Review of case management decisions
In SA v PA  CSIH 24 (10 March 2020) the issue before the Inner House was the decision to allow a proof before answer rather than appoint the case to debate. Delivering the opinion of the court, Lord Malcolm observed that RCS, chapter 42A provided the judge at first instance with wide powers to manage an action to achieve efficient determination. Decisions in that regard were to be treated with considerable respect and deference. Arguable grounds for adopting a different course would not justify overturning the decision. A case management decision could only be interfered with if it was clearly erroneous in that it was not a decision open to a reasonable first instance judge.
The court further observed that reserving questions of law until after evidence had been led was often either preferable or justifiable. This was particularly the case where the sustaining of a preliminary plea would not dispense with the need for evidence.
Amendment after limitation period
The decision of the First Division in Cowan v Lanarkshire Housing Association  CSIH 26; 2020 SLT 663 visits this area once again. In many respects the procedural history renders the ultimate decision case specific. That said, however, there are some points worth remembering. The Lord President refers to Sellars v IMI Yorkshire Imperial 1986 SC 235. I always viewed this decision as one to remember. In essence it said that provided an action was raised within the limitation period, the averments could be altered beyond all recognition provided this was before the record closed. It was only if such a change was proposed by way of amendment that the court had the right to regulate any such change.
By reference to this decision, the Inner House considered it could re-examine the Lord Ordinary’s reasoning in refusing the pursuer’s application, notwithstanding it was by amendment. The action had commenced under the chapter 43 procedure. Following a direction from Lord President Gill in 2013, this and other similar actions were to proceed as ordinary actions. The action had a somewhat chequered procedural history and, in March 2019, the Lord Ordinary ordered the pursuer to lodge a minute of amendment, no doubt to push matters forward procedurally, the action having been raised in 2012. However, while Lord Gill’s direction was considered a sufficient basis for that order, there had been no actual provision for adjustment and no closing of the record – hence the significance of Sellars. Further, having regard to the requirements of chapter 43 and what was required for an ordinary action in relation to averments, an expansion of what had been initially pled was undoubtedly required. In any event, the case as initially pled was fundamentally the same as the one proposed in the amendment.
A word of warning from the decision of Lord Tyre in McCulloch v Forth Valley Health Boards  CSOH 40 (7 May 2020). A skilled witness was instructed and duly prepared a report. The report, when provided, correctly listed all the documents with which the witness had been provided and which had been considered in the preparation of the report. These documents included certain statements from witnesses. Once the report was in the hands of the solicitors, the witness was requested to prepare another copy of the report, excluding reference to a number of the witness statements. This exercise eventually came to light.
The first observation made by Lord Tyre was that when the report was provided to the other party’s representatives, it represented an inaccurate statement of the information relied on. Although not specifically commented on in this respect, it strikes me that a logical consequence of this could be a penalty in expenses. Of greater significance was the observation that the exercise undertaken was one which should not have been instructed or followed, even though some of the statements might well have been subject to legal privilege. As a consequence, the impartiality of the skilled witness was potentially impugned. This clearly could have had fatal consequences.
Designation of parties
Although the decision of the Inner House in MH v Mental Health Tribunal of Scotland 2019 SC 432; 2020 SCLR 240 deals with inter alia the anonymisation of parties’ names, it is worthwhile to repeat the observation of the Lord President relating to the designation of parties care of solicitors. Such a step has to be justified by averment. This is not new but is sometimes overlooked.
Interim orders – defamation actions
In British Gas Trading v McPherson  CSOH 61 (13 May 2020), Lady Poole reaffirmed that in actions of defamation the test for the grant of interim interdict was more testing than in other actions in which such a remedy was sought. The combination of article 10 of the European Convention on Human Rights and s 12 of the Human Rights Act 1998 resulted in the court requiring to be satisfied that the pursuer was likely to succeed in the remedy of perpetual interdict. The balance of convenience had also to favour the grant of interim interdict.
The order required to leave a defender in no doubt as to its extent, and could be no wider than necessary to protect the legitimate interests of the pursuer. Where the material complained of was journalistic or literary, particular regard had to be had to the right to freedom of expression and the extent to which the material was or was about to become available to the public, and whether it was in the public interest that publication occurred. A similar test applied to interim orders ad factum praestandum, as set out by her Ladyship in the follow-up opinion  CSOH 62 (29 May 2020).
Objections to evidence
Nothing new as such – simply a reminder. In sustaining two objections to questions in McMahon v Grant Thornton LLP  CSOH 50 (26 May 2020), Lord Doherty noted that an ordinary witness must confine themselves to matters of fact. Any inference or conclusions to be drawn from that evidence were matters for the court. A similar observation was made regarding asking an ordinary witness to express an opinion.
In sheriff court litigation, in terms of OCR, rule 32.1A an account of expenses should be lodged within four months after final judgment or any time thereafter with the sheriff’s permission. The pursuer in Scott v Prestwick Aircraft Maintenance  SC EDIN 24 (30 March 2020) failed to lodge an account within four months. A motion was accordingly enrolled to allow the account to be lodged late. In considering the opposed motion, Sheriff Braid noted that rule 32.1A did not impose an absolute requirement that the account be lodged within four months, or refer to failure to lodge an account within the period as non-compliance. The issue accordingly was not one of relief for non-compliance. It was simply whether the account should be allowed after the four-month period, which was considered a reasonable period within which to prepare and lodge an account to allow the opponent to have notice of the extent of liability.
The court accordingly had to determine whether it was appropriate in all the circumstances for the account to be lodged. Although no cause was required, there needed to be some factual basis to allow the court to exercise its discretion. Factors such as relative prejudice, the length of delay and the reason, and steps taken to rectify the error, once discovered, were all relevant. The litigant found liable in expenses was entitled to know the extent of that liability within a reasonable period. In the present instance, Sheriff Braid took account of the extent of the liability, which was not insignificant, and the delay of less than two weeks; and of the duration of the litigation itself, over which the defenders had been unaware as to their liability in damages. The delay was not wilful and it had not occurred in the face of reminders from the party liable. It arose as a result of human error promptly rectified once noticed, albeit there had been no attempt to draw the opponent’s attention to the matter of lateness. He granted the motion.
In terms of rule 32.1A, conditions can be imposed to such a grant. Sheriff Braid considered that modification of the expenses was not competent, as this would have the effect of altering a prior interlocutor. Instead he ordered that the pursuer pay the expense of the motion and the expenses of any taxation.
Act of Sederunt
The Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) 2020 (SSI 2020/166) came into force on 2 June 2020. It introduces a proof management hearing into ordinary actions in the sheriff court. Such a hearing may be assigned ex proprio motu if a proof diet has been discharged, adjourned or continued to
a later date. At this hearing the sheriff is tasked to ascertain whether the action can proceed to proof or the continued proof, and in particular, when the parties expect to be able to proceed to proof, witness availability, whether witnesses require to attend or whether the evidence can be taken remotely, and if so, how that might be achieved. The extent of use of affidavits is also to be investigated.
Any proof can be discharged. A diet of proof can be assigned. The management hearing can be continued. Clearly this power envisages, inter alia, that evidence presented orally in court may well become the exception rather than the norm. The sheriff has an all encompassing power to make such order as secures the expeditious progress of the cause. In personal injury actions under chapter 36 the sheriff ex proprio motu can discharge a diet or sist the action.
Postscript – looking to the future
On 19 June 2020 Lord President Carloway issued a statement on the future of the courts. In a wide-ranging statement it is worth noting the following comment: “Virtual courts and online services should, and now will, be viewed as core components of the justice system, rather than short term, stopgap alternatives to appearances in the courtroom.” Later in the statement his Lordship observed: “More written submissions and online processing of civil business will become a reality.” Practitioners will no doubt be familiar with the content of practice notes and guidance which have been issued regarding civil business since March. Without wishing to adopt the “I told you so” approach, I have always considered it likely that what was set out in these would constitute a template for the future conduct of civil business. These comments make it clear that this would indeed appear to be the case.
Since the last issue, Heriot-Watt University v Schlamp (May article) has been reported at 2020 SLT (Sh Ct) 103 and 2020 SCLR 415, and LRK v AG (November 2019) at 2020 SCLR 325.
Lindsay Foulis, sheriff at Perth