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Barred from acting

20 May 19

Latest civil cases, including interdict of solicitors; abuse of process; recovery of documents; expert evidence; judicial intervention; actions ad factum praestandum; expenses; which procedure?

by Lindsay Foulis

Professional practice

In Murray, Petr [2019] CSOH 21 (7 March 2019) the petitioner sought interdict against solicitors acting for her husband in their divorce proceedings on the basis that the solicitor who had acted for her in relation to the parties’ pre-nuptial agreement had subsequently joined that firm. The interdict was based on her former adviser having retained knowledge of her affairs, and the firm having confidential information compiled for the purposes of private client advice. 

An undertaking by the former adviser that no retained information would be disclosed satisfied Lord Brailsford on that matter. In relation to the private client information, he considered various precautions the solicitors had put in place, but observed that the importance of protecting a client’s confidential information was such that professional advisers who sought to act for one with an adverse or potentially adverse interest to a former client had an onerous burden placed on them. The fact that a considerable time might be involved in gleaning anything of importance was not a significant reason. An adequate and effective information barrier had to exist which protected the interests of the former client. Ad hoc arrangements after the event were unlikely to be as robust as permanent arrangements which were already in place and engaged automatically when a conflict of interest emerged: information could leak deliberately or innocently in the intervening period. 

However ([2019] CSOH 22; 7 March 2019) he refused the petitioner’s motion for expenses against the solicitors on an agent-client, client paying basis, observing that if a solicitor wished to act on behalf of one party against a former client without the latter’s consent, that professional from the time the conflict arose had to consider actively whether there was a danger that confidential information might be disclosed. Existing precautions would require to be considered and whether they were sufficient to prevent disclosure. Such precautions would need to be robust enough to withstand inquiry by a court. In the present case, however, the solicitors’ conduct of the litigation had not been unreasonable.

Abuse of process

In Friel v Brown [2019] CSOH 30; 2019 SLT 377 the pursuer sought damages for psychological injury sustained in a road accident following which he was convicted under ss 1 and 1A of the Road Traffic Act 1988. He had lodged a special defence of automatism, which was rejected by the jury. He averred that the accident had been caused by his losing consciousness as a result of medication prescribed by the defender. 

Lady Carmichael concluded that the action amounted to a collateral challenge to that conviction; in Scots law it was contrary to public policy for a civil action to proceed in such circumstances. It did not matter that the object of the action was damages as opposed to challenging the conviction. The action amounted to an abuse of process and fell to be dismissed through the court’s inherent power to address such issues. Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 did not assist the pursuer. The law relating to preventing such abuses operated independently to s 10, but was consistent with it. 

Vexatious litigants

Lord Advocate v Aslam [2019] CSIH 17 (22 March 2019) concerned an application under s 100 of the Courts Reform (Scotland) Act 2014 to declare the defender a vexatious litigant. Delivering the opinion of the court, the Lord Justice Clerk observed that litigation was properly described as vexatious if it had little or no basis of law and its effect was inconvenience, harassment and expense out of all proportion to any likely gain; an abuse of process with the court process being used for a purpose significantly different from its ordinary and proper use. It was not persistent failure in proceedings which was the key, rather that repeated actions had failed by reason of competence, irrelevance etc. Having regard to the number of actions the defender had raised without any prospect of success, the scandalous nature of many of the averments, the refusal to accept the court’s decisions, the failures to pay awards of expenses, and the refusal to find caution, the defender should be declared a vexatious litigant. 

Interlocutors

It can be of very great significance if an interlocutor is pronounced “of consent” as opposed to unopposed. In the latter instance an appeal can be taken. A reminder of this principle appears in the decision of Sheriff Principal Turnbull in Crabbe v Reid [2019] SAC (Civ) 6; 2019 SLT (Sh Ct) 83.

Recovery of documents

In Bullough v Royal Bank of Scotland [2019] CSOH 24 (12 March 2019) the pursuers did not oppose a specification of documents but argued that legal privilege attached to certain calls. Lord Doherty considered the dicta of Lord Reed in Scottish Lion Insurance Co v Goodrich Corporation 2011 SC 534. Legal privilege could be waived. The purpose of privilege was to maintain confidentiality of information, but that was lost if the information ceased to be confidential. Waiver was different from loss of confidentiality. It was judged objectively, in particular on an objective analysis of the conduct of the person asserting confidentiality, looking at the whole circumstances, including the intention of that party. Privilege could also be waived for a limited purpose, such as when a client sued former advisers or reliance was placed on part of a document. In the circumstances, Lord Doherty was not prepared to determine that privilege had been waived.  

Evidence

In Promontoria (Henrico) Ltd v Friel [2019] CSOH 2; 2019 SLT 153 Lord Ericht determined that for the purposes of s 6 of the Civil Evidence (Scotland) Act 1988, authentication of a copy document encompassed both legal and natural persons. No particular formality of execution was required. The purpose was to facilitate the efficient conduct of litigation by the provision of a simple straightforward method for certification of copy documents for use in court.

Expert evidence

In AF v AF [2019] SC GLA 22 (14 March 2019) Sheriff Anwar refused to admit the evidence of a witness who purported to be a skilled witness. The witness did not have the necessary knowledge, experience or qualifications to be considered skilled. He was not independent or impartial. There was no body of knowledge or experience which constituted a foundation for his evidence.

Judicial intervention

There is undoubtedly a potential tension between active case management and an impression of judicial bias/predetermination. A judge is not now expected to sit silently and allow parties licence to lead what evidence they wish, no matter what bearing if any it has to the issue before the court. This potential tension came to the fore in Gourlay v Aviva Insurance Ltd [2019] SAC (Civ) 10 (11 March 2019). It was contended that the sheriff had made comments suggestive of having reached a certain view, although the evidence was not concluded. 

The court accepted that administrative matters might be undertaken in chambers but strongly suggested that case management matters be undertaken in open court. Whether a judge had predetermined matters was an objective test involving the appeal court undertaking an objective appraisal of all the material facts. Preliminary remarks might be just that or might indicate a concluded view. Remarks made during the course of proceedings indicating difficulties for a party on a certain point or points, if appropriately undertaken, assisted the efficient disposal of business and indicated proactive case management. Further, if there was any consideration that a comment was suggestive of predetermination, the matter should be raised then rather than at an appeal. 

The court also observed that if an appeal court was to be invited to alter the findings in fact, the proposed changes should appear in the note of argument; and that failure to cross-examine a witness on a point did not bar evidence on that point being led from another witness. The evidence was admitted subject to comment. 

Settlement

The Sheriff Appeal Court in Young v Menzies [2019] SAC (Civ) 8 (28 February 2019) considered that when interpreting heads of agreement which had enabled a proof to be discharged, regard had to be had to the fact that it was entered into on the steps of the court when the proof was due to start imminently. It was undesirable for such agreements to be considered void through uncertainty, or for a party to be able to ignore such an agreement on that ground.

Actions ad factum praestandum

In Cummings v Singh [2019] SAC (Civ) 11 (25 March 2019) the court referred to dicta of Lord McCluskey in Retail Parks Investments v Royal Bank of Scotland plc (No 2) 1996 SC 227 to the effect that a decree ad factum praestandum had to leave the defender in no doubt as to what was required to fulfil the necessary obligation. Granting an interim order left it open to a court to consider subsequently that implementation could not be ordered on a permanent basis. Implementation could involve a number of actions and could take a period of time, albeit this would tend to require greater precision. An order could specify the end to be achieved but leave the means open, and thus be flexible. The court had to consider the commercial realities involved in implementation, and the difficulties in knowing what was required in light of the consequences of failure to obtemper an order. When the issue was whether a contract had been entered into, at debate a court could consider the documentation provided to consider whether a contract had indeed been concluded.  

Summary applications

In McCarthy v Livingstone [2019] SC DUM 15 (15 February 2019) Sheriff Jamieson determined it competent to present two statutory appeals in one summary application in certain circumstances. Normally if appeals were under separate legislation it was preferable that there were separate applications. However if the procedural law governing the appeals was virtually identical, there was a close connection between the matters, and the parties were the same, they could be presented in the same application. In the present case, the sheriff would determine matters of new on the merits as opposed to review. The basis of jurisdiction was the same. The appeal was only on a point of law. The basis of the decisions challenged was the same.

Recovery of heritage

General Asset Management v Prisic [2019] SC DUM 20 (13 March 2019) considered the competency of a minute to recall decree for recovery in terms of s 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970. In the procedure leading up to the grant of decree, an employee of Citizens Advice had appeared for the defender. Subsequently, the defender’s partner appeared but his application to act as lay representative was refused. While the partner had appeared, the defender had not. The defender did not appear when decree was granted. Sheriff Jamieson considered that the defender could not be considered to have been represented or to have appeared at any of the callings. A Citizens Advice employee had no automatic right of audience unless they were duly approved as lay representative in terms of the Lay Representation in Proceedings Relating to Residential Property (Scotland) Order 2010, which required such a person to be approved by the organisation following an assessment of their knowledge and understanding of repossession law and summary application procedure.

Sequestration

In Scottish Water Business Stream v McMath [2019] SC DUM 16 (23 January 2019) Sheriff Jamieson considered that in the event that the petitioning creditor in a sequestration claimed and swore that he was a qualified creditor, albeit the debt constituted by a court decree was less than £3,000, the petition should be warranted, although the creditor might have difficulty if that was subsequently challenged.

Ordinary or simple procedure?

In Clydesdale Financial Services Ltd v Wojcik [2019] SC PER 29 (28 March 2019) the pursuers raised an ordinary action for payment, declarator that they were entitled to recover a motor vehicle, and delivery of that vehicle. The monetary crave was for less than £5,000. The action was undefended. The sheriff, ex proprio motu, raised the issue of competency of the action. 

After submissions, he adopted the reasoning of Sheriff Principal Risk in Milmor Properties v W & T Investment Co Ltd 2000 SLT (Sh Ct) 2 and determined that in considering s 72(3) of the Courts Reform (Scotland) Act 2014, the court had to categorise the action before it rather than the craves. Accordingly, while an action for declarator could only be raised as an ordinary action, the true nature of the action was one for payment of a sum under £5,000, recovery of an item of moveable property, and for an order ad factum praestandum. Accordingly, the action was incompetent. 

The sheriff observed that the intention behind simple procedure was for party litigants to conduct and defend proceedings. Orders sought did not have to follow a particular legal style. He further refused to remit the action to be treated as one raised under simple procedure. While for present purposes he was prepared to accept this could be undertaken, there was nothing to be gained as the action would in effect have to start again. Further, it was clear that raising an ordinary action had been a deliberate decision rather than due to mistake. 

In Ravensby Glass Co v Lifestyle Glass Design [2019] SAC (Civ) 15 (9 April 2019) the defenders contended that the sheriff should have assigned a hearing for evidence to be led, as there was still a live dispute between the parties at the case management hearing. Appeal Sheriff Cubie noted that under simple procedure the court had wide powers to intervene and control. The result had to be just; however, there was no right or entitlement to a hearing. A hearing would only take place if it would assist in resolving the dispute. He further observed that “unless orders” should be used sparingly. It was a powerful remedy and it was difficult to imagine circumstances in which it could be appropriately used for “good housekeeping purposes”.

Expenses

The issue of whether the cap on expenses in s 81 of the 2014 Act operates when a defence on quantum only is not proceeded with as a result of an extrajudicial settlement, was considered by Summary Sheriff Cottam in Davis v Skyfire Insurance [2019] SC EDIN 24 (28 February 2019). He decided that even though the defence might only relate to quantum, if it was not proceeded with, the cap on expenses flew off. However, he still had discretion to modify expenses having regard to the manner in which the litigation had been conducted and the ethos behind simple procedure, and duly did so. 

It was also suggested that protection on the issue of expenses could be undertaken through appropriate information in the response form. The lodging of a response form triggers the defended procedure. The form sets out the proposed defence with a section to be completed under the heading “Why should the claim not be successful.” If a case management hearing is assigned and the action settles then, has the defence not been proceeded with? If so, is the respondent entitled to the protection of the cap on expenses? Section 81 appears to be a straight lift from the previous small claims order without taking cognisance of the differences in procedure. The other view is that if matters are resolved at the case management hearing, this is the result of mediation/negotiation and there is no element of the defence not being proceeded with. This might be more consistent with the apparent ethos behind simple procedure. 

Ambit of the auditor of court

In Shanley v Stewart [2019] CSIH 15 (22 March 2019) the First Division determined that the auditor had a wide discretion in performing his role. His role was to determine what were the reasonable expenses consequent on a judicial determination of liability for expenses. This involved being familiar with what the case was about. The role did not involve providing compensation for dealing with improper or unreasonable conduct on the part of an opponent. When the auditor’s decision was subject to objection, that was limited to permitting objections to specific items in his report.

Lindsay Foulis, sheriff at Perth

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