Latest civil roundup, including recovering a sheriff’s notes; claim made after decree; note of appeal; expert witnesses; expenses

In Behrent v MacKillop 2003 GWD 26-731 the pursuer sought the recovery of a sheriff’s notes relating to prior proceedings. This application was refused. It was not in the interests of justice for an unsuccessful party to seek such a recovery to ascertain whether the sheriff had noted any reasons for his decision at the relevant time. Sheriffs were not liable to litigation in relation to matters upon which they ruled or in relation to their actings in court. There was no obligation on a judge to record reasons for a decision or full notes to provide the foundation for submission in a different action or to note all submissions. In any event the notebook covered a nine month period and in that event a commissioner would have been required to take excerpts.

Capital sum claimed after decree

The decision of Johnston v Johnston 2003 GWD 25-700 is worthy of note simply in reiterating that the views of children are only one factor to be taken into account in considering issues such as contact. In this case despite the children stating that they did not wish contact, and indeed that contact had not taken place for over five years, the sheriff awarded contact. This decision was upheld by both sheriff principal and Inner House. By the time the decision was issued by the Inner House the children were aged 11 and 8 years. In Christie v Christie 2003 GWD 24-695 the defender introduced a counterclaim for a capital sum after decree of divorce had been pronounced but the cause had been continued to determine the financial aspects of the action. The pursuer sought the dismissal of the counterclaim for capital as incompetent. The defender argued that section 12(1)(b) of the Family Law (Scotland) Act 1985 enabled any claim for finance to be determined after decree of divorce provided a decision on aspects of finance had been reserved. It did not matter that at the time such a decision was reserved, there was no crave for the particular order. Sheriff Small decided that for section 12(1)(b) to apply, the interlocutor granting decree of divorce required specifically to reserve the determination of the issue in the crave, in the present case that of capital. It was clear that section 12 only empowered a court to award a capital sum on divorce or within a period specified by the court. There was no such specific reservation in the interlocutor divorcing the parties and accordingly the counterclaim for capital was incompetent. In short the crave had to before the court at the time the interlocutor was pronounced in terms of section 12(1)(b).

Premature note of appeal

What a tangled web we can weave! In Nolan v Anderson & Innes Ltd and another, Kilmarnock Sheriff Court, 9 July 2003, the third party had failed in a motion to allow answers in response to the third party notice to be lodged late. In refusing the motion the sheriff awarded the expenses of the motion to the defenders. The third party then, correctly, lodged a motion for leave to appeal against that decision. Unfortunately before that motion was heard, the third party also lodged a note of appeal. The sheriff considered that by doing so he was rendered functus as far as the motion for leave was concerned. In presenting the appeal the third party sought to argue that the refusal of the motion to allow answers to be lodged late was effectively a final interlocutor in terms of section 3(h) of the Sheriff Courts (Scotland) Act 1907, the third party arguing that the effect of the sheriff’s decision was to refuse the third party entry to the process to represent their position as to the merits. Only formal steps were required to enable the defenders to obtain decree against the third party. It was further submitted that it was anomalous if leave was required at this stage when the third party could repone against any subsequent decree against them in favour of the defenders, that decree being one in absence quoad defenders and third party. Sheriff Principal Kerr, not surprisingly, decided that the sheriff’s decision was not a final one within the terms of section 3(h), since questions of liability and its extent, quantum, and the expenses of the  action still had to be determined. He further refused a motion to remit the case to the sheriff to consider the motion for leave, the subsequent lodging of the appeal superseding the motion for leave. Sheriff Principal Kerr then considered the question as to whether he had a common law power to remit a matter to a sheriff with such instructions as considered appropriate. He indicated that he was inclined to disagree with the opinion expressed by Sheriff Principal Dunlop in MacDonald v MacDonald 2002 SLT (Sh Ct) 144. His reasoning was based on the fact that the sheriff principal and sheriffs had a different relationship to that between the Court of Session and sheriff court, the former being much more closely connected. Accordingly it was understandable that there was no equivalent to the power to remit from Court of Session to sheriff court as provided for in section 32(2) of the Court of Session Act 1988. Such a power however would be exercised in very exceptional circumstances. These did not include situations in which ‘agents had themselves simply mishandled the matter of generating a competent appeal. One final comment. The sheriff principal gave no opinion on the submission as to the third party reponing. Despite temptation I am not going to give any view off the cuff. No doubt this will be the subject of submission at some point!

Who qualifies as expert

In Fyfe v North Glasgow University Hospitals NHS Trust 2003 GWD 25-713 the pursuer successfully appealed against the refusal to certify a care expert as an expert. In allowing the appeal the Inner House indicated that whilst the report seemed at first sight to be a precognition and mathematical calculation, the report did show the use of expertise on the part of the witness as to issues relating to the care of the pursuer. The fact that the report was instructed at an early stage was of no great significance as such a report would have been required in any event during the course of the litigation. A caveat was given by the Inner House to the effect that certification would not however be granted in circumstances in which the employment of such a witness was not required or alternatively the input of the witness did not involve any expertise.

Accepting “expenses of process”

In Gillespie v Fitzpatrick 2003 GWD 27-766 the pursuer had accepted a minute of tender following his agents faxing the defender’s agents that the acceptance was conditional upon the expenses being awarded on a particular scale. The acceptance was subsequently withdrawn. In granting decree in terms of the minute of tender and acceptance Lord Eassie indicated that the tender was in normal form and by the lodging of the minute of acceptance of tender by the pursuer, it had been accepted. In so doing, the pursuer not only accepted the principal sum but also that expenses would be awarded as the court considered appropriate, having exercised its discretion. If expenses were intended to be dealt with in any other way, then they could be so agreed extrajudicially. The phrase “expenses of process” used in the minute of tender meant that the expenses awarded would be such as the court considered appropriate by reference to McKenzie v H D Fraser and Sons 1990 SLT 629. Differing contentions as to expenses did not result in the minute of tender not having been accepted, as acceptance did not preclude argument on this point. Accordingly in situations in which there may be argument as to the scale by which expenses might be taxed, the only method of achieving certainty is to resolve the matter by an extrajudicial agreement other than accepting a minute of tender. This decision is a reminder that in the latter situation, the award of expenses and the scale is for the court’s discretion. The fact that appeals against a decision at first instance on the question of expenses are discouraged and require to overcome considerable obstacles if they are to be successful was reiterated in Sheriff Principal Young’s decision in Best v Watt, Peterhead Sheriff Court, 9 July 2003. Such an appeal will only be successful if an obvious miscarriage of justice has occurred, a question of principle is involved, or the expenses are of a substantially greater value than the merits of the action. In short, a party or representative may be unhappy with the finding as to expenses but rarely will the appeal court provide any panacea!


Since the last article in the July edition of the Journal Beattie v The Royal Bank of Scotland plc has also been reported at 2003 SCLR 352, and Hislop v Lynx Express Parcels at 2003 SCLR 441.

The usual caveat applies.

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