I should start with a brief personal tribute to Sheriff Lindsay Foulis, whose bi-monthly articles on civil procedure began over 20 years ago and have had the distinction of never saying anything daft and often something extremely sensible and helpful. His updates have always been a valuable source of information and insight to the profession, expressed in plain language and heartily recommended by me to all court lawyers. It is a hard act to follow, but I hope to emulate his skills in identifying interesting and important decisions in recent cases and their implications for court procedure and practice. I wish him a long and happy retirement, finally freed from his civil procedure nerdiness.
Long COVID in the courts
What legacy will COVID leave for our civil justice system? We have already seen changes in administration, with Civil Online being a major feature. There have been ad hoc changes in procedure and practice in individual sheriffdoms. Many of the judgments in the last few months amply demonstrate that things are being done differently without any need for rule changes or any significant undermining of the pillars of justice.
Most non-evidential hearings are now conducted remotely. The Commercial Court has continued to lead the way in encouraging and applying innovative approaches to litigating. Webex proofs or hybrid proofs are commonplace, with an increased emphasis on establishing before proof what is truly contentious, what can be achieved by agreement or joint minute, and what evidence can be led by affidavit. Non-evidential hearings (motions, debates, procedural hearings, appeals) conducted in the traditional way may well be on the way out, and detailed written submissions with shorter oral arguments presented remotely on the way in.
The interests of public health have accelerated many changes that would probably have come about in the fullness of time. On the other hand, many litigators have legitimate concerns that the interests of justice are not well served by remote hearings, especially evidential hearings, and my limited experience of observing them gives me reservations about their suitability in many cases. As we tentatively move back to normality, it will be interesting to keep an eye on such things, and what could be called the “long COVID effect” on litigation procedure and practice.
I particularly liked the image conjured up by Lord Braid in Smith v Scottish Ministers  CSOH 83 (13 August 2021) of the danger of the “COVID cart [being] allowed to drive the fairness horse”. Albeit that this case related to deficiencies in procedure relating to a prisoner’s progression to parole, the broad principle is that whatever procedure might be forced on us by the pandemic, it must still be fair and seen to be fair. Indeed, there is an argument that the courts must bend over backwards to ensure that nobody is disadvantaged by any temporary measures introduced due to the current restrictions. That should include evaluating as soon as possible the benefits and drawbacks of new practices and permanently adopting – or not – the provisions introduced over the last 18 months.
An outstanding example of COVID-led procedural innovations can be seen in a divorce action, Scott v Scott  SC ABE 40 (1 June 2021), in which the proof began before the pandemic and was interrupted by almost a year by it. There were 10 days of evidence, the last five of which were conducted via Webex. The sheriff participated from his home; most of the participants, including a shorthand writer, were scattered throughout Scotland; and the defender took part from Norway. A substantial number of documentary productions had to be shared on screen. A large amount of evidence was agreed by joint minute.
There were a number of witnesses, including two experts. One expert gave part of his evidence in chief by way of affidavit, and was criticised in cross-examination for using that as his “script”, a criticism which the sheriff considered unfounded, observing that the prior lodging of the affidavit gave the opponent much more time to prepare for cross-examination than might have been the case otherwise. Could you have imagined 10 years ago (even five?) that proofs would be conducted in this way in the sheriff court? Can you see many of these features being with us from now on? If so, court lawyers will have to rethink their tactics, strategy and advocacy skills to keep up.
In Blair v Baird  SAC (Civ) 13 (8 March 2021), Sheriff Principal Murray identified a lacuna in the Simple Procedure Rules, which do not specify how an unless order should be intimated to a party. He noted that he would draw this to the attention of the Scottish Civil Justice Council to consider an amendment, observing that since such an order, and compliance with it, was an important aspect of the sheriff’s case management powers, it was desirable that a direction be given that it should be formally served in terms of rules 18 and 19. Meantime it would be prudent to ensure that this is done wherever such an order is made.
It is always good to get in a bit of Latin, especially when it is combined with issues about expenses. In Reactec Ltd v Curotec Team Ltd  CSOH 72 (16 July 2021) the successful pursuer in an interdict to prevent infringement of their patent rights was faced with a defender company which went into voluntary liquidation after judgment had been issued. The pursuer enrolled a motion for two other parties (a limited company which was a majority shareholder in the defender, and an individual who was an officer of both) to be found liable for expenses on the basis that they were “domini litis”. The motion was argued in relation to the related company, with the pursuers reserving their position regarding the individual.
Following Lord Reed in Travelers Insurance Co v XYZ  UKSC 48, Lord Clark said that to meet the test of dominus litis the person must have the “true interest”, being the whole interest in the case for all practical purposes, with complete control of the litigation. In this case there was no doubt that the nominal defender did have an interest in the outcome of the case whilst it was being contested, and even though the suggested dominus litis would have been affected by the outcome, that did not give it the whole interest that was required.
We can all sympathise with the successful pursuer looking for someone to foot the bill after it had won the case, but obviously it is a hard test to satisfy. The pursuer’s argument was not helped by its motion being directed against two different parties. How could two different entities both have the whole interest and complete control required by the test?
In Cameron v Swan  CSIH 30 (10 June 2021) – which started with the ominous words “This ought to have been a relatively straightforward road traffic accident case” – there was expert evidence from a psychologist directed towards demonstrating what the driver might or might not have seen before he ran over the pursuer. The Inner House was critical of the reliance on opinion evidence on matters which were solely for the judge to decide, and commented on the legitimate scope of opinion evidence generally. As experts seem to be used more frequently nowadays, it is well worth reading what Lord Carloway had to say about their place in a litigation.
Delay in judgment
Another aspect of that judgment which I suspect will be of considerable interest is the comment on the delay in issuing the judgment at first instance until nine months after the proof. The court said that a delay of this nature did not provide the reader with confidence that the testimony or the demeanour of the witnesses would have been fresh in the judge’s mind or that, even with the benefit of his notes, he could recollect the evidence accurately.
Remit to the Court of Session
In Henderson v Mapfre Middlesea Insurance  SAC (Civ) 18 (25 May 2021), the pursuers appealed to the Sheriff Appeal Court following the sheriff’s decision in ASSPIC not to remit their cases to the Court of Session in terms of s 92 of the Courts Reform (Scotland) Act 2014. They were all passengers on a tour bus in Malta when they (and others) were injured; one of the other passengers had already raised Court of Session proceedings which were due to go to proof relatively soon. While recognising that the cases satisfied the test of “importance or difficulty” in s 92, the sheriff exercised his discretion against remitting and the Sheriff Appeal Court found no fault in this. Indeed, had it required to consider the matter it would have decided the same way. I suggest that there would have to be some very special circumstances to warrant the remit of an action from ASSPIC, the specialist personal injury court, to the Court of Session.
Party litigants: decree by default
In Amil v Lafferty  CSIH 41 (30 July 2021), the Inner House refused an appeal by party litigants against whom the Lord Ordinary had granted decree by default as a result of their failure to attend a peremptory diet (a proof). There was a long and convoluted procedural history, and medical certificates had been produced by the parties which had not been found compelling. Reference was made to Smith v Scottish Ministers 2010 SLT 1100 as the leading authority on the point.
Interestingly, there is a decision on a similar point by Sheriff Cubie in the Sheriff Appeal Court in McCallion v Apache North Sea  SAC (Civ) 1, which includes some guidance on what a medical report or certificate which purports to explain a failure to attend court should contain. Equally interesting is that I located this case via Lindsay Foulis’ article at Journal, March 2018, 28. The fact that the Inner House also considered, for good measure, whether there was any sustainable defence on the merits (it did not think so) indicated that this was more than just a technical procedural defect.
In Lord Advocate v Politakis  CSIH 34 (1 July 2021), the Inner House considered a petition under s 100 of the 2014 Act to make a vexatious litigation order. Pointing out that the order did not prevent the respondent from raising proceedings but meant that he required the permission of an Outer House judge to do so, the court enumerated a number of factors which had a bearing on the interests of justice, including: the prima facie right of all citizens to invoke the jurisdiction of the civil courts; the availability of other powers to deal with abuses of process; the overall conduct of the litigant; the need to protect persons whom he might sue; and the finite resources of the court itself.
In Dunn v Greater Glasgow Health Board  CSOH 68 (13 July 2021), the party litigant pursuer came up against the (some might say) inconvenient requirement that you must set out the essentials of your case in writing before you can have a proof. The pursuer was seeking damages of £900,000 following an unsuccessful hip arthroscopy. There was a “discussion on the procedure roll” – helpfully translated by the Lord Ordinary to “a debate” – regarding the relevancy and specification of the pursuer’s pleadings. Party litigants are inevitably at a disadvantage once they enter this particular battleground. The pursuer and defenders had lodged written notes of argument in advance, and the debate was conducted by Webex with the pursuer in Campbeltown having a poor internet connection just to compound his difficulties. Like many similar claimants, he did not have and could not afford expert evidence on fault or causation and his pleadings reflected that absence. His pain was worse following the surgery, but he could not say why or how. The action was dismissed. It calls to mind the detailed discussion about pleadings in medical negligence cases in JD v Lothian Health Board  CSIH 27, well worth a read for anyone interested in pleadings generally. Is anyone still interested in pleadings?
One benefit of party litigants is that, every so often, they challenge the conventional way of doing things and cause the courts to go back to first principles. I recall the disheartening experience of reading a transcript and being utterly convinced that it was wrong as I could not possibly have asked so many stupid questions. I cannot recall ever being able to do much about it though, either in the days before digital recording or after.
In McGowan v Ayrshire & Arran Health Board  SAC (Civ) 19 (4 March 2021), the unsuccessful party litigant in a medical negligence case appealed to the SAC and made a motion for access to the digital recording of the defenders’ expert’s evidence as he intended to submit that the written transcript of that evidence was incorrect, incomplete, or misleading. Sheriff Principal Anwar noted that this was an unusual motion – but there was no suggestion that it was incompetent – and that there was no authority on the point. She considered that there had to be a cogent, reasonable and objectively demonstrable basis for an assertion that a transcript of proceedings is incorrect. The fact that the appellant argued that the transcript did not accord with his recollection was not sufficient grounds for granting the motion.
At the risk of offending the more sensitive among us – but I don’t practise any more so why should I care? – I was struck by the startling admission in the case of William Grant & Sons Irish Brands v Lidl Stiftung & Co  CSOH 55 (varied,  CSIH 38) in which the well-known supermarket chain was interdicted from selling Hampstead gin, which was said to look remarkably like Hendrick’s gin but was much cheaper. There are pictures of the bottles incorporated in the judgment for those not familiar with the beverages.
The Lord Ordinary observed that a bottle of Hendrick’s gin and a bottle of the new Hampstead gin were lodged as productions, and “I had these before me for consideration”.
Maybe someone could check the digital recording to see if “me for” was in the original sentence?
Retired solicitor advocate, professor and civil procedure expert
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