Briefing: Civil procedure and practice including decree conform, malicious prosecution and a dentistry bursary

Your 'viciously'-curated digest of more than 100 civil court decisions — novelty decrees, missed amendments and all, courtesy of Charles Hennessy.

I am pleased to be back with more articles on civil procedure and practice. It is worth reminding myself – and my readers – what I am trying to do with these articles. My main intention is to provide a brief explanation and analysis of recent reported court decisions which might be of practical interest to court lawyers, especially in relation to the operation of court procedures. Along with that I may include commentary on current topics in our civil justice system that I find interesting, amusing or otherwise noteworthy. I will be looking at cases reported in the preceding two months, starting at the beginning of this year and continuing until boredom sets in (yours or mine).

Someone in the Scottish Courts and Tribunals Service (SCTS) must have got wind of my resumption of these pieces because there have already been well over 100 reported cases on its website since the beginning of the year. I have had to edit viciously so please bear this in mind and read the individual decisions for full details.

Before looking at individual cases, I start with belated congratulations to the Sheriff Appeal Court (SAC), which celebrated its 10th birthday last October. It gets through a power of work, or so it seems, and it absorbs numerous appeals which would formerly have tied up the Court of Session. Few sheriff court appeals get beyond the SAC, and the time scales for disposing of civil appeals are relatively short. I understand that convening the court can sometimes be an administrative challenge, but despite that, maybe it could think about going on tour from time to time. The Supreme Court is sitting in Glasgow in May and if that can go on the road, why not the SAC?

Decree conform

No, I am not sure that I had ever heard of such a thing either, but it is good to start with a novelty item. In Papel Payment Services Provider LLC v Monitox Ltd [2026] CSIH 7, the pursuer had obtained an ex parte judgment against the defender in the Dubai Commercial Court and in this Scottish commercial action they sought a decree conform – a declarator that Papel was entitled to payment of the sums awarded, presumably to enable them to do diligence. The defender had its registered office in Scotland and its sole place of business in London. The commercial judge dismissed the action and the pursuer appealed.

The judge had taken the view that the Emirati payment order procedure (a kind of summary decree) offended against the principles of natural justice, both in a general sense and in the particular circumstances of this case. Evidence was led from experts on the procedures that applied and the law was accepted to be that “natural justice will be breached where a debtor has not been given sufficient notice of foreign proceedings in such a way as to have an opportunity to present his case to the court at some stage in the process”. If there had been such a breach, then decree conform would not have been granted. The Inner House undertook a detailed analysis of the Emirati procedure and considered the relevant authorities before taking the view that there had been no breach. They allowed the appeal and held that the defender was required to make payment of the sums found due by the Dubai court. It is worth noting that, whatever the technical procedural issues, there did not seem to be any real dispute that the sums claimed were actually due.

Malicious prosecution, relevancy, pars judicis and incompatibility

In Hirst v The Chief Constable and Crown Office and Procurator Fiscal Service (COPFS) [2026] CSOH 8 the pursuer sought damages from both defenders for alleged malicious prosecution in relation to his conduct in the aftermath of the Alex Salmond trial. He had posted a video which was said to have breached Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 which, in broad terms, makes it an offence to behave in a threatening or abusive manner. After the prosecution evidence was led at his trial, the court upheld a submission that there was no case to answer and the accused/pursuer was acquitted. He then raised an action for damages which went to a Procedure Roll hearing before Lord Lake. Interesting though the facts of the case are, the procedural story is just as interesting for us procedural geeks.

Both defenders argued the relevancy of the case pled against them. The action was dismissed against the police but, in the course of the argument for COPFS, Lord Lake observed that, although there were sufficient averments for the case to go to proof against them, Section 170 of the Criminal Procedure (Scotland) Act 1995 granted immunity from civil liability in the circumstances of this case. None of the parties had pled this, nor argued it, and he invited them to make (written) submissions on it. Apparently, the pursuer and COPFS had agreed between themselves not to invoke that provision, but Lord Lake was having none of that and observed that there was an obligation on the parties to bring this to his attention. There was discussion as to whether such an immunity was in breach of the European Convention on Human Rights (ECHR) and there was a declarator that Section 170 of the Act was incompatible with the Human Rights Act 1988. This was under RCS Rule 82.3, which presupposes that the parties would be seeking such a declarator, although in this case the judge seems to have been the prime mover.

The ultimate decision was that the case against COPFS was also found to be irrelevant on the basis of the immunity in Section 170. The case was dismissed and the court did grant a declarator that the section was incompatible with the 1998 Act. However, such a declarator didn’t mean that the section was invalid or did not operate in the circumstances of this case. I believe that the decision may have been appealed.

Judicial review

I have been unable to find any recent statistics to show how many such petitions are raised per annum, but my impression is that they are increasing in number. The variety of subject matter also seems inexhaustible. It may just be me, but the task of trawling through sometimes abstruse legislation, lengthy documents and administrative decisions expressed with differing levels of precision and clarity must be a daunting prospect for any judge. Again, I have no statistics on this, but my impression is that very few of them succeed.

One such case was Du Plessis v Secretary of State for the Home Department [2026] CSOH 7. The petitioner was a South African-born male who had been in the UK for 20 years. He had been convicted of a serious assault and in September 2024 a deportation order was issued. Representations were made on his behalf but a decision rejecting his argument and confirming the deportation order was issued in December 2024. He petitioned for judicial review of that decision.

In a detailed and comprehensive opinion Lord Braid rejected the arguments advanced on his behalf. He commented particularly on the difficulty for the petitioner of satisfying him that, whatever else, the decision under review was irrational: “What is in any event clear is that what the court must never do […] is simply substitute its own decision for that of the decision maker, and some degree of latitude must be afforded”

Sheriff Appeal Court decisions

It is worth mentioning a number of decisions from the SAC, which covered a wide variety of procedural issues. I shall keep these as brief as I can.

Interest on expenses:

In Gillan v Sinclair [2026] SAC (Civ) 2, the pursuer sought interest of 8% on the award of expenses that he had obtained in an appeal. There are rules about interest on expenses in both the Sheriff Court and the Court of Session but no SAC rule to that effect. It was argued that the motion was incompetent and that the rate was inappropriate. In reliance on Section 47(3) of the Courts Reform (Scotland) Act 2014 (the court’s inherent power) and the Sheriff Appeal Court (Civil) Practice Note No.1 of 2021, SAC considered it competent and granted the motion. The court used its discretion to award interest at 8% and then in a postscript to the judgment observed that the rate of 8% was in fact stipulated in the relevant Act of Sederunt.

Stated case:

AB v Locality Reporter Manager, Kilmarnock [2026] SAC (Civ) 1 was a case in which application had been made under the relevant children’s legislation for the sheriff to determine whether grounds of referral had been established. The appellant appealed against the sheriff’s determinations and the procedure required him to state a case. The stated case was inadequate. The rules provided that a stated case required to contain specific and relevant questions focused upon the alleged error of law or procedural irregularity that justified the appeal. The court said that, “The law on stated cases is quite clear and was not observed by […] who signed […] the stated case.” There is a useful summary of the law on stated cases in paragraphs (6)–(12) of the judgment.

Expenses:

Here is an interesting conundrum. Can an award of expenses on the summary cause scale be made where the nature of the action – personal injury (PI) – would not have permitted the use of summary cause procedure. In Bowers v Aviva Insurance Ltd [2026] SAC (Civ) 7 the answer was ‘yes’. Awards of expenses are discretionary and, in this case, the decision was entirely justifiable. The case is worth reading as it contains a concise summary of how our court system dealt with PI cases and absorbed ASPIC (All-Scotland Personal Injury Court) into the existing regime in paragraphs (8)–(15).

Competency of appeals:

In AW v KM [2026] SAC (Civ) 8, the defender attempted to appeal the sheriff’s decision to grant commission and diligence without obtaining leave to appeal. The argument was that such an order was an order ad factum praestandum and therefore leave was not required in reliance on Section 110(1)(b)(iii) of the Courts Reform (Scotland) Act 2014. The court considered the definition of an order ad factum praestandum and, not surprisingly, found that this did not fit the bill. The appeal was incompetent.

A similar fate befell the appellant in C & M Wealth Global Ltd v Gall [2026] SAC (Civ) 11. The sheriff had refused a petition for recall of sequestration and the appellant (party litigant) appealed without leave. The court found the appeal to be incompetent. It went on to consider wider issues arising from the interplay of Section 110 of the 2014 Act and the Bankruptcy (Scotland) Act 2016. It is too detailed to explain here, so reference should be made to the opinion by Sheriff Principal Wade. She said that the grant or refusal of a petition for recall of sequestration is very much a fact-based decision in which a sheriff will be exercising a discretion. In these circumstances the granting of leave to appeal is likely to be very rare. She also observed that a decision by a sheriff to refuse leave to appeal cannot itself be appealed.

Qualified one-way costs shifting (QOCS)

Just when you thought it was safe to read decisions in PI cases without observing another failure by a defender to persuade the court to disapply the QOCS provisions, a relatively unique success presented itself in the case of Dunn v Menzies Distribution Ltd [2026] SC EDIN 22. However, I think it can be described as an extreme case and perhaps not one that will cause insurers to break out the champagne. The pursuer was a party litigant and the defenders’ motion was dealt with at a peremptory diet at which the pursuer was not present. The circumstance are fully set out in the judgment and speak for themselves. Another factor which speaks volumes is that, as well as disapplying QOCS, the court awarded the defenders the expenses of the action on a solicitor/client, client-paying basis.

Refusal of amendment

Nowadays the courts are sympathetic to amendments, so I was intrigued by this case in which an amendment was not allowed in advance of a debate and the action was then dismissed. Further reading of the judgment revealed a classic old-fashioned litigation where the expeditious progress of the action seemed an alien concept.

In Singh and Another v George Weightman and Co [2026] SC AIR 12, the action commenced in October 2016. Between then and April 2024 it had been sisted five times (I think) without much sign of progress. It was finally resuscitated and dragged slowly towards some climactic moment via various procedural events which included amendments and changes of agency. By the time it called for debate and an amendment was proposed I can well imagine the desire to put it out of its misery. After refusing to allow an amendment, the court heard the debate and upheld the defender’s pleas to relevancy and lack of specification. The action was dismissed.

Summary application

I am not sure too many people understand how summary application procedure works. It is supposed to be ‘summary’ (quick) and the sheriff has a wide discretion as to the progress of the action. In McDermid v NHS Greater Glasgow and Clyde Health Board [2026] SC DUMB 4, the pursuer (a party litigant) made a summary application to the court in relation to the defenders’ handling of data protection requests. The application ran to 87 paragraphs of condescendence. Before the first calling of the case the pursuer lodged a motion which was refused. Following that refusal, the pursuer sought written reasons for the refusal, citing Ordinary Cause Rule (OCR) 12.2(5) as justification for the request. Macphail’s Sheriff Court Practice (4th edition, paragraph 26.41) states that OCRs consistent with the summary disposal of the application may be applied to summary applications.

The sheriff held that he was not entitled to written reasons. She discussed the nature of summary applications and their procedure and how they interacted with ordinary cause procedure and rules. Among other considerations, being obliged to give written reasons for a decision before the application had even called was not consistent with the summary nature of the proceedings.

Commercial actions

An intriguing case on the facts and the law, not to mention the procedures that have been followed, is the commercial action(s) in the Court of Session of Scottish Ministers v Leggatt and the Scottish Ministers v Griffin [2026] CSOH 9. The dispute concerns the interpretation of a standard form of contract between students on undergraduate dentistry courses who were given a bursary of £4,000 by the Scottish Government on condition of them undertaking to perform a certain amount of NHS dentistry work following graduation. It was maintained that many of them did not fulfil that condition and repayment of the bursaries, or part of them, is being sought from about 1,300 of them it seems. I don’t know enough detail to understand fully what has been happening, but I am curious about the procedural background.

Numerous actions were apparently raised in various sheriff courts against the individual dentists involved. The opinion by Lord Sandison as a commercial judge starts with the observation that these two cases were transferred to the Commercial Roll in the Court of Session from the Sheriff Courts of Dundee and Stirling “as test cases from a much larger cohort of disputes in dependence before various sheriff courts concerning the proper interpretation of a standard form contract”. I wonder how they were transferred and how have they been designated as test cases?

In any event, whatever procedure followed thereafter, the court received affidavit evidence and then considered legal argument about the contractual rights and obligations of the parties. Issues were identified and explored, including the proper construction of the contract and prescription. Lord Sandison reached certain conclusions on the numerous arguments advanced, but, as for his “disposal” of the case, he put the case out by order, “so that parties, having considered the outcome of their various respective arguments, may make final submissions on their proper final disposal”, which struck me as a little out of the ordinary (no criticism intended). This may simply illustrate the benefit of commercial action procedure which gives the judge the flexibility to manage the case in the way most suitable to the nature of this particular dispute – and the associated claims. We may never know.