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Article

To act or not to act?

17 July 17

Latest civil cases, including supervision of professional practice; notes supporting preliminary pleas; case management; objections to evidence; skilled witnesses; family actions; appeal after extract

by Lindsay Foulis

Supervision of professional practice

An interesting matter arose in Ecclesiastical Insurance Office plc v Whitehouse-Grant-Christ [2017] CSIH 33 (26 May 2017; see also Journal, June 2017, 34). The defender had, a significant number of years earlier, been represented by a solicitor who was now a consultant with the legal practice instructed by the pursuers. This had occurred as a consequence of practices merging. The issue was whether the pursuers could continue to instruct their legal representatives of choice. Lords Bracadale, Malcolm and McGhie agreed that the court had an inherent power to supervise officers of court and take action as might be necessary.

In the context of a solicitor, Lord Bracadale considered the appropriate test was whether a fair minded person would conclude that the solicitor should be prevented from acting, in the interests of the integrity of the judicial process and the due administration of justice including the appearance of justice. Lord Malcolm agreed with this.

Lord Bracadale noted that there was no continuing legally enforceable obligation of loyalty on the part of a solicitor to a former client in English law. Dissenting, Lord Malcolm expressed the view that, apart from exceptional cases, there should be a general rule that a firm of solicitors were disabled from changing sides if they had previously acted on one side of a litigation. This appeared to be in the interests of the integrity of the judicial process and the administration of justice including the appearance of justice. To do otherwise would trouble a fair minded onlooker. This view was irrespective of there being any real risk of disclosure of confidential information. There were competing interests between duties of confidentiality and loyalty and the proper administration of justice on the one side, and a person’s freedom to choose the lawyer and a lawyer’s ability to pursue a career. These matters had become more focused in the age of greater specialisation and fewer but larger firms. A case by case approach emphasising the prevention of disclosure of confidential information could cause problems. Once solicitors had received confidential information or could not guarantee that they would not receive it, they should not act for a party with an adverse interest.

Lord McGhie noted that the solicitor had ceased to act for the defender in 2002 at latest. He had not taken any part in the court process. Protection of confidentiality was the dominant issue, albeit there were lesser principles, namely the continuing duty of loyalty and the need for court intervention to protect public faith in the proper administration of justice. There was no clear authority to support the continuing loyalty principle. The test was whether the solicitor was in possession of confidential information, disclosure of which had not been consented to, and the information might be relevant to the matter in which the other party had an adverse interest.

Notes supporting preliminary pleas

It is not unknown for the requirement to lodge notes in support of preliminary pleas to be overlooked, particularly during amendment procedure in terms of OCR, chapter 18. That occurred in Npower Direct Ltd v Low 2017 SAC(Civ) 21 (31 May 2017). As a consequence, one of the points taken by the appellant was that the counterclaim should not have been dismissed on the basis of a preliminary plea added during amendment procedure where no note had been lodged in terms of rule 18.8. The plea should have been repelled when that procedure concluded.

Sheriff Principal Stephen did not favour this argument. If a preliminary plea was unsupported by a note and not repelled when amendment procedure concluded, the matter should be raised at the commencement of any resultant debate at latest. Indeed the matter should be raised when the amendment procedure was concluded. If a motion was then made to repel a preliminary plea, it gave the opponent the opportunity to seek to rely on the dispensing power to have a note received late. The aim of procedural rules was to enable actions to proceed in an orderly and regular fashion to achieve a just result.

Case management

In JD v Lothian Health Board [2017] CSIH 27 (28 April 2017) Lord Glennie made a number of observations on managing issues regarding specification of averments. When averments were criticised for specification as opposed to relevancy, at debate the court had to determine whether, looking at the averments as a whole, fair notice was given to the opponent. A court did not have the power to require a party to provide greater detail. A call made on a party did not have to be answered. At present, generally, issues of specification could only be addressed at debate unless there was a prior application to amend. This was unsatisfactory. Debates on points of specification should be discouraged. Under the procedure which governed the progress of this action, in terms of rules 42A.4 and 42A.6 case management powers could have been used at the by order (adjustment) roll.

It may be that in securing the expeditious progress of a case in the sheriff court, at an options hearing or procedural hearing under chapter 10, if a point regarding specification arises from the terms of a rule 22 note, consideration could be given to making some order regarding amendment. The problem I anticipate in light of the relevant rules as presently framed, is what happens if no amendment is lodged within the period allowed. The court also is obliged to assign a debate if the tests set out in the authorities are met.

Objections to evidence

In McLeish v Lothian NHS Board [2017] CSOH 71 (28 April 2017) objection was taken to certain evidence from an expert on the basis of fair notice. The witness was asked questions about the content of a report which had not been lodged as a production. Other documentation from the witness had been lodged. In ruling the evidence admissible, Lord Mulholland noted that the witness was a competent witness, her evidence was a combination of fact and opinion, and there was no rule of evidence rendering inadmissible expert evidence not covered by a report lodged in process. Whilst practice notes clearly anticipated early disclosure of reports relied on, failure to do so did not result in their content being inadmissible. The witness was being asked to update the position as disclosed in earlier reports and the continuing effects on the pursuer. It was not a new unconnected matter.

In Grubb v Finlay [2017] CSOH 81 (24 May 2017) Lord Kinclaven repelled objections made on the basis of lack of record. There was no need for averments to support evidence challenging a pursuer’s credibility in an action for personal injuries. There were in any event averments that the pursuer was in effect exaggerating his symptoms for financial gain. Lord Kinclaven did uphold objections for the pursuer on fairness grounds to evidence led for the defender which was not put to the pursuer for comment.

As an interesting aside, an attempt was made to have the action dismissed at commencement of the proof on the basis that the pursuer was fundamentally dishonest. This was unsuccessful. His Lordship determined that this was not well founded and would be unjust, the pursuer being deprived of a remedy to which he was entitled and the defender absolved of his now proven responsibilities.

Skilled witnesses

The decision of Lord Bannatyne in Higherdelta v Covea Insurance [2017] CSOH 84 (14 June 2017) gives an example of the principles set down in Kennedy v Cordia [2016] UKSC 6 in operation. Lord Bannatyne ruled evidence from certain skilled witnesses inadmissible as they were employed by one of the parties at the material time and thus were not independent. Others did not have the necessary expertise. They were brokers and the issue related to underwriters.

In Boyle v CIS Ltd [2017] SC EDIN 36 Sheriff McGowan confirmed that the point to judge whether instructing an expert was reasonable was the stage at which the witness was instructed. The court further had to be satisfied as to the skill of the person for whom certification was sought and the reasonableness of instructing them.

Family actions

In F v F [2017] SAC (Civ) 18 (2 March 2017) the Sheriff Appeal Court considered whether the sheriff was justified in dismissing a crave in a post-decree minute relating to the parties’ child which sought to have the child seen by a child psychologist. The sheriff had heard the original divorce proof in 2013 and thereafter had dealt with two previous minutes. Answers had been lodged and a curatrix appointed to the child had prepared a report.

The court considered the sheriff’s duties as set out in s 11(7) of the Children (Scotland) Act 1995. The sheriff was entitled to reach a decision and pronounce a final interlocutor at a child welfare hearing provided sufficient information was available. In the present case the sheriff had reports from the curatrix conveying the child’s views and circumstances. There was no breach of article 6 ECHR as a hearing did not require oral evidence. The nature of the hearing was dependent on the issue which required determination. Further, if a child was proposed to be a witness, a court had to consider whether justice could be done to all parties without further questioning of the child. The court had to weigh the advantages that the evidence of the child would bring against the damage it might do to the child’s welfare. There was no clear evidence as to the benefit the child would gain from attending a psychologist. The sheriff was entitled to refuse a proof that would be long and complicated, conducted by party litigants. The appeal was refused.

Appeal after extract

In MacGuire v Grant & Wilson Property Management [2017] SAC (Civ) 20 (8 March 2017) decree of dismissal had been granted at a peremptory diet in a personal injuries action, and subsequently extracted. The pursuer moved the Sheriff Appeal Court to exercise its dispensing power to allow her note and grounds of appeal to be received late and thereafter allow the appeal to proceed. She further sought recall of the extract decree.

Information before Sheriff MacFadyen in the Appeal Court indicated that recorded delivery intimation had failed, as “track and trace” indicated that it had not been signed for. The pursuer had been in contact with the sheriff clerk prior to that diet indicating that she wished to proceed, and was told that proof had been assigned. She told the sheriff clerk she had trouble receiving mail and sought further intimation to her by email. The defenders’ agent had also written to the pursuer advising that a peremptory diet would be assigned.

Sheriff MacFadyen considered that it was arguable that any principle that an appeal cannot be marked against an extracted interlocutor must be subject to exception in cases where the order is pronounced in complete ignorance when intimation might have failed and that was known to the court. He did not consider the decree would have been granted if the true position had been known. The court had been in part responsible without proof of effective intimation being available to it. The interlocutor assigning the peremptory diet required intimation to be made. The decree of dismissal had proceeded on a procedural irregularity in light of the foregoing. The pursuer had taken immediate steps to remedy matters once she became aware of the true position. The delay in her ascertaining that could be explained by her having no legal representation. Late lodging of the appeal was excusable albeit there was no requirement in terms of the Ordinary Cause Rules to communicate only by email, and the pursuer seemed to have relied on the sheriff clerk to a greater extent than the rules required.

Lindsay Foulis, sheriff at Perth

Update

Since the last article Heather Capital Ltd v Levy & McRae (May article) has been reported at 2017 SLT 376, Green v Chalmers (March) at 2017 SLT (Sh Ct) 69, Accountant in Bankruptcy (March) at 2017 SLT (Sh Ct) 77, MacLeod’s Reps v Highland Health Board (May 2016) at 2017 SCLR 115, Cumming v Tayside Health Board (May 2016) at 2017 SCLR 176, and Allan v Plexus Corp (UK) (November 2016) at 2017 SCLR 214. 

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