Certification required for physical evaluation

By the time this article is published, the Human Rights Act will be in force and decisions on the application of the Act in civil litigation shall be no doubt eagerly awaited. In the meantime it is worth noting that the Ordinary Cause Rules are amended as set out below. Further since the last article certain cases have been more fully reported. Tods Murray WS v Arakin Ltd is reported at 2000 SCLR 804. F v F now also appears at 2000 SLT (SH CT) 106. Hay v Hay appears at 2000 SLT (Sh Ct ) 95.

Amendment to Ordinary Cause Rules

On 2 October 2000 the Act of Sederunt (Sheriff Court Ordinary Cause Rules Amendment) (Miscellaneous) 2000 comes into force. This Act of Sederunt makes a number of changes to the rules. The changes do not affect actions already commenced prior to 2 October. However it is made clear that family actions commenced prior to 1 January 1994 in which decree was subsequently granted will be governed by the new rules insofar as any post decree applications are concerned if the applications commence after 2 October.

The other more important features of the amendments are as follows:

1. Where in a family action the only matters in dispute are s11 orders in terms of the Children (Scotland) Act 1995 or the matters in dispute include such an order, then there is no requirement to assign an Options Hearing for such disputes. This emphasises that such disputes are to be resolved by use of the procedures laid out in rule 33.22A (Child Welfare Hearing).
2. Lists of witnesses in terms of Rule 9.14 not only now require to be intimated but also lodged. The time period is extended to 28 days. The rule is further amended to cover the situation where the evidence from such a witness is sought to be introduced by affidavit.
3. It is now necessary to specify in a motion to sist the reason for the motion and the interlocutor shall so specify. The Sheriff can now ex proprio motu recall the sist after giving parties the opportunity of being heard. Accordingly it is envisaged the cases sisted will be subject to periodic review with a view to further progressing the actions.
4. Intimation of motions for Summary decree are now dealt with in terms of Chapter 15.
5. During amendment procedure there is no longer any requirement to lodge any adjustments with the court. However, not later than 2 days before the Rule 18 hearing each party must lodge an up to date copy of the amendment/answers including any adjustments thereto duly highlighted. The purpose of this is to enable the Sheriff conducting the Rule 18 to have knowledge of the state of play of the proposed amendment pleadings with a view to securing the expeditious progress of the case in a similar way to the Options Hearing. This begs the question as to what happens if a party fails to comply with the lodging requirement!
6. In Rule 22 it is now only on showing cause that a party can raise a matter not detailed in the Rule 22 note at a subsequent debate or proof before answer. Litigation by ambush is being outlawed by the Sheriff! Rule 22 notes will require to be framed more carefully instead of reliance on a hunch that something is wrong!
7. When a solicitor withdraws from acting in open court in the presence of all parties there is now no need to lodge a letter with the Sheriff Clerk. Further when a solicitor does withdraw within 14 days of a previously fixed diet, the Sheriff does not have to assign a peremptory diet in terms of Rules 24.2(1). Instead the matter can be continued to the previously assigned diet for consideration. This means at that diet if the party is not present or represented, Decree by default can be granted.
8. Affidavits relied on in a proof require to be lodged within 14 days of the proof. If lodged later, they can only be used with the consent of other parties or on cause being shown. Copies of all documentary productions require to be lodged for the Sheriff’s use.
9. Notices to Admit can now be used once the Record has closed. Any admission made can be withdrawn or amended at the Sheriff’s discretion at any time on such conditions as are considered appropriate. A notice of non admission can likewise be withdrawn in whole or in part at any time. This presumably has the effect of the matters in the notice of admission being held in whole or in part, as the case may be, as admitted.
10. It is now made clear that the enforcement of a s11 order post decree is by way of Minute.
11. In actions for damages for personal injury it shall be necessary to aver details of all GPs or their practices and any hospitals where the pursuer received treatment as a result of the accident which caused the injury. It shall also be necessary to lodge with the Initial Writ when lodged for warranting all medical reports upon which the pursuer intends to rely or reserves the right to rely. If this is not complied with the defender can apply for such reports to be lodged.

Written Pleadings

In Kendal v Davies 2000 GWD 27-1046 the pursuer’s averments relating to a services claim in terms of the Administration of Justice Act were attacked at debate. The pursuer justified his claim under this head in respect of services provided by his fiancee and his mother by reference to the wages these persons would have earned but for their assisting the pursuer. Lady Paton ruled that in making a claim for damages relating to services providing it was necessary to aver the nature of the services rendered, the period during which they were provided, and the value of such services. Reference to the earnings lost by the provider was only a useful means of cross checking. She accordingly excluded these averments from probation.

Counter Claim

In Counting House (Scotland) Ltd v Bill Hay Ltd 2000 GWD23-880 the pursuers sought payment for services rendered in terms of one contract. The defenders accepted they were due the sums in respect of these services but counter claimed alleging that the pursuers had negligently performed certain professional services. Sheriff Bell observed that even if the counterclaim had been relevant as it was an illiquid debt and the defenders pled set off not retention the pursuers would have been entitled to decree.

Motions

An interesting point arose in Miller (William) Plumbing Contractors Ltd v James Lumsden Ltd 2000 GWD 26-968. This action was calling in court as a result of procedural calling. At the hearing, without any prior intimation, the pursuers moved for and were granted interim decree. In an appeal to the Inner House against the interlocutor it was argued that to hear such a motion was incompetent as Chapter 15 procedure had not been followed. The Inner House observed that the motion was competent as it was moved during a hearing in the cause - rule 15.1 (1)a, but that the Sheriff should have applied his mind to the fact that the motion had been made orally at the hearing without prior intimation. Accordingly if a case is a calling in any event if you intend to move the court to do something in any way out of the routine written intimation of a motion requires to be made. In this case observations were made with regard to interim decree. It was noted that to grant interim as opposed to summary decree firstly procedurally the record should have closed. Further for the granting of interim decree, an unqualified admission of liability in part must be made.

Examination of Pursuer

<>In McMurray v Safeway Stores plc 2000 SLT 1033 the Defenders sought to have the pursuer examined by a physical evaluation company. The defenders argued that the pursuer would be examined by chartered physiotherapists and as a result certain standards would be guaranteed. Further computerised testing would provide consistency in results. The pursuer had already co-operated in being examined by medical experts employed by the defenders. She accordingly refused to be examined. Lady Paton refused the application. She indicated that as the defenders had not provided the appropriate certification of the intended process, the court could not accept that the intended examination would provide reliable objective information. Further as the testing might be painful and possibly detrimental to the pursuer, the maintenance of confidentiality could not be guaranteed, and the qualifications of the supervisor was not clear, the pursuer was entitled to refuse to undergo the examination.

Admissibility of Hearsay

In T v T 2000 GWD 25-927 the Sheriff had accepted hearsay evidence from a police officer as to what a 4 year old child had said to him in interview. The Sheriff had interviewed the child briefly before the proof and concluded the child was a competent witness. It was argued in the Appeal before the Inner House that the Sheriff had erred in that he had simply sought in the interview to ascertain whether the child knew the difference between truth and lies as opposed to satisfy himself that the child could give trustworthy evidence. Further he erred in judging the witnesses competence as at the date of the interview as opposed to the date of the interview. This matter has been remitted to a larger court - watch this space.

Arrestment on the Dependence

It can be of considerable importance whether a claim is contingent when considering whether diligence carried out on the dependence is valid. In Stiell Ltd v Riema Control Systems Ltd 2000 GWD 23-876 an arrestment was served on the dependence of an action for £139,375. An independent adjudicator had ordered the defenders to pay a lesser sum to the pursuers. This was done. It was argued that this decision had the effect of determining the parties’ liabilities inter se until the dispute was finally determined. Accordingly the outstanding sum was contingent upon the final determination. It was held that the claim was not contingent. All that was required was for the pursuers to prove what they averred. The action was one relating to a debt and all that was being sought by the arrestment was security for this.

Title to Sue

In Robertson v Robertson 2000 GWD 24-904 the question arose as to whether a judicial factor could be competently appointed to a joint venture when the joint venture had ended and the ventures were dead. It was decided that the crucial point was whether the Court had entrusted management of an estate to the judicial factor. The Court could appoint a factor to the estate of a joint venture even in situations such as in that case.

Appeals

In Sharif v Sing 2000 GED 28-1070 the pursuer appealed to the Sheriff Principal without leave following an Options Hearing at which the Sheriff refused the pursuer’s motion for a proof before answer and fixed a debate. At the appeal the pursuer argued the appeal was competent notwithstanding no leave to appeal had been granted. In terms of s 27 of the Sheriff Courts (Scotland) Act 1907 s27(d) an interlocutor had been pronounced refusing a proof and accordingly no leave was required. Sheriff Principal Dunlop refused the appeal as incompetent. An interlocutor refusing proof was pronounced once the question of relevance had been determined. Appointing a case to debate did not refuse a proof, rather it delayed the allowance of a proof, that delay being caused by the challenge to the relevancy. Once fully argued if the pleadings were relevant the Sheriff would allow a proof, if irrelevant then the resulting interlocutor would be able to be appealed without leave.

Expenses

In Cullen v Cullen 2000 SCLR 491 the question of whether it was competent to appeal a determination of a motion under s 18(2) of the Legal Aid (Scotland) Act. It was held such an appeal was competent. It was further noted that in the event that the appeal was successful the matter fell to be remitted back to the judge of first instance to assess of new subject to such directions given by the appellate court.

Conclusion

Once again the foregoing constitutes a selection which is hoped to be of interest and assistance.