Karl Construction strikes again

Sheriff Lindsay Foulis examines issues including minutes of tender and family actions in his ongoing series rounding-up recent key decisions of the civil courts

Since the last article Marsh v Marsh has been reported at 2002 SCLR 84, Bain v Bain at 2002 SCLR 152, McDougall v Tawse at 2002 SCLR 160, and Semple Fraser v Quayle at 2002 SLT (Sh Ct) 33

Jurisdiction

Following Marsh v Marsh 2002 SCLR 84, another decision appears on the question of domicile. In Reddington v Riach’s Exr 2002 GWD 7- 212, Lord Clarke decided that a man was domiciled in England, having acquired an English domicile of choice. He had been born in Scotland. He had travelled extensively before retiring to Scotland thirty years ago. Fourteen years later he had moved to England on health grounds. Some members of his wife’s family moved there. He stated that he would not move again and bought a burial plot in England. His wife died there in 1987. She was buried there. Whilst he was proud of being Scots he had only visited Scotland on two occasions since 1978. He never stated that he wished to return to Scotland. There was further evidence that he operated a bank account in Scotland and had his legal advisers in Scotland. In 1996 he executed a will in which he declared he was of Scottish domicile but also declared that he wished to be buried beside his wife. His Lordship decided that the decisive factors were his intention not to move again and his actings which were consistent with that intention. He did not return after his wife’s death. His intention was to remain in England and accordingly was domiciled there. The declaration as to domicile in the will was inconclusive and in any event had been inserted in the will simply as a result of reflected a previous similar declaration in previous wills.

Caveats

Whilst the decision of K and F Applicants 2002 SLT (Sh Ct) 38  relates to whether a caveat can be competently lodged in relation to potential applications for a Child Protection Order, Sheriff Principal Nicholson, in holding that the lodging of a caveat was incompetent, made certain interesting observations as to the use of caveats. He indicated that to enable caveats to be competently lodged there required statutory provision to be in place. As a result of the harmonisation between the Sheriff Court and Court of Session rules, caveats could only be competently lodged in circumstances specified in the rules. The Child Protection Order, whilst a protective measure, was, once granted, complete. It accordingly was not analogous with an interim order. Ordinary Cause Rule 4 specified orders to be granted prior to a notice of intention to defend being lodged. Such notices had no place in applications for a Child Protection Order. The European Convention of Human Rights was of no assistance as it did not require a person to have the opportunity to present his argument on every occasion the matter was before a Court. Provided a hearing within a reasonable time was guaranteed.

Diligence on the Dependence

It will come as no surprise that Lord Drummond Young’s decision in Karl Construction Ltd v Palisade Properties plc has been cited in support of a motion to recall an arrestment on the dependence. This happened in Dunfermline Sheriff Court recently in Fab-Tek Engineering Ltd v  Carillon Construction Ltd 2002 GWD 13 – 390. In granting the motion for recall of the arrestment Sheriff Forbes saw no reason to differentiate between inhibition and arrestment on the dependence. Accordingly the same factors which were relied upon by Lord Drummond Young in Karl Construction applied to arrestments. The Ordinary Cause Rules and in particular Rules 3.3, 3.5, 5.1.1, and 5.1.3 could be read in such a way that a sheriff had discretion in whether he granted a warrant to arrest on the dependence if it was sought. In those circumstances, the Court required in terms of section 6 of the Human Rights Act 1998 not to act in a way incompatible with a right set out in the European Convention of Human Rights. Sheriff Forbes further indicated that in considering a motion to recall an arrestment on the dependence a Court again was required to avoid acting in a way incompatible with a convention right. Accordingly in considering such a motion it fell on the arresting creditor to justify the propriety of the diligence.

Minutes of Tender

Manson v Skinner has appeared previously in these articles as the decisions of Sheriff Horsburgh and Sheriff Principal Nicholson have been reached. In this case the Defender lodged a tender with the defences. The case went to proof and after the judgment was issued, the tender was beaten but only by the operation of time by reference of the interest accruing on the principal sum. The amount tendered was greater than the principal sum and any interest, which had accrued thereon at the time the tender had been lodged. The Second Division of the Inner House restored Sheriff Horsburgh’s decision finding the Pursuer entitled to the expenses up to the date of the tender but liable to the Defender thereafter as the refusal of the tender had unnecessarily prolonged the proceedings. The Inner House decision appears at 2002 SLT 448.

Family Actions

In McGurran v McGurran 2002 GWD 11- 337 the Pursuer sought inter alia a non harassment order. The Pursuer had already been granted permanent interdict in previous proceedings. The Defender argued that the present proceedings for a non harassment order were incompetent having regard to the terms of section 8(5)(b)(ii) 0f the Protection from Harassment Act 1997 in light of the fact that an interdict had been granted in previous proceedings. The Inner House came to the conclusion that the interdict must have been granted in the same process in which the non harassment order is sought. In justifying their decision, Lord Caplan, in giving the decision of the division, referred to the word ‘subjected’ in the proviso to section 8(5)(b)(ii). ‘Subjected to an interdict’ is different from ‘subject to an interdict’. The former relates to the Court, which by court order subjects a person to the terms of the interdict. Accordingly the section relates to the judge making the order in the non harassment process not a previous process. If the section was not construed in that way, it would mean that a person who held an interdict from a prior process could not apply for a non harassment order. This might arise notwithstanding the fact that the behaviour of the other party had deteriorated since the granting of the interdict to such an extent that a non harassment order would then be appropriate. It was further indicated that a non harassment order ad interim was incompetent. Further, in deciding whether a non harassment order was required, regard would be had to what effect the interdict had on the other party.

Once again the usual caveat accompanies the decisions noted above. I would also simply remind practitioners that by the time of the publication of the next article the new Summary Cause and Small Claims rules will have come into effect. At the time of writing this article these can be found in the HMSO web site under legislation. A very helpful article on these rules by Sheriff Alastair Stewart appeared in Issue 11 2002 SLT and in April’s issue of the Journal. It seems to me that the new rules relating to the first calling of the Summary Cause represent a major change to the present procedure. It seems to me from reading the article that the first calling is similar to an Options Hearing. However, the sheriff has additional powers to ‘seek to negotiate and secure settlement of an action’. Further, if the Sheriff considers that the claim or defence is not soundly based in law in whole or part, then having heard parties, the sheriff may grant decree. In those circumstances, the agent who appears at a first calling has to be familiar with the case. As Sheriff Stewart concludes, a greater amount of advance preparation will be required. Is this likely to happen if the jurisdictional limits remain at the present levels? In any event is it not appropriate for the limits to be increased? In 1976 when Summary Causes first came into operation the upper limit was £500. If a similar inflation factor was applied to that figure as is often applied to previous solatium awards, the present upper limit would be considerably higher than £1500. Should cases valued at a little over £1500 have an automatic right to be litigated in the Court of Session? Further, presumably the table of fees as they relate to Summary Cause actions are being looked at as it appears that in the same way Ordinary actions became fronted loaded after 1st January 1993, so Summary Causes will fall into line.