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Reason for the rules

13 July 15

Latest civil cases, including small claims; summary causes; interim interdict; competent and omitted; preliminary proof; expert evidence; multiplepoinding; actions for delivery; expenses

by Lindsay Foulis

Small claims

Although nominally an appeal regarding expenses, the observations from Sheriff Principal Stephen in Tallo v Clark, Edinburgh Sheriff Court, 7 April 2015 (2015SCEDIN47), regarding small claims are of greater interest. A small claim arising from a road accident settled extrajudicially. The sheriff awarded expenses on the summary cause scale as a defence had been stated but not proceeded with in terms of s 36B(3)(a)(ii) of the Sheriff Courts (Scotland) Act 1971. That decision was upheld by Sheriff Principal Stephen. In so determining, however, she observed that, unlike other procedure, small claims procedure, in intending to be a speedy and effective means of resolving disputes, required predictability and certainty regarding expenses. Accordingly, the purpose of the preliminary hearing was to resolve matters at that point either by negotiation or judicial intervention. Parties could not rely on an evidential hearing: the sheriff required to be satisfied that evidence was necessary for resolution.

Against that background, if a sheriff was satisfied that evidence was required and then the defence was not maintained, it was correct that limitations on expenses were removed. It was necessary for parties to be frank as to their position at the preliminary hearing. It was not open to state a defence and then negotiate between a proof being assigned and the proof actually taking place. Once a proof was allowed, therefore, a defender only retained the protection regarding expenses if the matter proceeded in good faith with the proof. I agree that this is very much the ethos behind the small claims procedure. I very much suspect that it is not put into practice in sheriff courts throughout the land. There may be numerous reasons for this, time being undoubtedly one. It does place considerable duties on the bench and those appearing. For example, in actions in which the dispute is solely quantum, the court clearly should endeavour to resolve matters at the preliminary hearing. This would mean parties presenting their arguments as to competing values of a claim and a decision being delivered there and then.

Summary causes

In a recent appeal, Glasgow West Housing Association v Harasimowicz, Glasgow Sheriff Court, 20 May 2015 (2015SCGLA46), observations by Sheriff Principal Scott potentially go further than simply actions for recovery of heritable subjects. The pursuers gained decree at a continued first calling when the sheriff considered that the information put forward by the defender did not counter the proposition that it was reasonable to grant decree. The sheriff principal observed that an appeal in those circumstances did not amount to a second chance for the defender with the possibility of greater sympathy being shown or further information being supplied to the court. Cogent and compelling reasons required to be advanced to show that the court at first instance had erred in the exercise of judgment.

The sheriff principal referred to a judgment by his predecessor in Glasgow Housing Association Ltd v Fisher, 30 September 2008, in which it was observed that if a defender failed to put forward all facts to be relied on at a first calling, a sheriff would be thwarted from performing the duties expected in terms of the rules. In the event of a party being unable to do so, without good reason, that party must bear the consequences.

These observations can apply with equal force to any summary cause. They could also apply to summary applications in which recovery of heritable subjects is sought in terms of heritable securities. It could be argued that a sheriff can determine matters at the first calling even if a defender is present, if what is presented could not support a contention that to grant decree would not be reasonable.

Interim interdict

In Aird Geomatics Ltd v Stevenson [2015] CSOH 57; 2015 SLT 329, the pursuers had obtained interim interdict which was subsequently recalled following argument. In a claim for damages by the defenders, Lord Pentland, on considering authority, confirmed that a claim would follow if an interim interdict was recalled, the recall being conclusive proof that the interim order had been wrongously obtained. This principle was not limited to circumstances in which an examination of the facts took place. The rule might not apply if the order was recalled following a change of circumstances, or could be properly classified as in the nature of a possessory judgment.

Competent and omitted

In Ramsden v Santon Highlands Ltd [2015] CSOH 65 (2 June 2015), the pursuer sought reduction of missives and a settlement agreement and damages for breach of contract. A plea of competent and omitted was directed at a previous action between the parties in which the present defenders were suing the present pursuer. Lord Kinclaven determined that the reversal of roles did not prevent the tabling of the plea. In the previous action, the present pursuer was obliged to state all the defences open to him. Having failed to do so and judgment having gone against him, the opportunity to state these defences had passed.

Further, there was no question of res noviter veniens ad notitiam arising. The party founding on res noviter required to aver the discovery of a previously unknown fact which could not, with reasonable diligence, have been known before, and the circumstances relevant to the possibility of learning that fact at an earlier stage.

Preliminary proof

In SF v Quarriers [2015] CSOH 82 (25 June 2015) Lord Bannatyne made a few observations regarding preliminary proofs and s 19A of the Prescription and Limitation (Scotland) Act 1973. First, such diets were not the diets at which the truth and reliability of averments forming the basis of the substantive case were established. Secondly, in seeking the relief provided by s 19A, the onus lay on a pursuer. Further, proof that the defenders would be exposed to the real possibility of significant prejudice would usually determine the issue in their favour. In refusing to grant relief, Lord Bannatyne considered the issues of loss of evidence, the lapse of time, the intervening change in the law, the value of the potential claim, the cost of the litigation, and the irrecoverability of expenses in the event of a successful defence.

Expert evidence

Whether witnesses were truly experts was a matter which Sheriff Kinloch had to decide in Smith v Scottish Ministers, Livingston Sheriff Court, 30 April 2015 (2015SCLIVI38). Sheriff Kinloch determined that an expert in the use of force, physical interventions, restraints, management of violence and martial arts systems, and a health and safety expert, did satisfy the test. They were not testifying to matters well within the knowledge and experience of the fact finder. The former was a martial arts expert speaking to the use of physical force. The latter was speaking to the manner in which health and safety law was put into practice by employers.

Multiplepoinding

In MacAllans v W Burrell Homes Ltd, Glasgow Sheriff Court, 22 June 2015 (2015SCGLA48), solicitors who held funds due to the company raised an action of multiplepoinding. The other two defenders, the two directors and equal shareholders, had fallen out and there was no clear instruction as to disbursement of the funds. A plea to competency was taken on the basis that there was no issue as to the person who was legally entitled to the funds. The issue was thereafter to whom were these funds to be disbursed.

Sheriff Reid repelled the plea. Having reviewed authority, he observed that the purpose of the action was to enable the holder of a fund faced with competing claims to cite all interested parties in order that the holder could obtain judicial authority for disposal of the fund and for exoneration and discharge. When the holder of the fund had raised the action, greater latitude was given to the question of competency when such a person exerted no claim on the fund, had no alternative means to resolve competing claims in respect of the fund, and simply wished to consign it and be exonered and discharged. A stricter approach was taken when the pursuer was a claimant on the fund. In the first case, a person should not be expected to hold a fund over which there were disputed claims indefinitely, and an action could be justified even if one of the two competing claims was clearly ill-founded.

Sheriff Reid considered that whilst the company was entitled to the fund, as the directors were in dispute no officer of the company had authority to discharge the pursuers and real raisers. Further, properly understood there were indeed competing claims. In the context of a multiplepoinding these did not require to be confined to disputed assertions of ownership, but could arise from assertion of a lesser right to or over the fund or part of it, or of a right to manage, control or direct the distribution of the fund.

Actions for delivery

In Kirkham v Sneddon Morrison, Edinburgh Sheriff Court, 19 March 2015 (2015SCLIV46), Sheriff Principal Stephen observed that the fact that there might be other remedies open to a pursuer in an action for delivery did not render such an action incompetent. With commission and diligence, and applications under the Administration of Justice Act 1972, in contrast, the documents for which recovery was sought required to be relevant to the action raised or any potential litigation. The recovery was sought by the court for that purpose and the documents did not become the property of a party.

Expenses

In Wright v Hunter-Blair 2015 GWD 12-211 (2015SCDUMF25) Sheriff Jamieson decided that a motion for certification of a skilled witness could be made at any time prior to the diet of assessment of expenses in a summary cause. Paragraph 1(1) of sched 1 to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 only referred to taxation, but that should include expenses in a summary cause. Reference to the diet of taxation would be taken to mean the whole process of assessment, thus the motion for certification could be made at the diet of approval of the assessed expenses.

Lindsay Foulis, Sheriff at Perth

Update

Since the last article, B v D (May article) has been reported at 2015 SLT 217, City of Edinburgh Council v S (May) at 2015 SLT (Sh Ct) 69, and Taylor Clark Leisure plc v Commissioners for HM Revenue & Customs (May) at 2015 SLT 281.

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