Diligence on the dependence
In Beaghmor Property Ltd v Station Properties Ltd  CSOH 133 (30 September 2009), Lord Hodge was moved to recall an inhibition on the dependence. Lord Hodge considered that there was a prima facie case based on breach of contract. He emphasised that the requirement for a prima facie case was a substantial hurdle for anyone seeking to execute diligence of the dependence: it meant more than a colourable case. His Lordship further considered that the defenders’ financial position was such that there was a real and substantial risk that any decree could not be enforced. Although in the event of a sale proceeding the defenders’ finances would markedly improve, if the sale did not proceed there was a prospect of administration.
In considering whether the use of diligence was reasonable, Lord Hodge considered that limited preference which the inhibiting creditor gained over other creditors. This might be an argument for not allowing such diligence on the dependence. However, the prospect of the sale, which would be extremely beneficial for the defenders, meant that the defenders might be able to provide alternative security in due course for the pursuers. In those circumstances, Lord Hodge considered that the inhibition should remain.
In Royal Bank of Scotland plc v Davidson  CSOH 134 (30 September 2009), the defenders, who were domiciled in Scotland, sought to argue that the Court of Session was forum non conveniens. The action should be sisted to enable an action to be pursued in England. The factors in favour of the English courts were that the principal debtor, whose debt the defenders guaranteed, carried on business in England. The relevant branches of the pursuers in the dispute were English. The guarantee was subject to English law. Lord Drummond Young did not place much weight on the first two factors. The principal debtor was not a party to the action. The pursuers had raised the action in Scotland and thus were prepared to bring witnesses to Scotland. The English law argument carried greater weight, but the guarantee was not a complex document and the remedy sought was straightforward. Any differences in the two systems of law which were pertinent should not cause a judge any difficulty. In those circumstances, the defenders’ submission failed.
In Williamson v Williamson, Kirkcaldy Sheriff Court, 22 October 2009 the defender appealed a decision to hold that that court had jurisdiction for a divorce action. At the appeal, it was conceded that the pursuer had been habitually resident in Scotland, having resided there for at least six months prior to the action being raised, thus satisfying article 3(1)(a) of Brussels II-bis. The issue was whether it had been established that the pursuer was resident within the sheriffdom for 40 days, to satisfy s 8(2)(b) of the Domicile and Matrimonial Proceedings Act 1973.
Sheriff Principal Dunlop considered that it was correct to look at the ordinary meaning of “reside”, namely “to dwell permanently or for a considerable time, to have one’s settled or usual abode”. It was necessary to consider the nature and quality of a person’s occupation or presence at a place. It was a question of fact and degree as to whether a person resided at a particular place. A person might reside in more than one place. Accordingly, continuing, uninterrupted occupation was not a prerequisite, albeit there had to be some degree of actual physical occupation. Bearing in mind that the terms of article 3(1)(a) were practically incorporated into s 8 of the 1973 Act, the meaning of “reside” and “resident” would be expected to be consistent. To do otherwise could result in jurisdiction being established in Scotland but only in the Court of Session. Considering the authorities, the sheriff principal determined that this approach was consistent with these. In any event, he considered that the clear purpose behind s 8 was to allocate cases to the appropriate sheriff court once the primary ground of jurisdiction in terms of article 3(1)(a) was established. The appeal was refused.
In Ferro Finance UK Ltd v Akintola 2009 GWD 33-550 a reponing note was lodged following the grant of decree of recovery of possession. The defender had been evicted from the property by the time the reponing note was lodged. The property had yet to be sold and the defender could now fulfil the outstanding mortgage obligations. The reponing note was refused as the decree had been implemented to all practical intents and purposes. Sheriff Kinloch observed that if the reponing note had been lodged prior to the eviction, then it would have been competent.
Expenses in family actions
In Turner v Turner 2009 GWD 32-537 (22 September 2009) Sheriff McCulloch found no expenses due to or by either party. The defender had sought expenses from a point in the cause on the basis that his principal argument had been successful. During the procedure the pursuer had changed her position on two occasions. There had further been a lengthy proof. This decision seems to me to emphasise that the normal rule regarding expenses does not apply in matrimonial causes to the same degree. All such decisions are, of course, very much particular to the circumstances of each case and are reached by the exercise of judicial discretion. Accordingly, this decision can only be referred to for illustrative purposes.
In Napoli v Stone 2009 GWD 32-532 (16 September 2009) a counterclaim was dismissed after the evidential hearing was adjourned and the case continued for a hearing on the counterclaim. The counterclaim was dismissed because it had no connection with the matters at issue in the principal action. No evidence was heard in relation to the counterclaim. A question arose as to the competency of the subsequent appeal against the dismissal. Sheriff Principal Young considered that the appeal was incompetent. The counterclaim was only part of the cause. Accordingly the dismissal of the counterclaim only disposed of part of the cause and was not a final judgment. The sheriff principal reserved his position as to whether the counterclaim could be dismissed before the evidential hearing.
Amendments to the rules of court
Two Acts of Sederunt have been made recently. One, the Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009, came into force on 2 November 2009. This creates a personal injuries procedure in the sheriff court, quite separate to chapter 9 procedure. Any party to such an action can apply to have the action proceed under chapter 9 procedure. Such a motion can be granted if there are exceptional circumstances. These new rules are based pretty closely on those operating in the Court of Session. The intention is that a proof diet will take place not later than nine months after the date defences are due. There is a style for the initial writ in such actions. One potential consequence of this Act of Sederunt may be that judges in the Court of Session may be more likely to modify expenses in actions in which moderate awards in damages are made. For a fuller discussion of this new procedure, see Journal, October, 20.
The other is the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009. This came into force on 1 October 2009 in the main. Certain provisions relating to actions based on credit agreements come into force on 1 December 2009. The Act of Sederunt applies to ordinary actions, summary causes and small claims. Perhaps the most significant change is the introduction of the right to apply to the court to dismiss an action due to delay. The basis for such an application is “inordinate and inexcusable delay by another party or agent in progressing the action resulting in unfairness”. Such an application requires to be in writing and accompanied with a statement of grounds upon which the motion is based. The notice of opposition also requires to be accompanied with a statement of grounds of opposition. In determining the application, the court requires to take account of the procedural consequences for both parties and the court if the application is refused.
The Act of Sederunt also makes provision for a defender applying for a warrant for interim diligence where a third party notice is granted.
Since the last article, Stirling Council v Harris (July article) has been reported at 2009 SLT (Sh Ct) 106; Watt v Watt (July) at 2009 SLT 931; Lord Advocate v McNamara (July) at 2009 SCLR 551; and Accountant in Bankruptcy v Brown (March) at 2009 SCLR 461.
In this issue
- The equality, diversity and discrimination agenda: change and challenge ahead
- Justice on the green front
- Let the light in
- Needs of the family
- Reality on the West Bank
- Outside of the box
- Effective philanthropy
- Case for the defence
- Taking on the system
- Same rules for all?
- The benchmark
- Law reform update
- From the Brussels Office
- Appreciation: David Hector MacNeill
- Halfway to the Big Bang
- The same but different
- Five steps forward
- Ask Ash
- Preparing for disaster
- Rules a-changing
- Fair competition
- Time on whose side?
- 40 days and 40 nights
- Hear the grown-ups
- Problems of transition
- Scottish Solicitors' Discipline Tribunal
- Website review
- Book reviews
- Life on the other side
- Never waste a good crisis