Successfully appealing against a judgment in circumstances in which the focus of the attack is the determination of issues of credibility and reliability by the judge at first instance is a difficult task. The court at first instance has seen the witnesses and thus is accepted to be in a far better position to assess these issues. Accordingly the observations by Lord President Carloway in Woodhouse v Lochs and Glens (Transport)  CSIH 67 (30 October 2020) are worth noting.
The Lord President observed that an appellate court had to bear in mind the limitations of the appeal process, which was narrowly focused on particular issues rather than the evidence as a whole. However, he continued, when an appeal court is not reviewing primary facts but inferences from these facts, the court can more easily reverse the first instance conclusion, especially one which did not involve credibility and reliability. This was particularly the case if the matter to be reviewed is the application of the law to facts, whether primary or inferential. In such a situation, the larger appellate court can be beneficial in playing a significant part in arriving at the correct decision. That court, when engaging in the intellectual process of applying the law to the facts, or drawing inferences from primary facts, may be more objective and less influenced by perception or sympathy for a witness.
The court also reiterated that res ipsa loquitur was not a legal principle but a presumption of facts dependent on the circumstances of each case. If it applied, the defender was required to demonstrate that the accident occurred without fault on his part. It was insufficient to give a possible alternative explanation consistent with no negligence on his part. The defender required to establish facts from which it was not possible to draw an inference of negligence.
The Lord President further stated that the fact that lower speed improves vehicle handling, especially in cross winds, did not require expert evidence. It was a matter of ordinary everyday experience.
In SCA v MMA  CSIH 66 (27 October 2020) the appellant made a submission for the first time in the appellate court. The Lord Ordinary had not been invited to make a calculation on the basis of inferences drawn from one of the defender’s witnesses. As a result, there was no error on the part of the Lord Ordinary and thus nothing to warrant the Inner House upsetting a careful assessment made at first instance. If effect had been given to the submission, there were consequences which had not been discussed in evidence. The court was accordingly not in a position to unravel the Lord Ordinary’s decision and identify appropriate alternatives.
In Finlayson v Munro  SAC (Civ) 18 (3 December 2020), Appeal Sheriff Holligan observed that expert evidence is not evidence of primary fact and the appellate court can take a contrary view. Further, when no findings in fact have been made by the judge at first instance, the appellate court can review the evidence and make its own findings.
Sheriff Principal Murray in Alam v Ibrahim  SAC (Civ) 20 (1 December 2020) noted that, in general, where a fact finder did not clearly express and provide a brief explanation for their rejection of evidence, the door was opened to a potential appeal. In assessing whether such an acceptance or rejection of evidence was justified, the appeal court, while unable to observe the demeanour of a witness, could analyse the transcript of the evidence to determine whether there was a basis for the decision of the court at first instance, as the transcript provided details of the differences and areas of conflict in the evidence.
Sheriff Principal Turnbull also observed that while s 116(2) of the Courts Reform (Scotland) Act 2014 allowed prior decisions to be open to review in the appeal, failure to appeal a procedural determination in time might be deemed to be an acceptance of the subsequent procedure, as it was not possible to return to the point subject to criticism.
Appeals after extract
The general rule on this matter is that the issue of an extract bars any appeal unless there has been some impropriety in the issue of the extract. Two recent decisions of the Sheriff Appeal Court have been given on this point. In Rivers Leasing Ltd v Patrick  SAC (Civ) 19 (20 February 2018) Sheriff Principal Turnbull allowed an appeal to be received when a note of appeal had been sent in circumstances in which it could be reasonably anticipated that the note would be received on time, but inexplicably had been received 12 days later than expected, even allowing for it being sent on 14 December.
In The Parachute Regiment Charity v Hay  SAC (Civ) 23 (30 August 2019) Sheriff Principal Stephen refused such an application. That decision in the circumstances may well not come as any great surprise. However the observations by the President of the court should act as a warning to practitioners. A final judgment in terms of s 136 of the 2014 Act had been pronounced dated 16 May 2019. An appeal had to be taken within 28 days. The note of appeal was lodged on 10 July. The interlocutor dated 16 May 2019 was extracted the day before. It would appear that on 17 May the sheriff had directed the clerk to contact parties to confirm whether interest was sought and if so from what date. The appellant responded on 6 June that interest should run from the date of decree. Her agents then inquired of the sheriff clerk when the interlocutor would be issued. Thereafter the pursuers intimated an account of expenses which also detailed the interlocutor dated 16 May. Further email correspondence indicated the appellant’s dissatisfaction that the interlocutor bore the date 16 May as opposed to 6 June 2019, and that the defender intended to appeal. Senior counsel who had conducted the proceedings was instructed to draft the note of appeal. This was lodged the day after the interlocutor was extracted.
Sheriff Principal Stephen rejected any suggestion that the date of the interlocutor was erroneous. What took place on 16 May clearly constituted the pronouncing of a final judgment. It was unfortunate that the issue of that interlocutor had been delayed, which significantly reduced the period for lodging a note of appeal. However, an appeal could still have been taken prior to the issue of the extract and in light of what had taken place a late appeal would likely have been allowed. This should have been addressed as a matter of urgency. The agent could have drafted grounds of appeal without instructing senior counsel to do so. The grounds could have been in general terms but could subsequently have been amended. In light of the intended basis for the appeal, these grounds could have been prepared before 16 May as that interlocutor simply started the clock ticking for the purposes of an appeal. Email communication with the sheriff clerk’s office might not have been answered, but the appellant’s agent could have checked the position regarding the interlocutor courtesy of ICMS. Agents had a duty to obtain and check an interlocutor for its accuracy, particularly if crucial. It was for agents to be au fait with appellate procedure rather than rely on the assistance of sheriff clerks. These matters were the responsibility of the agents.
I may be wrong, but I suspect practitioners reading this might identify with certain aspects which were the subject of criticism. As they say, “You’ve been telt!”
The decision of Sheriff Wade in an otherwise unremarkable reparation claim arising from a road traffic accident is worthy of comment. In ER v CD  PER 46 (2 September 2020) the pursuer moved to have a minute of amendment received in very close proximity of the proof. At a pre-proof hearing a few weeks earlier, there was no suggestion of the prospect of amendment. The action had been in dependence for approximately a year with no hint of the matters now raised in the proposed amendment.
One of the factors which Sheriff Wade founded on in refusing the amendment was that despite inquiry on the part of the defender as to the possibility of amendment, there had been no indication that such was to be forthcoming. It is suggested that at a pre-proof hearing, if a party has a feeling that an amendment may be forthcoming in due course, the necessary inquiry should be made. If the answer is in the negative, it may strengthen a party’s hand in opposing any subsequent amendment.
In this case, the defender also sought sanction for the employment of junior counsel. This was granted as the defender was an anxious individual who had complained to his insurers and advisers as to the lack of transparency on the part of the pursuer. The independence of counsel gave additional support and management.
As a point of reference the decision of Lord Tyre in CJC Media (Scotland) v Sinclair  CSOH 93 (20 November 2020) is a useful one, as it sets out clearly the distinction between the roles of the judge and auditor in relation to the issue of expenses. The former makes the award of expenses and in reaching that decision exercises judicial discretion. That discretion includes issues such as modification, and the scale by which expenses are to be taxed. Accordingly such issues require to be argued before the judge when expenses are sought. Once that decision is made, the matter is remitted to the auditor when the account is lodged.
The auditor has no power to reconsider matters on which the court has exercised discretion. Rather, the role of the auditor is to determine what expenses were incurred in the reasonable conduct of proceedings in the proper manner. In the exercise of that function the auditor can refuse to allow expenses incurred as a result of fault or error on the part of the entitled party, and expenses incurred in respect of part of the process for which that party was unsuccessful.
Once the auditor has taxed the account, an objection taken against the decision of the auditor will only succeed if the auditor has misdirected himself, taken account of irrelevant considerations or ignored relevant considerations, or misunderstood a matter before him. The objections are further limited to specific matters in the auditor’s report.
In Moles v Cook  EDIN 48 (15 December 2019) the issue was whether the defenders could pass on to the pursuer their liability for the expenses of the third party brought into the action by the defenders. Sheriff McGowan recognised that as a matter of generality, the liability of an unsuccessful pursuer is normally limited to the persons convened as defenders. However, there were exceptions to this general principle in circumstances in which substantial justice dictated that the pursuer bear all or a part of the defender’s liability to a third party. Such a circumstance would be unreasonable conduct on the part of the pursuer.
Sheriff McGowan considered that there had been such conduct in that there had been no effort to investigate issues which had been raised clearly in the defenders’ pleadings. The matter had been allowed to proceed to proof with these difficulties still clearly manifest. Sheriff McGowan was prepared to pronounce an interlocutor finding the pursuer liable to the defenders in a sum equivalent to the latter’s liability in expenses to the third party. Any difficulty caused by this interlocutor could be addressed by the defenders providing information to the pursuer concerning the third party’s account of expenses and seeking their input in any agreement reached. The pursuer would also have title and interest to attend any taxation of the third party’s account of expenses and make any appropriate submission.
Since the last article, Friel v Brown (March article) has been reported at 2020 SCLR 723, Transform Schools (North Lanarkshire) Ltd v Balfour Beatty Construction Ltd (March) at 2020 SCLR 707, and Promontoria (Henrico) Ltd v Friel (March) at 2020 SCLR 771.
Lindsay Foulis, sheriff at Perth
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