Civil law update of recent decisions

Title to sue

In Eunson v The Braer Corporation 1999 SLT 1405 Lord Gill made it clear that each pro indiviso proprietor separately had an interest in the property owned which constituted a separate asset, thus giving pro indiviso proprietor a separate right to sue.  In Nigel Lowe and Associates v John Mowlem Construction Plc 1999 SLT 1298 a plea of title to sue was taken in an action at the instance of a partnership.  The Defenders alleged that the correct Pursuer was one of the partners and referred to correspondence which had passed between the parties and the manner in which the correspondence had been executed.  Whilst the letter heading and the correspondence complied with the terms of the Business Names Act 1985, insofar as relating to an individual using a trading name, it did not sue, it was held that there were insufficient averments put forward by the Defenders to put the question of title to sue at issue, but equally the Pursuers had averred by explanation the non-compliance of the terms of the 1985 Act thus allowing a preliminary Proof on the true parties to the contract.

Forum non conveniens

In Lindsay v Lindsay 1999 GWD 38-1839 a plea of forum non conveniens was taken in an action for variation of an alimentary Decree in Edinburgh Sheriff Court.  Since the granting of the Decree the parties had moved to England and most of the witnesses and issues were linked to London.  Sheriff Bell decided that as Section 22 of the Maintenance Orders Act 1950 allowed for variation of a Sheriff Court Order registered in an English Court, there was another Court which was more convenient and accordingly sisted the Cause.

Sisting a mandatory

In Rossmeier v Mounthooly Transport 1999 GWD 35-1661 the First Division decided that there was no requirement for a European national or resident to sist a mandatory in an action before the Scottish Courts.

Inhibition

In Andrew Bryan and Company Ltd v S.F. Storage and Distribution Limited 1999 GWD 34-1612 Lord Osborne indicated that an Initial Writ together with the Warrant and Execution of Citation duly certified as being a true copy by the Pursuer’s solicitor was not sufficient to allow a Warrant to Inhibition to be granted on the dependence of Sheriff Court proceedings. In light of the decision, certainly the principal Initial Writ, Warrant and Execution of Service were considered necessary, although it appears that the Writ, Warrant and Execution of Service duly certified by a Sheriff Clerk would also suffice.

Craves for interim delivery

In Clifford Finance Limited v Hughes 1999 GWD 35-1659 the Pursuers sought interim delivery of moveable property which was the subject of a hire purchase agreement.  Sheriff Principal Bowen indicated that an Order for interim delivery was akin to Decree ad factum praestandum and it was incompetent in normal circumstances to seek an Order for specific implement ad interim in the Sheriff Court.  The Sheriff Principal made the observation that Section 1 of the Administration of Justice (Scotland) Act 1972 might be able to be used on certain occasions to, in effect, achieve interim delivery under the auspices of preservation!

Options Hearing

In MacFarlane v Falkirk Council 1999 GWD 37-1788 the Defenders sought a Diet of Debate at an Options Hearing, the Sheriff allowing a Proof before Answer.  Sheriff Principal Wheatley reaffirmed the principle that Debates under the Ordinary Cause Rules were only to be allowed where a matter of law existed, which would, if successful, lead to Decree in favour of one party or the other and that the purpose behind the Ordinary Cause Rules was to push matters to factual determination.  He also emphasised that if the Sheriff’s decision at an Options Hearing was to be successfully appealed, it would have to be shown that the Sheriff had come to the wrong conclusion on the basis of the information before him at the Options Hearing, thus discouraging fuller submissions at an appeal and by implication requiring that full argument be presented at the Options Hearing.

The Sheriff Principal also indicated that whilst the operation of this principle might lead to difficulties at a Proof, this was the result of attempts to progress cases more informally and swiftly.  In light of these observations, there would certainly appear to be suggested that the standards of written pleading are being relaxed in the Sheriff Court.

Craves for Decree ad factum praestandum

In Milmor Properties Limited v W & T Investment Company Limited 1999 SCLR 910 in an action for declarator with a crave for Decree ad factum praestandum, a question arose as to whether the action was competent raised as an Ordinary action as the crave for Decree ad factum praestandum could competently be brought as a Summary Cause and accordingly required to be brought in that form.  Sheriff Cowan in holding the action competent, indicated that the question to be answered was what kind of action did the present proceedings constitute.  On considering the pleadings it was clear that the action was firstly one for declarator and accordingly the action was competent.  The point however was that the true area of controversy between the parties in this action was primarily one of declarator with the crave for Decree ad factum praestandum being an ancillary to that.

Relief from Decrees erroneously granted

In an unusual case, Goudie v Mulholland 1999 GWD 39-1876, an agent for a painter sought by Minute to enter an action of delivery by the painter against the custodial claiming a general lien over the paintings.  A date was fixed for a Hearing on the Minute but in the meantime no Notice of intention to Defend having been lodged by the Defender, Decree for Delivery was granted.  The Party Minuter lodged an appeal and it was made clear by the First Division that the Sheriff had erred in granting Decree as between Pursuer and Defender when a date had been fixed for the Hearing of the Minute at the instance of the Party Minuter.  In granting the Appeal the Inner House rejected inter alia an argument that the Appeal was incompetent as the Party Minuter had never been allowed to enter the Process, the Hearing on the Minute not having taken place.

Breach of Interdict

In an unusual case, Alba Tools Ltd v Buchanan 1999 GWD 34-1614, Interdict had been granted against an individual prohibiting that person from defaming a company or threatening proceedings against its customers.  The allegation of breach of Interdict was that the individual be reading a draft letter had knowingly permitted a breach of the Interdict.  Lord Osborne decided that the allegation that the individual had breached the Interdict by failing to take a specific action was irrelevant, there being no suggestion that the letter was shown to the individual for his approval and Interdict could not impose positive obligations upon an individual.

Appeals

The effect of a subsequent appeal against an interlocutor reviewing earlier interlocutors was examined in the case of Glen Builders (Scotland) Limited and Another v Doig 1999 SCLR 900.  When the sheriff at first instance approved an Auditor’s Report and decerned against the Defenders for payment of a sum of expenses, leave to appeal was granted and an appeal marked.  During the course of the appeal, it was clear the appeal was designed to review an earlier decision with regard to expenses.  Sheriff Principal Bowen refused the appeal, holding that the sheriff’s decision approving the Account of Expenses was merely an Executorial Interlocutor, not representing a determination of any issue between the parties and accordingly could not be appealed and accordingly could not be used to open up for review prior Interlocutors.  In Wanderers World Ltd v Marco’s Leisure Ltd 1999 SCLR 930 Sheriff Principal Nicholson allowed an appeal to be received late, even although it was received after the Interlocutor against which the appeal was taken had been extracted.  The circumstances here are somewhat special in that a Note of Appeal signed by the Director of the Appellant, although incompetent, had been received by the Sheriff Clerk prior to the Extract being issued.  In dealing with the merits of the Appeal itself, which was against the granting of Decree by Default, for failure to appear at a Peremptory Diet, Sheriff Principal Nicholson reiterated that it was always open to the Appellate Court to review the granting of Decree by Default, even although procedurally there could be no complaint against the granting of Decree by Default.  In this case he had regard to the relatively minor error which had caused the Appellant’s failure to appear or be represented at the Peremptory Diet, the fact that the Appellant took immediately remedial, albeit incompetent, steps, the fact that the action appeared stateable and the fact that the action had not been in existence for an unconscionable length of time.

Family actions

In Dosoo v Dosoo 1999 SLT (Sheriff Court) 86 the views of two boys who were the subject matter of the action were contained in a Report prepared for the purpose of the action.  The boys requested confidentiality should attach to their views and their father sought to have their views made known to him.  Sheriff Robertson in refusing the Motion, felt that if a child was to be able to express its views freely, the child had to have confidence that any request for confidentiality should be respected, unless there were very compelling reasons.  This point was also recognised by Sheriff Principal Bowen in McGrath now reported in 1999 SLT (Sheriff Court) 90, in Oyeneyin v Oyeneyin 1999 GWD 38-1836 Sheriff Bell at Edinburgh indicated that he considered that as it was a fundamental principle that a party to an action was entitled to know all information against him which would form the basis of a Court’s decision, the onus on keeping the views of a child confidential lay on the parties seeking to keep those views confidential.  This right had to be balanced against the right to express one’s views freely.  Sheriff Bell indicated that whilst the welfare of the child was a factor in deciding whether or not to allow disclosure of its views, it was not the paramount consideration and that persons taking the views of children, should explain to children who wished their views to be kept confidential that this could not be guaranteed.  In the Secretary of State for Social Security v Ainslie 1999 GWD 36-1778 an action for Declarator of Paternity was raised in relation to a child relating to a Maintenance Assessment Application.  A Warrant to Cite had been refused as the Secretary of State sought to avoid the requirement to intimate to the child.  The Sheriff Principal granted a Warrant without the requirement of intimate to the child.  His view was that when considering whether to grant a Warrant the Sheriff required to look at the requirements of Chapter 3 of the Ordinary Cause Rules and not to the merits of the action.  The Sheriff Principal observed however that a Declarator of Paternity in terms of the Child Support Act 1991 should not be granted without the child having been called as a party with a Curator ad litem being appointed to protect its interests.

Expenses

In Peacock v Sutton 1999 SLT (Sheriff Court) 69 the Sheriff’s decerniture in damages whilst lower than the amount tendered beat the Tender by £52, once interest was added.  Sheriff Principal Nicholson on appeal, decided that where the sum awarded in a Judgment only beat the Tender as a result of the operation of time, there was justification at least for expenses to be awarded against the Pursuers.  In Henderson v Henderson 1999 GWD 31-1494 the question at issue was whether expenses incurred whilst an action was sisted for settlement could fall within the proper expenses of Process for the purposes of Taxation. Sheriff Principal Risk held that whilst an action was sisted, if parties were negotiating to settle an action, the resultant expenses incurred were entirely reasonable for the conduct of the litigation.  In Russell v Russell 1999 SLT (Sheriff Court) 97 an Application against the Legal Aid Board for payment of expenses to a successful unassisted person was granted in favour of the Pursuer when he had successfully resisted a claim by his wife in the Defences of an action, his wife being an assisted person.  The reasoning of Sheriff Principal Bowen was that by making a claim for capital payment in the defences, proceedings had been instituted for that purpose by the Defender and accordingly the terms of Section 19 of the Legal Aid (Scotland) Act 1986 were satisfied.

Conclusion

Once again the foregoing is not intended to be exhaustive of all decisions reported over the last few months but only a selection of those which caught the eye.