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Rewriting the rules

19 May 14

Latest civil cases, including calling; preparation; amendment; division and sale; expenses; preliminary pleas; expert witnesses; interlocutors; mora – and the SCJC rules rewrite interim report

by Lindsay Foulis

SCJC interim report

The interim report from the Rules Rewrite Working Group was published on 28 March 2014 (access via www.scottishciviljusticecouncil.gov.uk). This perhaps gives some guidance as to what the focus will be, and also may give an indication as to what practitioners can expect, even before new rules are promulgated.

One of the areas identified as a priority is management of cases. The interim report observes that the management of litigation should transfer to the courts, and judges and the judicial system should take a proactive stance in managing the progression of cases through the courts. It also indicates that rules regarding case management are a priority, as are rules for enforcement/sanctions to ensure adherence to the rules and the creation of compulsory pre-action protocols.

Calling is crucial

In Friends Provident Life Assurance Ltd v Sir Robert McAlpine Ltd [2014] CSOH 74 (24 April 2014) Lord Woolman made comments as to the significance of a Court of Session summons calling that might sometimes be overlooked. First, a summons must call within a year and a day after expiry of the period of notice, otherwise the instance falls. Secondly, if that is not done, it is not possible to gain relief from a failure to lodge a summons for calling, as the action “ceases to be a living process”. Finally, service of the summons is not in itself enough to interrupt prescription. Even although the date of service is the relevant date, the summons must call. These principles are at times overlooked, and can cause obvious problems if actions are raised to preserve time limits and thereafter it is suggested that the summons is not lodged for calling because parties are negotiating.

An unexpected turn

The merits of the appeal in Findlay v Findlay (Glasgow Sheriff Court, 14 March 2014) are not of note for this article. What is, is what happened at the appeal hearing. Senior counsel appeared for the appellant to present the appeal. This appears to have somewhat taken the wind out of the sails of the respondent, who did not properly reply. The sheriff principal made avizandum.

Thereafter, the respondent endeavoured to provide more detailed written submissions. In light of the nature of that further reply, the sheriff principal brought the case out by order to enable the appellant to make any submission in response to these new submissions. This hearing ultimately brought a penalty by way of an expenses award.

The sheriff principal noted that normally, once a case was taken to avizandum, it was not possible for further submissions to be provided in writing. In such a situation, the respondent should clearly have attempted to adjourn the hearing of the appeal to consider the submissions made by senior counsel.

Don’t overplay your hand

The decision of Sheriff Principal Stephen in Secretary of State for Work and Pensions, The Child Support Agency v Anderson (Edinburgh Sheriff Court, 8 April 2014) seems to me to provide an insight as to how tactics can influence what happens in a litigation. The pursuers sought a liability order against the defender for £23,739. Defences were lodged which suggested the maximum liability was £9,828.88. The pursuers reduced the sum they sought to that figure, but at proof sought to increase it to the original figure. The defender opposed this amendment and indicated, if it was granted, that he would seek an adjournment as he would intend to call another witness in light of the altered figure. This adjournment was in turn opposed. The sheriff refused the motion to amend and an appeal was taken.

One reason for refusing the motion had been that the sum sought in a liability order should be readily ascertainable and certain, and the defender was entitled to believe that the original amendment was the result of thought on the part of the pursuers, who were a state body and should proceed against members of the public in an open and straightforward manner.

In refusing the appeal, Sheriff Principal Stephen considered that, by opposing any subsequent motion to adjourn, the pursuers forced the sheriff to consider that it was in the interests of justice to refuse the amendment. If this line had not been taken, the impression gained is that the appeal might have been successful. The sheriff principal appears to me to give a broad hint that the sheriff had, in part of his reasoning, made an error in law.

Division and sale

In Collins v Sweeney (Glasgow Sheriff Court, 13 March 2014) Sheriff Principal Scott refused an appeal in which it was argued that in an action of division and sale, it was competent to crave the court to order one pro indiviso proprietor to sell their share to the other. The right of a pro indiviso proprietor to raise an action of division and sale was absolute. The sale had to take place and the proceeds then divided between the proprietors.

Expenses

Issues relating to pre-accident protocols in personal injury actions resulted in Lord Boyd’s decision in Brown v Sabre Insurance Co Ltd [2013] CSOH 51 (25 April 2013) appearing on the courts’ website. The defenders had refused to deal with the claim in terms of the protocol. An action was raised notwithstanding the defenders indicating that they were prepared to negotiate on receipt of a medical report and other vouching. Lord Boyd observed that the protocol set out good practice and encouraged compromise.

It was, however, voluntary. He considered that the fact that the Law Society of Scotland and the Forum of Scottish Claims Managers had negotiated its terms meant the courts should recognise the protocol. While it might be front loaded, it had benefits to the administration of justice.

Court recognition of the protocol would boost the confidence of the insurance industry in it. Relatively remunerative fees in terms of the protocol aided access to justice. If insurers declined to deal with claims in terms of the protocol, they could not complain if claimants’ agents then did not pursue claims in accordance with its provisions.

In McAteer v Glasgow City Council [2014] CSOH 42; 2014 GWD 9-174, Lord Boyd was again asked to consider whether an award of expenses should be made, in an action raised 16 days after the last communication in negotiations between parties. Lord Boyd considered that, in light of the negotiations, intimation that an action was going to be raised would have been more appropriate. There was, however, no indication that any further delay would have resulted in settlement being achieved, particularly in circumstances in which the defences disputed liability.

Although the settlement figure was above the privative jurisdiction of the sheriff court, nonetheless Lord Boyd modified the expenses to the sheriff court scale. The personal injuries procedure now being available in that court, the need to make efficient and appropriate use of judicial resources, and costs generally, meant that it was appropriate that the modification be made.

In Crabbe v Reid 2014 GWD 12-208 (13 March 2014), Sheriff Principal Scott had to deal with an application for certification of the cause being suitable to employ counsel in terms of the 2011 Act of Sederunt. He concluded that the Act of Sederunt permitted a court to sanction the appearance of counsel at a hearing, their preparation of a document or both. There was no restriction on the time at which such an application could be made, provided the grant of the motion took place before disposal of the proceedings.

Preliminary pleas

In Fulwood v O’Halloran (Glasgow Sheriff Court, 6 January 2014), Sheriff Ian Miller observed that a general plea to the relevancy and specification seeking dismissal was perfectly adequate to enable a person arguing that plea to seek to exclude certain averments from probation, rather than dismissal of the action. Such a plea could quite competently be sustained in whole or in part. A plea attacking specific averments gave greater notice, but equally such notice would normally be given in the rule 22 note.

Expert witnesses

Just a brief observation from Lord Woolman in Hawthorne v Anderson [2014] CSOH 65 (4 April 2014). Expert witnesses were expected to be scrupulously impartial. In this instance, the expert had prior links with the defenders.

Final interlocutors

Whether an interlocutor is a final one or not is of significance for the purposes of marking an appeal. In Donaldson v McKinnon 2014 GWD 12-209, Sheriff Principal Scott observed, in an action relating to children, that the interlocutor was indeed a final one as it had dealt with the three real issues in controversy. The fact that the judgment did not pronounce on every question raised was not significant.

Mora and prejudice

In Hendrick v Chief Constable, Strathclyde Police 2014 SLT 382, the Inner House observed that there was clear authority to the effect that a plea of mora might succeed without the party demonstrating that prejudice had been or would be suffered. Averments of facts and circumstances inferring either prejudice or acquiescence were required.

Sheriff Lindsay Foulis

Update

Since the last article, Chief Constable of the Police Service of Scotland v R (March article) has been reported at 2014 SLT 209, Clark v TripAdvisor LLC (March) at 2014 SLT 418, Ward, Petr (March) at 2014 SLT (Sh Ct) 15, and Mortgages 1 Ltd v Chaudhary (January) at 2014 SLT (Sh Ct) 35.

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