Technical but essential

by Lindsay Foulis

Latest civil cases, including citation; diligence on the dependence; summary decree; remit to the sheriff court; appeals in family cases; certification of experts

The Journal, May 2007, page 38

---

Citation through agents

In Comhairle Nan Eilean Siar v Collins 2007 GWD 11-203, one of the issues considered in an appeal against the refusal of a reponing note was whether there had actually been proper citation of the defender. The initial writ had been served by recorded delivery to his solicitor’s place of business. These solicitors had been authorised to accept service. Notwithstanding this, no docquet of acceptance of service was endorsed on the principal initial writ. Accordingly there had been no proper service upon the defender. The endorsation of such a docquet by the solicitors was essential if service was accepted by solicitors on behalf of their client. The purported service did not conform to the terms of s 3 of the Citation Amendment (Scotland) Act 1882, which required citation at a defender’s place of residence or business. This point may appear technical, but these technical matters can on occasion result in decrees in absence being refused, or if granted, subject to being reponed, causing much frustration of agents and parties!

Diligence on the dependence

In F G Hawkes (Western) Ltd v Szipt Ltd [2007] CSOH 57, the issue was whether diligence executed on the dependence could remain in force in light of the defence lodged. A good arguable case as disclosed in a writ may be weakened when defences are lodged. Lord Emslie considered that before a defence weakened the claim sufficiently that it was no longer appropriate for the diligence on the dependence to remain in force, the defence had to be sufficiently substantial that it weakened the prima facie claim. This was a question of fact and degree, and vouching and documentary evidence could be considered for that purpose.

Summary decree

In Slessor v Vetco Gray UK Ltd [2007] CSOH 59 the decision of Lady Paton represents an example of a motion for summary decree not being used to deliver a knockout blow, but rather to dispose of issues that had no prospect of success. The motion was successful, thus restricting issues to contributory negligence, potential third party liability, and quantum. This selective approach is sometimes forgotten.

Remit to the sheriff court

In R v Highland Council [2007] CSOH 51; 2007 GWD 9-158 Lord Uist refused a motion to remit an action for reparation to the sheriff court. The action involved novel and difficult questions of law, including those relating to the public and common law duties incumbent on the defenders, the retrospective operation of the Human Rights Act 1998, and the defenders’ duties in respect of the pursuer’s practice of religion. The reason for the motion appeared to be at least in part that legal aid had not been granted for proceedings in the Court of Session but rather in the sheriff court. Lord Uist refused the motion. In light of the issues raised the Court of Session was clearly the appropriate forum. Entitlement to legal aid and a party’s personal circumstances were not factors to be considered under the phrase “nature of the action” in s 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

Lord Uist observed that the decision of the Scottish Legal Aid Board seemed somewhat perverse when the issues raised were clearly novel and complex. Would I be mistaken in imagining that the Board’s decision here suggests that there are certain formulae which are slavishly followed when applications for legal aid are considered? If the formula is satisfied, legal aid is granted; if not…!

Appeals in family cases

Really as a postscript to an appeal in respect of inter alia residence and contact, the Inner House reiterated in Stewart v Stewart, 23 March 2007 that in most cases more was achieved by lodging a minute for variation of an order than appealing a decision on these issues.

Certification of experts

The decision of Lord Glennie in O’Donnell v MacLean [2007] CSOH 62 is a sequel to an earlier decision in which his Lordship refused to allow a late list of witnesses insofar as it related to certain expert witnesses of the pursuer. The subject matter of the present motion was one seeking certification of certain persons as experts, including the experts detailed on the notice which was not allowed to be lodged late. Lord Glennie decided that if a person had been refused to be allowed to be a witness, it was impossible for the court to certify that person as an expert witness. The present situation was quite different from one in which an expert witness was not called to give evidence for whatever reason. The fact that the expert in question might have been of assistance to the party seeking certification was irrelevant. The issue was whether it was reasonable to instruct the person as an expert witness.
In Grant v Grant, 13 March 2007 Sheriff Pyle observed when dealing with a motion for uplift that the purpose of the motion was to reward solicitors for special responsibilities imposed on that person in the conduct of the litigation.

The usual caveat applies.

Current Issue Features Braving the storm How different types of legal firm are coping with the current economic downturn, and how they see their future Civil justice: where next? An abridged version of the keynote address delivered to the conference on civil justice held in Edinburgh on 20 June Title Conditions Act: new registration procedures New procedures are in place for deeds intended to create new real burdens, to assist solicitors in complying with the requirement for dual registration Young lawyers reborn Interview with Scottish Young Lawyers Association President Maryam Labaki on SYLA's ambitions as it relaunches Shining some more light... Second part of overview of this year's Finance Act looks at the provisions on savings, pensions, residence/domicile and business taxes, among others Power to the tribunal? An advocate's and a solicitor's views of how the Scottish Government's proposed reforms to arbitration law might work in practice Piece by piece A progress report from England & Wales on the setting up of the complex regulatory machinery under the Legal Services Act 2007 The poor in our midst Interview with Scottish Solicitors' Benevolent Fund convener Craig Bennet, who aims to raise awareness of the Fund so it can provide more help to those in need Current Issue Articles Shifting sands President's message: with economic issues dominating the profession's thoughts, the Society is taking steps to provide advice and support to those in need A rank bad rule Opinion by two advocates that the Faculty's response to the OFT does its members a disservice by defending the cab rank rule and by resisting the use of ABS The Society's future role in complaints handling A reminder, in the light of reactions to the first levy issued on behalf of the new Complaints Commission, of when and how the Society's responsibilities are changing Appreciation: Lord Johnston Report of the tribute paid in court by the Lord President Professional Practice Committee New guidelines on acting as a company director; and document control and file tracking Facing the lean years Some advice on how to pull through a recession and be ready for the next upturn, as word goes round of legal firms looking at staff cuts and other measures (part 1 of 2) It's a web 2.0 world The interactive nature of web 2.0 technology presents business opportunities, while posing new risks for those with inadequate precautions as to employee internet use Questions, questions In reviewing their risk profiles and risk controls, all firms might benefit from conducting a self-assessment by addressing questions put by some insurers elsewhere Bare necessities Latest criminal cases, including offensive weapons; Moorov rule; withdrawal of representation; evidence of a deceased; contempt of court by solicitor Coming on the blind side A technical-sounding consultation, currently open for comments, covers some significant aspects of dispute resolution in employment Relocation, relocation A recent decision explores the matters to consider when one parent wants to relocate abroad along with their child Worse than the disease? Has the UK quietly outlawed "alternative" medicine through the Consumer Protection from Unfair Trading Regulations? Sleeping bounty The Scottish Community Foundation has a scheme to breathe new life into dormant charitable trusts Scottish Solicitors' Discipline Tribunal Reports relating to Eileen Agnes Coogans; Zosia Marion Elizabeth Fraser; Annaline Webster; Ian Samuel Gerard Donnelly; Mark David Sheppard Website reviews Reviews of sites of organisations concerned with domain name disputes Book reviews Review of Child and Family Law (Sutherland) Industry standard A survey south of the border suggests that in-house work in commerce and industry doesn't always match expectations - but most in-house lawyers expect to stay Meet the committee Profile of In-house Lawyers Group committee member Sara Scott What's in a motto? A sample of In-house Lawyers Group members' notarial mottoes, collected by ILG secretary Tricia Sim Leasing by example "Green leases" appear to be some way off yet for the UK, but a Canadian model now published shows how they might work Good call? Reply to article questioning the Donald Trump planning application call-in argues that the decision is both competent and consistent with proper operation of the system Home reports - the practice questions Open letter over reservations as to the Society's proposed guidelines on the operation of home reports, in so far as they deal with conflict of interest