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Barrister barred

18 May 15

Latest civil cases, including rights of audience; citation; alternative averments; case management; appeals; expenses

by Lindsay Foulis

Rights of audience

In Taylor Clark Leisure plc v Commissioners for HM Revenue & Customs [2015] CSIH 32 (23 April 2015) the Inner House determined that senior counsel from the English Bar did not have rights of audience to argue an appeal from the Upper Tribunal (Tax and Chancery) before the Inner House. There was no statutory basis for the right of audience sought. No regulations had been promulgated in terms of s 30 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990. Further, it was not within the power of the court to grant such a power by means of the exercise of its discretion. Significant rights and duties held the Court of Session together and maintained standards of conduct in the justice system. Thus rights of audience should be restricted by rules. Decisions on an ad hoc basis would undermine this.

Citation

In AB v CD [2015] CSOH 24 (27 February 2015) Lord Jones determined that, for the purposes of citation, a solicitor who had been suspended from holding a practising certificate for a period was a party litigant. Accordingly, such a person could not effect citation by post. Lord Jones further determined that the appearance of a party to challenge the validity of citation did not constitute an appearance which could cure any defect in citation.

Delivering the opinion of an Extra Division in Hoe International Ltd v Andersen [2015] CSIH 24 (29 January 2015) Lord Menzies indicated that when the induciae was determined as a particular period, that period must elapse before the summons could be lodged for calling or decree could be minuted. That period could be varied, if desired, by enrolling an appropriate motion or the period of notice being dispensed with. If these steps were not taken, the period in the warrant ruled.

Alternative averments

In Greig v Davidson [2015] CSOH 44 (21 April 2015), one of the issues Lord Stewart required to consider was that of alternative and inconsistent averments of fact pled by the pursuer. These were that the defenders, who were solicitors, did not have authority to act, but if they did, they acted negligently. The defenders submitted that to allow such averments to proceed to proof was not in the interests of justice, as the pursuer could not be ignorant of the factual position.

Lord Stewart, on reviewing authorities, allowed the averments to proceed to proof. Whilst it was easier to allow such inconsistent averments to proceed to proof if the person making them was justifiably ignorant of the true factual position, or where the averments were those of a defender, his Lordship considered that in circumstances in which sharp practice was alleged or hinted at, particularly where members of the legal profession were potentially involved, alternative and inconsistent averments might well be acceptable in the interests of substantial justice.

Case management

I may be showing my age! In Scott v Scottish Water, Stornoway Sheriff Court, 23 February 2015 (2015SCSTOR17), Sheriff Principal Pyle observed that case management involved judicial intervention to ensure that the real issues of dispute are identified at an early stage, so that they are subject to scrutiny at proof. Despite certain observations, case management is really not a new phenomenon. I recall it was the thinking behind the introduction of the options hearing.

Sheriff Principal Pyle observed that it was important that issues which were irrelevant to the real dispute should be excluded from probation. This is not really a new approach. I refer to MacFarlane v Falkirk Council 2000 SLT (Sh Ct) 29, Gracey v Sykes 1994 SCLR 909, and Blair Bryden Partnership v Adair 1995 SLT (Sh Ct) 98. The benefits of case management to the parties and the administration of justice are clear. However, this grail has been sought in previous amendments of the rules of procedure without any apparent success. To achieve that goal, preparation time for both bench and bar is necessary, with the appearance of either the principal agents or representatives suitably instructed, no matter what procedural rules in my view are enacted.

There are a number of rules in the existing code, namely those relating to options hearings, procedural hearings, pre-proof hearings and child welfare hearings, that can be used to case manage if adequate time for preparation for both bench and bar is permitted. Sheriff Principal Pyle’s observation that, with a little more care, the position of the parties and what each offers to prove could be easily expressed so that the real issues between the parties are clear and their respective positions in relation to these issues is sufficiently transparent, is however a goal all practitioners should seek to secure. The acid test for the authors of the new code will be whether this goal is actually secured. I do believe that goal has been sought before.

A word of warning regarding case management comes from Lord Brailsford in West Lothian Council in respect of TRW [2015] CSOH 28 (24 March 2015). The action was for a permanence order. In accordance with the rules relating to case management, affidavits were lodged for the respondent and a supporting witness. It was clear that what was contained in the affidavits was inaccurate to a significant degree. Lord Brailsford observed that the evidence regarding the preparation of the affidavits was highly unsatisfactory. He was tempted to conclude that the affidavits constituted a deliberate attempt to mislead the court. Clearly the circumstances were very much case specific, but this decision emphasises the care which is required in the preparation of affidavits.

I suspect the frequency of affidavits being used in cases is going to increase significantly. They are likely to form the basis of examination in chief even for witnesses who are controversial. Care accordingly requires to be taken in their preparation and the affidavits require to be executed correctly. Practitioners should be on guard, considering the reference made in his Lordship’s opinion to their position as “officers of court”.

Appeals

In Carlyle v Royal Bank of Scotland plc [2015] UKSC 13; 2015 SLT 206 the Supreme Court observed that to allow an appeal on the basis that a court at first instance had gone plainly wrong, the test was whether the court at first instance had reached a decision which could not reasonably have been reached on the evidence led before it.

Expenses

In Bent v Trevett 2015 SLT (Sh Ct) 41 (2015SCSTIR14), Sheriff Principal Dunlop considered another dispute regarding liability for expenses arising in a reparation action settled by minute of tender and acceptance shortly after it was raised. On intimation of the claim, the pursuer had proposed negotiation in terms of the voluntary pre-action protocol, as agreed by the Law Society of Scotland and the Forum of Scottish Claims Managers, to which the defender’s insurers were a signatory. In terms of the protocol, the insurers were required to acknowledge the letter of claim within 21 days of receipt, failing which an action could be instituted. No reply was received within 21 days and an action was raised.

On an appeal against a finding of no expenses due to or by, Sheriff Principal Dunlop considered that the use of the protocol should be encouraged, and adherence was recognised as a reasonable and normal approach in dealing with such claims. As a result of the defender’s insurers’ failure to adhere to the set timescale, the pursuer did not act unreasonably in raising proceedings and expenses were awarded in his favour subject to a slight modification to cover a short delay in producing medical evidence. The sheriff principal reserved his opinion where a defender’s insurers were not signatories to the protocol.

In Polley v West Lothian Council [2015] CSIH 19 (20 February 2015) Lord Carloway, speaking for the Second Division, observed that where there was no conflict of interest between defenders it was unreasonable to have separate representation, and therefore restricted the expenses awarded.

In City of Edinburgh Council v MS, Edinburgh Sheriff Court, 3 March 2015 (2015SCEDIN20), Sheriff Sheehan, in an application for an order in terms of s 1 of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011, refused to find the pursuers liable for the expenses of an unsuccessful application. There was a requirement on pursuers to ensure that they had a statable case before proceeding, but they had acted in a protective capacity in terms of statutory guidance. The legislation was widely framed, the subject matter was novel and the facts complex.

Lindsay Foulis, Sheriff at Perth

Update

Since the last article Abram v British International Helicopters Ltd (July 2014 article) has been reported at 2015 SCLR 95.

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