Latest civil cases, including contempt of court; expenses; caution; expenses as condition precedent; appeals; waiver; excuse for failure; expert evidence; family cases

Contempt of court

In TJ v SB [2017] SAC (Civ) 24 (1 August 2017) an appeal was taken against a sheriff making no further order after finding the respondent in contempt as a result of not obtempering a contact order. The sheriff at first instance had concluded that the decision of the Inner House in SM v CM [2017] CSIH 1 precluded the imposition of a custodial sentence, and made no further order. The issue for the Sheriff Appeal Court was whether a party had a locus to appeal such a decision.

The court determined that ss 110 and 136 of the Courts Reform (Scotland) Act 2014 did not prevent an appeal being taken in contempt proceedings. The issue before the court was not whether a party had a right to appeal a particular sentence imposed on a contemnor, as none had been imposed, no order having been made. The court noted that any issue of contempt could normally only be brought to the court’s attention by a party. It considered that a number of propositions could be stated, namely:

  • A person in whose favour an order had been made had a locus to bring an alleged breach to the attention of the court.
  • The appeal court had an interest in upholding the authority of the court or the supremacy of law and to take cognisance of any contempt (established or alleged) brought to its notice.
  • The complainer’s locus to initiate contempt proceedings did not end once the final decision at first instance was made. There remained the right to bring an error to the attention of the appellate jurisdiction.
  • The appellate court had the right to decline to entertain any appeal if it considered it appropriate.

The Sheriff Appeal Court concluded that it had a gatekeeping role to play, intervening in appropriate cases. Examples of such were where a sheriff’s approach had involved the inappropriate exercise of discretion, was clearly erroneous and had been inimical to the administration of justice and the supremacy of law. Complaints concerning the penalty imposed might on the other hand not be entertained. The court considered that the present case should be allowed to proceed. 


In Ahmed v QBE Insurance (Europe) Ltd [2017] SAC (Civ) 22 (16 June 2017) the pursuer appealed a finding of expenses in an action in which he accepted a tender. The defenders had convened a third party but the pursuer had not convened that party as a second defender thereafter. The sheriff found the pursuer liable for the third party’s expenses from the date of the tender.

Sheriff Principal Turnbull observed once again that appeals against expenses awards were to be discouraged, despite the impression that these are far more common these days. He reiterated the general rule that the cost of litigation fell on the party who caused it and ordinarily, and in the absence of some unreasonable behaviour, a party could not be liable for the expenses of a party whom they had not introduced into the process and against whom they had directed no case. Sheriff Principal Turnbull so determined the appeal. The time the pursuer took to accept the tender was not a relevant factor in considering who was liable for the third party’s expenses. As between the defenders and third party, the third party had acted unreasonably by lodging answers when there was no requirement for them to do so. Further communication between the defenders and the third party rendered such action unnecessary.

A motion for sanction for the employment of counsel for the appeal was also refused. The matter was neither complex nor difficult. The claim was of low value and could not be considered important. The decision concluded with an observation that the Appeal Court practice note had not been complied with in relation to the provision of authorities. Reference is made to para 33 of the opinion. Agents be warned.


In Centenary 6 Ltd v Robertson Caven [2017] CSOH 95 (29 June 2017) Lady Wolffe determined that an after-the-event policy was not a method of security in place of a bond of caution. Further, a deed of indemnity was not a suitable bond of caution. In so determining she examined the nature of caution. It was an accessory obligation as surety for another. The principal obligant performed, which failing the cautioner did.

An order for caution was a simple form of cautionary obligation. The purpose of the order was to prevent the risk of the successful party failing to recover judicial expenses ultimately awarded. Modern practice normally specified a figure for caution. The liability of the cautioner to pay expenses was contingent on an award of expenses being made and the principal obligant defaulting. The bond of caution was an unqualified obligation to pay these expenses in the event of default. The bond is normally probative or self proving and has a clause for preservation and execution. Subject to proving default, the beneficiary was able readily to enforce the obligation against the cautioner without first constituting the claim. Alternatives to caution accordingly required to satisfy these conditions.

Expenses as condition precedent

In Liu v Andersons Solicitors [2017] CSIH 45 (12 July 2017), the pursuer sought the production and reduction of certain interlocutors pronounced in a sheriff court action. One of these had found the pursuer liable in expenses to date and made payment of these expenses a condition precedent of further procedure.

Determining the issue before the division, the Lord President observed that where a party’s complaint is that they were prevented from pursuing an action by such an interlocutor, the remedy was to seek leave to appeal that interlocutor. That had been done by the pursuer. If leave was refused, the party had no further remedy until decree by default was pronounced as a consequence of non-payment of the expenses.

To succeed in the action of reduction, the party had to show their litigation had substantial merit. They had to show that there were exceptional circumstances justifying the reduction of the interlocutor(s) complained of. This required the party to demonstrate that, but for the particular circumstances, the order would have been different.

The Lord President also observed that to prevent a case being in a state of limbo, when pronouncing an interlocutor which if not obtempered, placed a party in default, time limits should be laid down. Accordingly, in the present instance, time limits should be set down for an account of expenses to be agreed or lodged for taxation. If this did not occur, the expenses might become irrecoverable. Further, the interlocutor should set down a time limit for payment of the expenses, and if that did not occur, decree by default would be granted. This would require the lodging of the necessary motion within a specified period, which failing the action would be allowed to proceed. 


In Lindsays v Campbell [2017] SAC (Civ) 23 (1 August 2016) the appellant failed to appear at the hearing of the appeal but a certificate from his general practitioner was made available to the court. The court was not impressed. However, rather than refuse the appeal for want of insistence, it considered the appeal on the basis of the written notes of argument which had been produced. Dealing with the merits of the appeal, which in part concerned complaints as to the competence of the respondents in carrying out work, the court observed that such complaints required to be supported by an appropriate expert. The court further observed that there was no requirement for taxation of the solicitors’ account. There had been no defence on the basis of quantum and the basis of charge was set out in the terms of business. 


The defenders in Brits v Kilcoyne & Co [2017] CSIH 47 (4 July 2017) sought to argue that adherence to the usual time bar period had been waived by the alleged wrongdoer. Lord Menzies, delivering the opinion of the Inner House, observed that statutory provisions could be waived. Further, a wide view was taken as to what could and could not be waived. An extrajudicial admission could be binding according to authority, and nothing suggested that the right to plead limitation could not be waived. Whether a statement allegedly waiving a right was binding depended on the construction of the statement in the relevant context. Such a statement of waiver of a legal right had to be expressed in clear and unambiguous language. If the circumstances surrounding such a statement were prayed in aid for the purposes of construction, these facts and circumstances and why they were relevant to construction required to be averred. 

Explanation or excuse

In City of Edinburgh Council v MM [2017] CSIH 50 (14 July 2017), the Lord President neatly observes that there is a difference between providing an explanation for failing to attend a court hearing and providing an excuse for doing so. It is the latter which may avoid the normal consequences of being in default!

Expert evidence

In George Leslie Ltd v Halcrow Group Ltd [2017] CSOH 106 (2 August 2017), Lord Tyre provides a reminder that there is a difference between the standard of proof adopted by a scientist for a theory to be established and the standard of proof in a civil dispute. In the latter the standard of course is a balance of probabilities, with the onus lying on the person requiring to prove the fact. That may not be the same as that adopted by a scientist. 

Family cases

The only observation I would make from the decision of Sheriff Anwar in P v P [2017] SCGLA 46 (20 March 2017) is that, accepting that a separate explanation for the decision should be given to the children concerned, the court considered that this should be effected through a neutral third party. Accordingly, Sheriff Anwar involved the psychologist who had given evidence in the proof. I am aware of one other case a few years ago where a similar approach was taken. In that instance the curator ad litem was used to deliver the communication. The reasons for such an approach are obvious. Past conduct and resultant relationships can mean that the temptation to place spin on any decision becomes hard to resist. Another matter to consider is whether the timing of the communication to the child should coincide exactly with the issuing of the decision to the parties, again to avoid any temptation for “spin”. 


Since the last article, Ecclesiastical Insurance Office plc v Whitehouse-Grant-Christ (July article) has been reported at 2017 SLT 697, MacGuire v Grant & Wilson Property Management (July) at 2017 SLT (Sh Ct) 107, OneSavings Bank plc v Burns (May) at 2017 SLT (Sh Ct) 129, and AP v Duncan (September 2016) at 2017 SCLR 341.

The Author
Lindsay Foulis, sheriff at Edinburgh
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