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Entitled to rely

16 March 15

Latest civil procedure cases, including solicitor's authority; jurisdiction; options hearings; personal injury actions; expenses; family actions; summary applications; sequestration

by Lindsay Foulis

Solicitor's authority

In Mazur v Primrose & Gordon [2015] CSIH 8 (22 January 2015) the Inner House confirmed that a solicitor handling an action in the sheriff court has ostensible authority to compromise the action. This principle applied notwithstanding the solicitor had acted contrary to instruction not to settle on the terms offered, as opposed to exceeding the authority given in instruction by the client. There were sound policy reasons for determining that an opponent’s agent could rely on that ostensible authority. If the opponent knew otherwise the position would be different, but that did not apply in the present case. Lord Menzies, delivering the opinion of the court, also confirmed that if fraud is founded on, specific averments are required. Likewise, to obtain a remedy against the agent said to have exceeded authority, the client would require to prove that a better outcome would have been achieved.

Juristiction

The decision of Lord Doherty in Work Legal E-Ltd v Allen [2015] CSOH 12; 2015 GWD 6-115 regarding whether jurisdiction on the basis of the defender’s domicile had been established is fact specific. However, it is worth mentioning as a possible guide if faced with such an issue.

Options hearings

In Boatland Properties v Abdul 2014 SCLR 792 Sheriff McGowan faced a situation not unknown in sheriff court litigation. At the options hearing no rule 22 note was lodged in support of the defender’s preliminary plea. The interlocutor closing the record was however silent regarding the disposal of that plea. Subsequently a note was lodged. The defender then lodged a counterclaim which contained a preliminary plea. At a later date a note was lodged supporting that plea. At debate the issue arose whether the defender’s preliminary pleas were live. As the terms of OCR, rules 18 and 22 had not been complied with, the pleas had been repelled before the relevant notes were lodged and thus could not be debated.

Personal injury actions

In Thompson v Sayegh, Edinburgh Sheriff Court, 11 February 2015, an action for personal injuries had been raised and proceeded under the Chapter 36 procedure. After a hearing which resulted in the timetable being varied, the pursuer failed to comply with the revised timetable in many respects. He failed to lodge a statement of valuation, a record, and a pre-proof minute. Subsequently he failed to lodge a list of witnesses and productions. He failed to to conduct a pre-proof conference and lodge the resultant minute.

Although the parties had not been sent a copy of the interlocutor detailing the revised timetable, as the matter had been heard in court, parties were expected to confirm the exact terms of the interlocutor, notwithstanding only the defenders had been represented. As a result of the initial failures an email had been sent to the pursuer’s agents seeking the lodging of the valuation and record, together with an explanation for these failures, to avoid a hearing in terms of OCR, rule 36.G1(3). Nothing was received, and thus a hearing was assigned and the pursuer was ordained to lodge and intimate an explanation before the hearing. Again nothing was lodged.

Sheriff Mackie considered authority. She noted the observations of Lord Reed in Brogan v O’Rourke Ltd 2005 SLT 29, to the effect that the interests of justice were not well served if failures to comply with the rules of procedure were readily excused. She noted that the timetable could be varied on cause shown as opposed to special cause shown, and thus the test for variation was less demanding. As a result some comfort existed on a failure to adhere to the provisions as a result of simple inadvertence, if such was excusable having regard to the circumstances. It covered mistakes, oversights, inadvertence, or any other excusable cause.

The sheriff observed that it was difficult to categorise the pursuer’s failures in those categories. There was no real excuse for the repeated failures. These suggested not only an inability to deal with the case on the part of the person dealing with the matter but also a lack of internal procedures to ensure such matters did not occur. The failures were serious. They prejudiced the prospects of early resolution and proper proof preparation. The agent was at fault as opposed to the party. The claim was not time barred and thus if dismissed could (and would) be raised again. The action was one alleging professional negligence. It was of concern for the defenders. To dismiss the action would ultimately delay final resolution of the dispute. The problems faced by the pursuer could be rectified.

In all the circumstances, Sheriff Mackie decided to vary the timetable to enable the pursuer’s agents to remedy the various failures. However, she found the pursuer’s agents personally liable for the expenses for a significant period of the litigation.

This decision might be viewed as an indication that if an action is not dismissed in these circumstances, the court is unlikely to “press the nuclear” in any circumstances. At first sight there might support for that view, although I stress that is not the view of this author. However, there is another matter which I would point out. Sheriff Mackie referred to the situation having all the hallmarks of one where the pursuer’s action had become “toxic”. That might suggest that in allowing the action to proceed, she was giving the pursuer very little time to turn a “toxic” situation into one which did not have such characteristics. In short, the pursuer had been denied the opportunity to retrieve the situation by starting again, which might have meant the defenders facing a far more challenging case, and the agents were also paying expenses to the defenders.

That might really be a “win-win” position for the defenders. Taking a broader view, this decision also shows what is going to become far more commonplace, with more and more emphasis being placed on case management.

Expenses

In Javaid v Ahmad, Edinburgh Sheriff Court, 9 February 2015 Sheriff Welsh awarded expenses on the basis of agent and client, client paying, in circumstances in which there had been numerous abortive and unnecessary hearings. Sheriff Welsh considered these all as being a total waste of court time and resources.

Family actions

In H v H [2015] CSIH 10; 2015 GWD 5-95 the Inner House determined that a final order for residence made at a child welfare hearing was not a final interlocutor in terms of ss 3, 27 and 28 of the Sheriff Courts (Scotland) Act 1907, as issues regarding divorce and contact remained to be resolved. Their Lordships also observed that when the welfare and safety of children was involved, there might be exceptional circumstances in which it would be inappropriate to allow procedural issues to obstruct the making of a decision on such matters.

Expenses

In McGraddie v McGraddie 2015 SLT 69 the Supreme Court determined that an insurance premium taken out in relation to the expenses of the litigation could not be recovered as an expense recoverable from another party, or in this case the Scottish Legal Aid Board.

Summary applications

In East Lothian Council v Martin [2015] CSIH 13 (17 February 2015) the Inner House observed that a sheriff had a wide discretion as to the procedure to be adopted in a summary application. Accordingly, in the circumstances of that case when a party failed to appear at a diet of proof, it was open to a sheriff to proceed in the absence of that party.

Sequestration

In Advocate General for Scotland v King 2015 SLT (Sh Ct) 25 an interlocutor had been pronounced continuing consideration of a sequestration petition beyond the 42-day period allowed by statute to enable settlement to be achieved. On the case next calling, the sheriff dismissed the petition as the interlocutor continuing the petition was incompetent. On appeal, Sheriff Principal Lockhart determined that the incompetent interlocutor did not taint the sequestration process and the respondent suffered no prejudice. He awarded sequestration.

Lindsay Foulis, Sheriff at Perth

Update

Clark v TripAdvisor LLC (January article) has since been reported at 2015 SLT 59, and Sheriff Holligan’s observations regarding Child Protection Orders (January) at 2015 SLT (Sh Ct) 9. 

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