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Courts Reform Act in spotlight

16 September 19

Latest civil cases, including appeals; witnesses and experts; video evidence; family actions; actions for recovery of heritage; sequestration; proof of criminal conduct

by Lindsay Foulis

Appeals

The decision of the Sheriff Appeal Court in Finlayson v Munro [2019] SAC (Civ) 27 (27 June 2019) has some interesting consequences. The defender appealed an interlocutor in which the sheriff had granted declarator but refused to grant interdict. No permission to appeal was sought. The provisions of s 110 of the Courts Reform (Scotland) Act 2014 do not require such permission to appeal a decision inter alia refusing interdict. The interlocutor was not a final one as consideration of the remaining craves was continued. The appeal was not directed at the refusal of the interdicts, and this refusal was not included in the grounds of appeal. 

The appeal was not entertained as no permission had been sought for the decision which was the subject of the appeal. The refusal of the interdict, whilst part of the interlocutor, was not the decision which was being appealed and thus s 110(1) of the 2014 Act required permission to be sought. 

This court observed that it was important that litigation was conducted within the appropriate level of the judicial hierarchy and dealt with expeditiously. This goal would be undermined if parties aggrieved by a decision could appeal an interlocutory decision to a higher court. The decisions for which no permission was required tended to be those of material importance or altering the parties’ status quo. Further, the word “interlocutor” in the previous legislation had been replaced by “decision” in s 110(1). 

Would there have been a different outcome if the grounds of appeal had been directed against both decisions in the interlocutor, but at the appeal hearing the appellant indicated that he was only proceeding against the decision which required permission? Would there have been a different outcome if the ground of appeal against the decision for which permission was not required was referred to simply in passing at the appeal hearing before submission moved on to the other decision in the interlocutor? The court clearly considered the change in terminology significant. Are the changes from “leave” to “permission”, or “shall” to “must”, equally significant?

Conduct of proceedings

In Soofi v Dykes [2019] CSOH 59 (2 August 2019) Lord Doherty made certain observations in a postscript to his opinion. In relation to expert reports, he indicated that in an action, be it commercial or ordinary, it was expected that the report from any expert who was to give evidence would be lodged as a production, with the report outlining the terms of instructions, the expert’s qualifications and experience, and the material examined, in addition to the skilled opinion or other relevant evidence which the expert proposed to give. Lord Doherty also emphasised the role witness lists play in enabling the opposing party to take a statement from the named witnesses. 

Video evidence

In Fairley v Edinburgh Trams Ltd [2019] CSOH 50; 2019 SLT 819 Lady Wolffe made certain observations regarding evidence from video clips taken from YouTube. These had been agreed, but her Ladyship anticipated situations in which the provenance and evidential value were matters to be determined by the court.

She tentatively suggested the minimum to establish the fact that a web page or video is or was extant would include the unique resource locator (URL) or web address from which the text or footage was obtained, a copy of what had been obtained and the date on which that data was obtained from the URL, and if not agreed, the evidence or statement of the person who accessed and downloaded the material in question. This would enable a digital document to be made real. 

This was quite distinct from the proof of the contents or accuracy of the downloaded data. It could not be assumed that the contents of data were such as to support an inference that they depicted an event. Parole proof accordingly might be required. Challenges to the inauthenticity or inaccuracy of internet materials were likely to raise other additional issues. 

Family actions

In MK v TDD [2019] SC LER 66 (18 June 2019) the issue was whether the mother could relocate to Germany with the parties’ child. In the course of the proof, objection was taken to questions on the basis of there being no record for the evidence. It was contended that the mother’s averments simply amounted to a checklist of the matters set out in M v M 2008 Fam LR 90. 

Sheriff Cruickshank repelled the objection. Whilst the averments were thin, the defender had the necessary notice. He suffered no material prejudice. Further in a dispute involving what was in the best interests of a child, it was appropriate to consider all that had been discussed and brought to the court’s attention during the whole court process. There had been a number of child welfare hearings, a case management hearing, and a case management conference. The joint minute from that conference did not identify any issue as to the admissibility of evidence. Witness lists and productions had been lodged timeously. 

The question of the child’s views was also considered. The observations are perhaps worthy of consideration in light of the recent amendment to the court rules in this regard. The child was seven years of age. Averments were made to the effect that she was of sufficient maturity to express her views. Sheriff Cruickshank had reservations and postponed intimation until a notice of intention to defend had been lodged and for the court to be further addressed in this regard. The child also suffered from selective mutism, which the sheriff considered ruled out the use of a reporter to ascertain her views. 

This decision also comments on certain problems which arose with an interpreter and the use of a video link. The interpreter issues included reservations about questions being interpreted verbatim and the failure to note some fairly lengthy questions put to a witness. 

Actions for recovery of heritage

In Royal Bank of Scotland plc v Jamieson [2019] SAC (Civ) 29 (12 July 2019) the issue for Appeal Sheriff McCulloch was whether it had been appropriate to serve a calling-up notice on the Extractor of the Court of Session. In terms of s 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970 provision was made for this method of intimation if the address of the debtor was not known, if it was unknown whether the debtor was alive, or if the intimation had been returned stating that it could not be delivered. 

Appeal Sheriff McCulloch noted, by reference to Santander UK Ltd v Gallagher 2011 SLT (Sh Ct) 203, that the terms of s 19(6) of the 1970 Act had to be followed when a calling-up notice was being intimated. In the present case, having attempted intimation by recorded delivery, the pursuers had checked to see whether the intimation had been signed for. The information was that it had not. The pursuers thus proceeded to intimate on the extractor. However, the fact that intimation had not been signed for did not establish that the defender’s address was unknown. There might simply have been no one in at the time of delivery. As a consequence the subsequent action was incompetent.

Sequestration

In A & G R v JB [2019] SC GLA 69 (26 July 2019) Sheriff McCormick considered the terms of s 22(3) of the Bankruptcy (Scotland) Act 2016, that if the action is competent and there is no legal impediment preventing the petitioner to move for a warrant to cite, the court has to grant that warrant. Issues of equity, fairness, motive or consequences were not relevant considerations. The facts that the petition was based on a personal guarantee in which the circumstances of the respondent signing same had been reported to police, or that an action for reduction of this guarantee had been commenced in the Court of Session, were of no consequence. The protection of an inhibition was again neither here nor there.

Proof of criminal conduct

In CM v ME-M [2019] SAC (Civ) 30 (24 July 2019) the Sheriff Appeal Court considered that in relation to assessing evidence of criminal conduct in civil proceedings, the test is one of a balance of probabilities.

Lindsay Foulis, sheriff at Perth

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