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Send the client in?

18 July 16

Latest civil cases, including agent's duties; curators' fees; expenses; sanction for counsel; sist; dismissal for delay; child witnesses, family actions; reduction

by Lindsay Foulis

Agent’s duties

The vexed question of what an agent should do if not financially covered for an imminent hearing was aired in a unreported decision I noted recently from Sheriff Principal Kerr in Renfrew v Hamilton, Dunoon Sheriff Court, 22 January 2014. The defender appeared in person and moved to discharge the appeal as his agent was unable to appear, legal aid not having been granted. The defender had been advised to appear in person and move for a discharge. His agent had not intimated his intention to withdraw to the court. When legal aid was granted the agent almost certainly would conduct the appeal.

Sheriff Principal Kerr refused to discharge the appeal. In his judgment he observed that the agent’s actions were unsatisfactory, where he was not prepared to appear at an arranged diet at very least to explain the position. An agent who had not withdrawn had a duty to appear. The legal aid position was neither here nor there. If the client was left to appear, the court might not be given the complete picture and the hearing might proceed to the party’s prejudice.

Such situations are not easy to resolve for practitioners and the result will very much depend on circumstances. However, it appears to me that there is something unsatisfactory in an agent failing to appear in such circumstances. For similar dilemmas, readers are referred to Flynn v Gonelli 1989 SCLR 764 and the editor’s note, and Fernandez v Fernandez 2007 SCLR 244.

Expenses: Curators’ fees

In City of Edinburgh Council, Petrs [2016] CSIH 46 and Clackmannanshire Council, Petrs [2016] CSIH 47 (24 June 2016), the Inner House determined that it was perfectly competent to order that a curator ad litem’s fees were not restricted to a set figure as decided by the local authority but could be awarded as might be taxed by the auditor of court. Rule 2(a) of the Sheriff Court Adoption Rules 2009 gave the court complete power to award such expenses as was considered appropriate in the circumstances.

Expenses

The precise details of Lord Armstrong’s decision in McLean v Greater Glasgow Health Board [2016] CSOH 68; 2016 GWD 16-300 are case specific. However, certain principles regarding the auditor’s power at taxation are worth repeating. The expenses allowed are those reasonable for the conduct of a litigation in proper manner. That is an objective test. A fee should only be disallowed if a competent solicitor acting reasonably would not have incurred it. When looking at counsel’s fees, the test was what could reasonably be charged against the opponent. The auditor had to reach an objective view as to what was reasonable, based on his knowledge and experience. He was a valuer. His reasons had to be understood by his informed readers, the legal profession. There was no requirement for detailed analysis. A fee could be abated albeit there was no objection to it.

In Aird Geomatics v Stevenson [2016] CSOH 85 (21 June 2016) Lord Bannatyne granted a motion for expenses on an agent/client basis. There had been no evidential basis for the conclusion for damages and this was apparent to the pursuers at least a year before the issue was conceded. They had failed to prepare adequately. The basis for the other conclusions was also extremely weak. There were no averments supporting the contention that the defenders had breached the conditions of the contract founded on. The pursuers opposed a motion for summary decree in the counterclaim when they had no basis standing the authorities. The decision provides an indication of Lord Hodge’s decision in McKie v Scottish Ministers 2006 SC 528 operating in practice.

Sanction for counsel: PI Court

A further decision on this topic has been delivered by Sheriff Reith in Cumming v SSE plc [2016] SC EDIN 35 (4 May 2016). The pursuer, who sought damages having developed pleural plaques, accepted a tender for just under £10,000. Sheriff Reith granted sanction for the employment of junior counsel, due to a number of factors. Liability was denied. The pursuer had been employed by the defenders in three different situations. Calls had been made of the pursuer in the pleadings. She rejected a suggestion that the pursuer could anticipate that the action would settle or that he should have sought a sist once defences were lodged. Advice was appropriate on provisional damages. There had not been any argument to modify expenses when such actions were raised in the Court of Session. Raising the privative jurisdiction did not mean cases were any less complex or important. The pursuer was very anxious about his condition, and while his solicitors were specialists, they had still considered it appropriate to instruct counsel once defences were lodged. It enabled independent advice from specialist counsel. Such cases were potentially complex and of importance to claimants.

Sist: PI actions

The balancing process involved in deciding whether an action should be sisted gets a rare airing in the decision of Sheriff Braid in Goligher v Flow Part Ltd [2016] SC EDIN 39; 2016 GWD 16-296. This decision almost certainly would not have been published but for the transition involved in personal injury actions now having to be raised in the sheriff court rather than the Court of Session.

The action, which arose from the alleged development by the pursuer of pleural plaques, was progressing under chapter 36 procedure. Defences had been lodged, a timetable issued and a proof assigned. The defenders sought to sist and suspend the timetable for eight weeks, in order that the pursuer’s statement be produced and considered with a view to settlement proposals being made.

Sheriff Braid, whilst noting the Court of Session practice regarding such actions, determined that he required to consider established legal principles and the content of chapter 36. The general principle was that litigation once commenced should move to conclusion with little or no interruption. Nothing was due to take place during the eight week period during which the action would be sisted. The defenders were not prevented from taking any action they might desire. There was no purpose in granting a sist in these circumstances. Any difficulties the pursuer might face if the action were not sisted were of no consequence for the defenders. The motion was refused.

Dismissal for delay

Sheriff Mackie dealt with this issue in Sultana v General Accident Fire & Life Assurance Corporation [2016] SC EDIN 40 (29 April 2016). The action, arising from a fire in March 1996, was raised in September 1998. A proof assigned for October 2001 was discharged (the interlocutor allowed further proof on a date to be afterwards fixed, a procedure which should always be avoided). There had been no further procedure until a review of dormant cases resulted in a hearing being assigned. The defenders made an application in terms of OCR, rule 15.7.

Sheriff Mackie adopted Lord Carloway’s three-stage test in Abram v British International Helicopters [2014] CSIH 53. There had to be inordinate and inexcusable delay. That delay required to result in unfairness. The court then had to exercise its discretion as to whether the action should be dismissed. Sheriff Mackie observed that whilst the defenders had decided to let sleeping dogs lie, that did not excuse the pursuer of her obligations to prosecute her claim. She had made little effort to employ new legal advisers. Unfairness would result as witnesses could not be traced, recollections would have dimmed, and documentation had been lost. Significant proof time would be required in light of these difficulties. She dismissed the action.

Child witnesses

In GM v AB [2016] SC DUMB 38; 2016 GWD 16-294 Sheriff Turnbull had to consider the operation of the Vulnerable Witnesses (Scotland) Act 2004 in relation to three child witnesses in an action in which orders for interdict, powers of arrest and residence were sought. The parties were the children’s parents and their curator ad litem. The defender represented herself. One child had Asperger’s syndrome.

Sheriff Turnbull noted that one of the children, of a sufficient age, had expressed the view that he did not want special measures. His mother agreed with this position; his father did not. Taking account of the curator’s view, no order was made. Regarding the other children, neither had expressed any view. Considering the matters on which these children would give evidence and their effects on the children, and taking account of the defender representing herself in circumstances in which in a criminal trial she could have been prohibited from doing so, the special measure ordered was evidence taken by a commissioner with interrogatories, rather than using screens or a video link.

Family actions

In LA v DH [2016] SAC (Civ) 002 (10 May 2016) the Sheriff Appeal Court observed that where the evidence at first instance had not been recorded, the findings in fact were not open to challenge. Accordingly a statable appeal only existed where there was a clear error in law or the conclusions reached were clearly wrong or unwarranted. These observations are not really new. Of greater interest were the comments as to the appropriateness of evidence being led at a child welfare hearing. This procedure had been sought by the parties and not ordered by the court.

Sheriff Morrison perhaps expressed the strongest doubts, observing there was no specific provision in the Ordinary Cause Rules for an evidential child welfare hearing and as such it could only be ordered with the parties’ consent. To do otherwise restricted the grounds of appeal, there being no provision for the recording of evidence. Such a hearing did not automatically invoke the provisions of chapter 29. He doubted that the terms of OCR, rule 33.22A(4), which allowed a sheriff to seek to secure expeditious resolution, entitled a sheriff, ex proprio motu, to restrict a party’s right of appeal.

I suggest that rule 33.22A(4) is sufficiently wide that a sheriff at a child welfare hearing has very extensive powers. There is no reason why an interlocutor pronounced at such a hearing, assigning a hearing at which evidence could be heard, could not deal with matters found in chapter 29. The perceived attraction of an evidential child welfare hearing is that such a hearing can take place quickly, avoiding the full requirements of chapter 9 procedure.

By contrast, readers might wish to look at Hartnett v Hartnett 1997 SCLR 525. In allowing an appeal from a final order made at an evidential child welfare hearing, Sheriff Principal Risk did not question the hearing of evidence. He observed that if evidence was led at such a hearing with a view to a final order, the court should make provision for its recording. The other way of achieving such a result might be to dispense with an options hearing when pronouncing an interlocutor at a child welfare hearing and simply assign a proof. Such an interlocutor can make provision for adjustment, lodging of record, intimation of witness lists etc. In a climate of case management, procedural rules may require to be interpreted by the principle that if a course is not expressly prohibited, it can be adopted.

Actions of reduction

In Willox v Auchnie [2016] CSOH 70 (20 May 2016) Lord Clarke observed that an action of reduction of a decree could be raised by a party whose interests had been represented in the action resulting in the decree sought to be reduced, in this case by a party acting in a representative capacity for a class. However, in such circumstances, the primary remedy was to take appropriate steps to preserve the necessary interest in the original action if the existence of these proceedings was known.

Lindsay Foulis, sheriff at Perth 

Update

Since the last article, Mackin v Mackin (January article) has been reported at 2016 SLT (Sh Ct) 95, McDowall v G4S Care & Justice Services (UK) Ltd (May) at 2016 SLT (Sh Ct) 107, J, Applicant (May) at 2016 SLT (Sh Ct) 119, Kennedy v Cordia (Services) Ltd (March) at 2016 SCLR 203, Ramsden v Santon Highlands Ltd (July 2015) at 2016 SCLR 89, and SF v Quarriers (July 2015) at 2016 SCLR 111.

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