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When delay is not fatal

18 March 19

Latest civil cases, including undue delay; ex parte applications; title to sue; remit to Court of Session; joint minutes; ex tempore judgments; leave to appeal; family actions; sanction for counsel

by Lindsay Foulis

Undue delay

This matter was the subject of argument before Lord Tyre in Mannas v Chief Constable of the Police Service of Scotland [2018] CSOH 126 (28 December 2018). The pursuer sustained injury in a road accident in January 2001. An action was raised in early 2004 and sisted a month later for legal aid, which was granted later that year. The action remained sisted until early 2017. In considering an application in terms of RCS, rule 21A to dismiss the action Lord Tyre had to consider both whether there had been inordinate and inexcusable delay and whether that had resulted in unfairness. If these factors were satisfied, the question was whether it was in the interests of justice that the action was dismissed.

The remedy, he stated, should not be invoked except as a last resort. There had to be a substantial risk that a fair trial could not occur. In an action between private parties, if a fair trial remained a realistic possibility, justice required the action to be determined even if some unfairness had entered the process. Lord Tyre noted that witness statements had been taken by police shortly after the accident and a police incident log was available. The delay inevitably introduced an element of unfairness. However, the onus was on the pursuer. It appeared still possible that expert opinion on causation could be obtained. Both parties had opinions from medical experts. In the circumstances, Lord Tyre refused the defender’s application.

Ex parte applications

In Archer [2019] CSOH 15 (15 February 2019), an application was presented seeking recall of an order made under s 1 of the Administration of Justice (Scotland) Act 1972. Lady Wolffe observed that there was a stringent professional obligation in applying for ex parte orders, which included interim interdict, to make a full, fair and accurate disclosure of material information and to draw the court’s attention to significant factors, legal, factual, or procedural, which was essential to the proper and fair exercise of the court’s power. The court further had a continuing interest to ensure the integrity of the orders made and that a party did not benefit from failure to comply with that obligation or otherwise obtain an unfair advantage. It was contended that there had been a non-disclosure when the order had been granted. It was accepted that this did not automatically result in recall. In exercising its discretion the court considered what its decision would have been had there been disclosure. It might also take account of the circumstances resulting in the non-disclosure, the subsequent use of the documentation recovered, the time which had elapsed, the parties’ subsequent conduct, and the progress of any related litigation. If recall was considered appropriate, it could be in whole or in part.

Entitlement to be heard

Perhaps this decision from Lord Tyre is simply one to be filed under “of mild interest”! In Lafferty (Van Overwaele’s Tr) v Amil [2018] CSOH 122 (19 December 2018) the pursuer sought interim interdict. The second defender had lodged a caveat; the first defender was also present. Neither defender was represented; both addressed the court. Lord Tyre did not continue the hearing to enable the first defender to secure legal representation. As it was a hearing before calling and that defender had not lodged a caveat, he had no entitlement to be present.

Lay representation

The decision from Lady Paton in Johnstone v Shepherd [2018] CSOH 129 (13 December 2018) gives an example of factors relevant to an application for lay representation. The first pursuer sought to be lay representative for the second pursuer, a company. As pursuer he had a personal interest in the subject matter of the proceedings which rendered him ineligible.

Inability to comply with a court order

On occasions parties or their representatives are required to undertake some procedural step by the court. The consequences of failing to do so can depend on the terms of the order. “Appoints” has a different meaning to “orders” or “ordains”.

If however the court in clear terms orders that some step should be undertaken, it is not for the representative or party to decide whether or when the order is complied with. If there is a difficulty in compliance for some good practical reason, the matter should be brought back to court to seek an extension of time. Otherwise the duty is to comply in a timeous and proper manner. So observed Lord Justice Clerk Lady Dorrian in Penman v HM Advocate [2018] HCJAC 71 (20 November 2018) at para 16.

Albeit made in a criminal case, the observations apply with equal force in civil actions and are worth stating, particularly for those at the beginning of their litigation career!

Title to sue

In Anderson v Wilson [2019] CSIH 4 (30 January 2019) the Inner House determined that a beneficiary could not sue for a debt due the estate. The beneficiaries’ right to the estate did not amount to a right to determine what constituted the estate itself. That lay with the executor. It further observed that when the basis of the action was facility and circumvention or undue influence, the normal remedy was reduction. If restitution was impossible, a claim for damages might be available. However, if the actions founding facility, circumvention, or undue influence amounted to a wrong, damages might be recoverable.

Remit to the Court of Session

The decision from Perth Sheriff Court in AB v CD [2019] SC PER 6 (21 December 2018) was made following an unopposed motion to remit the cause to the Court of Session. The action was one of damages for personal injuries sustained through a catalogue of domestic abuse over a number of years, including serious sexual offences against the pursuer. Some of these had been the subject of High Court proceedings resulting in verdicts of acquittal. Other aspects had resulted in convictions against the defender.

Granting the motion, the sheriff observed that while, as a consequence of the convictions, it might be that there was little difficulty in establishing psychological injury, the observations in Mullan v Anderson 1993 SLT 835 were pertinent. A civil court was being asked to conclude that the defender had committed offences of which he had been acquitted. Such matters tended to attract significant publicity. Issues relating to allegations of non-consensual sexual acts and domestic abuse exercised the public and the legislature, as evidenced by recent legislation. It could be anticipated that civil actions based on such allegations would become more common. Having regard to the period over which the defender was alleged to have been abusive, issues arose of time bar and the exercise of the power in terms of s 19A of the Prescription and Limitation (Scotland) Act 1973, and of causation and quantification. These merited the decision of the Court of Session. If the action was not remitted, there was no guarantee that any appeal would ultimately be heard by the Inner House, due to the obstacles created by ss 112 and 113 of the Courts Reform (Scotland) Act 2014.

Case management

It is perhaps worth noting that in a Sheriff Appeal Court decision SY v FY [2019] SAC (Civ) 5 (11 February 2019) Sheriff Cubie reiterated that the sheriff at first instance had an obligation to avoid evidence being led from unnecessary witnesses or from sources which were unlikely to assist the court in reaching a decision. Use of affidavits and documents was encouraged in appropriate circumstances.

Joint minutes of admission

In Grant v International Insurance Company of Hanover [2019] CSIH 9 (22 February 2019) Lord President Carloway, in a postscript to his opinion, made certain observations as to the form of joint minutes of admissions. While the parties were to be commended for agreeing much of the evidence, a sentencing statement in a prior trial had been agreed as “an accurate summary of the evidence”.

The Lord President questioned the effect of an agreement in such terms. The fact that the statement was an accurate summary of the evidence given in the course of the criminal trial is, at least strictly, irrelevant. What seemed to have been intended was agreement that the statement was an accurate account of the facts detailed therein. If that was what was intended, the joint minute should have said so.

The fact that it is agreed that the evidence of a witness is as contained in a statement still can result in that evidence being rejected!

Assessment of evidence

In McAnulty v McCulloch [2018] CSOH 121 (19 December 2018) Lord Uist, referring to the observations of Arden LJ in Wetton v Ahmed [2011] EWCA Civ 610, noted that the task of assessment was not to be carried out merely by reference to the impression that a witness made when giving evidence, through body language, tone of voice, and other aspects of demeanour. The evidence should also be considered against any other independent evidence, documentary or oral. Contemporaneous documentation might be of the greatest importance in assessing credibility. However, if no documentary evidence was, or was likely to be, available the court was reliant on oral evidence.

Ex tempore judgments

In Raybould v T & N Gilmartin (Contractors) Ltd [2018] SAC (Civ) 31 (18 December 2018), the Sheriff Appeal Court noted that where no evidence was led, the sheriff could issue a written note of reasons and was required to do so if requested. In most cases in which evidence was led, a sheriff could issue an ex tempore judgment or reserve judgment for a written judgment to be issued in due course. In the former case the grounds of decision required to be stated briefly. These grounds included reasons for decisions on any questions of fact or law or admissibility of evidence. If the sheriff decided to append a note to the relevant interlocutor, or was asked to do so, this note had to contain reasons for these decisions and findings in fact and law. In short, it should be in similar form to a conventional written judgment.

Leave to appeal

By s 110 of the 2014 Act, no permission to appeal is required in respect of a final judgment. “Final judgment” is defined in s 136 as a decision which by itself or along with previous decisions disposes of the subject matter of proceedings. In light of Lady Wolffe’s decision in Our Generation Ltd v Aberdeen City Council [2019] CSOH 16 (19 February 2019), it is submitted that it is likely that permission is not required to appeal against a decision to dismiss the principal action while a counterclaim continues. The position might be different if both claim and counterclaim were interdependent to such a degree that disposal of the claim could not be said to dispose of the whole merits.

Family actions

The issue of whether the basis for the grant of divorce can be amended from adultery or behaviour to non-cohabitation for the relevant period once that period has elapsed, was visited again by Sheriff Collins in Douglas v Douglas [2019] SC PER 4 (13 November 2018). The action had been raised within nine months of the parties’ separation with irretrievable breakdown of marriage being alleged through the defender’s behaviour. After two years had elapsed, a minute of amendment was lodged seeking to alter the evidential basis for divorce.

Sheriff Collins observed that there was only one ground of divorce, namely irretrievable breakdown of marriage. This was evidenced in one of four ways. The proposed amendment did not seek to alter the ground on which divorce would be granted. Rather, it simply sought permission to lead different evidence to establish the same ground. The amendment did not equate to the abandonment of an action based on one ground and the bringing of a new action on another ground. The relevant provisions of the Divorce (Scotland) Act 1976 referred to “preceding the bringing of the action”. It is clear that the sheriff having indicated his views, parties decided to revert to irretrievable breakdown being evidenced by the defender’s behaviour, the averments being toned down to take the heat out.

Without expressing any opinion as to whether Sheriff Collins’s observations are well founded, they are certainly worthy of consideration. I confess I have always wondered what the attraction was to effect such an amendment in a divorce action. The interlocutor granting divorce makes no reference to the evidential basis for the divorce. Likewise, the extract decree. Further, the “unreasonable behaviour” basis for divorce is largely subjective by reference to the particular pursuer and thus encompasses a wide variety of behaviour. It should not therefore be that difficult to establish that the marriage has broken down irretrievably. Perhaps one difficulty is that practitioners often succumb to the temptation of making averments which read like excerpts from a script of a violent film. If averments were toned down to take the heat out of matters, there might be little issue taken with an action evidenced on behaviour. Practitioners should not lose sight of the fact that an individual will read what is served. The other observation from this decision is that care requires to be taken as to the exact terms of any joint minute of admissions, as what is agreed in such a document is binding.

Sanction for counsel

In Graham v Enviro-clean (Scotland) Ltd [2019] SC EDIN 12 (12 February 2019) Sheriff Braid noted that s 108 of the 2014 Act referred to sanction for the “purposes of the proceedings”, and “proceedings” included “references to any part or aspect of the proceedings”. Consideration of sanction did not allow the court to decide whether or not counsel’s fees were allowable for any particular piece of work. That was the function of the auditor. The grant of sanction was necessary, but not sufficient, for the allowance of counsel’s fees. Sanction could be granted in anticipation as well as after procedure was undertaken. When counsel was employed throughout a case, sanction for the whole of the proceedings would be expected. In most instances, if sanction was granted, it would be for the whole proceedings. If counsel was only instructed for part of the proceedings, fees could not be recovered for more work than counsel did. If sanction was opposed, it was a perfectly logical position to adopt that sanction should be limited to certain stages.

Certification of skilled witnesses

In considering whether it is reasonable to grant such certification, even although there was authority to suggest that a head of loss was not recoverable it could still be considered reasonable for a party to instruct a skilled witness to support such a claim if the argument in favour was colourable. This was the conclusion reached by Sheriff Braid in Delaney v Jet2.com Ltd [2019] SC EDIN 13 (12 February 2019). Further, it was not for a sheriff to speculate as to whether or not a tender included a sum for any particular head of claim.

Actions arising from assured tenancies

On 1 December 2017 the functions and jurisdiction of the sheriff in relation to actions arising from assured tenancies, other than those commenced before that date, were transferred to the First-tier Tribunal for Scotland (Housing & Property Chamber) in terms of s 16 of the Housing (Scotland) Act 2014. The question which Sheriff Jamieson understandably left unanswered in Parker v Inkersall Investments Ltd [2018] SC DUM 66 (18 December 2018) was what “arising from” included. It clearly covered actions for recovery of assured tenancies. Was it however unrestricted? Did it cover any remedy within the jurisdiction of the sheriff provided the action arose from an assured or private residential tenancy? Did it cover applications for interdict, declarator or damages? Was it restricted to contractual disputes arising from the tenancy itself? Applications relating to antisocial behaviour orders in relation to such tenancies and transfer of such tenancies in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 remained with the sheriff. All will become clear in the passage of time!

Lindsay Foulis, sheriff at Perth

Update

Since the last article, Panel on Takeovers and Mergers v King (January article) has been reported at 2018 SLT 1205, Sheridan v News Group Newspapers Ltd (January) at 2019 SLT 10, A v Glasgow City Council (January) at 2019 SLT 32, Angus Council, Petrs (January) at 2019 SLT (Sh Ct) 14, and Centenary 6 Ltd v Caven (May 2018) at 2019 SCLR 1.

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