Can we do it this way?
Latest civil procedure cases, including decree in absence; recovery of heritable property; simple procedure; motions; legal professional privilege; tenders; final judgment; family actions; adoption
Decrees in absence
The decision from Sheriff Mann in Santander Consumer (UK) v Creighton  SC ABE 38 (18 April 2019) indicates that where the pursuer seeks a number of remedies in the crave of the writ, decree in absence may not be granted in terms of all the craves if in the circumstances the pursuer may not be entitled to the remedy. In actions to enforce remedies under some sort of credit agreement, the pursuer regularly craves decree for the balance due under the agreement but also decree for delivery. If the subject of the agreement is recovered, the sum due may be reduced. In those circumstances, it is inappropriate to crave decree for payment of the full sum and delivery.
Interestingly, I came across an unreported decision from Sheriff Thornton in Clydesdale Financial Services Ltd v Lawrence, Kirkcaldy Sheriff Court, 12 June 2019 in which the same issue arose. Sheriff Thornton determined that decree as craved should be granted. Considering authority, he held that a motion to grant decree in an undefended action should only be refused in exceptional circumstances, normally as a result of want of jurisdiction or manifest incompetency such as a crave which the court had no power to grant. The court had no right or duty to examine the justification for the sum craved or apply discretion to that question. I understand that Sheriff Mann’s decision is subject to appeal, so the matter should be clarified by the Sheriff Appeal Court.
Recovery of heritable property
In four notes in Reid v Redfern  SC DUM 34, 35, 40 and 41 (17, 23 and 24 April 2019), Sheriff Jamieson considered a number of issues. He determined that OCR, rule 30.2 did not apply to lawful occupiers of heritable property. The rule provided an accelerated procedure in actions of ejection of occupiers vi, clam aut precario.
The next issue was whether the sheriff court was the correct forum for such proceedings, as opposed to the First-tier Tribunal (Housing & Property Chamber). Sheriff Jamieson determined that there was nothing in s 102(1) or (A1) of the Rent (Scotland) Act 1984 which stipulated that the tribunal was the only forum to determine the issue. He further determined that there had been no transfer of jurisdiction from the sheriff court to the First-tier Tribunal where the tenancy was neither a regulated nor an assured one. Jurisdiction for proceedings under s 23 of the Act which related to regulated or assured tenancies had been transferred to the tribunal since 1 December 2017.
In Black Horse Ltd v Cameron  SC DUM 36; 2019 SLT (Sh Ct) 155 the pursuers sought decree for delivery of a vehicle valued at £32,169.48 and an enforcement order in terms of the Consumer Credit Act 1974. The first issue was whether the action was competently brought under simple procedure. Sheriff Jamieson observed that the only part of s 72(3) of the Courts Reform (Scotland) Act 2014 presently implemented related to actions for payment of sums up to £5,000, and actions for decrees ad factum praestandum or recovery of moveable property where there was included as an alternative crave, a claim for payment less than £5,000. There was no alternative crave in the action, which simply had a standalone crave for delivery. It was accordingly not competent under simple procedure.
Turning to the enforcement order, a credit agreement which did not conform to the prescribed regulations could only be enforced on order of the court. In terms of the Act of Sederunt (Consumer Credit Act 1974) 1985 certain ancillary issues and orders arising from the 1974 Act could be dealt with in ordinary or summary cause actions. If there were no such proceedings, such matters were dealt with by summary application. Such an application could not be entertained under simple procedure.
The nub of Sheriff Braid’s decision in Burns v Lord Keen of Elie QC  SC EDIN 49 (16 January 2019) was whether it was competent for the court to grant sanction for work undertaken by counsel beyond that specified in a prior interlocutor. Sheriff Braid considered that it was. Sanction could be granted at any time prior to taxation. The fact that sanction had been granted for some work previously was of no consequence unless the court had already ruled on the issue now before it. In this case there was a possibility of the prior interlocutor not recording matters correctly.
Perhaps of more significance was Sheriff Braid’s observation that agents should take care when drafting motions and checking resultant interlocutors. With an increase in electronic communication, sheriff clerks and sheriffs could not be expected to examine the terms of such with minute precision. The motion should clearly, concisely, and unambiguously set out what the court was being moved to do, as often the interlocutor mirrored the terms of the motion. A brief reason for the motion could appear in the motion document. Submissions in support should appear in section 7 of the motion form.
In Whitehouse v Lord Advocate  CSOH 38; 2019 SLT 573 the issue was whether an envelope containing documents recovered under commission and diligence but marked confidential should be opened. The defender submitted that the documents were inadmissible in evidence by virtue of legal advice privilege.
Lord Brodie first examined the principle of such privilege. There was broadly a right of absolute privilege in relation to communications between a legal adviser and client relating to advice and documents prepared in contemplation of litigation. The privilege vested in the client not the adviser. The communication could pass through an intermediary. Privilege had two categories, legal advice privilege and litigation privilege. The former covered the seeking and furnishing of general legal advice, the latter communication in contemplation of, or during, litigation, including communications between adviser and potential witnesses. The former arose from the adviser-client relationship.
If the document attracted legal advice privilege, such privilege was absolute. There was no balancing exercise to be carried out. The client could decline to disclose the content of any communication. Lord Brodie saw no reason why the defender could not assert legal advice privilege, thus it could apply to communication provided by in-house lawyers, in this case emails between the Lord Advocate and solicitors in the prosecution service. They constituted a private discussion of the law applying to the facts of the case and attracted privilege.
Minutes of tender
An interesting point arose in AB v Inverurie Skip Hire  CSOH 47 (21 June 2019). The defenders had tendered and the pursuer delayed accepting the tender for approximately 10 months until the (also delayed) disclosure of surveillance evidence. The pursuer sought expenses up to the date of acceptance.
Lord Bannatyne rejected this and applied the normal rule regarding expenses and tenders. He approved Sheriff Principal Dunlop’s observation in Chas Stewart Plumbing & Heating Engineers v Henderson 2013 GWD 21-411 to the effect that it was always open to a court to consider whether the conduct of a successful party had caused or contributed to the prolonging of the action. In determining liability regarding expenses, the court had to examine the procedure in the case at its conclusion, and from that perspective consider who was responsible for it being required. Surveillance evidence could not be disclosed until it was completed and the relevant experts had commented on it. Surveillance required to be carried out over a reasonably substantial period of time and up to the proof date. To suggest that the non-disclosure of such evidence altered the normal rule regarding expenses and tenders would significantly undermine the principles behind tendering.
Lord Bannatyne further observed that there was no requirement to lodge the results of the surveillance, as its purpose was to challenge the credibility and reliability of the pursuer: Robertson v Anderson 2014 SLT 709. In any event the averments gave notice of the content of the surveillance.
What amounts to a final judgment is significant, as it starts the clock ticking for the purposes of lodging an appeal. In Siteman Painting & Decorating Services Ltd v Simply Construct (UK) LLP  SAC (Civ) 13 (2 April 2019) Sheriff Holligan, on reviewing authorities, observed that a final judgment had two practical effects. It informed a litigant when an appeal could be taken and ascertained the period during which such a right could be exercised. Having regard to the statutory definition of final judgment there might be more than one interlocutor which fell within that definition. An interlocutor determining liability for expenses but expressly reserving the question of modification of such expenses might well do so. An interlocutor pronounced in relation to sanction for counsel and an uplift in fees did not.
In Woods v Pryce 2019 SLT (Sh Ct) 115 Sheriff Ross determined that views of a child taken in December 2016 required to be updated when the proof took place in late 2018, when the child was nine years of age. The test for taking the views was practicality, not discretion. While this decision is not intended to lay down a definitive test, the need to update a child’s views should always be considered as a proof approaches.
Important changes are being implemented for family actions raised on, or after, 24 June 2019 relating to the intimation of a redrafted form F9 to children the subject of a crave for a s 11 order: Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019. In short, if warrant is sought for an action with a s 11 order, a draft of the proposed F9 has also to be submitted to the court for approval. If intimation to a child is considered inappropriate, supporting averments require to be made. Interestingly, the Act of Sederunt states: “for example, where the child is under five years of age”. This perhaps suggests that intimation will be the default position for a child of school age.
If the draft F9 is approved, a warrant is granted to intimate the form to the child. The time for intimation, however, does not coincide with the stage at which the writ is served on the defender. If a s 11 order is sought only by the defender, warrant is sought to intimate the F9 to the child when the notice of intention to defend is lodged. If both parties seek s 11 orders, the F9 is amended to take account of the orders sought by the defender before it is intimated to the child. There are specific provisions for the stage at which intimation is made. The clear intention is that the child is not bombarded by numerous F9s.
The sheriff requires to consider whether the child’s views should be obtained before making any interim order. If a child wishes to express views, the court has to consider the steps to obtain such views. The court has to give due weight to the views expressed. It can order an F9 to be intimated to the child if none was previously intimated or the passage of time requires a further F9. The rules also detail how the child’s views are retained in process.
Permanence and adoption
Intimation of an adoption petition was covered in Sheriff Holligan’s opinion in DK v AB and CD  SAC (Civ) 20 (9 April 2019). The natural mother’s consent had been dispensed with as a result of a permanence order with authority to adopt. The male recorded on the child’s birth certificate did not enter that process and a similar order was made in respect of him. The child’s natural father was actually another male, who obtained a decree of paternity in his favour prior to the permanence order being granted. That declarator did not of itself vest in that male parental rights and responsibilities. The permanence order allowed indirect letterbox contact to these three persons.
In considering the issues in the appeal, the court observed that the effect of the permanence order with authority to adopt related principally to the issue of parental consent. With that issue dealt with, whether an adoption order was granted required consideration of ss 14 and 28(2) of the Adoption and Children (Scotland) Act 2007. Albeit consent might have been dealt with, a natural parent might still wish to have his/her views represented in relation to these matters. If consent of a person with parental rights and responsibilities had been dispensed with, no intimation was required in terms of rule 14(1)(b)(i) of the Adoption Rules 2009.
Intimation of the adoption petition was accordingly still required on the father. However, the extent to which he could oppose the adoption was limited to the issues in ss 14 and 28 which focused on the child. The court also observed that there was no provision for disposal of a contested adoption petition other than by a proof, albeit extensive case management powers were available to limit the areas of dispute.
Lindsay Foulis, Sheriff at Perth
Since the last article Murray, Petr (May article) has been reported at 2019 SLT 424, McAnulty v McCulloch (March) at 2019 SLT 449, Bullough v Royal Bank of Scotland plc (May) at 2019 SLT 524, Docherty’s Executors v Secretary of State for Business, Innovation and Skills (November 2018) at 2019 SC 50, Khaliq v Gutowski (November) at 2019 SC 136, and McCarthy v Chief Constable of the Police Service of Scotland (May, sub nom McCarthy v Livingstone) at 2019 SLT (Sh Ct) 160.