Take care framing pleas in law

Since the last article, Gillies v Lynch has been reported at 2002 SLT 1420, McGowan v Summit at Lloyds 2002 SLT 1258, Aberdeen Drilling Schools Ltd v Davis at 2002 SLT (Sh Ct) 147 and Sellers v Caledonian All Trades Ltd at 2002 SCLR 877.

Pleadings

In A Kelly Ltd v Capital Bank plc Lord Carloway on 13th December delivered a very persuasive opinion against the indiscriminate use of the phrase ‘The Defenders being due and resting owing to the Pursuers in the sum sued for, Decree should be granted as concluded for’ as a plea in law. His Lordship stated that the stating of the appropriate plea in law was a cornerstone of the system of written pleadings to give the opponent fair notice of the case against him and to state to the Court the legal basis upon which the action is founded. The phrase referred to might be appropriate in circumstances in which the action is based upon a loan but not in actions in which the claim was based upon a contract or a countermanded cheque. As the phrase gave no notice as to the basis of the action the action fell to be dismissed. Neither the opponent nor the Court should be required to examine a party’s averments to find a legal basis for the action. These observations obviously apply to pleas in law generally and clearly care should be exercised in framing the pleas in law which are appropriate to the averments made by a party. It may be necessary to avoid following the style on the word processing package without due consideration!! In this decision Lord Carloway also set out that if an action is founded on a cheque firstly it is necessary to aver that the claimant is the payee or indorsee of the cheque. Secondly that he is also the holder of the cheque. Thirdly that the cheque has been dishonoured by non payment or circumstances excusing presentment, and finally that the other party is the drawer or indorser. If this is done there is no need to aver the underlying obligation which resulted in the cheque being issued although this could be pled as a defence.

Civil evidence

In Ellison v Inspirations East Ltd 2002 GWD 35-1172 objection was taken to the admissibility of the hand written notes taken by a solicitor of what a witness said in answer to questions put to the witness. Lord Hardie followed the opinion of Lord Morton in Anderson v Jas B Fraser & Co Ltd 1992 SLT 1129. It did not matter that the services of an interpreter had been used.  

Decree by default – Actions of count reckoning and payment

An interesting point arose in Chapman v Money Wise (Scotland) Ltd 2002 GWD 40-1320. An action of count reckoning and payment was raised and after defences were lodged, the Defenders were ordained to lodge accounts. As a result of this, the Defenders lodged an incomplete summary of commissions. Although it was subsequently argued correctly that this document was not a set of accounts, nonetheless at the time the Pursuer responded by lodging a note of objections to this document. The Defenders failed to lodge answers to these objections and eventually a motion for decree by default was successfully moved for the alternative sum originally craved. Sheriff Principal Sir Stephen Young refused the appeal. He rejected an argument to the effect that even if the Defenders had failed to obtemper the interlocutor ordaining them to lodge accounts in light of the nature of the incomplete statement of commission, the Pursuer having lodged objections to this document, they had accepted the document as obtempering the interlocutor. The reason for this was that in the Pursuer’s objections, he had disputed that the document was an account. The Defenders having failed to lodge answers to the note of objections were held to have accepted what was in the objections and accordingly accepted that the document was not an account. Accordingly the Defenders were still in default of the interlocutor ordaining accounts to be lodged. Further in dealing with the point in Neill v Neill 1948 CLY 4687 that it was incompetent to grant decree for a random sum in the face of accounts which had been lodged, the Sheriff Principal indicated that in the appeal before him no accounts had been lodged. He also observed that even if the document lodged had been an account, it was difficult to see how the action could have proceeded in the face of the Defenders’ failure to lodge answers. Perhaps a motion for summary decree or interim decree could have been moved if it was considered that decree by default for the random sum was incompetent in the light of Neill v Neill.

Separation of proof

A hint is made by Lord Hamilton in BP Exploration Operating Co Ltd v Chevron Shipping Co Ltd (No 2) 2002 GWD 37-1217 that an application for separate proofs should ideally be made when a proof is allowed. Accordingly it is a matter that should be considered when preparing for an Options Hearing or other hearing when a proof is allowed. Other matters, which were to be considered were whether the issues which were to be raised at the first proof could be usefully restricted or whether they would necessarily impinge on other matters. Further would time and expense be significantly saved.

Expenses

Following the decision in Manson v Skinner the complexity of arguments as to whether a tender has been beaten and whether expenses should be awarded as a result are highlighted in Christison v Transocean Drilling Ltd (No 2) 2002 GWD 39-1303. A tender had been lodged some time prior to the conclusion of the case after proof. In moving for the expenses of the action, the Pursuer argued that having regard to the final award made by the Sheriff, the value of the award as at the date of the tender was almost £2000 greater than the sum tendered at that date. The Defender argued that interest on past wage loss was not as calculated by the Pursuer and account also had to be taken of a payment of interim damages. In dealing with the former matter the Defender argued that in effect the Pursuer’s claim for past wage loss arose in the main post tender and pre judgment. Dealing with the question of interest, Sheriff Buchanan considered that the appropriate way of calculating interest on past wage loss was simply to apply the figure of 4% to the total past wage loss figure. It was impossible to ascertain when the Pursuer would have worked between the date of the accident and the date of the judgment and impossible to work out when the Pursuer would have worked by reference to the date the tender was lodged. Insofar as the interim payment was concerned there was no evidence as to the basis upon which it was offered and accepted. Accordingly there was no basis for the Defender’s argument that the interim payment was first ascribed to solatium and interest thereon, then to interest on past wage loss, and finally towards past wage loss. The Pursuer was found entitled to the expenses of the action. In this action it was also argued that one of the Pursuer’s experts should not be certified as an expert as a result of carelessness in the preparation in his report and the fact that his evidence was not satisfactory. This argument was rejected as the witness did possess considerable expertise and he had been hampered by incomplete information being provided by the Pursuer. Finally it would be wrong to fail to certify a witness as an expert simply because another’s evidence was preferred. Obviously each case turns on its own circumstances but the foregoing is perhaps indicative of the arguments, which may be promoted to avoid the full consequences of failure in litigation. Another example appears in Keith v Davidson Chalmers (No 2) 2002 GWD 37-1228. In that case an unsuccessful Pursuer attempted to resist liability for expenses by arguing that there had been divided success, Lord Macfadyen having decided that the Defenders had been professionally negligent in the face of a denial on the part of the Defenders. If this point had been conceded then, it was argued, much of the proof would have been avoided. In the particular circumstances the argument found no favour before his Lordship.