Latest civil practice cases, including forum non conveniens, family actions, time bar, expenses, simple procedure and some farewell observations on the importance of a good knowledge of procedure

Forum non conveniens

In HCC International Insurance Co v Scottish Ministers [2021] CSOH 53 (21 May 2021), Lord Tyre observed that the essence of the plea of forum non conveniens was that although the court seized of the litigation had jurisdiction to hear the dispute, another competent court could try the issue and that court was more appropriate in the interests of all the parties and the ends of justice. The present dispute involved the interpretation of an agreement governed by Scots law, and in those circumstances it was appropriate that the issue be determined by a Scottish court. A related but distinct litigation in England regarding a deed governed by English law was not decisive against that. While, on finding in the pursuers’ favour, it would not be appropriate to grant decree prior to conclusion of the English proceedings, it was perfectly appropriate to reach a decision and then sist proceedings pending the determination in England.

Appeals

In Peebles Media Group v Reilly [2021] CSIH 23 (12 March 2021), the Lord President observed that in appeals where what was being reviewed was the application of the law to the facts, the appellate court could reverse the decision made at first instance more easily. The appellate court might be more objective in its approach and less influenced by the first instance judge’s perception and perhaps sympathy for a witness.

Family actions

In BB v JT [2021] SC DUM 30 (14 February 2020) Sheriff Mohan addressed the issue of whether in post-decree variation procedure initiated by minute in terms of OCR, rule 33.44 it was competent to counterclaim in answers to the minute. The minuter argued that rather than include a crave in the answers, the competent procedure was to lodge a separate minute. Sheriff Mohan referred to s 11(1) of the Children (Scotland) Act 1995, in which in relevant circumstances a court had power to make an order in relation to parental responsibilities and/or rights whether or not the proceedings were independent of any other action. Further, in terms of s 11(2) a court could make such an order as it thought fit. “Relevant circumstances” included an application for a s 11 order (s 11(3)), and by s 11(3)(b) the court could make an order although no application was made. Given the complete flexibility provided, Sheriff Mohan concluded that a counterclaim was competent.

I encountered a similar situation in a recent proof. In that instance both counsel conceded the issue of competency but submitted that I still had the power to make an order in light of the provisions of s 11. The same destination is reached; the route may be different!

In M v M [2021] SC EDIN 31 (16 April 2021) Sheriff Stirling made certain observations regarding affidavits. First, once again it has to be stressed that where evidence is provided by way of affidavit, there still requires to be record for the content of the affidavit. This is sometimes forgotten. If there is no record for certain sections in the affidavit, it may adversely affect the deponent’s credibility and reliability. Sheriff Stirling also emphasised the need for compliance in actions of divorce with s 8(3) of the Civil Evidence (Scotland) Act 1988, which requires evidence to be provided from someone other than a party to the marriage.

The question of intimation to children was considered by the Sheriff Appeal Court in I v H [2021] SAC (Civ) 16 (11 May 2021). A minute to vary had been lodged in terms of OCR, rule 33.65 seeking variation of a prior decree and a residence order in favour of the respondent, and two interdicts against the appellant. Decree had been granted in terms of the minute without opposition, but the proceedings had never been intimated to the child, who was aged 11 years. Intimation had been dispensed with “due to her tender years”. Sheriff Tait, delivering the opinion of the Appeal Court, observed first that in terms of rule 33.44A(2), whether it was inappropriate to send an F9 to a child related to that procedure as opposed to taking the views of the child. There was nothing to indicate that the child was not of an age and maturity to form and express a view, that it was not practicable to consult her or there were weighty considerations adverse to providing her with the opportunity to express a view. A child of 11 was not of tender years and could be presumed to be able to express a view. While a child of that age might not fully understand the import of the proceedings, this did not inhibit their participation in the decision making process.

I would be tempted to suggest, if it is proposed to dispense with intimation on a child of school age, that the necessary averments should be made in the writ so that they can be considered at the warrant stage. Although the Appeal Court does not go this far, I might suggest that when account is taken of the reference in the relevant rule to “for example, where the child is under five years of age”, there is a strong hint that the default position is that an F9 should be sent to children of school age.

As a consequence, in granting the orders the sheriff had not complied with the duty imposed on the court in terms of s 11(7)(b) of the Children (Scotland) Act 1995. The court observed that there might be circumstances in which taking the views of a child might be better achieved by a procedure other than an F9. This might be because of the child’s maturity, welfare concerns, or anxiety. In that event a child welfare reporter could be appointed. The parties might provide input on how best to engage the child.

On that point it is important to note that intimation is not to be made until it is clear whether the proceedings are undefended or contested. I refer to rules 33.19-33.19C and 33.44A(6). The Appeal Court observed that it was important to record in an interlocutor what is happening to the F9 – has it been approved; is consideration of intimation of the F9 being continued?

Another personal observation, without even being offered a penny: I suggest that practitioners in drafting the F9 remember that it is being addressed to a child. Avoid asking more than one question. Avoid “reside” and “contact”; use “stay with”. Keep it simple. Address the immediate issue which the court will have to determine, for instance weekly not holiday contact. As Bluebottle said (for those who recall The Goons), “Just a thought!”

In Scott v Scott [2021] SC ABE 40 (1 June 2021) the issue which Sheriff Mann required to consider was whether it was competent to make an ancillary order in terms of s 14(2)(k) of the Family Law (Scotland) Act 1985 without a plea in law. Sheriff Mann considered that it was, as it was often the case that parties were unable to predict the need for ancillary orders to give effect to the s 9 principles and could not frame precise craves or pleas in law.

Time bar: historic child abuse

In B v Sailors’ Society; C v Sailors’ Society [2021] CSOH 62 (20 April 2021) Lady Carmichael considered the operation of s 17D of the Prescription and Limitation (Scotland) Act 1973. A preliminary proof had been allowed to assess whether a fair trial was possible and whether the defenders would be substantially prejudiced in the event of the action proceeding. If the court was not satisfied that a fair trial was impossible, in terms of s 17D, the action would proceed. This did not mean that the subsequent proof would necessarily be fair. Further submissions as to fairness could be entertained at the proof. The issue of fairness required continued assessment. If the court assessed at the preliminary proof that a subsequent hearing could not be fair, that was an end of the matter. There was no issue of balancing the interests of the parties. If on the other hand the defender established the suffering of substantial prejudice, in terms of s 17D(3) the action could proceed further after considering the pursuer’s interest.

The preliminary proof was an attempt to predict the fairness of future procedure. The lapse of time was not conclusive, nor the different standard of proof between criminal and civil proceedings. The availability of corroboration might be a relevant factor, as was the potential unavailability of the alleged wrongdoer. The defender had the burden of showing subsequent procedure would be unfair. Matters such as the quality of evidence from witnesses, missing records and witnesses, the difficulty in establishing what went beyond acceptable corporal punishment, the causal effect of any wrongdoing, changes in the law/insurance cover, and alternative remedies, were all factors to consider.

Count reckoning and payment

There can be instances in which agents lose sight of the appropriate procedure in less common types of action. Actions of multiplepoinding spring to mind. Another is an action of count reckoning and payment. In Herberstein v TDR Capital General Partnership [2021] CSOH 64 (18 June 2021) Lord Ericht observed that title to sue in such actions was restricted to persons who had a financial interest in the accuracy and honesty of the defender’s intromissions. The action was a two stage process. The first stage was to establish whether the defender had an obligation to account. The writ should not contain averments anticipating objections to an account. If this obligation was accepted or established, the defender was then ordered to produce an accounting of intromissions. If this accounting was not accepted, the pursuer lodged a note of objections to the accounting and the defender answered these objections. Thereafter the court determined the precise amount due. The purpose of the action was not the provision of documents but rather payment of sums due.

Expenses

The Lord President made a comment in passing concerning expenses in Keatings v Advocate General and Lord Advocate [2021] CSIH 25; 2021 SLT 729. Lord Carloway expressed concern as to the potential level of expenses in an action in which there was no substantial dispute of fact and was resolved by debate, and the implications this might have for access to justice.

In McKinlay v Aviva Insurance [2021] SC FAL 26 (19 April 2021), Sheriff Livingston determined that in actions under simple procedure a distinction could be drawn between a defence on the merits and one simply on quantum. In the former, once a defence was stated and thereafter not insisted on, the cap for expenses flew off. In the latter, the defender was simply insisting that what was sought was not due, albeit something was due. In that instance, a compromise settlement could not be said to constitute a defence not being insisted on and therefore the cap remained. If the cap did fly off in those circumstances, the court still had a discretion to modify expenses.

In Philip v Scottish Ministers [2021] CSOH 52 (19 May 2021) Lord Braid determined issues regarding certification of skilled witnesses and uplift in expenses. In relation to the former, whether it was reasonable and proportionate to employ a skilled witness was not determined by reference to whether their evidence was relied on or whether their remit was exceeded. The issue was objectively determined having regard to the circumstances at the time of instruction. In considering whether an uplift should be granted, and the issues of complexity, number, difficulty or novelty of the questions raised, Lord Braid considered that it was reasonable to view counsel and instructing solicitor acting as a team. Further, it was not an answer to a claim under this head to state that senior counsel was instructed. This also applied under the “skill and labour” head. The fact that there were a number of petitioners was also relevant under the latter head. The effects of the pandemic and any other circumstances under which the solicitor had to work which created difficulties were relevant under the “place and circumstances” head. Lord Braid also considered that he was in a better position to determine the level of percentage uplift than the Auditor of Court, having presided over the proceedings from their commencement.

It is also worth recording that the Act of Sederunt (Rules of the Court of Session 1994, Sheriff Appeal Court Rules, Sheriff Court Rules Amendment) (Qualified One Way Costs Shifting) 2021 comes into force on 30 June 2021 and applies to proceedings commenced on or after that date. The provisions also apply to summary cause proceedings. The Act of Sederunt sets out the circumstances and the procedure for an application to be made by a party other than the pursuer for an award of expenses. It further brings to an end the rules regarding payment of expenses as a condition for the granting of decree of dismissal when a pursuer abandons.

Simple procedure

In Cabot Financial UK v Finnegan [2021] SC DUN 34 (28 April 2021) Sheriff Martin-Brown considered issues regarding service under simple procedure, and in particular evidence of delivery. No reference was made as to what constituted such evidence. A delivery receipt such as via Royal Mail’s Track and Trace service, if available, should be lodged in process. However Sheriff Martin-Brown referred to the rebuttable presumption that a letter posted is received. Therefore proof of posting raised a presumption that the document had been addressed and delivered. Accordingly, completion of the necessary execution of service with proof of recorded delivery posting raised the presumption of delivery without the need for a delivery receipt. Sheriff Kinloch in Cabot Financial UK v Donnelly [2021] SC LIV 39 (7 June 2021) came to a similar conclusion.

Final thoughts

By the time this article is published, I shall have retired as a resident sheriff in Perth. I first would thank Peter Nicholson, the current editor of the Journal, for his considerable abilities in that role over the years. Peter and I go back to the 1970s. My interest in procedure can be attributed to my procedure lecturer at Edinburgh University in 1975, a certain junior counsel, Brian Gill! In around 1996 I was first invited by the then editor of the Journal, Joan Aitken, in cahoots with a contemporary of mine from university, Fiona Raitt, to contribute a couple of articles detailing decisions to date on the 1993 rules and the changes to these rules arising from implementation of the Children (Scotland) Act 1995. I have since contributed articles for longer than I care to remember.

I often feel that people tend to roll their eyes when my interest in procedure and its importance becomes evident. However, I make no apology for closing with these observations. If practitioners have a good knowledge of procedure, it is immediately apparent to the bench. The person knows what they are doing. They have a clear view as to what should happen and how the litigation should proceed. They have an ability to control matters. A good knowledge of procedure may not make a huge difference if your case is strong, but it undoubtedly can make a weak case stronger, whether acting for pursuer or defender. Adopting the correct procedure can result in awards of expenses being made against a party whose representative is not as knowledgeable. That is important to clients, and to that end the observations from the Lord President in the Keatings case are prescient.

I close by stating that I am delighted to pass the baton to Professor Charles Hennessey. Our paths have crossed on a number of occasions, including being members of the Sheriff Court Rules Council in the late 1990s. I can confidently state that the standard of article will improve. However, in the meantime it has been a pleasure providing these updates over the years and I only hope on some occasions some of the content has been useful. 

Sheriff Foulis is currently the Journal’s longest serving regular contributor, and I cannot let him leave without a heartfelt word of thanks for his loyal and diligent service over the years. We know that the court briefings are among the best read sections of the Journal and that is due to a significant extent to Lindsay’s input. We offer our best wishes for a long and happy retirement. – Editor

Update

Since the last article Widdowson’s Executrix v Liberty Insurance (March article) has been reported at 2021 SLT 539, and Gardiner v Abellio Scotrail Ltd (also March) at 2021 SLT (Sh Ct) 113.

The Author

Lindsay Foulis, sheriff at Perth

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