Agreements before proof
There are a number of provisions in the ordinary cause rules which require parties to meet with a view to limiting the issues in dispute at a forthcoming proof. In light of this the observations by Sheriff McGowan in Goodwillie v B & Q plc  SC EDIN 2 (9 December 2020) are worth bearing in mind. He expressed concern that practitioners might think that recording agreement on matters at a pre-trial meeting obviated the need for a formal joint minute of admissions. Further, any such agreement should be disclosed to the court before proof commenced if at all possible.
A written agreement made clear the extent of the matters agreed. For example, an agreement that a document was what it bore to be did not mean that the content was true and accurate. Sheriff McGowan further observed that an averment that the defender failed to comply with a duty normally does not provide fair notice of the case for liability being made.
The operation of the principles in Kennedy v Cordia (Services) 2016 SC (UKSC) 59 was highlighted in Widdowson v Liberty Insurance  CSOH 15 (4 February 2021). The court had to apportion liability between a number of wrongdoers. The central question was the relative culpability and causative potency of their actions. Lady Wise considered the expert evidence reasonably useful in putting what happened into context and explaining what should have been done in the circumstances from a medical perspective. It helped her understanding in the progression of the injuries. It provided skilled evidence of the complexities of the case and how it should have been dealt with. However the decision on the issue of apportionment was for the court.
I reported the decision at first instance in LM v DG’s Exr at Journal, March 2020, 29. Sheriff Drummond’s decision was appealed to the Sheriff Appeal Court, whose decision has been issued at  SAC (Civ) 3 (23 December 2020). The court agreed that the issue of fairness in an action raised with the benefit of ss 17A-17D of the Prescription and Limitation (Scotland) Act 1973 could only be determined through the leading of evidence. However, since if a defender satisfied the court that it was not possible for a fair hearing to take place, the action would not be permitted to proceed, such an issue required to be dealt with in limine. It could not be reserved to be determined in a proof at large. Accordingly a preliminary proof on the issue of fairness was appropriate.
Use of affidavits in proofs
It may be reading too much into the observation of the Sheriff Appeal Court in Argyll Community Housing Association v George  SAC (Civ) 9 (4 February 2021), but in upholding the decision at first instance the court observed that while the affidavit of a witness did not cover a specific issue, their oral evidence supplemented its terms. This tends to suggest that when affidavits are used in proofs, it is open to a party to ask questions to elicit evidence in addition to what is contained in the affidavit.
There is a postscript to the decision of Sheriff Principal Stephen in The Parachute Regiment Charity v Hay, reported in the last article. An application for permission to appeal to the Inner House was refused:  SAC (Civ) 24 (20 December 2019). The sheriff principal held that her previous decision to refuse to allow the defender to appeal to the Sheriff Appeal Court out of time and after an extract had been issued was not a final judgment which could be appealed to the Inner House. It meant that there had never been an appeal competently before the Sheriff Appeal Court. The decision was not one on the merits; it was simply an interlocutory decision.
Sheriff Principal Stephen further observed that there was no mileage in an argument that the interlocutor the defender had sought to appeal was invalid because it bore an incorrect date. Very few interlocutors were signed and issued on the date the decision was made by the court, due to the volume of business and pressure on judiciary and staff. She also observed that there were differences between the information provided to the court in support of the original application and that put forward in support of the present application. This was unsatisfactory.
Sheriff Principal Murray came to the same decision in Colquhoun v Gell Leisure  SAC (Civ) 4 (31 August 2020). He further reiterated that bad faith as an exception to the issuing of an extract barring an appeal focused on the actions of court staff and the improper issuing of the extract decree.
Permission to appeal
In D v M  SAC (Civ) 25 (2 December 2020) Sheriff Principal Turnbull determined that an interlocutor directing that a proof, previously allowed, should begin of new could only be appealed with permission.
Appeal to the Inner House
In D McLaughlin & Sons v Linthouse Housing Association  SAC (Civ) 10 (28 January 2021), the Sheriff Appeal Court confirmed that the reference in s 113(1) of the Courts Reform (Scotland) Act 2014 to final judgment meant that it was not competent to seek permission to appeal to the Inner House an interlocutor pronounced following a debate in which decree was pronounced in terms of one crave but proof before answer was allowed in respect of the remaining craves. The subject matter of the proceedings had not been disposed of by the interlocutor for which permission was sought. In any event the court was not satisfied that the appeal would raise an important point of principle or that there were other compelling reasons to grant permission.
There are a few matters to pick up from Lord Doherty’s decision in W v W’s Exr  CSIH 1; 2021 SLT 205. He distinguishes between an interlocutor pronounced of consent or on a joint motion and one pronounced on an unopposed motion. In the latter case, the opponent can appeal the interlocutor. He also observed that in determining whether failure to comply with rules should be granted relief and whether such a course was in the interests of justice, the interests of the litigants and the court had to be considered. This involved consideration of whether the failure was a single one or one of a number. The history of a litigation and the need for finality were also relevant. The merits of a party’s position were of considerable significance.
In K v G  SAC (Civ) 1 (14 January 2021) Sheriff Principal Pyle, delivering the opinion of the court, made a number of observations regarding the requirement to ascertain the views of a child. First, it was not dependent on the matter being raised by a party. The court had the duty to take these views. (The impression given by the court is that the views of a child of school age should be taken.) The court further considered that, both under s 11(7)(b) of the Children (Scotland) Act 1995 and the prospective s 11ZB, the child’s views might require to be taken even if that was not in their best interests.
One final observation should be made. In disposing of the appeal, the court seemed to indicate that the matter could be determined at a child welfare hearing. In this case the appeal was taken from a decision after proof. Accordingly the suggestion that the matter might be considered at a child welfare hearing might run contrary to the Sheriff Appeal Court’s observations in K v K 2018 SLT (Sh Ct) 418.
Motions in the All Scotland PI Court
In Gardiner v Abellio Scotrail Ltd  SC EDIN 5 (8 January 2021) Sheriff McGowan allowed an unopposed motion to be granted, notwithstanding the provisions of chapter 15A had not been complied with. He observed that he considered the requirements of the chapter to be mandatory. “Court days” meant when the sheriff clerk’s office was open for civil business. If at certain times of the year, agents’ offices were closed but the clerk’s office was open, the agents might have to face the consequences. The decisions of practices could not impinge on the work of other agents or the court. Nor could the rules be bent to accommodate them.
In Dougan v Parkdean Resorts UK  SC EDIN 4 (6 January 2021) the issue Sheriff McGowan ultimately had to determine was whether a revised motion had been opposed. The defender’s initial motion was to have the sheriff’s interlocutor granting an unopposed motion treated as pro non scripto. A motion had been intimated and opposition intimated. The motion was not however lodged and the pursuer’s agent did not intimate that it was not being proceeded with. A second motion was then intimated and lodged but the defender’s agent was on leave and did not lodge opposition. After the second motion was granted as unopposed, a further hearing was assigned.
Sheriff McGowan concluded that the second motion had not been opposed: the opposition had been intimated to the original motion. The second motion, albeit in the same terms, was of different practical effect, as the accompanying minute of acceptance of tender was amended. In terms of OCR, rule 15A an opposed motion hearing had been triggered with the lodging of the motion and the opposition thereto. If that did not occur, the motion procedure came to an end. That was the fate of the original motion, and the second motion was unopposed. Such a strict interpretation was required for the purposes of certainty.
It was observed that etiquette dictated that the pursuer should have intimated that he was not proceeding with the initial motion. It might be worth amending the relevant rule to include such a requirement, as the scenario in this case can be envisaged occurring again. I suspect agents may concentrate on the terms of the motion rather than the submission and accompanying document when the motion is in the same terms as one recently intimated.
In terms of s 16 of the Housing (Scotland) Act 2014 the functions and jurisdiction of the sheriff were transferred to the First-tier Tribunal in relation to actions arising from regulated tenancies, part VII contracts in terms of s 63 of the Rent (Scotland) Act 1984, and assured tenancies. The issue before the Inner House in SW v Chesnutt Skeoch  CSIH 11 (9 February 2011) was what fell within the ambit of “arising from”. The First-tier and Upper Tribunals had determined they did not have jurisdiction to reduce an assured tenancy ope exceptionis. Lord Doherty, delivering the opinion, concluded that “arising from” included a power to entertain all defences to such actions which would be available before a sheriff. Thus, contrary to the view taken by the tribunals, they did have jurisdiction on that issue.
In the appeal before the Sheriff Appeal Court in the action by Cabot Financial UK v Weir  SAC (Civ) 2 (13 January 2021) the issue was what could be recovered if an award of expenses was made on an agent/client, client paying basis, and in particular, whether a success fee under a speculative fee agreement could be recovered. The court considered the three bases of taxation, namely party/party; agent/client, third party paying; and agent/client, client paying. The first was the least generous regarding recovery; the last the most generous.
The “process rule”, that the expenses to be charged against the other party were to be limited to the proper expenses of process, applied to the first two bases of taxation. The court was also of the opinion that the rule applied to taxation on the last basis. Recoverable items in a judicial account were limited to items and work properly characterised as expenses of process and not extrajudicial expenses, and were still limited to those which were reasonable. There remained a difference between a judicial account and a client account. The success fee was not recoverable. An award of expenses on an agent/client, client paying basis did not amount to an absolute indemnity of the successful party’s expenses.
As a postscript, the court did not certify the appeal as suitable for the employment of senior counsel, notwithstanding the issues argued were not free from difficulty.
Actions to constitute a claim
In Jordan v O’Reilly  SC EDIN 8 (4 December 2020) the pursuer sued the executor who had been confirmed to the estate of a surviving partner of the dissolved firm with whom the pursuer had been employed. The estate had been wound up and the office of the executor had terminated. Sheriff Fife concluded that the action was competent for the purpose of constituting a claim.
The issue in Bovey, Noter  CSIH 3; 2021 SLT 117 was legal aid fees payable to senior counsel in preparing for and attending a hearing before the Inner House on an application for permission to appeal from the Upper Tribunal. The decision itself involves a detailed examination of the relevant provisions and I do not intend to refer to these in detail here. The comments of the Inner House regarding reasonable remuneration being an important element of access to justice are perhaps relevant in the current climate.
Since the last article Finlayson v Munro (September 2019 article) has been reported at 2020 SLT (Sh Ct) 287, Davidson v Clyde Training Solutions Ltd (November 2020) at 2020 SLT (Sh Ct) 302, XY Council v S (November) at 2020 SLT (Sh Ct) 311, Keatings v Advocate General for Scotland (September) at 2021 SLT 8, Rivers Leasing Ltd v Patrick (January 2021) at 2021 SLT (Sh Ct) 1, Akmal v Aviva Insurance Ltd (September 2020) at 2021 SLT (Sh Ct) 27, Siteman Painting and Decorating Services Ltd v Simply Construct (UK) LLP (July 2019) at 2021 SLT (Sh Ct) 34, and Parachute Regiment Charity v Hughes’ Executor (January 2021) at 2021 SLT (Sh Ct) 53.
Lindsay Foulis, sheriff at Perth
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