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When changing the defender is OK

16 January 17

Latest civil cases, including amendment of party after limitation period; interlocutors; PI actions; productions; family actions; summary applications; liquidation; multiplepoindings; expenses

by Lindsay Foulis

Amendment of party after limitation period

This issue was considered in detail in Perth & Kinross Council v Scottish Water 2016 GWD 35-625 (8 November 2016). The pursuers had raised an action against Scottish Water Ltd, a wholly owned subsidiary of Scottish Water. Pre-litigation correspondence had suggested that the true defenders were Scottish Water Ltd. After the action commenced the error in defender became apparent.

Lord Drummond Young observed that when considering amendment after the limitation period expired, the court looked at the substance rather than the form of the amendment. This involved considering the action as a whole as pled prior to and following the proposed amendment. The identity of the parties, the remedy sought, and the ground of action had all to be considered in determining whether the amendment resulted in fundamental change. This involved an exercise of discretion rather than a question of competency. When considering a change in the name of the defender, identification of that party was not restricted to the name used. It extended to obligations and responsibilities incumbent on the party. These might indicate who was intended to be sued. This involved an objective approach.

In the present case, the Inner House was satisfied that Scottish Water had been the intended defender. There was no prejudice in allowing the amendment. It was obvious to the defenders’ legal advisers who the correct defenders were. The defence could only have been instructed by Scottish Water. Correspondence between the parties made it clear who had been intended as the defenders.

Interlocutors

The decision of the Sheriff Appeal Court in S & P Property Co v Taylor & Fraser 2016 GWD 35-329 (4 November 2016) reiterates the role any note accompanying an interlocutor plays. The issue was whether an interlocutor allowing an appeal and proof before answer entitled the assigning of a preliminary proof before answer limited to the interpretation of an agreement.

The clear legal principle was that the note formed no part of the interlocutor. The role of such a note was to explain the interlocutor but not control or limit its effect. The sheriff principal, if it had been intended to have a restricted proof assigned, did not express such an intention in the interlocutor, notwithstanding what might have been suggested in the note. Accordingly a proof before answer at large should be assigned.

Personal injury actions

In CM v Aviva Insurance UK [2016] SC EDIN 81 (13 December 2016), the defenders first sought by unopposed motion to vary the timetable to enable their statement of valuation to be lodged five months late. The due date had previously been extended by four weeks. A further motion to vary the timetable for that purpose had been dropped. The defenders then proceeded to obtain further reports without seeking to vary the timetable regarding the statement of valuation, although motions had been granted to vary the timetable regarding productions and witness lists. A pre-trial meeting was cancelled as a result of the lodging of reports that day.

Sheriff Mackie refused the motion, albeit it was unopposed, as the failure to comply with the timetable was a deliberate and conscious decision, not the result of oversight. The pursuer then moved for decree. The defenders sought to lodge an earlier statement of valuation which had not been lodged due to oversight, founding on OCR, rule 2.1. Sheriff Mackie determined that rule 2.1 had no role to play with chapter 36 actions in applications to vary the timetable, as rule 36.H1 provided the sole yardstick for relief in such circumstances. She refused the motion. She thereafter granted decree for damages in a sum less than brought out in the pursuer’s valuation. The reasons are generally case specific. Sheriff Mackie, however, referred to the skeletal nature of the defenders’ averments; that a proposed amendment did not include averments relating to the defenders’ position as now adopted in light of reports lodged; that they had had plenty of notice of the claim; that the pursuer had no notice of the defenders’ true position; and that many of the defenders’ actions in the litigation had been last minute.

This decision emphasises the need to abide by the timetable in such actions so far as possible and that an application to vary a timetable may not be granted even if unopposed. The strictures of strict case management are going to be applied.

Although the decision of Sheriff McGowan in Devine v Laurie [2016] SC EDIN 83 (10 October 2016) relates to expenses, it seems to me it should properly come under this heading. Sheriff McGowan makes a number of observations which may be of assistance regarding expenses in these actions.

First, failure to comply with the strict terms of the voluntary protocol could be waived and thus negotiations could continue under the auspices of the protocol. Even if its terms no longer applied, it could still be a useful yardstick by which to determine whether a party’s actions were reasonable. He also observed that the execution of service was an important part of process and should be in process. It could be relevant in resolving issues of expenses and calculation of interest. Finally, medical reports should normally be disclosed; the fact that a party did not wish disclosure was not a good reason for non-disclosure. Agents had a duty to reduce areas in dispute and such disclosure could achieve that. In any event it might narrow the disputed issues.

Productions

In Alliance Trust Savings v Currie 2016 GWD 35-328 (3 November 2016) Lord Tyre made observations regarding productions which may contain commercially confidential information. The court would not require disclosure of such information that was not material to the dispute. It was accordingly acceptable to redact such information from productions. However, redaction of other than legally privileged material was under the control of the court. Accordingly any redaction should be carried out with care and should go no further than necessary to protect a party from disclosure of irrelevant confidential matters.

Representation of non-natural persons

Under the Act of Sederunt (Lay Representation for Non-Natural Persons) 2016, which came into effect on 28 November 2016, a non-natural person such as a company or partnership can be represented by a lay representative if certain steps are taken. An application requires to be made to the court, accompanied by an authorisation document executed by a person holding a certain position in the non-natural person. If authorisation is granted, it can be for one or more specified hearings. The authorised lay person may be shown court documents. If they act unreasonably, they can be found jointly and severally liable for expenses awarded against the non-natural person.

Family actions

By the Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No 3) (Miscellaneous) 2016, when intimation is given to a child in a family action the form F9 alone is intimated on the child. The child does not receive a copy of the pleadings. In H v H 2016 GWD 36-645 (11 November 2016), the Sheriff Appeal Court confirmed that at a child welfare hearing a sheriff is entitled to make final orders regarding a child without hearing evidence, provided there is sufficient information on which to do so and there are no material questions of fact to be resolved before a decision can be properly reached. Such an approach was consistent with the terms of OCR, rule 33A.23. In a family action there was no requirement to assign a proof unless there were issues of fact requiring resolution before a decision could be reached. To hold otherwise might run contrary to the desirability of reaching a speedy decision regarding the welfare of a child.

Permanence orders

In City of Edinburgh Council v RO [2016] SAC (Civ) 15 (29 November 2016), the Sheriff Appeal Court observed that the judgment of a sheriff at first instance in applications for permanence orders would not be scrutinised as if it was a conveyancing document. The test to be satisfied in any appeal was that the sheriff was plainly wrong in the decision reached.

Summary applications

In Humphreys v Crabbe 2016 GWD 35-634 (8 November 2016) the issue was whether an appeal under a statute or an application in the nature of an appeal in terms of Summary Application Rule 2.6 had been lodged timeously. The Inner House determined that the 21-day time limit had no application when a party had complaint about action or inaction on the part of another. Their Lordships also observed that there was no requirement on a sheriff to provide a note for a decision reached on incidental applications. Such a note was expected where a point of law arose or the decision determined proceedings. On a matter of professional practice, a legal representative in a litigation was not prohibited from appearing simply because of prior involvement with the party instructing them. Similarly, a sheriff was not prevented from presiding through having previously acted on the instruction of solicitors also acting in the present case.

In Promontoria (Chestnut) Ltd v Ballantyne Property Services [2016] SC EDIN 74; 2016 GWD 35-633 Sheriff Welsh simply confirmed that the lodging of answers to a summary application does not prevent a motion for decree being granted at a calling of the action on the basis that there is no relevant defence.

Liquidation

Sheriff Holligan determined in A Ltd, Petr [2016] SC EDIN 77; 2016 GWD 35-635 that the sheriff court had jurisdiction to wind up a company limited by guarantee. While s 120(3) of the Insolvency Act 1986 did not specifically deal with such companies, there was nothing inherent in companies limited by guarantee which made their winding up problematic or different from companies limited by shares. There was accordingly no policy reason or provision in statute which excluded the jurisdiction of the court.

Multiplepoindings

In Macallans v W Burrell Homes [2016] SC GLA 79 (15 November 2016) Sheriff Reid had to determine whether claims made on a fund qualified as “riding claims”. He noted that there were two categories of claim in a multiplepoinding, namely direct and indirect or riding claims. The former involved a direct nexus between the claimant and the fund, such as a claim of ownership or the claim by a creditor who had executed diligence on the fund. The latter was a claim at the instance of a creditor of a claimant in the multiplepoinding. Such a claim required the existence of a primary claim on the fund by the claimant. The creditor could then make their claim on the back of that claim. The riding claim, however, had to be constituted. Any claim which was illiquid, unconstituted, or disputed would not suffice. The claims in question did not satisfy the criteria.

Expenses

In Glasgow Caledonian University v Liu 2016 CSIH 91 (9 December 2016) Lord Brodie usefully set out the ambit of the auditor of court’s powers and the limited grounds for interfering with a decision from the auditor. The function of taxation was to determine the figure in expenses which was consistent with a litigation being conducted reasonably. The auditor had considerable discretion in that regard. The diet was relatively informal. An objection would only succeed if the auditor had misdirected himself in law, ignored relevant considerations, taken account of irrelevant considerations, or misunderstood the material placed before him. The auditor was considered to have considerably greater experience than a judge. In considering objections, points of minor detail would not be considered.

Simple procedure

I am not providing any analysis of this new procedure. No doubt this will be covered in other articles in the Journal [October 2016, 12 – Editor] or elsewhere. The procedure came in at the end of November 2016. The only observation I would make is that it is not small claims and summary cause procedure by another name. Agents should accordingly familiarise themselves with the new rules and what is expected. My reading of the thinking behind the procedure is that there may be a number of preliminary steps taken and orders made of parties before any action actually calls in court.

Lindsay Foulis, Sheriff at Perth

Update

Since the last article, Clackmannanshire Council, Petrs (July article) has been reported at 2016 SLT 1071, City of Edinburgh Council, Petrs (July) at 2016 SLT 1075, Collie v Tesco Stores Ltd (November) at 2016 SLT 1213, Hamilton v Glasgow Community and Safety Services (September) at 2016 SLT (Sh Ct) 367, Moneybarn No 1 Ltd v Bell (November) at 2016 SLT (Sh Ct) 419, and M v M (March) at 2016 SCLR 571. 

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