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Sanction: appeals not encouraged

15 May 17

Recent civil cases, including sanction for counsel; expenses; parties' capacity; pleadings; compensating criminal conduct; interest; family actions; heritable actions; and the pursuer's offers rules

by Lindsay Foulis

Sanction for counsel

In Cumming v SSE plc [2017] SAC (Civ) 17 (21 April 2017) the Sheriff Appeal Court considered the defenders’ appeal against the grant of sanction in an action for damages and provisional damages arising from the pursuer’s development of pleural plaques. Sheriff Principal Stephen, giving the opinion of the court, observed that the decision regarding the grant of sanction involved the exercise of discretion and could only be interfered with if it was one no reasonable judge could have reached. The matter was determined by reference to the whole circumstances of the case. The sheriff had taken account of the evidential difficulties involving in asbestos-related cases, the fact that the tender had been in full and final settlement of both the damages and provisional damages craves, and the importance of the matter to the pursuer in light of his anxiety arising from the condition. There was no basis for interfering.

The court also considered that in view of the broad test set out in the legislation, it was not for the appellate court to lay down principles upon which the issue of sanction should be approached.


An interesting dispute regarding expenses arose in British Telecommunications plc v Scottish Water [2017] SC EDIN 26 (24 April 2017). The pursuers accepted a tender by the third party together with the expenses of process in full satisfaction of the crave in the writ. The issue was who would pay the defenders’ expenses. There was no crave by the pursuers directed against the third party. They had only craved damages from the defenders. Accordingly decree could not be pronounced until the pursuers amended their craves in an appropriate manner, which they did. The defenders admitted on record that they were liable but averred that the damage was caused by the third party’s fault.

Whilst expenses would normally follow success, and a party abandoning a claim against another normally was liable for the opponent’s expenses, a court could decline to follow those paths if the conduct of the litigation was unreasonable on the part of the successful party. The defenders had achieved decree of absolvitor, but in reality this was achieved by their refusing to meet a claim for which they were strictly liable. The pursuers could have insisted on their remedy against the defenders, allowing the latter to seek relief from the third parties. By amending then accepting the tender, the pursuers had taken a pragmatic approach. The pursuers had acted reasonably in suing the party who was strictly liable, as opposed to the third parties who denied liability and against whom pursuing a claim would not have been straightforward. As between pursuers and defenders, Sheriff Braid found no expenses to or by to the date of the tender. As between the defenders and third parties, the latter were responsible and had caused the litigation by refusing to accept liability. They were found liable for the defenders’ expenses to the tender. The delay in the pursuers accepting the tender resulted in their being found liable to both defenders and third parties from the date of the tender.

Parties with limited capacity

In West Lothian Council v B and V [2016] CSOH 48; 2017 SCLR 65, one respondent in a permanence application suffered from learning difficulties. Two psychiatrists disagreed as to the extent and the resultant effects this would have on the party’s understanding of the proceedings. Lord Brailsford first directed the two witnesses to meet, when they reconciled some of their differences, and thereafter held a preliminary proof restricted to the issue of the party’s capacity in order to determine what steps if any should be taken to ensure their comprehension of the proceedings. It is quite interesting to note these steps as sadly, in such proceedings, it will not be unknown for a party to have capacity issues.


In Heather Capital Ltd v Levy & McRae; Heather Capital Ltd v Burness Paul LLP [2017] CSIH 19 (28 February 2017) Lord Glennie made certain observations regarding pleading. The purpose of pleading was to give fair notice of assertions of fact sought to be established in evidence, in addition to identifying essential propositions in law which were founded on. Elaborate pleading was unnecessary, as pleadings set out the bare bones of the case. The records in these cases ran to 93 and 59 pages respectively. The pleaders appeared to be embarking on a “trial by pleading” where one assertion by a party was met by a counter assertion from the opponent and so on.

Compensating criminal conduct

In D Geddes (Contractors) Ltd v Neil Johnson Health & Safety Services Ltd [2017] CSOH 42 (14 March 2017) the pursuers sued their health and safety advisers for recovery of a £200,000 fine imposed on them in respect of a breach of health and safety regulations. The defenders disputed liability inter alia on the basis that the pursuers sought compensation for a penalty in respect of their criminal actions. Lord Tyre determined that there was no authority for the proposition that recovery of a loss consisting of a criminal penalty or the consequences of imposition of such a penalty was excluded. The crucial factor was responsibility for the commission of the offence. A person with no awareness that their actions were criminal could still recover. Intentional wrongdoing on the part of the claimant might well be excluded from recovery.

Interest on late payment

In Alexander Oastler Ltd v Williams [2017] SC DUN 17 (23 January 2017) Sheriff Collins considered the Late Payment of Commercial Debts (Interest) Act 1998. Section 5 applied where in the interests of justice statutory interest should be remitted in full or part as a consequence of the actions of the supplier. The legislation was aimed at casual or feckless non-payment. However, simply because there was a genuine dispute did not result in statutory interest not being applied. No remission should apply in respect of sums which from the payer’s viewpoint were clearly payable. Interest should only be remitted if the supplier had created or allowed uncertainty.

In the present case the defender had offered payment of a sum to the pursuers and sent cheques in full and final settlement. The pursuers did not cash these as they considered the whole sum due. The material elements of the dispute were not raised by the defender until a significant period after the work was completed. No uncertainty had been created by the pursuers and thus no remission of the statutory interest was made.

There then arose an issue regarding entitlement to a fixed sum in terms of s 5A. Under s 5A(2) the sum to which the pursuer was entitled was held to be fixed by the level of debt as at the relevant day. Subsection (2A) then entitled a pursuer to reasonable costs in recovering the debt if these were not met by the fixed sum. Sheriff Collins concluded that subs (2A) applied where the pursuer sought and successfully recovered the debt extrajudicially. If litigation was required the additional costs were covered by an award of expenses.

Family actions

In KMI v SMO [2017] SC HAM 22 (14 March 2017), Summary Sheriff McKay raised ex proprio motu the question of jurisdiction at a child welfare hearing. This is again a reminder that a sheriff has very wide powers at such a hearing. Neither party raised the issue. When the case called, a bar report on welfare was available. The child had been habitually resident in Eire when the action was warranted. There was no prorogation of jurisdiction. Accordingly in terms of article 17 of Brussels II-bis the court had no jurisdiction and the action was dismissed. Sheriff McKay thereafter directed the sheriff clerk to have the consequences of his decision communicated to the Irish court in terms of the Council Regulation.

Heritable actions

In Onesavings Bank plc v Burns [2017] SC BAN 20 (30 March 2017) Sheriff Mann held that the pursuers had no title to pursue an action for recovery of subjects as heritable creditors. The loan had been assigned by the original lenders. In terms of s 14 of the Conveyancing and Feudal Reform (Scotland) Act 1970 a standard security could be transferred by assignation in two prescribed forms. The assignation did not conform to the statutory forms, nor did it conform “as closely as may be” to them. The assignation included the words “to the extent of all sums now due or at any time hereafter to become due”, as opposed to “to the extent of £    being the amount due thereunder”, as prescribed in the legislation. Sheriff Mann considered that there was no reason for the statutory form of words to be omitted in the circumstances and it was fatal to the original standard security becoming vested in the pursuers. Accordingly there was no title to sue.

Pursuers' offers

The availability of pursuer’s offers has been introduced by the Act of Sederunt (Rules of the Court of Session and Ordinary Cause Rules Amendment) (Pursuers’ Offers) 2017, which came into force on 3 April 2017. The provisions allow a pursuer in an action including a crave for payment, other than an order which may not be made without evidence or which is dependent on evidence, to make a pursuer’s offer. An offer is lodged in court at any time before avizandum, or judgment if the case is not taken to avizandum. The offer must specify that it is made in terms of the rules set out in the Act of Sederunt and that the pursuer is prepared to settle for a sum of money inclusive of interest and taxed expenses of process. As with tenders, the judge has to have no knowledge that such an offer has been made until judgment is pronounced. An offer can be withdrawn before acceptance.

If the offer is not accepted by a date considered reasonable for acceptance but is accepted in due course, the court allows interest on the sum in terms of the offer from the date it was made, and an additional payment equal to 50% of the judicial expenses from the date the offer should reasonably have been accepted; similarly if the offer is not accepted, and the figure ultimately awarded is at least as favourable as that offered, and the court is satisfied that the offer was a genuine attempt to settle. If there are two or more defenders sued jointly and severally, the offer is accepted only when all have done so unless one defender consents to a motion for decree. In those instances, the court has a discretion to grant decree. 

Lindsay Foulis, sheriff at Perth 


Since the last article, M v M (March article) has been reported at 2017 SLT 197, Harper v Letley (May 2016) at 2017 SCLR 1, and Chiswell v Chiswell (May 2016) at 2017 SCLR 49.

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