Latest civil cases, including res judicata; decree by default; tenders; jurisdiction; witnesses; expenses; division and sale; sequestration; permanence orders; solicitors' duties; McKenzie friends

In Smith v Sabre Insurance [2013] CSIH 28 (9 April 2013) the pursuer appealed the decision to uphold a plea of res judicata. Having been involved in a road accident, he had raised proceedings for personal injuries; these had settled. The present proceedings were then raised in respect of a loss of use claim, mainly related to recovery of hire charges.

Lord Brodie, delivering the decision of the Inner House refusing the appeal, reviewed the law regarding the doctrine. The live issues in the appeal were whether the subject matter and the media concludendi of the actions were the same – in short, what was litigated and what was decided.

It was argued by the pursuer that there were two separate causes of action, one for personal injury and one for damage to property. It was open to parties expressly or by implication to agree that the prospect of a second action for another head of damage should remain. Lord Brodie said that in considering what was litigated, in general any correspondence or dealings between parties were superseded by subsequent litigation. In Scotland, as a matter of principle, only one action could be pursued to decree in respect of claim for damages. This rule had the advantage of simplicity and certainty. To do otherwise opened the door to numerous actions arising from the same event. There was no distinction between insured and uninsured losses. Thus the plea was well founded.

Decree by default

Azdanparast v Azdanparast [2013] CSIH 27 (9 April 2013) concerned a ruling excluding the defender from further participation in a divorce action in which there were competing financial claims. His appeal was unsuccessful.

Lady Smith, giving the opinion of the Division, set out his actions in detail. The defender was clearly in default by failing to appear at the time the proof was due to commence. The sheriff’s reasoning was well founded. The basis of the decision was that a litigation should be concluded as soon as possible, consistent with the interests of justice. The interests of all litigants had to be considered, and the time the action had been in dependence. The defender had taken advice from three firms of solicitors; extensive settlement efforts had been made, including time on the first day of proof; the defender’s actions were intended to prevent a conclusion of the litigation. He had admitted the marriage had broken down; any order regarding the parties’ child could be revisited; the pursuer would still require to satisfy the court as to her financial claims; and the ongoing delay prejudiced both parties.

The defender was also found in contempt by the sheriff. In the opinion it is recorded that the sheriff principal, to whom appeal was first taken, considered that that matter could only be appealed to the Inner House. He referred to Sheriff Principal Dunlop’s decision in Dundee Car Service v Scanlan, Dundee Sheriff Court, 27 October 2006, in which he considered himself bound by Forbes v Forbes 1994 SLT 16 and dicta of Lord Justice General Emslie in Cordiner, Petr 1973 JC 16.

In Weddell v Anderson [2013] CSIH 34 (20 March 2013) the Inner House required to decide whether it was competent to grant decree by default on a party’s non-appearance at a diet, where their agent had intimated his withdrawal from acting within 14 days of that diet. The court, on considering OCR, rule 24.2(1A), determined that there was no requirement in the circumstances for the sheriff to assign a further peremptory diet. The sheriff had an unfettered discretion as to further procedure, and was not obliged to follow the rule 24.2(1) procedure. Having regard to the history of the litigation, the sheriff had been entitled to grant decree by default.

Minutes of tender

In McGlone v Greater Glasgow Health Board [2013] CSOH 44; 2013 GWD 12-251 Lord Bannatyne’s award of damages had beaten the last of five tenders lodged for the defenders. The defenders’ application for no award, failing which significant modification of expenses in respect of the proof was refused. The basis of the application was fourfold: the award was just over 10% of the sum sought; the pursuer had failed in key arguments which had taken up substantial parts of the proof; her conduct during the proof had lengthened it; and she had failed to produce a reasonable estimate of her claim.

Lord Bannatyne rejected the defenders’ submission. The rule regarding the consequences of beating tenders was well settled. To do as argued by the defenders would produce uncertainty. In any event the pursuer had received awards in terms of her four heads of damage. There was no question of her either not presenting, or presenting inadequate evidence on issues.


In Fishers Services Ltd v All Thai’d Up Ltd, Cupar Sheriff Court, 28 March 2013 the pursuers raised an action for payment in their local sheriff court. The defenders were domiciled in another sheriffdom, in which the services which were the subject of the action had been provided. The sheriff held that there was no jurisdiction, under reference to article 5(1)(b) of the Brussels-I Regulation. Sheriff Principal Dunlop considered on appeal that para 2(b) of sched 8 to the Civil Jurisdiction and Judgments Act 1982 gave jurisdiction. Brussels-I was aimed at conflicts between the rules governing jurisdiction in member states. Article 5 was limited to cases involving parties from different member states.

In Stewart v Trafalgar House Steamship Co [2013] CSOH 37; 2013 GWD 10-210 the defenders pled no jurisdiction. When the action was commenced another concern had been called as a defender, against whom there was no question concerning jurisdiction. Accordingly jurisdiction was founded against the remaining defenders under article 6.1 of Council Regulation (EC) 44/2001 (claims so closely connected that it was expedient that they be heard and determined together). Lord Uist had little difficulty in repelling the defenders’ argument. There was no question of jurisdiction, once established, being subject to review.

Conduct of proof

As a postscript to the decision in Northern Hydroseeding Ltd v McDonald [2013] CSIH 21 (22 March 2013), Lady Paton noted that a witness the defender had wished to lead had been on the pursuers’ list and present within the court building, but had not been called by the pursuers and had left, thus denying the defender the opportunity of calling him. However he had not been cited by the defender. If a party wishes to lead evidence from a witness, that person should be cited. I suggest all practitioners remember this observation.


In JH v AB and the Scottish Legal Aid Board [2013] CSOH 53 (5 April 2013) an application for payment of a successful defender’s expenses from the legal aid fund was made to Lord Bannatyne. The application was refused. The reasons are very case specific. However, Lord Bannatyne made certain observations. First, in looking at the issue of hardship, the total picture of the defender’s financial position required to be considered: income, capital and the nature of the capital assets and liabilities. Further, his Lordship considered it relevant to consider whether any objection had been made to the application for legal aid; and whether the party seeking payment from the fund had any choice in entering the process.

Action of division and sale

In Collins v Sweeney, Glasgow Sheriff Court, 21 February 2013, an action of division and sale, Sheriff McCormick determined that a crave seeking that one pro indiviso proprietor sell their share to another proprietor was not competent. Such proprietors had an absolute right to insist on the division of the subjects, which failing their sale.


An appeal against a refusal to grant sequestration was allowed in Dumfries and Galloway Council v Duff 2013 GWD 12-258. Sheriff Principal Lockhart considered that intimation of a petition for sequestration to the Accountant in Bankruptcy in terms of s 5(6) of the Bankruptcy (Scotland) Act 1985 did not require to be made on the very day the petition was presented for the first deliverance. The intention was for the Accountant to receive notification of the petition because of the possibility of his being appointed trustee.

In Chaudhry v Advocate General for Scotland [2013] CSOH 36; 2013 GWD 10-211, Lord Tyre determined that notwithstanding the terms of s 128 of the Finance Act 2008, the grant of a summary warrant provided sufficient legal basis for the service of a charge, thus a petition for sequestration could be instituted on the expiry of such a charge.

Permanence orders

Aberdeen City Council in respect of SW, Aberdeen Sheriff Court, 5 April 2013 was an unopposed petition for a permanence order. Sheriff Murray was concerned by a matter regarding the child’s foster carer. The matter had not been immediately apparent in the social work department report and Sheriff Murray observed that reports prepared in terms of the Sheriff Court Adoption Rules 2009, rule 31(2)(b) should be as concise and accurate as possible so that any such problems were relatively easily ascertained. This may well be worthy of consideration by local authority solicitors dealing with such applications.


In Gollin v Trip Advisor Ltd 2013 GWD 9-188 Sheriff Principal Pyle made certain observations regarding an agent’s responsibilities which really should not require repeating, but…! It is the responsibility of a solicitor to refuse to take a step which he knows full well is incompetent. If the client is unhappy, he can seek separate advice. In short, a procurator’s first duty is to the court.

Further, perhaps in light of what might occur with the implementation of Gill and the consequences of any court closure, Sheriff Principal Pyle observed that any email communication undertaken by agents to avoid actual court appearances should set out their position fully, thus avoiding the need to clarify points a solicitor ought to have considered. Email communication, while encouraged, was no substitute for compliance with rules of procedure. Finally, there was a temptation to adopt informality in email communication. Agents should not forget that such communication was part of the official record of proceedings and might be referred to in a subsequent judgment.

McKenzie friends

By the Act of Sederunt (Sheriff Court Rules) (Lay Representation) 2013, which came into force on 4 April 2013, provision has now been made in the ordinary cause, summary application, summary cause and small claims rules to enable a sheriff, on the request of a party litigant, to permit a named lay representative to appear at a specified hearing for the purpose of making oral submissions on behalf of the litigant. It is sufficient for the request to be made orally on the date of the first hearing at which the litigant wishes the individual to make oral submissions, and for it to be accompanied by a document signed by that individual. The application may be granted only if the sheriff is of the opinion that it would assist in the consideration of the case. The sheriff may of his or her own accord, or on the motion of a party, withdraw such permission.



Since the last article, Ruddy v Chief Constable of Strathclyde Police (January article) has been reported at 2013 SCLR 110; and Liquidator of St Margaret’s School, Edinburgh, Ltd, Noter (March) at 2013 SLT 241.


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