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The limits of appeal

15 January 18

Latest civil cases, including leave to appeal; appeals generally; forum non conveniens; res judicata; family actions; jury trials; expenses; simple procedure; sanction for counsel; liquidation

by Lindsay Foulis

Leave to appeal

In Politakis v Spencely [2017] CSIH 74 (29 November 2017) the Inner House looked at the issue of leave to appeal, or permission to appeal as it is now (another example of the apparent requirement to change procedural names)! 

Lord President Carloway delivered the opinion of the court. First, such applications could be determined by a single Inner House judge. Considering the tests for leave, the Lord President stated that in light of the legislation a second appeal was truly exceptional. An “important point of principle or practice” meant one which had not yet been established, as opposed to a question whether an established principle or practice had been correctly applied. “Some other compelling reason” presupposed that no important point of practice or principle had been raised. A starting point was consideration of the prospects of success. The test covered instances where a decision was plainly wrong or inconsistent with authority, and of procedural irregularity indicating unfairness.

In KS [2017] CSIH 68 (14 November 2017) the appellant sought leave to appeal a decision of the Sheriff Appeal Court refusing to allow an appeal to be received late after issue of the extract decree. The ground of appeal had failed to state whether the appellant considered the appeal should be appointed to standard or accelerated procedure. The appeal had been returned; a corrected appeal was lodged late. Lady Clark refused leave. There had been no irregularity or incompetence in the issuing of the extract. The failure to comply with the rules might have been relatively minor, but a party litigant had to be prepared to comply with the strictures of rules of procedure. 

Review of prior interlocutors

This issue was considered again in Prospect Healthcare (Hairmyres) Ltd v Kier Build Ltd [2017] CSIH 70 (17 November 2017). An interlocutor had been pronounced allowing the action to be dismissed on payment of full judicial expenses. The court refused to order the pursuers to reimburse the defenders for their liability to third parties. Leave to appeal was refused. The defenders sought to review the final interlocutor dismissing the action following payment of expenses, in order to challenge the refusal to find the pursuers so liable. In repelling the pursuers’ objection to competency the First Division noted that, in addition to instances in which a prior interlocutor was acted on or acquiesced in, it was not competent to challenge a prior interlocutor in an appeal against a subsequent interlocutor when the former had nothing to with the merits of the latter. Importance required to be attached to the relationship between the interlocutors. Where the interlocutor appealed was dependent on the earlier interlocutor, it was competent to review the prior interlocutor in the appeal. 

Appeals generally

The Inner House decision in J & E Shepherd v Letley [2017] CSIH 78 (12 December 2017) relates to a determination that the defender had breached the terms of an interim interdict. The particular facts are not of significance, albeit they highlight the importance of care in framing a crave for interdict, the ultimate decision turning on whether a particular person had had dealings with the pursuers. 

If a party is to be found in breach, the court has to ensure and explain that everything necessary to establish the breach has been proved to its satisfaction. The decision accordingly emphasises the fundamental importance of the sheriff’s findings in fact for the purposes of an appeal and the difficulties if evidence is not recorded, as was the case in this summary application. The content of the pleadings or the submissions in the court below may not assist in overcoming problems caused by the absence of a finding. 

Forum non conveniens

In H v H, Dundee Sheriff Court, 30 May 2017 an action for residence of a child raised in Dundee was sisted due to proceedings continuing in Tennessee. The parents and child were American citizens. The only connection with Scotland was the defender commencing studies at St Andrews University in autumn 2015. He was provided with the necessary visa and the pursuer and child joined him soon after. The parties separated and the present proceedings were raised in April 2016. Days later, the defender instituted proceedings in Tennessee. These were still live. The sist was appealed and the Sheriff Appeal Court allowed the appeal: 2017 SAC(Civ) 31 (30 October 2017). 

Sheriff Principal Murray noted that in considering s 14(2) of the Family Law Act 1986, and in particular the appropriateness of matters being determined in another court, the court was not bound to sist but exercised a discretion having regard to the principles of forum non conveniens. The welfare of the child was the paramount consideration, considered in the context of which court was the more appropriate to try the case more suitably in the interests of the parties and justice. In cases involving children there were five factors: habitual residence, convenience for the bulk of the evidence, ability to determine urgent matters expeditiously and with thorough consideration, the circumstances of the actions being raised, and where the children presently were and how they got there. Habitual residence was of considerable importance and that in the present instance was in the jurisdiction of Dundee Sheriff Court. 

Res judicata

In Shawns v Walker [2017] SC LIV 68 (25 October 2017) Sheriff Kinloch repelled a plea of res judicata. In a previous action the parties had litigated as former cohabitees in a claim under s 28 of the Family Law (Scotland) Act 2006. The present action involved the enforcement of provisions in a minute of agreement which had been referred to in but was not the basis of the prior action. The subject matter of the second action was not the same, neither were the media concludendi

Case management – family cases

In J v J 2017 SAC (Civ) 33, a decision to dismiss an action for contact due to failure to lodge a joint minute of the conference meeting preceding the case management hearing despite numerous opportunities, was appealed. The sheriff considered that the failure constituted a default. The Sheriff Appeal Court did not agree, as there was not an absolute requirement to lodge such a joint minute. If one was not lodged, an explanation could be proffered to the court. The sheriff had been told that the parties were unable to agree its terms. 

This decision may not, in itself, be that surprising. The court did, however, observe that the welfare of the child was paramount and this did not permit parties or the court to disregard proper procedure. In the context of a family action that required a proof, the closing of the record was an essential step. 

Jury trials

Pursuers in actions for damages for personal injury are entitled to jury trial unless special cause is shown. In Glen v Lagwell Insulation Co Ltd [2017] CSOH 153 (15 December 2017) Lord Brodie indicated that neither the brevity of pleadings in personal injury actions nor the need to supplement pleadings with productions presented any difficulty for a jury in a dispute confined to quantum. The fact that the claim was in part based on the Ogden tables did not render it unsuitable for a jury. Nor did a very low discount rate risk the overvaluation of a future claim for loss. The claim for future wage loss was based on three potential career paths; the use of the Ogden tables was likely to be a more demanding task if the case was before a jury as opposed to a judge, and full and precise information would be required in speeches and directions to the jury, but that was of the nature of a jury trial.

Expenses generally

In Cham v Stone [2017] SC EDIN 76 (26 May 2017) Sheriff Mackie required to consider whether VAT was recoverable from an unsuccessful party. VAT was only chargeable on judicial accounts if the party awarded expenses was not a taxable person or the legal services provided were not in relation to a matter for which he was registered for VAT. Inclusive fees in a table of fees related to a description of the work done and not the inclusion of all charges. VAT could be added. Further, the lodging of a certificate or statement as to whether a party entitled to expenses was able to recover VAT was a good practice.  

Expenses – simple procedure

In Graham v Farrell [2017] SC EDIN 75 (31 October 2017) an action for damages raised under simple procedure was resolved by the acceptance of a tender after answers had been lodged. The action was not one in which expenses were capped as a consequence of s 81(5)(a)(ii) of the Courts Reform (Scotland) Act 2014. Sheriff McGowan agreed that not proceeding with the defence meant not proceeding to the hearing of evidence and obtaining a judicial decision. To qualify for the ceiling on expenses, the action had to be resolved prior to a defence being stated. 

This decision comes as no surprise in light of the authorities. However, there may be just a slight hitch. Sheriff McGowan, unsurprisingly, founded heavily on Tallo v Clark 2015 SLT (Sh Ct) 181 in which Sheriff Principal Stephen observed that once a defence was stated and the sheriff appointed a hearing on evidence, the protection flew off unless the case proceeded to judicial determination. This is understandable as the intention behind the small claims procedure was that claims would be resolved at the hearing, and only if that was not possible that the issues be noted. It could be argued that the defence was only stated at that point. In simple procedure the defence is disclosed on the response form and the lodging of that form triggers various orders in terms of rule 7.6. If the sheriff determines matters on the basis of the information in the claim form and response, or at a case management discussion after a defence has effectively been stated, has the defence been proceeded with? Is there a difference if the sum sought or a compromise figure is awarded? Is the former a judicial determination, the latter a compromise? Which provisions in s 81 of the 2014 Act apply regarding expenses? Only time will tell! 

Alternatively the sheriff may simply fix a full hearing either having considered the claim and response in chambers or after a case management discussion. What effect does this have in relation to the operation of s 81? Again only time will tell! This was not argued in Gowans v Miller [2017] SC FOR 82 (29 November 2017). Summary Sheriff Martin-Brown determined, where a case had settled prior to the case management discussion and expenses were subject to the statutory cap, that the figure awarded was inclusive of VAT.

Sanction for councel

In Brown v Aviva Insurance Ltd [2017] SAC(Civ) 34; 2017 SLT (Sh Ct) 257 the pursuer successfully appealed the sheriff’s refusal to certify the cause for junior counsel. The appeal was conceded by the defenders. This may on the one hand weaken the authority of Sheriff Cubie’s decision. Equally it cannot be ignored that the defenders are a multinational insurer and may not have come to that position lightly. 

Sheriff Cubie first decided that the court could consider the merits of the appeal if there was wider interest. Under s 108 of the 2014 Act, the test was one of objective reasonableness, determined by the exercise of judicial discretion. Parties’ agreement was a factor but not a determinative one, as was the fact that the case could be competently conducted by a solicitor. Counsel being employed by one party was a powerful factor but again not decisive. An accumulation of reasons might result in counsel being employed as parties reacted to developments in the litigation. The question for the court was “Was it objectively reasonable to instruct counsel?” 

In McCracken v Kazanowski [2017] SC EDIN 80 (8 November 2017) Sheriff McGowan refused sanction. In considering complexity and difficulty it was useful to consider the questions the court ultimately would have to decide, the evidence to be assessed, and the manner in which evidence would be presented. Resolution of the dispute arising out of a road accident required an assessment of parties’ credibility and reliability which might be supplemented or challenged in light of expert evidence. Eliciting such evidence presented no difficulty. There were obvious lines of challenge. The consequences of the accident largely turned on the assessment of the pursuer’s evidence.

On the issue of reasonable time for considering a tender, a party was entitled to consult with advisers and reflect on that advice. The appropriate date for acceptance was a matter for the auditor: Macphail, para 14-51. Notwithstanding that passage, which may be appropriate in courts where the auditor has previously practised as a solicitor, in many courts the auditor is not so qualified and I wonder whether the court should make the determination as to the appropriate date.


In S & M Livestock Ltd [2017] SC DUMF 78 (25 October 217) Sheriff Jamieson, considering a note relating to liquidator’s remuneration, observed that it is not part of the court’s function to second-guess the liquidator’s actings. The liquidator is presumed to act in a normal manner. The court is not required to examine their actions in detail. They are appointed to exercise judgment and discretion in winding up the company. Rule 4.34(1) of the Insolvency (Scotland) Rules 1986 did not confer jurisdiction to determine the reasonable amount of outlays, but a separate process from the determination of outlays and remuneration by a liquidation committee.

Lindsay Foulis, sheriff at Edinburgh


Since the last article Bradley v Bradley(November article) has been reported at 2017 SLT (Sh Ct) 201, NRAM v Cordiner (November) at 2017 SLT (Sh Ct) 217, Brown v Aviva Insurance Ltd (March) at 2017 SLT (Sh Ct) 257, Sheridan v News Group Newspapers Ltd (September 2016) at 2017 SCLR 576, <Woolley v Akram (March 2017) at 2017 SCLR 647, SM v CM (March) at 2017 SCLR 739, Alliance Trust Savings Ltd v Currie (January) at 2017 SCLR 685, Humphreys v Crabbe (January) at 2017 SCLR 699, and Durkin v HSBC Bank plc (March) at 2017 SCLR 731.

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