Latest civil cases, including interest; discount rate; competency; reponing; res judicata; time bar; hearsay; guardianship and divorce; expenses; liquidation

Judicial rate of interest

In Farstad Supply AS v Enviroco Ltd [2013] CSIH 9 (20 February 2013) the defenders sought to have the rate of interest reduced, having regard to the rates of interest in operation in the market.
In delivering the opinion of the court, Lord Eassie observed that while interest upon a decree was compensatory and not penal, it was not for the Inner House to depart from settled law and practice and adopt a new practice. Further, the Scottish Government had not taken any action in light of the Scottish Law Commission’s report on interest on debts and damages in 2006, and in that event his Lordship did not consider that the Inner House should largely implement such a report when the Government had not sought to do so. His Lordship observed that in the event of lack of action by Government, it was a matter for the Rules Council to consider.

Damages: discount rate

In Tortolano v Ogilvie Construction Ltd [2013] CSIH 10 (21 February 2013) the pursuer challenged the Lord Ordinary’s exclusion of certain averments which had been made in an effort to plead justification for application of a discount rate other than the prescribed rate in terms of s  1(1) of the Damages Act 1996. The pursuer attempted to make use of the provisions of subs (2).
The Inner House concluded that to come within subs (2), the factors founded on required to be case specific. While not requiring to be unique to the case, they nonetheless could not be present in the majority of cases. There had to be something special or exceptional. Market forces altering the economic landscape did not fall within the ambit of exceptional. Nor did a case of catastrophic injury satisfy the provisions.


Lord Doherty in Shehadeh v Advocate General for Scotland [2012] CSOH 196 (21 December 2012) considered that an action for damages for wrongful detention could be raised as an ordinary action. While it was necessary to prove that the detention was unlawful, this could be established without the necessity of judicial review. The pursuer did not require to establish the invalidity of ex facie valid Government action. The fact that an application for judicial review might have resulted in a quicker and cheaper determination was not a factor relevant to the question of competency.


The issue in McDermid v D & E Mackay (Contractors) Ltd [2012] CSIH 60; 2013 SLT 32 was whether an appeal to the Inner House from a sheriff principal’s refusal to allow an appeal to be marked late by the pursuer following the granting of decree by default as a result of failure to appear at a peremptory diet required leave, or was covered by s  28(1)(c) of the Sheriff Courts (Scotland) Act 1907 (“refusing a reponing note”). Lord Emslie, sitting as a procedural judge, concluded that reponing had historically included appealing against decrees by default as well as challenges to decrees in absence. It restored the party in default to the position they would have been in prior to the granting of the decree by default.

Res judicata

In Carew-Reid v Lloyds Banking Group plc [2013] CSOH 5; [2013] GWD 4-113 Lord Hodge determined that a foreign court could constitute a competent tribunal for the purposes of the plea of res judicata if its determination constituted a final and conclusive disposal of the merits. The possibility of an appeal to a court of higher jurisdiction did not prevent the operation of the plea. 

Time bar

An application in terms of s 19A of the Prescription and Limitation (Scotland) Act 1973 arose in Chinn v Cyclacel Ltd [2013] CSOH 17 (30 January 2013). An initial action between the parties was raised timeously, but was dismissed. This present action before Lord Woolman was then raised outwith the triennium. The application was refused. In doing so, his Lordship considered that the pursuer’s previous legal advisers had been materially responsible for an application in terms of s 19A being required and an action against them, while not without problems, certainly had reasonable prospects.

Presumptions and hearsay

In A v A [2013] CSIH 7 (13 February 2013) the Inner House was asked to examine a sheriff’s decision in a dispute regarding contact with a child. Lady Dorrian, delivering the opinion of the court, rejected a submission that in considering allegations of sexual abuse on the part of a parent, a court, in considering the evidence, should start with the assumption that most parents do not engage in such behaviour. Further, dealing with the assessment of hearsay evidence, the court noted that factors to be considered in that regard included whether the persons to whom the reports were made, were credible and reliable; whether they had an axe to grind or any view on the matter; whether this applied to the maker of the statement; whether the remarks were spontaneous or the result of questioning; and whether the statements were accepted at face value, or were other implications considered?

Title and interest to sue

The pursuer in GWS as Guardian for JH v KH, Aberdeen Sheriff Court, 3 April 2012, sought to raise a divorce action as guardian against the adult’s spouse. In 2002 the pursuer was appointed financial guardian with power inter alia to raise or defend any court action. Sheriff Lewis did not consider that such a general power was sufficiently wide to entitle the guardian to raise an action for divorce. Aside from anything else, the application for appointment had been silent in respect of such an action and the views of the adult, his primary carer, and others had not been taken regarding this course. Further, the general power to litigate probably did not cover actions relating to status.


In Martin and Co (UK) Ltd [2013] CSOH 25 (12 February 2013) Lord Drummond Young had awarded the petitioners expenses on an agent and client, client paying basis. Thereafter, the petitioners moved for payment of the sum of £50,000 as an interim payment of these expenses. The reason for the motion was that the petitioners sought to execute diligence to secure payment of expenses, and the taxation process would take too long to enable such diligence to be carried out. In support of the motion, the petitioners indicated that their expenses to date exceeded this figure and there was a distinct possibility that the respondents would dispose of assets against which diligence could be executed. Lord Drummond Young considered such a motion competent by reference to authority. In all the circumstances the motion was granted. The petitioners further undertook to repay any sum in excess of any taxed expenses if that was the result of taxation.


Shortly after I was appointed as a full time sheriff, I recall a senior sheriff remarking upon the fees charged by accountants in liquidations when he was asked to approve these fees. This was a matter troubling Lord Malcolm in Nimmo, Noter [2013] CSOH 4 (11 January 2013). His Lordship observed that the accountant appointed to audit the intromissions and report as to suitable remuneration came from a list of experienced insolvency practitioners. Being concerned as to the level of fees, Lord Malcolm assigned a hearing. Having been addressed, his Lordship approved matters. He did observe that if hearings were not assigned once in a while for the purpose of explanation, then there was a risk that fee levels and general practice and procedure became self fulfilling.



Since the last article, Royal Bank of Scotland plc v Wilcox (July 2012 article) has been reported at 2013 SLT (Sh Ct) 7, Accord Mortgages Ltd v Edwards (September) at 2013 SLT (Sh Ct) 24, Ruddy v Chief Constable, Strathclyde Police (January 2013) at 2013 SLT 119, and Simpson v Downie (November) at 2013 SLT 178.

The Author
Sheriff Lindsay Foulis
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