Family action case management
In NJDB v JEG  UKSC 21 (23 May 2012) Lord Reed, giving the leading judgment of the court, made a number of observations regarding case management in child contact cases.
It appears to me that these observations could be equally applicable to other actions. The action had lasted 52 days in Stirling Sheriff Court. In the Inner House in 2010 Lord President Hamilton made certain observations as to the length and cost of proceedings. Lord Reed went further. I have to say I am a little surprised that it was thought an appeal to the Supreme Court was likely to achieve a beneficial result, bearing in mind the proof lasted over a year ending in late 2009.
Considering the grounds of appeal, Lord Reed observed that when the judgment of a court appears to become unduly personal it is only exceptionally that the language used by the judge can give rise to an issue of law which would result in the decision being vitiated. Turning to the proceedings themselves, in cases involving children the court had a duty to avoid undue delay in determining issues. His Lordship also considered that the cost of the proceedings was wholly disproportionate to their complexity, observing that the Scottish Legal Aid Board might review its rules for payment of fees to avoid such lengthy cases. In the present case the length of the averments, including anything which was potentially relevant to the issue, had dictated the scope of inquiry.
To remedy these problems Lord Reed made a number of proposals. First, he suggested that the traditional form of pleadings might be inappropriate in such cases. Rather, an abbreviated form might be adopted. Further, the form of sheriff court judgment with the requirement for findings in fact might be changed.
However, his Lordship observed that even with a more stringent case management framework, a change in culture was needed, with a requirement of reasonable expedition in proceedings in court, covering all matters from adjustment and amendment to the assigning of proofs and leading of evidence. The use of affidavits and reports was encouraged instead of oral evidence. Presiding judges should be proactive, both regarding the procedure generally and the evidence led, intervening if representatives became verbose.
Regarding the role of the curator ad litem, in this case a solicitor appointed to safeguard the interests of the child in court, his Lordship considered that it was inappropriate for the curator to conduct the proof in person, as had occurred in this case. The curator was the dominus litis. He might require legal assistance himself.
In Hamilton v Ferguson Transport (Spean Bridge) Ltd; Thomson v Dennis Thomson Builders Ltd  CSIH 52 (8 June 2012) the First Division looked at the issue of awards by juries in considering motions for new trials. Lord President Hamilton observed that the current practice was that juries reached decisions regarding non-patrimonial damages without guidance, relying on the views of the 12 randomly selected members. The divergence in awards was unsatisfactory. Jury trials were not contrary to article 6 of ECHR. However juries should be afforded guidance as to the band within which their award should fall. He also made comments concerning the form of issues.
His Lordship considered it desirable for the gap between jury and judge awards to be narrowed. This could be achieved by judges having more regard to jury awards, juries being given greater guidance as to the level of damages which might reasonably be awarded, and the appeal court intervening on grounds of comparative justice. Jury awards made with the benefit of judicial guidance would form a valuable source by which to assess damages in other cases. The guidance to be given would be debated outwith the jury’s presence. The jury would then be given advice as to the parameters within which their award might fall, these parameters being advisory not binding.
In Barbour v Ringford Motor Services Ltd, Kirkcudbright Sheriff Court, 24 April 2012, Sheriff Principal Lockhart reiterated that in considering whether to grant interim interdict the questions were whether there was a case to try and where the balance of convenience lay. A hearing on interim interdict was not a debate. Attacks on the relevancy of pleadings were properly made at debate, not at a hearing on interim interdict.
Registration of judgments
In Walton, Petr  CSIH 53 (29 May 2012) the Inner House considered what was covered by the reference to “an appeal is pending”, or a party “is entitled and intends to appeal”, in s 5(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933. Lord Hardie observed that an appeal pending meant that a party had lodged a timeous appeal, or an application to mark an appeal late had been made and its determination was awaited. It did not cover an inept application for leave to appeal, nor did it cover a valid application which had not been determined. Until leave was granted no appeal was pending. To fall within the second category the party had both to be entitled to appeal and to intend to do so. Even if these criteria were satisfied, that only resulted in the court being able to exercise its discretion not to register, or to delay the registration of, the judgment.
Sisting an action
In Royal Bank of Scotland plc v Wilcox 2012 GWD 19-378, Sheriff Principal Stephen allowed an appeal against an action being sisted. The action was one for payment under certain guarantees granted in respect of business debts. The reasons given for granting the motion were, first, the defender’s medical condition; secondly, that the sist would allow the Financial Ombudsman Service to deal with the defender’s complaint; and finally that matters raised with the ombudsman had potential relevance to issues that would inform the defence.
The sheriff principal discounted the medical issue, as the defender was represented and could give instruction. Regarding the ombudsman, the sheriff principal noted that such a route might be an alternative method of resolving matters, but was not such for the pursuers. A determination might provide some basis to challenge certain liabilities of the principal debtors, but it could not result in the defender being released from the guarantees. As for providing information for the defences, the rules required the defender to lodge defences and he was not prevented from doing so. Finally, the debts due by one business had not been the subject of reference to the ombudsman.
In reaching her conclusion, the sheriff principal made some general observations of principle regarding the grant or refusal of a sist. Access to courts was a constitutional matter and once litigation was instigated it should proceed without undue delay. The onus to establish that a sist was appropriate lay on the party moving to sist, as it was a serious interference in the orderly progress of an action. The fact that an interlocutor sisting an action was appealable without leave, whereas leave was required in relation to an interlocutor refusing sist, indicated the general principle. Further, to sist an action at an early stage when no defence had been tendered meant the opponent had no notice of the other’s position.
In Forbes v Strathclyde Partnership for Transport  CSIH 44 (2 May 2012) the Inner House observed that if any communication takes place between a court official and a litigant after a hearing, it is essential that the other party is copied into such correspondence.
In Lamont v Mooney  CSIH 43 (2 May 2012) the temporary judge found no expenses due to or by either party in an action in which there was a counterclaim and neither party had been successful.
The Inner House made a partial award in favour of the defender. Their Lordships took into account the comparative complexities of the parties’ claims, the pursuer’s being more complex and more time consuming; the fact that a letter of offer was more of a threat; and that it should have been apparent to the pursuer from an early stage that the action was premature.
In North Lanarkshire Council v Cairns, Hamilton Sheriff Court, 24 April 2012 Sheriff Principal Lockhart refused to allow a qualifying occupier to lodge a minute for recall of decree in an action for recovery of heritable property.
For such a party to have the right to lodge such a minute it was essential that they had been sisted in terms of s 15 of the Housing (Scotland) Act 2001 as a party to the action before it was concluded.
Since the last article Accountant in Bankruptcy v Campbell (November 2011 article) has been reported at 2012 SLT (Sh Ct) 35.
The Act of Sederunt (Summary Cause Amendment) (Personal Injury Actions) 2012 introduces the personal injuries procedure to summary causes with effect from 1 September 2012. The Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 comes into force on 1 August 2012. It makes a number of changes to inter alia the ordinary cause rules.
The main changes are, first, in actions other than undefended family or civil partnership actions in which evidence is led, a sheriff will be able to pronounce an ex tempore decision. This will give the reasons for the decision, including those on fact and law, and any issue of admissibility of evidence. In the event of a sheriff issuing such a decision, a party can request within seven days of the decision a written note of reasons. In addition the sheriff may provide such a note.
Notwithstanding the observations from Lord Reed in NJDB v JEG, in circumstances in which a sheriff reserves his decision, the written decision will have findings in fact and law as well as a note of the reasons behind the decision.
There is inserted a new provision regarding summary decree. The main changes are that such an application can only be made on the grounds that an opposing party’s case (or any part of it) has no real prospect of success, and there exists no other compelling reason why summary decree should not be granted at that stage. In addition the provision can be used by a defender to seek either dismissal or absolvitor. Once again the motion can be granted in whole or in part, or various persons can be ordained to produce documentation etc.
In divorce actions in which financial provision is sought when the writ is submitted for warranting, it shall require to be accompanied by a Form 13A, which in effect is a schedule of all assets and liabilities as at the relevant date. A defender must do likewise if such a claim is made in defences etc. Similar provisions apply to civil partnerships. In applications in terms of s 29 of the Family Law (Scotland) Act 2006 the deceased’s executor will require to be called as a defender.
In this issue
- On your marks
- Many's a crowd
- Family migration
- Assessing internet sex offenders
- Division and sale - disposal inter se
- Reading for pleasure
- Opinion column: Elaine Motion
- Council profile
- Book reviews
- President's column
- Into the front line
- A few more bricks
- Eye on the profession
- One eye over the border
- Who's who in construction
- Speed up child cases
- Take another look
- Relief on the review front
- Waste not
- Scottish Solicitors' Discipline Tribunal
- Financial services regulation: the race to reform
- Leases: where next?
- A wake-up call?
- Law reform roundup
- From the Brussels office
- Update: Registered Paralegal Scheme
- Business checklist
- Ask the experts
- Ask Ash