Civil law update of recent decisions

Since the last article the Inland Revenue v McDonald has now been reported under the name Grant v MacDonald 1998 SLT Sheriff Court 76.  Clydesdale Bank Plc v McLay Collier and Partners is now reported in 1998 SLT 1102.  Likewise Rankin’s Trustee v H.C. Somerville and Russell now appears at 1999 SLT 65.

Pleadings

In Strachan v Strathmore Glazing 1998 GWD 36-1884, the point taken at Debate by the Defender was one not uncommon in a road traffic accident.  The Pursuer whilst crossing a road on foot was seen by the Defender who swerved, crossed the centre line and struck the Pursuer.  The Pursuer pled it was the Defender’s duty to drive at a reasonable speed and to avoid driving at a speed preventing him from avoiding colliding with pedestrians.  The Defender at Debate argued that as no specific reference to speed was made in the averments of fact these duties should be deleted.  A Proof before Answer was allowed by Lord Cameron, who indicated that it was clear the Pursuer’s case was that the Defender had failed to reduce his speed after seeing the Pursuer on the road.  In this case the Pursuer had gone on to plead that the Defender had a duty to slow down and if necessary to stop when seeing the Pursuer and in this context the Pursuer’s case, being restricted to the actions which the Defender should have taken on seeing the Pursuer, could go to Proof before Answer, the inference being that the Defender was still travelling at some speed when the collision took place having regard to the injuries sustained. In McMurtrie v George Wimpey and Company Limited 1998 24 Civil Practice Bulletin, Lord Eassie indicated that the onus of proving that an injury was sustained on a date which brought prescription into play lay on the Defender and accordingly it was for the Defender to make the appropriate averments, which failing the plea as to prescription would be repelled.

In Devaney v Yarrow Shipbuilders Limited 1999 GWD 1-49, a Pursuer pled that one of the Defenders’ employees had been guilty of negligence.  At Debate it was argued that proper pleadings involved either naming the employee or averring that the Pursuer did not know the identity of the responsible employee with possibly the addition of some averments, which might enable the Defenders to identify the employee concerned.  It was held that the Pursuer’s averments were of doubtful relevance, as it was not clear whether he could name the employee.  Further it was indicated that difficult questions might arise as to whether the Pursuer could prove that an employee of the Defender had been responsible or not, particularly when it was plain that persons who were not employees of the Defenders had access to the premises.  In Tough v SPS (Holdings) Limited 1999 GWD 2-77, two interesting points arose.  In the Pursuer’s pleadings, he attempted to narrate statements made by an employee of the Defenders at a Commission which had been fixed in terms of Section 1 of the Administration of Justice (Scotland) Act 1972.  Temporary Judge Coutts held these averments irrelevant as the sole purpose of such a Commission was for the inspection etc. of specified items.  As such the Commissioner had no right to hear statements relating to any other matters which might be at issue in subsequent proceedings.  The temporary Judge also questioned the Commissioner’s competence as a witness to be questioned on those matters.  In that case also Affidavits were incorporated into the pleadings and this was held to be totally pointless on the basis that the Deponent in the Affidavit would have to give oral evidence in any event.  It must be questioned in any event whether there is any situation where an Affidavit should be incorporated into pleadings, as of course pleadings should contain averments of fact, not evidence.

Sist for legal aid

In Rush’s Trustee v Rush 1998 GWD 33-1690, Lord Macfadyen made it clear that a Motion to sist to enable a party to apply for Legal Aid was only competent if that party at the time the Motion was made, instructed legal representation.

Precognitions

In the City of Glasgow Petitioners 1998 GWD 29-1459, an attempt by a local authority to only allow employees to be precognosced on payment of a fee, was unsuccessful.  The Sheriff indicated that in taking that stance, the local authority were directly influencing the taking of precognitions and it was improper for them to place conditions by the charging of a fee precluding a party to an action from taking precognitions from the council’s employees during their hours of employment.  Further and in any event no such fee had been charged to the council’s solicitors when they precognosced the Social Workers.  What price fees for Police Precognitions!

Options hearings

In Ferguson & Menzies Limited v J.W. Soil Suppliers Limited 1998 SCLR 1042, the interesting points raised are obiter from Sheriff Principal Cox.  He indicated that in his view where there was a preliminary plea on record and a continuation of the Options Hearings was allowed, it was not sufficient that a Notice in terms of Rule 22 was lodged timeously before the continuation if no Note in support of the plea, had been lodged prior to the date assigned for the first Options Hearing.  There does not appear to be anything controversial there.  He went on however to indicate that a Sheriff was not bound to repel a plea at the first Options Hearing, which was unsupported by a Note, if the Options Hearing was continued, as any continuation of the Options Hearing rendered the initial Hearing unconcluded.  It made better sense to deal with the question of reservation of repelling of a preliminary plea at the conclusion of any continuation of the Options Hearing when the Record closed.  He indicated that if a party failed to comply timeously with Rule 22, prior to the original Options Hearing Diet, he should move for relief.  If he did not do so and the plea was repelled without discussion as to its merits, then provided the Options Hearing was continued, the plea could be reinstated by adjustment, provided obviously a Note was lodged in support thereof.  Whilst there may be a certain amount of attraction to his comments that where an Option Hearing is continued, a Preliminary Plea unsupported by a Rule 22 Note does not have to be repelled, this flies in the face of the mandatory provisions in Rule 22.  The concession made in Rule 22 is that if a Note in terms thereof is lodged prior to the initial Options Hearing, if the basis of the plea does not change following adjustment between Options Hearing and Continued Options Hearing, there is no need for a further Note in terms of Rule 22 to be lodged.

Motions

In Harris v Fyffe 1998 GWD 30-1528 the interesting point was that a Sheriff was not bound to continue a Motion to enable a party to lodge a Certificate of Intimation.

Interlocutors

In Carnegie v The Lord Advocate (2) 1998 GWD 38-1951 an Interlocutor which was inconsistent with the accompanying Note was allowed to be corrected.  Perhaps of some comfort to Practitioners was the observation made by Lady Cosgrove that agents could not be considered to be acting unreasonably by studying the Opinion and failing to observe that the Interlocutor did not reflect the Opinion expressed!  In that case accordingly the Defenders overcame the argument of delay in applying for correction of the Interlocutor.  In Black v Somerfield Stores Limited 1998 SLT 1315 however, an attempt to correct an Interlocutor following upon one party’s failure to appear at a Diet due to an administrative error, was held to be incompetent, as what was being sought there was in effect the recall of an earlier Interlocutor.  In Rossmeier v Mounthooly Transport 1999 GWD 2-72 Sheriff Principal Nicholson indicated that a defect in part of an Interlocutor did not necessarily vitiate the whole Interlocutor where the remainder of the Interlocutor was competent and dependent upon the exercise of judicial discretion.  In that case also, it was emphasised that the role of a mandatory was not simply to provide security for expenses.  It was reiterated that the sisting of a mandatory also resulted in a person within the jurisdiction being responsible for the satisfactory conduct and progress of an action.

Interdict

In G.B. & A.M. Anderson v White 1998 GWD 33-1721 at Debate, the Defenders attacked the relevancy of the Pursuers’ case for interdict against nuisance.  The basis of the argument was that to prevent the nuisance, the Defenders required to take positive steps, the Pursuers should be seeking Decree ad factum praestandum rather than interdict.  Lord Philip indicated after Debate that in effect the Pursuers were seeking to have the Defender prevented from committing a wrong i.e. nuisance caused by the flooding of neighbouring land.  Accordingly the action was relevant albeit that to prevent the nuisance, positive steps would require to be taken.  An interesting procedural point arose in A.S.A. International Limited v Nelson 1998 SCLR 1123.  Interim interdict had been granted at a first calling and was then recalled at the Continued Hearing.  The Pursuer appealed against the recall.  The Defender argued that leave to appeal was required as Section 27(a) of the Sheriff Court (Scotland) Act 1907 only covered the granting or refusing of interim interdicts not the recall of an interim interdict previously granted.  This argument did not find favour with Sheriff Principal Nicholson who indicated that having regard to the Sheriff Court practice, the second Hearing of the interim interdict was the Hearing at which full argument with regard to the grant of refusal of interim interdict was heard.

Res judicata

In Waydale Limited v D.H.L. Holding (UK) (No.2) 1998 GWD 40-2036 an argument was advanced in support of a plea of res judicata that Decree of Dismissal in a prior action could found the plea as Decree had been granted in foro on the same media concludendi.  It was argued that the form of disposal was not conclusive where there had been a proper judicial determination of the subject matter in question.  Lord Hamilton indicated that there was no settled rule that in every case Decree of Dismissal left open the bringing of a fresh action on identical terms.  The subsequent proceedings could be excluded where a substantive issue of law had been the subject of enquiry and determination.  Accordingly Decree of Dismissal could, in certain circumstances, found a valid plea of res judicata.

Conclusion

Once again the cases referred to in this article are those which, from a personal point of view, appear of interest/importance.  Others may and are perfectly entitled to take a different view.

Lindsay Foulis is a partner with Blackadder Reid Johnston