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Article

Family complexities

20 March 17

Latest civil cases, including family actions; reponing; specification; expert evidence; waiver; amendment; best evidence; actions for harassment; appeals and extracts; expenses; sequestration

by Lindsay Foulis

Family actions

Where to begin with M v M [2017] CSIH 1 (5 January 2017)? It is clear that the Inner House considers that conjoining contempt proceedings with the principal action relating to a child, whilst not incompetent, was not a procedure to be adopted. Ultimately the standard of proof to be applied is different and the alleged contemnor’s right to silence may be compromised. Alternatively, in exercising that right, they may be unable to give evidence in the principal action. It is important that they know exactly the allegation being made; this may be lost sight of if the actions are conjoined. Proceedings are likely to be prolonged.

The division further considered that allegations of contempt should be determined promptly. In addition, if a contempt finding is made, the court should proceed to sentence, even though the aim in deferring was to try to achieve compliance with the child contact order.

Of perhaps greater interest is the postscript regarding conduct and case management of actions involving children. It may be appropriate, however, first to offer some comment as to apparent delay in cases involving children. There are many cases in which an initial award of contact is made against opposition. Thereafter, however, the order operates successfully, and contact is increased over what may seem a fairly lengthy period, but ultimately the parents reach an arrangement with which they are happy and which operates to the benefit of all including their child. This outcome is arguably better than an order imposed sooner by a court but to the liking of neither party nor the child. That has the potential for non-implementation. There are, of course, cases where there exists no obvious reason for an award not being made, albeit for some reason huge problems arise with implementation. The dilemma is whether it is better to impose a solution or try and coax a consensual solution. There undoubtedly comes a time when it is better to have that adversarial evidential hearing, notwithstanding the benefit to a child from a consensual outcome. Such cases are also more likely to be appealed. As a consequence the appeal court only sees the worst examples of family cases! I doubt whether this is a case management issue as such.

In making these observations I fully endorse those of the Inner House regarding the potential harm from a lengthy dispute about a child. There are also cases where from the beginning there is a clear dispute which cannot be resolved consensually, and it is important that matters proceed promptly to an evidential hearing.

However, I wholeheartedly agree with Lord Glennie’s observations regarding child welfare hearings. OCR, rule 33.22A(4) is an extremely wide provision that enables a court to do virtually anything to secure the expeditious resolution of a dispute relating to a child. Indeed, it is so wide I wonder whether chapter 33AA adds a great deal. All the orders available at the case management hearing (rule 33AA.4) could equally be made at a child welfare hearing. Rule 33AA.4 is useful in indicating what these might be. I consider there is power at a child welfare hearing to dispense with an options hearing and proceed to proof with the necessary orders. A further such hearing could be assigned nearer the proof diet for orders regarding affidavits etc as appropriate.

The observations may be at odds with the potentially restrictive interpretation of rule 33.22A by at least one of the bench in LA v DH [2016] SAC(Civ) 2. The concern expressed about the process being removed to the Inner House and the effect on determining interim applications may be covered by rule 31.10.

The Inner House also pointed out the need to record any sentence of imprisonment for contempt by signed interlocutor and not by minute akin to one pronounced in criminal proceedings.

Reponing

In A & B Taxis v Cooperative Insurance [2017] SC PER 10 (10 February 2017) Sheriff Wood refused a reponing note. The action had been served on 7 October 2016, decree granted in early November, and a charge served on 23 November. From 25 November there was telephone contact between the defenders’ English agents and the pursuers’ solicitors, until 13 December when an arrestment was served. On 21 December the pursuers’ agents and the defenders’ Scottish solicitors spoke by phone. On 10 January 2017 a reponing note was intimated. Sheriff Wood noted a suggestion that the claim was fraudulent, but 10 months after the accident it was unclear what steps had been taken to investigate. There was no satisfactory explanation for overlooking the service document. Service of the charge had not prompted a satisfactory response. It was not suggested that the sum sought was an inspecific claim.

Specification of averments

The leading dicta were referred to by Lord Mulholland in Soofi v Dykes [2017] CSOH 2 (6 January 2017) and bear repeating: averments lack specification where the opponent does not know the case made against him and faces being taken by surprise at a proof. This is also the test for any successful objection on this ground at proof. On that theme, Lady Wolffe in MD v Amec Group [2016] CSOH 176 (16 December 2016) upheld an objection to a line of questioning. Albeit the action had been raised under RCS, chapter 43, in cases of factual complexity it was insufficient for the pursuer simply to list a number of statutory provisions. Some attempt had to be made to set out factual averments and particular grounds of fault relating to the statutory breaches founded on.

Unincorporated associations

In Taylor v Quigley [2016] CSOH 178 (21 December 2016) the pursuer as a member of a golf club sued the members of its executive board. The allocation of responsibility for health and safety matters to that board did not result in any exception from the rule that members of such an association could not be sued by another member.

Procedural issues

In SSE Generation v Hochtief Solutions [2016] CSOH 177 (21 December 2016) Lord Woolman observed that witness statements in commercial actions are most beneficial when they appear to be the witness’s authentic voice. At proof he heard evidence from a number of experts who gave their evidence in court together, Lord Woolman chairing the discussion and placing time limits on contributions. This enabled him to hear different opinions at the same time, rather than in isolation perhaps weeks apart. The experts could challenge each other, resulting in greater focus and crystallisation of opinion.

Summary decree

Perhaps there is nothing new in Sheriff Mann’s decision on a motion for summary decree in Arthur J Gallagher Insurance Brokers v Hudson [2017] SC BAN 2 (16 January 2017), but it usefully distinguishes such motions from debates, and also perhaps the earliest time at which a motion might have a reasonable prospect of success. Unlike at a debate, the court could look at extraneous material. The onus of establishing no real prospect of the opponent’s case succeeding was on the party seeking summary decree. Fairness normally required the adjustment period to have concluded before such a motion was likely to have a reasonable chance of success.

Waiver of right

In Brits v Kilcoyne & Co [2017] CSOH 24 (16 February 2017), a professional negligence claim, it was argued that the pursuer’s employers’ insurers, who should have been sued, had waived their right to take the plea of time bar. Lady Stacey considered that the offer, contained in an email, was not a unilateral and irrevocable promise or a waiver of rights but simply a statement of intention.

Res judicata

Lord Malcolm in Durkin v HSBC Bank plc [2016] CSIH 93; 2017 SLT 125 observed that in determining whether the three factors for this plea were satisfied, the court required to look to the essence of the matter and inquire: “What was litigated and what was decided?”

Amendment

In Clark v Greater Glasgow Health Board [2017] CSIH 17 (1 February 2017) the First Division affirmed a refusal to allow amendment when the case was at avizandum. The Lord Ordinary had granted leave to appeal but no appeal had been taken before final judgment. Whether an appeal entitled a party to review a prior interlocutor depended on whether that interlocutor could be considered spent by reference to subsequent procedure or whether it was linked to or directly influential on the order challenged. If the former, any subsequent review was likely to be unsuccessful.

The pursuer was taken to have acquiesced in the refusal by failing to appeal after leave had been granted. In any event the decision had been correct. Amendment would have significantly delayed proceedings, undermining the need to conclude a case within a reasonable time. The remedy in expenses in the present case was a valueless one. The proposed amendment represented a new case outwith the limitation period. It had been open to plead it prior to the proof. The proposed new case was weak, if not irrelevant. For the motion to be successful, the new averments, at this stage, had to be clear and persuasive.

Best evidence

In Woolley v Akram [2017] SC EDIN 7 (3 February 2017) Sheriff Ross was asked to consider objections to oral evidence regarding the content of video and audio recordings, founded on the best evidence rule. He noted that the rule was not an absolute one and often was circumvented by parties’ agreement. Its basis was to prevent unfair disadvantage to a party unable to test or challenge the source of evidence. Here there was no prejudice. The objecting party owned and operated the system. The footage had been recorded over. There was no need to lodge the CCTV system where the quality of the equipment was not an issue. The best evidence did not exclude proof by alternative means. The defender’s actions, not the recordings, were the subject matter of the action.

Actions for harassment

In Green v Chalmers [2017] SAC(Civ) 8 (22 December 2016) the Sheriff Appeal Court determined that a crave for interdict founded on a claim of harassment could be at the instance of a number of pursuers. Actions taken by the pursuers regarding future actions by the defenders did not outweigh the granting of perpetual interdict, given the duration and nature of the conduct complained of. In instances of harassment, the fact that actions were “one offs” was not the relevant question in considering interdict: the issue was whether the course of conduct was likely to continue. The court further observed that whilst a court cannot rewrite a crave for interdict, it may revise, tighten, restrict, or modify its terms, bearing in mind the substance of the crave.

Appeals and extracts

Sheriff Principal Murray in M v W [2017] SAC(Civ) 3 (9 January 2017) decided that where an extract decree had been incompetently issued by the local sheriff clerk’s office when a motion for late appeal had been lodged with the Sheriff Appeal Court, the appeal could be allowed to proceed.

Expenses

In Brown v Aviva Insurance [2016] SC LIV 84 (20 December 2016), Sheriff Kinloch determined, having regard to s 108 of the Courts Reform (Scotland) Act 2014, that if the employment of counsel was undertaken because the opponent had instructed counsel, this in itself did not merit sanction if the action was straightforward. Sanction was only justified if reasonable in all the circumstances having regard to the difficulty or complexity of the proceedings, the importance or value of the claim, and the avoidance of unfair advantage to a party employing counsel. The issue of sanction was also covered in Trilogy Services Scotland v Windsor Residential [2017] SAC(Civ) 2 (17 January 2017).

Sequestration

In Accountant in Bankruptcy [2017] SAC(Civ) 5 (23 January 2017) the court held that the AiB could use s 63 of the Bankruptcy (Scotland) Act 1985 to apply to be reappointed trustee, the office having become vacant, so that he could be vested in an asset acquired by the bankrupt following his initial discharge.

Lindsay Foulis, sheriff at Perth

Update

Since the last article, Perth & Kinross Council v Scottish Water (January article) has been reported at 2016 SLT 1251, X v A (No 1) and (No 2) (September) at 2016 SLT (Sh Ct) 404 and 411, A Ltd, Petr (January) at 2016 SLT (Sh Ct) 425, First Time v Liquidator of Denmore Investments (November) at 2016 SLT (Sh Ct) 430, C v C (November) at 2016 SLT (Sh Ct) 433, and MacAllans v W Burrell Homes (January) at 2017 SLT (Sh Ct) 1.

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