Discretion in granting decree by default

Since the last article the following have now been more fully reported - Catterson -v- Davidson is now reported at 2000 SLT (Sheriff Court) 51, the petition by George Saunders at 2000 SLT  597 and Alexandra -v- Murphy at 2000 SLT (Sheriff Court) 44.

The following represent a personal selection of decisions which have recently been reported and may be of some interest.

Title to sue

In Carmichael -v- Bearsden and District Rifle and Pistol Club 2000 SLT (Sheriff Court) 65 a former member of a club raised an action for damages based on delict against the club.  The action was dismissed and on appeal before Sheriff Principal Bowen, he held that members of an incorporated club could not sue the club in delict.  Sheriff Principal Bowen founded on his decision by reference to Moir -v- Wood 1948 SC83.  This decision represents an interesting comparison to the decision of McCall -v- Dumfries and Galloway Rugby Football Club and Another 1999 SCLR 977.

Citation

In Blackfriars (Scotland) Limited -v- Lawrie SCLR 385 the question arose as to the validity of a citation where the citation had not been signed. Lord Penrose held that for a citation to be valid it required to be signed.

Written pleadings

In Jenkins and Marr -v- Harris 2000 GWD 17:681 Sheriff Cusine allowed a proof in an action for payment where architects had sued for fees against a joint venture consisting of the defender and a limited company. The limited company alleged that they had paid their share and the defender challenged the relevancy of the pursuers’ pleadings and in particular the relevancy of the averments relating to the joint venture and the service provided.  The pursuers pled that there was an implied term of the contract that they would be entitled to remuneration and it was argued that this was insufficient to support the existence of a contract.  Sheriff Cusine held that the pleadings vis-a-vis the joint venture were sufficient and that there was sufficient specification in the pleadings as to the existence of the contract and in those circumstances if the contract was silent about fees the law implied term in relation to remuneration

Counterclaim

In Tods Murray W.S. -v- Arakin Limited 2000 GWD 18-707 the assignees of the defenders’ rights against the pursuers, sought to be sisted as parties in place of the defenders, then lodged a counterclaim. It was argued that they were entitled to be sisted as parties in place of the assignor. Lord McFadyen refused the motion indicating that whilst it was expedient to allow the defender to counterclaim in an action raised against him by the pursuers, this did not justify a third party entering the process and making a counterclaim. He did indicate however that if the assignees had taken over the defenders’ liability to the solicitors and the solicitors consented to their substitution in the action then a counterclaim may well have been competent.

Administration of Justice (Scotland) Act 1972

In the Moffat -v- News Group Newspapers Limited 2000 SCLR 346 defamation actions had been raised against the defenders.  Application was made by way of motion to order the defenders to disclose the identify of witnesses referred to in the defenders’ pleadings.  Justification for the motion was that the defenders averred instances of alleged adultery taking place in various diverse locations.  It was accordingly appropriate for the agents for the pursuer to commence precognition at early stages rather than wait for intimation of the witness list.  Lord Eassie in refusing the motion indicated that it was insufficient for such an application to be made to argue that in due course he would require to intimate a list of witnesses if he intends to lead evidence from these witnesses.  Lord Eassie stated that as the matters in question were in the direct knowledge of the pursuer, he should know the truth or otherwise of the averments.  There was no need for the pursuers to precognose the defender’s witnesses in order to know what their position would be in relation to these averments.

Caution for expenses

In La Tantofola D’Oro SpA (Fallimento) -v- Blane Leisure Limited 2000 GWD 20-81 Lord Hamilton refused a motion for caution for expenses against the pursuers who were an insolvent foreign company.  His reasoning was that the pursuers’ financial circumstances were not the only factor.  He indicated that there was a fair prospect in the event that the defenders were successful, the stock held by the defenders would be available to set off against any award. He also indicated that it was unlikely if the sums at stake were of particular significance bearing in mind the pursuers’ insolvent position, he indicated that in refusing caution account was taken as to the strength of the pursuers’ case and finally that the expenses awarded were greater than the estimate of what might be incurred at proof.  Lord Hamilton also suggested that the court normally should be fully informed by the insolvent party as to whether other interested parties were willing to provide security.  He further noted that the discretion to make an order for caution was not affected in any way by Community law.

Options hearings

In Tilcon (Scotland) Ltd -v- Jarvis (Scotland) Limited 2000 SLT (Sheriff Court) 55 the question arose as to whether it was possible to repel a preliminary plea at an options hearing, notwithstanding the fact that it was supported by Rule 22 Note on the basis that the plea was without merit.  Sheriff Principal Cox indicated that there was no basis for preliminary plea being repelled at an options hearing in such circumstances, if it was supported by Rule 22 Note.  Accordingly in those circumstances the pursuer could not obtain a proof at an options hearing but at best a proof before answer.  He did however suggest that if the Rule 22 Note did not disclose the basis of the plea then in those circumstances the plea might be repelled.

Peremptory diet

In Gray -v- Fortune 2000 SCLR 178 the vexed question of a solicitor withdrawing very close to a proof arose.  The letter intimating the resignation was received by the Sheriff Clerk six days before the proof.  No appearance was made on behalf of that party at the proof and decree was granted. The defender subsequently appealed and Sheriff Principal Nicholson allowed the appeal.  He indicated that when a letter from a solicitor withdrawing from acting was received, it was mandatory to fix a peremptory diet. No such diet had been fixed and accordingly the Sheriff had been in error to grant decree by default at the proof due to non appearance on the part of the defender. Non appearance did not automatically mean decree by default should be granted, it was a matter for the Sheriff’s discretion.  Having regard to the fact that a letter withdrawing had been received by the Sheriff  Clerk, the Sheriff could not ignore the terms of Chapter 24 and simply grant decree by default at the proof diet.  He further expressed the view that when such a letter was received in process, it was necessary that the Sheriff be advised as soon as possible in order to comply with the duty incumbent upon the Sheriff in terms of Rule 24.21).  Sheriff Principal Nicholson made it clear that where such  a letter was received, the court could not ignore such a letter and grant decree by default, at for instance a proof diet as it occurred in that case.

Expenses

In the City of Aberdeen Council -v- W.A. Fairhurst and Others 2000 SCLR 392 the proof settled three weeks before the diet of proof.  In the judicial account of expenses, it was sought to recover counsel’s commitment fee for the proof.  The auditor allowed the fee and the note of objections was refused by the Lord Ordinary.  In F -v- F 2000 FAM LR 33 Sheriff Davidson allowed the motion for uplift in fees against the Legal Aid Board.  He held that family actions subsisted for as long as variation or recall of the order was possible.  Paragraph 7 of the Act of Sederunt (Civil Legal Aid Rules) 1987 provided that a motion for increase in fees should be made by motion in the cause and this related to how, where rather than when the motion could be made.  The Sheriff was not functus even although the case had concluded.  The matter of uplift did not interfere with the decree.  Further he indicated that it would be impracticable for such a motion to be made before decree.  In short, Sheriff Davidson did not follow Beveridge and Kellas -v- Abercromby 1999 SCLR 533.

Family actions

In Hay -v- Hay 2000 GWD 13-452 a summary application was raised seeking an increase in aliment payable in terms of the minute of agreement.  The  Sheriff following proof ex proprio motu raised the question of competency of the action, given that the children were over 18, although in a prior interlocutor the Sheriff had repelled a plea relating to competency.  Sheriff Miller held that even although the plea-in-law relating to competency had been repelled previously it was still open for the court to raise a question of competency pars judicis.  He held that the action was incompetent in so far as the children over 18 were concerned.  He observed that in one case whilst the action was competent when raised, because the child was under 18, that the moment she reached 18 years during dependency of the action her mother no longer had title to sue on her behalf.  Sheriff Miller further indicated that the terms of Section 2(4) of the Family Law (Scotland) Act 1985 were not overridden by Section 7 (2) relating to minutes of agreement and accordingly any person could only competently bring an action varying a minute of agreement in the same circumstances as raising an action for aliment.

Once again the foregoing represents a Civil Practice pot pourri and it is hoped that they are to some extent informative and useful.