When publications needn’t be lodged as productions

Since last writing Thomson v Ross has been reported at 2001 SLT 807, Europools Ltd v Clydeside Steel Fabrications Ltd at 2001 SLT (ShCt) 91, Glasgow City Council, Applicants at 2001 SLT (ShCt ) 85,  and the Advocate General v John D Reid Joinery Ltd at 2001 SLT 588.

Options hearings

In Ferrari v Zucconi 2001 GWD 16-587 there appears further support for the views expressed by Sheriffs Principal Maguire, Hay, and Wheatley in Gracey v Sykes, the Blair Bryden Partnership v Adair and MacFarlane v Falkirk Council respectively. Sheriff Principal McInnes held that the sheriff at first instance had been correct in allowing a proof before answer at the Options Hearing, a debate being unlikely to reduce the extent of a proof. It was further impossible to hold any part of the answers irrelevant until matters were clarified following the leading of evidence.

Jurisdiction

In Semple Fraser WS v Qualye 2001 GWD 16-653 Sheriff Taylor questioned certain previous decisions’ interpretations as to what did or did not constitute a ‘contract for a purpose being outside his trade or profession’. Sheriff Taylor considered that the appropriate test was whether the purpose in contracting was for the private consumption of the person to whom the goods or services were being supplied.

Failure to cross-examine

In Currie v Clamp 2001 Greens Civil Practice Bulletin May 2001, the pursuer claimed damages for injuries sustained whilst a passenger in a car. The action was raised against the representatives of the deceased driver. The action was defended by the deceased’s motor insurers, who entered the process as Minuters. The Pursuer said in evidence that the deceased had been driving on the leg of the journey prior to one in which the accident occurred. This evidence accorded with police statements and a statement taken from a person authorised to drive the car by its owner. When that person gave evidence for the Minuters, she said she was driving. This evidence was a complete surprise to the Minuters who had not put this account to the Pursuer or other witnesses. Lord Clarke indicated that a failure to cross- examine does not mean that that evidence falls to be disregarded. The evidence has to be considered with care. In this case the failure to cross-examine the Pursuer led to his evidence being preferred notwithstanding that neither witness impressed his Lordship.

Productions

In Robertson v Anderson 2001 GWD 17-669 objection was taken to articles from media publications being produced during the cross-examination in order that a witness be examined as to quotations she had made in these articles. The articles had not been previously lodged as productions. Lord Carloway repelled the objection to their production as the articles were being used as a means of cross-examining the witness as to a prior inconsistent statement and did not require to be lodged in advance. In any event the quotations came from an interview freely given and would be within the knowledge of the witness. This rule as to the use of productions may not be widely known and this decision is a useful authority. The matter is further covered in Macphail Sheriff Court Practice 2nd Edition para 16.25.                                

Family actions

In Craib v Craib 2001 GWD 14-549 Sheriff Davies was moved to dismiss a divorce action based on adultery. In holding that the Pursuer’s pleadings were both specific and relevant, Sheriff Davies referred to averments of secret calls and meetings, visits to the paramour’s home when her husband was not present and the private investigator’s report incorporated into the pleadings. He also held that the Defender’s sexual conduct with other women was relevant.  In T v A 2001 GWD 15- 567 Sheriff Principal Dunlop decided that it was perfectly competent to apply for an order seeking to be vested with parental rights and responsibilities without seeking specific orders such as contact or residence for example. A distinction required to be drawn between being vested with such rights and responsibilities and the ability to discharge them. The Sheriff Principal also noted that it was only in exceptional cases that such matters could be decided at debate and as a general rule such cases should always require an investigation into the facts, all the circumstances requiring to be taken account of including the interests of the child. In McLean v Dornan 2001 SLT (ShCt) 97, Sheriff Principal McInnes decided that a local authority did have title to enter the process as minuters in a grandparents action for section 11 orders in circumstances in which the child was subject of a supervision requirement. There was no express prohibition in the Children (Scotland) Act 1995 or in the Ordinary Cause rules. In such applications the local authority might be the only person with information relevant as to whether such an order be made or not. Such actions, on occasions, were not opposed by the natural parents. To enter the process by minute was a method by which the court would become aware of such information. In Ali v Ali (No2) 2001 SLT 602 in the course of an Appeal against the dismissal of an action seeking to reduce a divorce decree, the Inner House indicated that in seeking decrees in absence for financial provision, the party seeking the order(s) should, except in cases in which agreement had been reached, support the claim by evidence justifying the amount(s) sought by reference to sections 8 and 9 of the Family Law (Scotland ) Act 1985 and reasonable by reference to the resources of the other party. 

Arrestment on the dependence

The decision of Lord Bonomy in Chartwell Land Investments Ltd v Amec Construction Scotland Ltd 2001 SLT 732 is a timely reminder that when a warrant to arrest on the dependence of a third party notice the grant or refusal of such a warrant is within a Court’s discretion. In that case in light of the fact that the Defenders did not give any suggestion that they were liable to the Pursuers, that they made no averments in respect of which a question of the Defenders seeking relief could arise, and that the claim against the third party was not quantified, the motion for a warrant was refused. Although this is a decision reached by reference to Rule of Court 26.3, it would appear that it is of considerable relevance to the Sheriff Court in light of the terms of OCR 20.3.

Expenses

In Lloyd v Thompson 2001 GWD 14-536 the competency of an appeal taken without leave from a sheriff’s interlocutor repelling the Pursuer’s objections to the Auditor’s report following taxation was at issue. Sheriff Principal Nicholson decided that leave was required, the interlocutor not being a final interlocutor, nor did it fall within the categories of interlocutors appealable without leave. Further it was noted that Article 6 of the European Convention was not breached, the Pursuer having had a full hearing before the Auditor and the Sheriff. Further the Convention did not override the normal principles of relevancy and competency.

In Pipetronix (UK) Ltd v Zijlstra (No2) 2001 GWD 18-700 Sheriff Cusine allowed a 20% increase in fees on the basis that the unsuccessful party had not been forthcoming with information. This had the result the litigation occurred which might have been avoided had the party’s agents been aware of this information prior to the conduct of the proof. Sheriff Cusine decided that this was a relevant factor under the heading ‘steps taken in regard to settlement’. In Brewster v Tayside Primary Care NHS Trust 2001 GWD 16-643 Lord Carloway allowed a modification of awards of expenses in three petitions for judicial review where the arguments put forward by the successful parties had been very similar.

Once again it is hoped the foregoing provide something of note or assistance.