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End of the road

12 November 18

Latest civil cases, including appeals; party litigants; limitation; executors; locus delicti; remit to Court of Session; concessions; commercial actions; skilled witnesses; family actions

by Lindsay Foulis

Appeals

If any doubt remained that the terminus for litigation in the sheriff court is situated in the Sheriff Appeal Court, reference only needs to be made to the Lord President’s speech at this year’s opening of the legal year: “where the SAC has already heard an appeal, it is important for the efficient operation of the Court of Session that, whether this court considers the SAC decisions to be right or wrong, it should only hear appeals which raise an important point of principle in the absence of any compelling reason to the contrary”.

This is emphasised in the Lord President’s recent opinion in Bridging Loans Ltd v Hutton [2018] CSIH 63 (26 September 2018), in which his Lordship expressed concern that permission to appeal to the Inner House had been granted. It was reiterated that permission should only be granted if there was an important point of principle or practice raised or some other compelling reason existed. That decision also confirmed that in considering whether decree by default was appropriate, the appellate court looks at the whole circumstances including new information provided.

These views were affirmed in Khaliq v Gutowski [2018] CSIH 66 (17 October 2018). This decision covers other issues which are well worth setting out. The first relates to the treatment of party litigants. Whilst the observations from Lord Carloway have been made elsewhere, the fact that they are made by the Lord President obviously is very significant. His Lordship comments that whilst a party litigant may be afforded a degree of latitude, such a party cannot be excused compliance with the rules of procedure without proper cause. The rules are designed to meet the requirement of access to justice and fairness, and this is fairness to all parties. If one party is given excessive latitude, other parties can be prejudiced and that can include the progress of an action and the associated expense.

It was not part of the function of an independent adjudicator to encourage a party to advance a line or submission not raised. The court was not an adviser to a party. The Lord President commented that in considering whether to grant decree by default a court should not examine the merits in any great detail, but a weak case might well be a factor in favour of such a decree, as to do otherwise would result in further needless expense and a waste of court time. In considering an appeal against such a decree, unless there was new information an appeal court would be slow to interfere with what is essentially an exercise of discretion by the court at first instance. Whilst the failure to comply with a relatively simple procedural step might not justify the grant of such a decree, the surrounding circumstances including the procedural history might point in another direction.

It was also observed that previous adverse decisions on procedural or unrelated matters made against a party in the litigation did not per se justify the declining of jurisdiction. Further, grounds of appeal were an important part of procedure providing advance notice of the case to be met, with other points being unlikely to be permitted to be argued. Finally it was observed that in considering permission to appeal to the Inner House, there was no provision for leave being granted on restricted grounds. The question was whether permission was justified on the basis of the proposed grounds of appeal. If leave was granted, the relevant interlocutor should specify which grounds were considered to satisfy the statutory test.

Party litigants

Again an observation is made to the effect that albeit such litigants will be afforded some latitude in the manner in which a case is presented, neither the rules of court nor the laws of evidence or procedure are to be ignored – Appeal Sheriff McCulloch in Ramsay v Mann [2018] SAC (Civ) 22 (20 August 2018). It was submitted for the pursuer that the court having warranted the writ, a plea of no jurisdiction was no longer open to the defender. This is clearly wrong. However, whilst the granting of a warrant is an administrative matter, if the question whether there were sufficient averments to support jurisdiction had been raised with a sheriff by administrative staff, the matter might have been resolved at a very early stage with the sheriff seeking to be addressed on the issue. 

Citation as limitation approaches

Lady Clark’s refusal to exercise the power available to the court under s 19A of the Prescription and Limitation (Scotland) Act 1973, in Spencer v Cruddas [2018] CSOH 95 (25 September 2018) should stand as a warning to practitioners. With the limitation period fast approaching, agents attempted citation against four defenders by post as opposed to officers of court. Citation failed against one defender. The General Department refused to accept the summons for calling and it fell. A new action was raised outwith the limitation period. The original action had been successfully served against defenders who now objected to exercise of the s 19A power. The claim was not a stale one. Intimation had been made shortly after the accident. These defenders had made a payment of interim damages and liability was now admitted. However, the mode and timing of service was crucial in her Ladyship’s decision to refuse to exercise the power.

Claim against discharged executor

In Forbes v McLean [2018] CSOH 88; 2018 SLT 877 family members of a deceased sued the executor of the deceased’s former employer. The executor had ingathered and distributed the estate and been discharged. The question was whether the claim directed against the executor was competent and relevant. Lord Clark determined that it was competent to sue the executor for the purposes of constituting the claim.

Lex loci delicti

In Docherty’s Exrs v Secretary of State for Business, Innovation and Skills [2018] CSIH 57 (22 August 2018) Lord President Carloway determined that the lex loci delicti was the place where the fault, omission or offence occurred. It was the place of the act of the defender which constituted a wrong. The law focused on the place of the defender’s actions, not the place where injury emerged. Lord Brodie observed that identifying the locus delicti involved a mixed question of fact and law. It did not necessarily follow that even if a final event was required to complete the cause of action, the place where that event occurred was the locus delicti.

Remit to the Court of Session

Cocker v Dumfries & Galloway Health Board [2018] SC EDIN 56 (4 October 2018) was a claim for £1,500,000 in damages arising from alleged clinical negligence. The first defenders moved for remit to the Court of Session in terms of s 92(2) of the Courts Reform (Scotland) Act 2014 on the basis of the importance or difficulty of the proceedings. Sheriff McGowan refused the motion. In evaluating the relevant factors, he accepted that the cause was of importance. The sum sought was significant and the professional standing of the first defenders’ employees put in issue. It was also important to avoid delay. The case was far from straightforward and involved several medical professionals of different categories; issues about duty of care would be particular to each element of the case.

However, the sheriff did not consider that made the dispute extraordinarily complex. He acknowledged that Outer House judges sat in a superior court, but the national PI court had been set up specifically to deal with all types of PI claims and the sheriffs had been selected for their knowledge and experience of such cases. Aspects such as the procedure adopted, the location of the courts, the quality of legal representation available and expense were neutral in this case. Greater case management might or might not be required. An earlier proof could be assigned in the PI court and any procedural callings, if required, could normally be accommodated at relatively short notice. Weighing up all factors, the motion was refused.

It will be interesting to see whether this decision is appealed. Having regard to s 113 of the 2014 Act, the fact that it is not a final judgment prevents this issue ultimately making its way to the Inner House. However the Sheriff Appeal Court could consider remitting to the Inner House under s 112 if satisfied that any appeal raised a complex or novel point of law. 

Concessions

Concessions are generally made in the averments or a joint minute of admissions. In Promontoria (Henrico) v Wilson [2018] SAC (Civ) 21 (22 August 2018), however, the pursuers conceded at a diet of debate that the obligation by the debtor to pay the debt which was the subject of the guarantee had prescribed. This was repeated when the appeal before the Sheriff Appeal Court commenced. After lunch during that hearing, counsel for the pursuers intimated that he had been instructed to withdraw this concession.

It was accepted that such a concession could be competently withdrawn during the course of litigation. A court would be more reluctant to allow a factual as opposed to a legal concession to be withdrawn. Any concession made became an integral part of the conduct of a litigation. Concessions, which could be made in writing or orally, were significant because they played a role in determining the conduct of an action. The court concluded that a concession made by whatever means required the leave of the court to enable it to be withdrawn, if that was opposed.

A minute should be lodged specifying the concession, when it was made, and why it was sought to withdraw. The minute should also address issues of prejudice should leave be granted and the minuter’s position regarding consequential expenses.

Whether to allow leave to withdraw was a matter of discretion. Whilst a court should do justice to the parties based on a full and accurate exposition of the law and facts, tactical decisions by the parties and their advisers could have a bearing on the conduct of an action. However it was no longer the situation that the conduct of litigation was left to the parties. The court had an interest in ensuring justice between parties, which included delay, the strain and uncertainty litigation brought to parties, and the efficient use of resources. The motion to allow withdrawal was refused. 

Commercial actions

In Westerton (UK) v Edge Energy [2018] CSOH 97 (11 October 2018) Lord Bannatyne made a simple observation to the effect that in commercial causes, as in others, a party was entitled to a relevant case being pled against them. This included fair notice as to the case pled. Such attacks were not simply pleading points.

Skilled witnesses

In Armstrong v ERS Syndicate Management [2018] SAC (Civ) 28 (28 August 2018) Sheriff Principal Turnbull set out the conditions which generally required to be met for a witness to be considered an independent skilled witness. These were that the evidence presented was independent, uninfluenced in form or content by the exigencies of the dispute; the witness should provide independent assistance to the court by objective, unbiased opinion on matters within their expertise; the witness should state the facts or assumptions upon which their opinion was based. Material facts should not be omitted from consideration, albeit they could detract from the concluded opinion. If a question fell outwith their expertise, this should be made clear. If the opinion was reached on insufficient data, it should be clear that the opinion was provisional. Any qualification should be stated. If after consideration of another opinion, the expert changed their view on a material matter, this should be intimated to the parties and the court immediately. If the expert referred to extraneous matters such as plans or photographs, these should be provided to the other parties with the report.

The use of skilled witnesses involved the admissibility of the evidence, the responsibility of ensuring the witness kept to their role, the policing of the duties of such a witness, and economy of litigation. Independence and impartiality was a matter of admissibility as opposed to weight. If the fee payable to a skilled witness was contingent upon the outcome of a litigation, it did not automatically render the evidence from that witness inadmissible, but such an arrangement was highly undesirable and the evidence would only very rarely be admissible. If there was such an arrangement it should be disclosed in order that a decision could be reached prior to the proof.

Family actions

The conduct of family actions involving disputes regarding children can be anything but straightforward. With a degree of hesitation I suggest this may be due to a number of reasons. First, the provisions of the Children (Scotland) Act 1995 provide parties, if so minded, with numerous grounds to litigate. Secondly, it is undoubtedly in the interests of all that such disputes are concluded as quickly as is reasonable. However, if it is possible for parties to come to their own resolution, albeit perhaps with a helpful hint of push from the bench/advisers, this is presumably better than a judicial determination which may be one that no one, children included, much likes. Finally, circumstances may change during the action. Against this background, the normal rules governing progress of litigation are not necessarily a satisfactory fit.

These remarks are made perhaps to provide a possible explanation for what happened at first instance in K v K and W [2018] SAC (Civ) 24 (5 September 2018). After divorce was granted with orders for contact, a post-decree variation minute was lodged. Other minutes were lodged seeking various orders in respect of the three children. A proof on all minutes commenced; the sheriff’s judgment concluded the father was not generally a credible and reliable witness. A further minute was then lodged seeking to reduce contact between father and son to nil. Proof on that minute commenced. After further diets were lost and various motions/procedural steps undertaken, the sheriff granted the crave of the minute at a child welfare hearing albeit the proof had not concluded.

The issue of significance for this article obviously relates to the procedure undertaken. The Sheriff Appeal Court differentiated between the function and purpose of a proof and a child welfare hearing. The latter was intended to attempt expeditious resolution of the dispute at an early stage, generally without a proof being required, by ascertaining what was in dispute and the issues involved. If, however, the former was required, the court was provided with a number of case management tools to ensure its efficient conduct. A proof was assigned if resolution could not be achieved another way. The rules did not envisage a proof being allowed and the matter then being determined at a child welfare hearing. It was not appropriate for final orders to be made at a child welfare hearing after the proof commenced.

The Appeal Court may also be indicating strongly that once a proof is allowed, case management should be undertaken by means of a case management hearing rather than a child welfare hearing, albeit the court has wide powers in the conduct of the latter. It further may be the case that once a proof is allowed, the court should not seek to resolve matters at a child welfare hearing. Rather matters require to be concluded at the proof if no consensual outcome is reached by the parties. The court also observed that civil litigation in Scotland being a pleadings based system, a decision in a family case had to have regard to the averments made. Regarding case management hearings, a court should be reluctant to allow new aspects of dispute to be explored at proof which are not identified at such a hearing. The time to case manage was prior to a proof so parties were clear as to the issues, the evidence to be led and the expert evidence to be allowed. Parties required to be well prepared for such hearings for those reasons.

Lindsay Foulis, sheriff at Perth

Update

Since the last article, Prospect Healthcare (Hairmyres) Ltd v Kier Build Ltd (No 2) (July article) is now reported at 2018 SLT 815, Glasgow City Council v Scottish Legal Aid Board (July) at 2018 SLT 935; 2018 SCLR 496, TJ v SB (July) at 2018 SLT (Sh Ct) 277, Aberdeenshire Council v JM (November 2017) at 2018 SCLR 327, Politakis v Spencely (January) at 2018 SCLR 366, and Cabot Financial UK Ltd v McGregor (July) at 2018 SLT (Sh Ct) 249; 2018 SCLR 375.

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