfan (September) at 2014 SLT (Sh Ct) 125. 

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