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Cautionary tale

14 November 16

Latest civil cases, including Sheriff Appeal Court; warrants; whereabouts unknown; joint orders; declarator; lis alibi pendens; personal injury; lay representatives; civil imprisonment; expenses

by Lindsay Foulis

Appeal remit to Court of Session

The issue of whether it was appropriate for the Sheriff Appeal Court to remit an appeal to the Inner House in terms of s 112 of the Courts Reform (Scotland) Act 2014 arose in First Time Ltd v Fraser [2016] SAC (Civ) 9 (14 September 2016). Refusing the motion, Sheriff Principal Murray concluded that in assessing whether a point of law was novel or complex, consideration should be given as to whether there was a real likelihood that the issue might reach the Supreme Court at some point, or whether there were conflicting Outer House decisions thus rendering an authoritative Inner House decision desirable. He observed that the provisions of s 113 of the Act, dealing with leave to appeal a final judgment, were such that apart from a remit in terms of s 112 it was not possible to bring a point to the attention of the Inner House before a final judgment was pronounced.

The court also suggested that a motion to remit should be made as soon as possible after an appeal to the Sheriff Appeal Court was taken, in short when the appeal was lodged or within the 14 days allowed for parties to make representations following a provisional order in terms of Sheriff Appeal Court rule 6(7).


The context in which the Sheriff Appeal Court’s comments in Robertson v Muir [2016] SAC (Civ) 10 (30 August 2016) were made may follow quite nicely from First Time Ltd. I suspect that some practitioners are not as familiar as they should be with the position of this court in civil matters. It is, in effect, the court of appeal for all sheriff court work, with the right to go further very limited. The court and proceedings before it are of the utmost importance. Thus a motion by an appellant to discharge the appeal because the principal agent was engaged in a proof at first instance was met with disdain. No prior indication of problems had been given. Further, authorities had not been provided timeously. The court observed that the business before it as the superior court took priority to that before a court at first instance.

It may be stating the obvious, but before any court, if confronted with a difficulty, be open. Sadly the appellant’s agent was not, and the consequences are there for all to see at para 24. The decision also affirms an appellate court’s reluctance to interfere with a decision regarding expenses.

If a warrant is refused?

In J, Applicant [2016] SC EDIN 66 (1 August 2016), the pursuer sought the exercise of the sheriff principal’s administrative power to direct the sheriff clerk to grant warrant of intimation in an application for the appointment of a guardian. The sheriff had refused to grant warrant on the basis that the pursuer had no real interest in the financial affairs of the adult. Reference was made to Fitzpatrick v Advocate General for Scotland 2004 SLT (Sh Ct) 93, in which the sheriff principal made the direction so as not to deny the opportunity to raise the action. In the present instance, however, the sheriff’s refusal did not impede or frustrate the application. The local authority could step in and make the necessary application.

This decision does perhaps confirm that a warrant to cite should almost always be granted. Any issues of competency can be aired once the action is raised, and can be taken ex proprio motu on the basis of pars judicis.

Whereabouts unknown

Although this matter arose in a family action, the requirements and indeed benefits of following the terms of the rules when a party’s whereabouts are unknown are highlighted in C v C [2016] SAC Civ 6; 2016 GWD 26-472. In concluding that the writ presented was in proper form, the Sheriff Appeal Court observed that the pursuer’s averments could be readily construed as contending that the defender’s whereabouts were unknown and could not be reasonably ascertained. In short, the necessary averments have to appear in the writ, not in a covering letter!

Joint orders for non-harassment?

Issues can arise when a number of individuals seek orders such as interdict against a defender or defenders. Should each individual raise a separate action? Can the individuals sue in the one action? What form should the craves take? In Green v Chalmers 2016 SCLR 413 the pursuers sought inter alia orders for interdict and non-harassment against a number of defenders. Refusing to grant either perpetual interdict or non-harassment orders, the sheriff concluded that an order in terms of the Protection of Harassment Act 1997 provided a remedy to an individual and thus required to be in the name of that individual. The remedies under the Act were personal to that individual. If another person suffered harassment from the same actions of the same wrongdoer, that required a separate crave in an action raised by both, or a separate action. The same principle applied to an analogous order for interdict, such as an order prohibiting molestation.

The sheriff further decided that although the pursuers’ pleadings had significant flaws, issues of relevancy had been superseded as a consequence of proof being allowed. Rule 22 notes which had been lodged had not addressed these issues of relevancy. Finally, the sheriff repelled an objection to evidence from a witness on the basis that he did not satisfy the tests laid down in Kennedy v Cordia (Services) LLP [2016] UKSC 6. The decision regarding the refusal to grant perpetual interdict and non-harassment orders is subject to appeal, so watch this space!

The nature of declarator

In Hooley Ltd Petrs, etc [2016] CSOH 141 (11 October 2016), in which declarator was sought regarding rights under Scots law arising out of contracts, Lord Tyre confirmed that it was incompetent to seek declarator in a petition. The nature of declarator was to enforce or protect a right said to exist already, as opposed to seeking a power to do something which could not otherwise be done. An application for declarator was not an application to the administrative jurisdiction of the court but rather the enforcement of an existing right.

Lis alibi pendens

In the same litigations Lord Tyre refused to uphold pleas of lis alibi pendens in three concurrent ordinary actions. As there were a number of actions depending, seeking in effect the same remedy, the pragmatic approach was simply to allow the correct action to proceed. This approach protected the party insisting on the plea from double dependence. It would reflect unfavourably on the system of civil procedure if all the actions were dismissed, thus necessitating the competent one to commence afresh. An award of expenses in the petition would adequately reward the respondents.

Personal injury actions

In Allan v Plexus Corp (UK) Ltd 2016 GWD 28-502 the defenders sought to withhold the pursuer’s claim from jury trial as the nature of the injury was complex and the calculation of future wage loss dependent on a number of variables. Sheriff Braid allowed issues. Although, as was observed, each case turns on its facts, it is perhaps worthwhile referring to this decision as it is the first such from the all-Scotland PI court. There was no particular aspect of the facts and circumstances as set out in the averments or statement of valuation which would give any jury particular difficulty. Assessment of solatium, whilst not entirely straightforward, was well within the capability of a jury properly directed. The existence of psychological and pre-existing conditions did not create an insurmountable difficulty. The necessity to apply the Ogden Tables did not, of itself, preclude the right to a jury trial.

Whilst the issue had to be determined by considering all matters in combination, Sheriff Braid determined that the jury would require to consider a number of moderately complex issues, none of which turned on the outcome of any of the other issues. The case was one of moderate complexity but was well within the province of a properly directed jury.

Lay representatives

A number of practical observations are made in Aslam v Glasgow City Council [2016] CSIH 78 (11 October 2016). The first relates to the suitability of a person as a “lay representative”. The test is whether the person proposed would assist the court. A former solicitor, who had been struck off, did not satisfy that test. Aside from anything else, it would be perverse to allow a person regarded as unsuitable to continue as a solicitor to address a court on behalf of an unrepresented litigant. Their Lordships also observed that blaming a legal representative for the conduct of litigation was not a tenable position, in dealings with the other party, as this was the responsibility of the litigant. Finally, when significant decisions were pronounced ex tempore, it was important that the basic reasons for that decision were recorded. There is also a suggestion at para 28 that where part of an interlocutor requires leave to appeal but part does not, leave to appeal is still required for the former.

Civil imprisonment

Section 1 of the Law Reform (Miscellaneous Provisions) Act 1940 provides that an individual may be imprisoned for failing to comply with a decree ad factum praestandum. Such an application was made in Moneybarn No 1 Ltd v Bell [2016] SC HAM 68 (13 October 2016) in respect of such an order in respect of a conditional sale agreement. It is perhaps unsurprising that Sheriff Kelly refused the application. The decision is referred to simply to make readers aware of the provision, albeit in most circumstances such an application will almost certainly be unsuccessful.


In Collie v Tesco Stores Ltd [2016] CSOH 149 (19 October 2016) Lord Kinclaven concluded that an auditor of court was perfectly entitled not only to tax off and reduce an account of expenses, but to increase such an account and insert charges which had been understated or omitted. Whether this was done was a matter of the auditor’s discretion depending on the circumstances. Lord Kinclaven gave examples of various factors which might be considered.

In Capital Document Solutions Ltd v Highland Copiers Ltd [2016] CSOH 140 (11 October 2016) the petitioners had instituted proceedings for interdict and an order in terms of s 1 of the Administration of Justice (Scotland) Act 1972. The s 1 order was granted, and after a lengthy commission process interdict was granted without opposition. The petitioners sought the expenses of the commission. The respondents argued that these should be recovered in any subsequent action raised as a consequence of the recovery achieved. Lady Scott rejected this argument. The s 1 order was granted on the basis of a prima facie case for likely future proceedings. Once the documents had been recovered, interdict was granted. The petition had been instituted to recover confidential information and prevent its use. This aim had been achieved. The commission had produced the documentation and thus assisted in establishing the basis for interdict. It was appropriate to award expenses.

Lindsay Foulis, sheriff at Perth


Since the last article, Bridges v Alpha Insurance A/s (September article) is now reported at 2016 SLT 859, Sheridan v News Group Newspapers Ltd (September) at 2016 SLT 941, B v NHS Ayrshire and Arran (September) at 2016 SLT 977, A v H (July) at 2016 SLT (Sh Ct) 277, M v B (July) at 2016 SLT (Sh Ct) 279, Goligher v Flow Part Ltd (July) at 2016 SLT (Sh Ct) 301, and Donnelly v Royal Bank of Scotland plc (No 2) (September) at 2016 SLT (Sh Ct) 333.

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Tom Muirhead

Monday December 5, 2016, 16:36

Is the author now disqualified?

See section 6 of the Sheriff Courts (Scotland) Act 1971:

"6 Disqualification of sheriffs principal and sheriffs.

(1) A sheriff principal to whom this subsection applies, or a sheriff, shall not, so long as he holds office as such—

(a) engage, whether directly or indirectly, in any private practice or business, or be in partnership with or employed by, or act as agent for, any person so engaged; . . ."


Tom Muirhead.