A look into the future
Belated best wishes for 2013. The year will bring the publication of the draft bill from the Scottish Government which will seek to implement certain parts of the Gill review.
It is, of course, the position that a significant part of that review can be implemented without the necessity of primary legislation. Remarks in some recent decisions are worthy of consideration in light of what is likely to be coming our way.
In Scott v McKandie, Aberdeen Sheriff Court, 14 November 2012, Sheriff Principal Pyle made some cogent remarks regarding specialisation. He observed that the value of specialisation does not simply depend on the bench having a greater expertise and specialism in a particular area. To work, it is necessary for those appearing to ensure that they present their cases with proper reference to authority. He concluded by remarking that he had had the advantage over the sheriff at first instance, in that those who had conducted the appeal had been fully conversant with the relevant law and had made considered submissions.
I sometimes wonder if some who advocated specialised sheriffs to the Gill review laboured under the mistaken belief that if the sheriff is a specialist, the problem is solved. Not so, I fear. There is an equal obligation on the part of the representatives appearing.
Another matter which has exercised the mind is the time taken in some proceedings. The recent Supreme Court decision in NJDB v JEG  UKSC 21 made certain observations in that regard.
There can be difficulties for the bench in endeavouring to limit the areas of questioning. It is perhaps worthwhile to make passing reference to Docherty v PF Greenock  HCJAC 155 (27 July 2012). It is, of course, unusual to refer to a criminal appeal in a civil practice article. However, one of the appeal points taken was the sheriff’s query concerning whether the appellant’s solicitor would soon finish his cross examination. On being advised that he would not, the sheriff remarked that cross examination had already lasted 45 minutes. The appeal court rejected an argument that such a comment indicated that justice might not be seen to be done on the part of the impartial observer. The right to cross examination did not include the right of limitless cross examination. A sheriff had a duty to control unnecessary, irrelevant, harassing, or repetitive questioning. A witness did not require to be delayed unnecessarily by such cross examination. Court time should be used efficiently in order that a just determination was reached within a reasonable time.
These remarks, it seems to me, can also apply to civil disputes. Cross examination without focus, which largely involves taking a witness through what he/she has already said in chief, achieves nothing. Now it may be the case that a presiding sheriff can be more forceful in drawing such questioning, as an example, to an end. It might also become more commonplace where specialism is expected.
Finally with reference to a greater degree of case management being undertaken, the Inner House in Gupta v West Lothian Council  CSIH 82 (23 October 2012) observed that it was part of a sheriff’s function to organise the timetabling of motions and diets in a cause. Further, the fact that a sheriff accepts certain submissions or proposed lines of action does not indicate partiality on their part. This is perhaps of significance in circumstances where sheriffs are envisaged to be case managing disputes from their commencement until determination. Inevitably, during the course of that process, a sheriff may make rulings, some of which may be significant, which are against one party.
Multiple defenders – competency
In Ruddy v Chief Constable, Strathclyde Police  UKSC 57; 2012 GWD 40-779 the Supreme Court decided that the pursuer’s claims against the defender and Lord Advocate, made in the same action, were competent. His action was one of damages with two separate craves being pursued against the two defenders arising out of separate wrongs, albeit they were interconnected in fact and law. The pleadings were not unduly complex and good order favoured hearing the claims together. The guiding principle to an issue of competency in circumstances such as existed in that dispute was whether the manner in which the action was framed raised the probability of manifest inconvenience and injustice. Could case management assist in achieving the aims of doing justice to all the parties? The Supreme Court considered when measured against these principles that the action was competent.
Conduct of proof
In McGlone v Greater Glasgow Health Board  CSOH 190 (14 December 2012) Lord Bannatyne, between paras 126 and 134 of his opinion, neatly set out the law applicable to expert witnesses. This is a handy point of reference for practitioners. The expert should be inter alia independent, provide independent assistance to the court in the form of objective, unbiased opinion on maters within their expertise, and should make clear when a matter falls outwith their area of expertise. The experts, however, are only giving evidence, which the presiding judge has to consider. The decision remains that of the judge. The absence of counter evidence does not mean the evidence from the expert is bound to be accepted.
His Lordship also made observations at para 85 of his opinion as to the behaviour of the pursuer during the course of the proof, and indicated that due to its disruptive nature he had given serious consideration to removing her from the court building and prohibiting her from attending further. This no doubt was an extreme case, but it is worthwhile noting that a litigant has no inviolate right to be present during a proof.
In Quantum Distribution (UK) Ltd  CSOH 191 (18 December 2012) Lord Hodge made some observations regarding the conduct of practitioners in liquidation proceedings. The court had appointed an independent auditor to inspect the liquidator’s actings and report on suitable remuneration. Once that report, which was critical of the liquidator, was made available to him and his agents, attempts were made to bypass the court in having the remuneration approved. In particular, the auditor was unable to recommend a fee.
Lord Hodge said that to try and bypass the court in such circumstances was not acceptable. The appropriate course was to bring the matter to the attention of the court and debate whether the concerns were valid. He further observed that if solicitors act for the petitioning creditor and the insolvency practitioner in the winding up, they have to be acutely aware of the dangers of conflicts of interest.
Since the last article, Homebank Financial Services Ltd v Hain (November 2011 article) has been reported at 2012 SLT (Sh Ct) 196, Edward v Porter (March 2012) at 2012 SLT (Sh Ct) 225, Lamont v Mooney (July 2012) at 2012 SLT 1093, and Tortolano v Ogilvie Construction Ltd (November 2012) at 2012 SLT 1242.
In this issue
- Off on the wrong track
- Cadder, EU style
- Common grazing shares – where are we now?
- Is it time to stop baffling our clients/customers?
- Copyright and collaboration: a dose of bad medicine?
- Reading for pleasure
- Opinion column: Ken McCracken
- Book reviews
- Council profile
- President's column
- New build: new process
- Up or down? Digging deeper
- Who volunteers to be discriminated against?
- What's your LPO strategy for 2013?
- Tailored to suit
- Perfect storm less than appealing
- Separate but legal
- In and out of court
- Coming to a court near you
- Which way will the wind blow?
- Entitled to be aggrieved
- Funds less restricted
- Statement or Budget?
- Local leg-up
- Scottish Solicitors' Discipline Tribunal
- Answering for error
- The other alternative
- Remoteness and risk
- Paralegal Scheme extended
- Proposed rule change
- Law reform roundup
- An innocent loan or questionable funds?
- Ask Ash