Latest civil cases, including personal injury actions; undertakings; pleadings; interlocutors; recovery of heritage

Personal injury actions

In Smith v Greater Glasgow & Clyde NHS Health Board [2013] CSOH 178; 2013 GWD 40-756, the defenders sought the late allowance of a list of witnesses.

Lord Jones considered the 1998 working party report on Court of Session procedure, which focused on the undesirability of last minute settlements in Parliament Hall on the morning of a proof. The solution, provided by a timetable, was intended to result in settlement discussions taking place at the mandatory pre-trial meeting.

The intention behind the timetable was to ensure that by the time of that meeting, parties would be fully informed as to the respective strengths and weaknesses of their and their opponents’ cases. Relevant rules of court were intended to discourage a culture of a casual approach to timetabling. The defenders had not lodged any witness list by the due date. There was no provision to allow the lodging of a late witness list other than by means of alteration of the timetable, which required “special cause shown”. Lord Jones refused the application as no such special cause had been shown.

In submissions, counsel for the defenders referred to Quigley v Hart Builders (Edinburgh) Ltd [2006] CSOH 118. In that decision, the Lord Ordinary was of the opinion that if no witness list had been lodged timeously, an application for the late lodging of such a list should be made. These applications, if made promptly, were likely to be granted, because the risk of prejudice was small. Expenses could also be used as a sanction. Lord Jones disagreed with that approach when no list had been lodged. If, however, a witness list was lodged timeously, an application could be made to add the name of a witness to such a list.

On the particular issue regarding witness lists, the provisions in the sheriff court are set out in chapter 36 and seem to be in similar terms to those in the Rules of the Court of Session. Lord Jones’s opinion raises an interesting point and clearly there appear to be two conflicting approaches. That in Quigley might be suggested to have merit when regard is had to the terms of RCS 2.1 and OCR 2.1. The power to relieve from failure to observe the rules seems to apply to all the rules, which would include the personal injuries rules. If that power of relief is available, is it not competent to apply to have an item of process received late? It would be useful for this matter to be resolved by an appellate court.

The approach commended by Lord Jones does potentially have implications further than personal injury actions. It may give an indication as to how flexible the operation of the various provisions regarding case management is intended to be, when these provisions are introduced. The tendency to have only casual regard to timetabling may become history.

Another matter regarding such actions arose in Lamb v Wray, Edinburgh Sheriff Court, 11 November 2013. Objection was taken to a line of questioning in an action for damages for professional negligence. Sheriff Mackie determined that notwithstanding the terms of OCR chapter 36, that the pleader was required to state briefly the facts necessary to establish the claim, it was still necessary to aver that there was a usual and normal practice and what that practice was. It was also necessary to aver that the course adopted by the defender was one which no professional exercising ordinary skill would have taken if acting with such care. Without such averments, all that was necessary to establish the claim was not averred, and no fair notice was provided to the defender.


It is not unknown for parties to give the court an undertaking in order to avoid an interlocutor in particular terms being pronounced, most commonly to prevent the grant of an interim interdict. Such was the case in Scottish Professional Football League v Lisini Pub Management Co [2013] CSIH 97; 2013 GWD 40-757. It was subsequently determined that the acts sought to be interdicted were not illegal after all. The Inner House considered that such an undertaking had to be construed in a manner which meant that if the acts complained of were subsequently found to be legal, the undertaking was no longer enforceable.

Pleadings: general denial

In Murray v Competence Matters Ltd 2013 GWD 39-746 (29 October 2013), the pursuer had not included a general denial of the defenders’ averments in his own averments. It was argued that, having regard to the terms of OCR 9.7 (implied admissions), the pursuer was unable to lead certain evidence which was contrary to the defenders’ averments. Sheriff Principal Lockhart considered that reading the parties’ averments as a whole, it was clear what the issues were and in the circumstances the omission of a general denial was not significant. If it had been, a note could have been lodged in terms of OCR 22 to support a preliminary plea. There had not been any such plea taken.

Final interlocutor?

In Martin and Co (UK) Ltd, Petrs 2013 GWD 40-759 the petitioners had made application in terms of s 1 of the Administration of Justice Act 1972. In the course of these proceedings, after the order had been made, an application was made for a finding of contempt against one of the respondents and a third party as a result of alleged obstruction of the recovery. That contempt procedure had not been concluded when an interlocutor was pronounced in respect of the expenses of the s1 petition, with leave to reclaim that interlocutor being refused. Whether the matter could be entertained by the Inner House depended upon whether that interlocutor was a final one. Lady Smith, following a hearing on competency, determined that the continuance of the contempt proceedings meant that that process, which formed part of the s 1 proceedings, had not been concluded and thus there was no final interlocutor. The whole subject matter of the cause had not been disposed of. Whether an interlocutor was a final one depended on whether it, with the preceding interlocutors, disposed of the whole subject matter of the cause, as opposed to whether any further order was necessary.

Recovery of heritage

In Mortgages 1 Ltd v Chaudhary 2013 GWD 39-745 (28 October 2013), Sheriff Principal Lockhart determined that the defender’s failure to appear and failure to pay the contracted mortgage payments did not entitle a sheriff to grant decree by default in an application in terms of s 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970, without being satisfied that it was reasonable to grant decree and considering the defender’s ability to obtain alternative accommodation. The defender had also lodged answers.

Pleadings: criminal activity

In McGeadie v Deepti Bhateja [2013] CSIH 106 (10 December 2013) there was a reminder that where fraud or other criminal activity is averred, in order to proceed to proof, these averments require to be properly specific.


Since the last article, M, Petr (September article) has been reported at 2013 SLT 1043, McGraddie v McGraddie (September) at 2013 SLT 1212, and Fishers Services v All Thai’d Up (May) at 2013 SLT (Sh Ct) 121.

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