The ultimate sanction?

by Lindsay Foulis

Latest civil cases, including date of lodging; defences; competency; believed and averred; remedies for delay; recall of decree; expert witnesses

The Journal, September 2005, page 38

When is a writ lodged?

In certain applications, the date when the writ is lodged with the court is crucial. Superdrug Stores v Network Rail Infrastructure 2005 GWD 25-468 was such a case. In deciding that the writ had not been lodged timeously, Sheriff Principal Stewart held that an application is received when a procedurally valid summons, with the appropriate fee, is presented to the sheriff clerk with an express or implied request to process the summons. The date stamp is not conclusive, although clearly in most cases it will be. In the circumstances, the sheriff principal was not satisfied that there had been such a request. He also reiterated the observations in Gilbey Vintners Scotland v Perry 1978 SLT (Sh Ct) 48 that questions of law which require to be answered “ought to set out precisely and concisely a point of law to which the argument for the party stating the question will be directed at the hearing of the appeal”. Such a question raises no issues of fact nor contains argument. I understand that on the principal issue, leave to appeal to the Court of Session has been granted.

When is an action defended?

An issue in Singh v Singh 2005 SLT 749 arises from time to time with party litigants. The defender had been served with a Court of Session summons for declarator of nullity. In response he sent a three page document headed “written statement filed on behalf of the defender”. This was unsigned. The document submitted that there was no jurisdiction and that the action in many respects was unfounded factually. It did not conform to the relevant rules of court. An application for decree in absence was continued to enable the court to contact the defender to ascertain whether a defence was to be lodged. No response was received. Granting decree, Temporary Judge Macdonald decided that in light of this history, the action was not to be treated as defended. Whilst a certain leeway will be granted party litigants when the precise procedures are not followed, such licence will only extend so far. Lord Glennie’s decision in Clark v Hope, 8 August 2005 is another example of the court indicating enough is enough. His Lordship also makes observations as to the nature and extent of counsel’s authority.

Who is the true party?

In O’Connor v Bullimore Underwriting Agency, 8 July 2005, a motion was made for the defenders that insurance brokers who had funded the action be found liable in expenses as dominus litis. In the event of the defence being successful, the brokers were likely to be the subject of a professional negligence claim. In determining that the firm was not in the position of dominus litis Lord Macfadyen observed that financial support for the litigation was insufficient; there must be an interest in the litigation and control of it. An ultimate consequential benefit was insufficient. Control of the action meant the power to progress it, delay it, or even abandon it.

Is a rule 22 note necessary?

This interesting point arose in Hill v Law Society of Scotland, Edinburgh Sheriff Court, 14 July 2005. A debate had been assigned on the defenders’ plea to the relevancy. At debate the defenders sought to argue issues of competency. It was submitted that as competency could be raised pars judicis the sheriff could entertain the submissions. The pursuer argued that the issue could not be entertained as the defenders were trying to spring a surprise on him – but indicated that he was able to respond to the argument on competency. Further, the action did appear incompetent. Accordingly Sheriff Morrison heard the submission. Whilst the decision might be particular to the circumstances, Sheriff Morrison did hint that as it is pars judicis for a court to deal with competency even if there is no plea, there was no reason why the argument could not be entertained.

Believed and averred

The use of this phrase, or a corruption of it such as “believed”, is relatively common in my experience. The fact that the proper use of the phrase or, one hestitates to say, its corrupted form is limited does not seem to deter many pleaders!! In any event its use was again examined in the appeal in Burnett v Menzies Dougal, 24 August 2005. In deciding that the phrase had been used appropriately, Lord Macfadyen, delivering the opinion of the Inner House, observed that there were averments of primary fact which were capable of supporting the inference that the fact believed to be correct was indeed true. Before using this phrase the pleader might be advised to spend time considering paragraphs 13 to 17 of his Lordship’s opinion.

Counterclaim by amendment

In Keenan v Sanghera, Aberdeen Sheriff Court, 7 July 2005, the pursuer argued that it was incompetent to introduce a counterclaim in adjusting answers to a minute of amendment, in light of the terms of OCR 19. Sheriff Principal Young had little difficulty in rejecting this argument. A counterclaim could be introduced at any stage of the amendment procedure.

Undue delay – is it fatal?

This issue has been the subject of two sheriff court decisions, by Sheriff Principal Macphail in Newman Shopfitters v M J Gleeson Group 2003 (Sh Ct) 83 and Sheriff Convery in Wilson v Drake and Scull Scotland 2005 SLT (Sh Ct) 35. It recently came before Lady Smith in Tonner v Reiach 2005 GWD 25-459. The action was sisted in 1988. On the pursuer enrolling a motion to recall the sist, the defenders enrolled for decree of absolvitor in light of the inordinate delay, the serious prejudice occasioned, and the substantial risk to a fair consideration of the facts caused by the delay. The Human Rights Act 1998 was also prayed in aid. Lady Smith recalled the sist and put the case out by order to consider further procedure. She refused the defenders’ motion.

In an opinion reviewing the authorities, which is worth considering and comparing with the two previously mentioned, her Ladyship indicated that there were issues as to whether it was reasonable for a party to be required to re-enrol a sisted case to prevent delay. She also observed that if such a remedy did exist, it might result in injustice to the party prosecuting the claim. The delay might not lie at that party’s door. Whilst certain decisions appeared to indicate that the court might have an inherent power to dispose of an action against a party’s wishes on the grounds of delay, her Ladyship felt that such a power did not exist. In certain instances, the court had provided that decree by default could be granted. The fact that there was no general power in the rules to dispose of an action on the grounds of delay suggested that there had been no intention to confer such a power.

Lady Smith also considered that even if the defenders’ motion was competent, the party suffering the real prejudice was the pursuer, on whom the burden of proof fell. Any evidential difficulties suffered by the pursuer might well offset any problems suffered by the defenders. There was no breach of article 6 of the Convention as the delay was caused by the parties rather than the court. The motion to sist had been unopposed. No attempt had been made to recall the sist. In any event, even if the remedy to bring proceedings to an end did exist, it could be one of dismissal as opposed to absolvitor. Further, even if there was a breach of article 6, there was no need to bring the action to an end, the court being able to take steps to ensure efficient progress.

Recall in summary cause

In Stirling Council v Neil, Stirling Sheriff Court, 15 July 2005, Sheriff Robertson required to consider the competency of a minute for recall by a “qualifying occupier” after decree had passed against the tenant. This issue had been the subject of differing opinions, Sheriff Principal McInnes being of the view that such a procedure was incompetent in North Lanarkshire Council v Kenmure and Sheriff Scott taking the opposite view in City of Edinburgh v Porter. Sheriff Robertson first considered that it was competent in an action for recovery of heritage which also included a crave for payment to lodge a response to only one of the claims. In the case before him, the defender had responded to the payment crave by making an offer to pay by instalments. The response was silent concerning the crave for recovery. The action called in court quoad the recovery claim and decree was granted in terms of summary cause rule 7.1, notwithstanding the response being lodged to the claim for payment. Sheriff Robertson then sided with Sheriff Principal McInnes and decided that the terms of rule 24 did not permit the lodging of a minute for recall of decree in circumstances where the “qualifying occupier” had not become a party to the action prior to the grant of decree. It was unhelpful to consider rule 24 by reference to decisions on reponing notes under ordinary procedure. In the former there was no discretion involved in whether the minute was granted.

Certification of experts

In Jones v George Leslie Ltd 2005 GWD 26-508 an issue arose as to whether a doctor was correctly certified as an expert witness. Sheriff Principal Bowen indicated that the purpose behind certification was to remunerate persons instructed in respect of the litigation and requiring to be paid for the work done as a result. The expert required to carry out investigations as a consequence of his appointment in situations where these investigations were necessary. The carrying out of investigations by skilled persons was of itself insufficient to justify certification even if done prior to proof.

The usual caveat applies.

Postscript

Since the last article Welding v Wilson (March article) has been reported at 2005 SCLR 570, Banks v CGU Insurance plc (January article) at 2005 SCLR 556, Chisholm v Wardrope (January) at 2005 SCLR 530, and McKay v Lloyds TSB Mortgages (January) at 2005 SCLR 547.