In Bank of Scotland v Mitchell 2001 GWD 39-1447 Sheriff Davidson refused to grant a warrant of citation. The writ, in proper form, was presented by a firm of English solicitors. The writ, if warranted, was to be returned to a firm of Scottish solicitors who would cite the Defender. The writ had been drafted by the English solicitors but revised by the Scottish. After service the English solicitors would prepare the minute for decree for the Scottish to sign. If the action was defended the Scottish solicitors would act. No warrant was granted. Whilst section 32 of the Solicitors (Scotland) Act 1980 allowed anyone to draft a writ provided they received no direct reward for it, this only covered the situation of such a person being employed by a person employed by a qualified person. In the present instance an unqualified person had drafted the writ whilst employed by an English solicitor. It was an offence for such a person to have drafted a writ in terms of section 32. Further it was an offence for an unqualified person to conduct litigation in the Scottish Courts unless it was for no reward.
In McTear v Imperial Tobacco 2001 GWD 34-1322 Lord McCluskey concluded that in an action for damages arising from the death caused by lung cancer it was necessary to aver what the tobacco related health risks were and how they had come or should have come to the Defenders’ attention. The Pursuer could not rely on wide media discussion or other litigation in which these risks had been raised. Lord McCluskey also indicated that reference to the complete reports brevitatis causa would not result in the complete contents of the reports being read as positive averments in favour of the party making the reference. In Smith Maritime Ltd v Miller Methil Ltd 2001 GWD 36-1359 the Defenders counterclaimed for damages arising from the Pursuer’s breach of contract. The damages were based on a penalty clause in the contract between the Defenders and a third party. The Pursuer attacked the relevance of the averments. There was no specification firstly, as to the manner in which the Pursuers knew of the contract, its terms, and in particular the penalty clause, secondly, as to the contractual delivery date and the actual date, and lastly, how the losses were calculated. Sheriff Cusine, in allowing a proof before answer, decided that all the Defender had to aver was that the Pursuers knew of the contract in question and its terms. How the Pursuers came to know of the contract and the extent of their knowledge was a matter for proof. Further the Defenders did not have to specify the manner in which the losses were calculated as what was claimed was minimal when compared to the potential liability in terms of the penalty clause.
It is not often that a decision appears dealing with domicile. In Marsh v Marsh 2001 GWD 36- 1358 Sheriff Principal Young found that a Thai citizen did have a domicile of choice in Scotland. He reached that conclusion as the Pursuer had decided to live in Scotland without limit of time, she had returned to Scotland when her marriage to her husband, who lived in Malaysia, had broken down, she had passed her driving test in Scotland, and given her daughter UK citizenship. The fact that she had nowhere else to go strengthened her willingness to reside in Scotland.
Lis Alibi Pendens
In Bain v Bain 2001 GWD 32-1270 Lord Dawson upheld a plea of lis alibi pendens in an action for recompense relating to improvements to heritage and interdict against the Defender evicting the Pursuer from the property. The Defender had raised proceedings for possession of the heritage in the Sheriff Court. Notwithstanding the claim for recompense raised a different issue, both actions raised the same issue, namely the Pursuer’s entitlement to remain in the property, and accordingly the plea required to be sustained.
When to initmate motions
In Semple Cochrane plc v Hughes 2001 SLT 1123 Lord Carloway was moved to exercise his dispensing power to allow a motion to recall a decree granted in absence to be heard though the motion was enrolled late. In this case the motion for decree in absence was not intimated to the Defender’s agent, notwithstanding that the Pursuers’ agents were aware that the Defenders had instructed agents. The Defender’s agents had not at that stage entered appearance, hence there was no strict requirement to intimate the motion. In exercising the dispensing power, Lord Carloway observed that when the identity of the Defender’s agents were known, and that the Defender intended to defend the action, it was good practice to intimate the motion for decree in absence. Might it be suggested that a similar view might be taken when in reparation actions the identity of the Defender’s insurers are known but no notice of intention to defend is lodged timeously. If in those circumstances decree in absence is taken, it appears to me that a reponing note is likely to be granted. The converse of course also applies, namely that if intimation is given it may be more difficulty for the dispensing power to be successfully pled. Lord Carloway also rejected the Pursuers’ representations that for the motion to be granted, exceptional circumstances had to be established. It was a question of considering where the interests of justice lay once it was established that failure to comply with the rules was the result of a mistake, oversight, or other excusable cause.
Reinstatement of a plea previously repelled
In George Martin (Builders) Ltd v Jamal 2001 SLT (Sh Ct) 119 Sheriff Stewart refused to allow a preliminary plea previously repelled at an Options Hearing as a result of no rule 22 note being lodged to be reinstated by way of amendment. He indicated that such a process would only be allowed if the other party had by amendment introduced material, which justified the preliminary plea of new. In light of this decision does the same apply if a preliminary plea is repelled at an options hearing as a result of an absence of a rule 22 note and the options hearing is then continued? The observations of Sheriff Principal Cox in Ferguson & Menzies Ltd v J W Soil Suppliers Ltd 1998 SCLR 1042 may come in handy in this regard.
In Milnbank Housing Association Ltd v Page & Park 2001 GWD 40-1533 Lord Carloway was moved to refuse a proposed amendment outwith the prescriptive period. In allowing the amendment, Lord Carloway set out that in deciding the issue, a practical as opposed to technical approach had to be taken. Did the claim after amendment remain fundamentally the same. If pre, and post, amendment matters could be viewed as elements of one claim relating to the same obligation, then the proposed amendment was not prescribed. If not, it had prescribed. Lord Carloway then dealt with particular examples. In contract, a claim based on one provision may relate to a separate obligation based on a different term. If a claim arising out of contract is based upon an obligation to perform one’s part of the contract with reasonable care, then an action based on one aspect of negligence may enable other aspects of negligence outwith the prescriptive period. The same applies to delictual claims. It is a question of fact and circumstance. Alterations in legal bases or factual averment if material or major may be of significance. In Esmail v The Bank of Scotland 2001 GWD 39-1448 the Defenders had agreed to a proof before answer restricted to quantum. Thereafter, as a result of the terms of a joint forensic report, the Defenders sought to amend their pleadings. The result of the amendment would of necessity widen the scope of the proof to certain aspects relating to the merits. It also sought to raise issues of causation and contributory negligence. Lord Macfadyen agreed that it was competent to allow certain averments in the proposed amendment, albeit it widened the scope of the proof beyond simply quantum. He further made certain observations with regard to the use of esto. He made it clear that esto could only properly be used when an assertion of fact made by another party is the hypothetical basis for the esto case. It cannot be used when the hypothesis is based upon an assertion no party offers to prove as a fact. He further refused certain aspects of the proposed amendment having regard to the procedural history of the litigation
In McPherson v Mutch 2001 GWD 40-1498 Sheriff Principal Young followed the line of authority began in Gracey v Sykes 1994 SCLR 909. He allowed an appeal against a Sheriff’s decision to allow a proof before answer holding that there existed a preliminary matter of law, which if successful would lead to decree in favour of the Pursuer. He accordingly recalled the allowance of a PBA and fixed a debate.
To sist or not to sist
In Ferns v Hendron 2001 GWD 33-1303 Lord Bonomy recalled the sist. The Defenders sought the recall of the sist in an action, which had been sisted to enable the Pursuer to apply for legal aid. In moving the motion the Defenders argued that legal aid had been refused and the actions were time barred. In opposing the motion, the Pursuer argued that the principal issue in the case would be determined in other actions in which there were clear parallels about establishments also run by the Church. In granting the motion Lord Bonomy indicated that the Defenders were entitled to have the issue of liability decided as soon as possible having regard to the interests of justice. In view of the fact that it was unlikely that legal aid would be granted, that the other actions were against establishments run by other branches of the Church, that the events occurred at least 20 years ago, and that there was a real risk of time bar, these interests supported the grant of the motion.
In Phillips v Kvaerner Govan Ltd 2001 GWD 40-1497 an appeal was taken against a Sheriff’s award of damages attacking the Sheriff’s assessment of witnesses. Amongst the attacks mounted against the assessments were that the manner of dress of the witness was irrelevant. The Inner House indicated that whilst the manner in which a witness was dressed could not directly result in a witness being credible and reliable or the converse, it could form some circumstance which could give the judge at first instance an impression as to the witness’s account.
In Ackerman v Logan’s Executors 2001 GWD 35-1346 an argument that an award of expenses made during the currency of a litigation was contrary to Article 3 of the European Convention of Human Rights was rejected. In Donnachie v Happit Ltd 2001 GWD 40- 1520, the Pursuer had sued two Defenders in a reparation action. The First Defender had not pled apportionment of liability against the Co Defender. The First Defender’s tender was accepted by the Pursuer. On the acceptance of the tender, no order in relation to expenses was made for or against the Co Defender, who now sought an award of expenses either against the Pursuer or the First Defender. The Pursuer argued that no order should be made in favour of the Second Defender or if it was, the Pursuer was entitled to relief against the First Defender. The Pursuer was found liable in the expenses to the Second Defender. The Pursuer had chosen to sue both Defenders from the outset. There had been no suggestion that it was appropriate to sue the Second Defender from anything pled by the First Defender. It made no difference that the action was settled by tender as opposed to judgment. The Pursuer had put the Second Defender to the cost of the litigation. Another reminder of the cost which can be incurred if a number of Defenders are sued on the basis of ‘let’s not leave anyone out’. It is preferable to sue sometime prior to the prescriptive period and see what the defences say. In another action in which a tender was involved the question arose as to the date to which the Pursuer was entitled to expenses when the tender was accepted. The tender was lodged on the first day of a four-day proof after the Pursuer’s witnesses were heard. On the morning of the third day the Pursuer accepted the tender. In allowing the Pursuer the expenses of the second day, Lord Carloway in Pagan v The Miller Group Ltd 2001 GWD 38-1428 indicated that notwithstanding an immediate consultation with Counsel had been possible when the tender was lodged, the importance of the decision together with the sums involved made it unreasonable for the Pursuer to make an instant decision. He was entitled to sleep on it and consider it in the light of the following day’s evidence. In Cameron v Cameron 2001 GWD 39-1479 one of the issues to be dealt with by Sheriff Principal Nicholson in the appeal was the question of expenses. The Defender had not tendered in the divorce action in respect of his wife’s claim for capital but had made two offers in respect of her claim during the course of the proceedings which were greater than that eventually awarded. In his decision on the aspect of expenses, Sheriff Principal Nicholson considered that it would be unrealistic for a court at first instance to ignore the consequences of an award of a capital sum in considering the question of expenses. A court should have regard to offers made when considering the question of expenses. In many instances a formal minute of tender was not possible in a divorce action. There were other ways in which offers could be made to settle financial craves. The principle of expenses following success could not be used unreservedly in family actions. Questions such as what was craved and what had been ultimately awarded were other factors to be considered.
In Ali v Ali 2001 GWD 38-1430 Lord Nimmo Smith made certain interesting observations relating to what information required to be before a sheriff in an undefended divorce action in which the Pursuer sought financial provision. The Petitioner in the action before Lord Nimmo Smith sought reduction of the undefended decree quoad the financial award. Evidence in affidavit form should support the claim. It is no obstacle to decree in such circumstances that the sums sought are at the top end of the scale. The sheriff can have regard to what is averred in the writ. If the Pursuer seeks an award for financial provision based on grounds in addition to a fair sharing of the matrimonial property or based on special circumstances justifying other than an equal sharing, this could justify an award at the top end.
In Institute of Chartered Accountants in Scotland v Kay 2001 SLT 1449 the Respondent sought the recall of interim orders which had had the effect of seizing his assets and appointing a Judicial Factor without intimation to the Respondent, Lord Carloway recalled the orders. He indicated that such orders should not be granted without prior intimation unless to do so risked the loss of funds. In the present case, the Petitioners were neither actual nor potential creditors nor did there appear to be any suggestion that the Respondent was insolvent.
To end I simply wish all those who litigate in the civil courts to do so successfully in 2002.
In this issue
- Scottish Solicitors’ Discipline Tribunal
- Dangerous link
- Creating effective management structures
- Effective cross selling
- Keeper’s corner
- Does the writ warrant a warrant?
- Interview: Elish Angiolini
- Website reviews
- Domain name disputes
- Explaining delays – managing expectations
- Exhaustion of trade marks
- Book reviews