In Apollo Engineering Ltd (in liquidation) v James Scott Ltd  CSIH 4; 2012 GWD 5-82 the pursuers had run out of funds and could no longer afford legal representation. The issue accordingly was whether the company, through an appropriate person, could represent itself.
A director enrolled a motion to enable him to represent the pursuers’ interests. Lady Paton considered that there was no provision available to allow the motion to be granted. The fact the company had sought the benefit of limited liability in its business dealings did not prevent the director representing the company, but to be able to do so there required to be exceptional circumstances. These would at very least be that the company had a valid claim, it was unable to pay for legal representation, it had authorised its officer to represent it, and that decision arose out of necessity rather than choice.
Lord Reed considered that the director did not have the necessary expertise to represent the pursuers. When a point of law required to be argued it was in the public interest and the interests of other parties that a legally qualified person should represent the pursuers’ interests. His Lordship noted that if a party was to have a fair and public hearing in terms of article 6 of ECHR, it might be necessary for a party only to have access to the courts through legal representation. This could arise in complex cases, and when the matter was before an appellate court, when issues of law were likely to be the only points at issue. To grant the motion in the present instance would not provide the company with an effective right of access to the court. In such circumstances, the state might require to provide legal representation.
In Reynolds v North Lanarkshire Council  CSOH 211; 2012 GWD 2-19 the pursuer raised an action for damages for personal injuries under normal procedure. A previous action had been raised between the parties in terms of Chapter 43 of the Rules of the Court of Session; decree of absolvitor was granted in December 2009. The grounds of action were the same. Lord Brailsford had little difficulty in upholding a plea of res judicata. Albeit a statutory case was also now pled, the essence of the action was the same. There was no suggestion of the existence of a res noviter veniens ad notitiam.
In Smith v Sabre Insurance Co Ltd  CSOH 14 (24 January 2012) the same plea was tabled. An action had been concluded in the sheriff court. Lord Bannatyne indicated that in deciding the true substance of the issues in dispute, the averments were the only matters of concern. Pre-litigation correspondence was of no interest.
Reduction of decree
In Tetlow v AMS Joiners and Builders  CSOH 27 (16 February 2012) Lord Matthews considered whether decree for reduction should be granted. An action for payment had been purportedly served against the pursuers when they were abroad. As a result they were unaware of the action. Decree in absence was obtained. A relative of the pursuers subsequently discovered a charge had been served. The pursuers’ attempt to repone the decree in absence was unsuccessful. They then raised an action to reduce the decree.
The defenders argued that as a result of the reponing note being refused, the pursuers were seeking to reduce a decree in foro. Further, the pursuers, having failed to appeal the refusal of the reponing note either timeously or late with leave, had not exhausted their other remedies. Lord Matthews considered that the refusal of the reponing note did not alter the fact that the decree granted was one in absence. Reponing was an attempt to enter the process by a party who was not at that stage a party to the action. If successful, the party had the right to lodge defences. If unsuccessful, the decree in absence was unaffected.
In Hawes v Thomas, Stirling Sheriff Court, 16 January 2012 Sheriff Robertson considered that it was perfectly competent to make an award of expenses in respect of the hearing assigned as a result of the lodging of a caveat, notwithstanding the action was not thereafter served and fell after the passage of a year and a day. The defenders appeared as a result of lodging the caveat as opposed to being cited. The power to make an award of expenses was not dependent on the warrant to cite. After failing to obtain an award of interim interdict the pursuers might not have sought a warrant to cite.
In Clark v Shirra  CSOH 30 (14 February 2012) Lord Stewart refused to allow the pursuer to put the defender’s statement of valuation of claim before the jury. His Lordship came to that decision for a number of reasons. First, the valuation was prepared in an attempt to facilitate settlement. The practice note which allowed a party to found on their valuation was more consistent with it being used for procedural purposes and in relation to expenses. The valuation contained extraneous material such as reference to authorities which might confuse a jury. Finally, what was to be gained putting matters before the jury only for the jury to be directed to disregard them?
Although it arose in a petition for suspension and reduction of a sheriff court interlocutor, Lord Stewart makes a number of observations regarding procedure in family actions in Murtaza, Petr  CSOH 214; 2012 GWD 3-37. The petitioner had been the defender in an action for contact in Glasgow Sheriff Court. A proof had commenced. The presiding sheriff, during the course of that proof, ex proprio motu converted that day’s diet into a child welfare hearing. Having heard submissions, and considering various items of correspondence from contact centres, the sheriff awarded interim contact. He assigned a further child welfare hearing and sought a report from the social worker supervising contact. He then continued the proof sine die, subsequently refusing leave to appeal this order.
The defender had been unable to give any meaningful evidence during the brief period she was in the witness box. The sheriff refused a motion to adjourn to allow her to be medically assessed. The defender was medically examined at the instance of her solicitor and was found to be of low intelligence and was said to be a vulnerable witness. She had sufficient understanding of proceedings but was assessed as being unable to give competent oral testimony. The psychologist considered she should give her evidence by means of a written statement. The sheriff had refused to take her evidence by commission and refused to have her evidence in affidavit. He refused leave to appeal against both these decisions. The petitioner submitted before Lord Stewart that the case had gone off the rails and there had been a miscarriage of justice.
In making observations as to the procedure followed, his Lordship considered that having regard to the terms of OCR 33.22A, a child welfare hearing could be assigned at any time, even after evidence was led at proof. Further, the purpose of the child welfare hearing had been, in part, to obtain a report as to the interim contact awarded. In doing so, the sheriff was exercising his power in terms of OCR 33.21. Although the petitioner had difficulty in giving evidence, she had not been excluded from the proceedings as she had been able to instruct her advisers and the sheriff was entitled to presume that a party represented in proceedings had sufficient capacity to implement any court order. The petitioner also had been able to participate effectively in the proceedings. The petitioner’s medical problems had not been raised. A vulnerable witness application was never made on her behalf. An affidavit was not a special measure. She was unlikely to be able to give evidence any more effectively on commission.
In Murdoch v Murdoch  CSIH 2 (10 January 2012) the issue was whether a court could competently make a transfer of property order in favour of one party and make an order for a compensating payment in favour of the other when no crave had been made in respect of that payment. Lord Bonomy, delivering the opinion of the Inner House, considered that such an order could be made, particularly if there had been fair notice of the basis of such a claim. The ordinary cause rules had to be read in accordance with the provisions of the Family Law (Scotland) Act 1985, particularly having regard to the power in s 14(2)(k) of that Act. (Further discussion at Journal, February, 26.)
In Grimshaw v Bruce  CSOH 212; 2012 GWD 3-38 the pursuer had raised an action for damages for personal injuries. Subsequent to the incident which was the subject matter of the action, the defender had been sequestrated and later discharged. The defender argued that this extinguished the pursuer’s claim. The claim was not a contingent one. Lord Brailsford upheld the defender’s submission.
In Scott v Muir, Edinburgh Sheriff Court, 7 December 2011, Sheriff Principal Stephen had to determine an appeal in a summary cause based entirely upon a supplementary question of law. An attempt had been made to introduce this question by adjustment of the stated case. This had been refused in light of SCR 25.3(2). The appellants then lodged an incidental application seeking to introduce the same question of law. This incidental application was allowed. At the appeal the respondents challenged the competency of raising such a point of appeal late in the process. Sheriff Principal Stephen had no difficulty in entertaining the new question of law. There was no prejudice suffered by the respondents. The incidental application had been allowed, thus giving the respondents notice. The new question of law went to the heart of the dispute, albeit it had not been argued at first instance and did not feature in the stated case.
In Russo v Scott 2012 GWD 3-35 Sheriff Principal Lockhart allowed an appeal to be taken late. A peremptory diet was assigned. There was no appearance on behalf of the pursuers and the action was dismissed. Subsequently, it was discovered that the recorded delivery intimation had “not been called for”, as a result of the pursuers having moved. The motion to allow the appeal to be marked late was lodged 16 months later. In the meantime, there had been no information given to the pursuers that the action had been dismissed. Indeed there was a suggestion that information was given to their new agents that the action was sisted. Further, the action related in part to the parties’ child, and the wellbeing of a child was an ongoing situation. Again, as the action related to a claim in terms of s 28 of the Family Law (Scotland) Act 2006, if the motion was not allowed, the claim would be time barred. There was no obvious claim for professional negligence against the pursuers’ advisers, past or present.
In Edward v Porter, Aberdeen Sheriff Court, 1 February 2012, Sheriff Principal Young observed that when a party to a litigation was legally qualified and acting on their own behalf, that party was entitled to charge for any work done on exactly the same basis as a party who is not legally qualified. However the former would not be entitled to charge for work which was not carried out by reason of self representation, such as taking instructions from himself.
Since the last article Fish and Fish Ltd v Sea Shepherd UK (September article) has been reported at 2012 SLT 156; M v A Scottish Local Authority (September) at 2012 SLT 61; and B v B (May) at 2011 SLT (Sh Ct) 225.
In this issue
- Capacity and undue influence
- Tolent clauses in construction contracts
- Mending the safety net
- Keeping it in the family
- Speak with impact
- The complication of tax simplification
- Reading for pleasure
- Opinion column: SIHRG
- Book reviews
- Council profile
- President's column
- The price is right?
- Learning on the slate
- A better way to talk
- Plain sailing?
- Kilbrandon in the 21st century
- Who's who in banking and finance
- Corporate speak
- Here we go again...
- Deadlines in negotiations
- Scottish Solicitors' Discipline Tribunal
- Shuffling walnuts?
- A bold step forward
- Action to safeguard vulnerable clients
- Buildmark acceptance goes online
- Law reform roundup
- Escape from disaster?
- Ask Ash
- Update branches out
- Business checklist
- Work, the deciding factor