Latest civil cases, including jurisdiction; pleadings; ope exceptionis; judicial knowledge; appeals; family actions; expenses; recusal; claims for historic abuse; simple procedure

Jurisdiction

The issue before the Sheriff Appeal Court in Heriot-Watt University v Schlamp [2021] SAC (Civ) 12 (22 February 2021) was whether the contract which formed the subject matter of the action was a consumer contract and thus the defender required to be sued in the country of his domicile, as opposed to the court covering the place of performance of the obligation in question. Referring to authority, the court observed that only contracts for the purpose of satisfying an individual’s own needs in terms of private consumption fell within the provisions designed to protect a consumer. What fell within the ambit of “consumer contract” had to be strictly defined, as it amounted to a derogation from the general rules regarding jurisdiction.

Further, in the instance of a mixed contract, namely one where there was both private use and use as part of a trade or profession, so long as the latter was negligible or marginal, the contract remained a consumer one. The burden of establishing that the contract was a consumer one lay with the party contending that was the position, with the opponent having the right to lead evidence to counter that contention. In addition, while a relationship might initially constitute a consumer one, that status could change if the relationship altered with the professional or trade use becoming predominant.

The court observed generally that if a plea of no jurisdiction was tabled, it had to be dealt with first before the court could move on to the merits of any dispute. Further, provided an action commenced before the end of the transitional period, the relevant EU regulations would still apply.

Pleadings

In delivering his opinion in Grier v Lord Advocate [2021] CSOH 18; 2021 SLT 371, Lord Tyre made certain observations regarding written pleadings. Pleading practices had moved on from the decision in Eadie Cairns v Programmed Maintenance Painting Ltd 1987 SLT 777, especially in commercial actions. Lengthy pleadings were discouraged in such actions, with adoption of documents being authorised as an alternative. However, fair notice still required to be given of the facts relied on and the evidence to be led. His Lordship further observed that whilst the length and complexity of the pleadings was perhaps inevitable, as the pleadings were to be regarded as “a movie and not a snapshot”, the complexity did make it difficult for a court to discern the critical aspects of each party’s case. Both observations are worth noting. In the sheriff court in certain actions pleadings can often become lengthy.

Ope exceptionis

In Eastern Motor Co Ltd v Grassick [2021] CSOH 5; 2021 SLT 340; 2021 SCLR 81 Lord Tyre observed that a clear distinction had to be drawn between resisting ope exceptionis the enforcement of a decision, the validity of which was subject to challenge, and seeking to reduce that decision. A defence founded on the plea of ope exceptionis did not require a separate action for reduction.

Judicial knowledge

Although this observation is made in the criminal appeal of Procurator Fiscal, Glasgow v Ward [2021] HCJAC 20 (4 March 2021), it is worthwhile noting in the context of civil disputes. The court adopted the observation that the ambit of judicial knowledge covers facts which are common knowledge, either in the sense that every well informed person knows them or that they are generally accepted by informed persons and can be ascertained by consulting appropriate works of reference.

Appeals

In the recent decision of the Second Division in McCulloch v Forth Valley Health Board [2021] CSIH 21 (1 April 2021), Lady Dorrian, in delivering the opinion of the court, observed regarding appeals in which findings in fact are challenged, referring to S v S 2015 SC 513, that regard had to be had to the limitations of the appeal process in that such findings could only be successfully challenged if they were incapable of being reasonably explained or justified.

She continued that when dealing with inferences drawn from primary fact, the appellate court had greater freedom. Such inferences could be reassessed. However, care had to be taken in reversing evaluative decisions made at first instance, in respect of which the court would apply ordinary standards of logic and common sense.

In relation to expert evidence, the appellate court might be as well placed as the judge at first instance to assess the logic and sustainability of the approach adopted by such a witness. The court could also interfere in relation to errors made regarding questions of law, including the application of law to the facts or in instances where the reasons given were insufficient to justify the decision reached.

Family actions

The issue regarding taking the views of a child was considered by the Inner House in M v C [2021] CSIH 14; 2021 SLT 359. Lord Malcolm, in delivering the opinion of the division, determined that the overarching consideration was the welfare of a child. Therefore if something could be done, such as taking the views of a child, but only at the cost of serious harm to that child, it could not be said that it was a practicable course of action to take. However, it would rarely be correct to conclude that taking the views of a child would cause such harm. Vague concerns that inappropriate information might be communicated were not enough. Such matters could be guarded against.

If children were of sufficient age and maturity to form and express a view, their views had to be heard unless there were weighty adverse welfare considerations of sufficient gravity to displace the default position. Careful thought as to how these views could be ascertained would often provide a solution to these concerns. The court would have to be able to justify the proposition that welfare issues were of such weight as to render the taking of such views impracticable.

To conclude, if a court is required to treat the best interests of a child as paramount and also to do something concerning a child if it is practicable, there is little difficulty in construing that statutory provision in a manner which allows the court not to do something ex facie practicable, if it violates the need to treat the welfare of the child as paramount.

Expenses

Perhaps hardly earth shattering, and also stating what may often happen in practice, but in relation to certification of a cause as suitable for the employment of counsel Sheriff Drummond observed in Skene v Braveheart Hotels Ltd [2021] SC DUN 25 (13 April 2021) that although the proceedings were not legally complex or difficult, the claim was of importance, involving a neighbour dispute regarding access. Further, as the opponent had employed counsel, it was desirable to follow suit to avoid the opponent gaining an advantage.

Recusal

In a family action, AB v CD [2021] SC GLW 011 (22 February 2021), Sheriff Mackie in Glasgow was asked to recuse himself from further involvement. The sheriff refused to do so. He observed that the task of a judge in family cases was not easy. The judge was required to be interventionist, managing the litigation and identifying key issues and relevant evidence. The judge also required to avoid adjudication at a preliminary stage. This should only be undertaken after conducting a fair judicial process. There was accordingly a significant difference between inviting a party to consider their position at a preliminary stage, which was permitted and encouraged, and summarily deciding the point then and there without a fair and balanced hearing. The matter was further complicated by the desirability for judicial continuity in such proceedings to deal with issues which might arise as a consequence of changing dynamics. Lack of such continuity could do damage.

Claims for historic abuse

Lord Woolman in A v XY Ltd [2021] CSOH 21; 2021 SLT 399 considered the operation of the Limitation (Childhood Abuse) (Scotland) Act 2017, and in particular the provisions which introduced s 17D into the Prescription and Limitation (Scotland) Act 1973. The defenders would clearly suffer substantial prejudice if the action proceeded. There was potential liability in circumstances in which for years there had been no liability. Further, the claim was for a substantial sum of money.

However, a comprehensive portfolio of documents had been prepared by the pursuer. Key witnesses were available. The defender had also had notice of events only four years after the incident. It was unusual to have full records available in such cases; the fact that some school records had been destroyed might equally hinder both parties. It was not argued that there could not be a fair hearing. There was insurance cover. The pursuer had an interest in securing justice. The conduct complained of was extremely serious and involved a breach of trust and premeditation. The pursuer had been vulnerable. The consequences for her had been lifelong. Lord Woolman allowed the action to proceed.

Simple procedure

In the decision of Sheriff Principal Murray in Blair v Baird [2021] SAC (Civ) 13, a decree granted for failure to comply with an unless order was overturned on the basis that the court process did not verify that the unless order was sent to the defender. Sheriff Principal Murray indicated that if an unless order is made in the absence of the party to whom it is addressed, the order should include a direction that it is to be formally served by recorded delivery or sheriff officer. If the party is outwith Scotland, the provisions of part 19 of the Simple Procedure Rules should be followed.

Update

Since the last article, SW v Chesnutt Skeoch Ltd (March article) has been reported at 2021 SLT 276, M v DG’s Exr (March) at 2021 SLT (Sh Ct) 87, Parachute Regiment Charity v Hughes’ Exr (No 2) (March) at 2021 SLT (Sh Ct) 91, K v G (March) at 2021 SLT (Sh Ct) 107, Widdowson’s Exrx v Liberty Insurance Ltd (March) at 2021 SCLR 111, and Keatings v Advocate General for Scotland (September 2020) at 2021 SCLR 138.

 

The Author

Lindsay Foulis, sheriff at Perth

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