Reminder of the need for separate craves

Since the last article Drever v Drever has now been reported at 2003 SLT (Sh Ct) 8, Irving’s Curator Bonis v Skillen at 2003 SLT (Sh Ct) 27, Prostar Management Ltd v Twaddle at 2003 SLT (Sh Ct) 11, Bonner Media Ltd v Smith at 2002 SCLR 977, Thomson v Thomson at 2002 SCLR 1131, Bee v T & N Shelf Twenty Six Ltd at 2002 SCLR 1020, Umair v Umair at 2002 SCLR 1097, and Kingfield Heath Ltd v Holburn Enterprises Ltd at 2002 SCLR 967.

Wrong defender

It bears repeating that suing the wrong Defender in an action may not be capable of remedial action. In McClelland v Stuart Building Services 2003 GWD 4-99 the Pursuers initially sued Stuart Building Services Ltd. This information had been obtained by perusal of the telephone directory. The correct Defenders’ insurers had replied to the letter of claim indicating that the correct Defenders were Stuart Building Services.

The Pursuers’ wage slips indicated who the correct Defenders were. No sensible enquiry as to the

true identity of the Defenders was undertaken. Notwithstanding that the correct Defenders had been able to investigate matters and would receive a windfall benefit if the action was not allowed to proceed against them, Temporary Judge T G Coutts refused to exercise the power of relief in section 19A of the Prescription and Limitation (Scotland) Act 1973.

Written pleadings

    In Hart Builders (Edinburgh) Ltd v St Andrew Ltd 2003 GWD 2-43 Sheriff Principal Macphail warned that misleading averments which were capable of further specification but were only supported by the incorporation of documents which themselves lacked clarity was risky. If the documents and averments could not be understood then there was strong argument for dismissing the action on the basis that the averments lacked specification. In Semple Cochrane plc v Clark 2003 GWD 5-120 Temporary Judge M G Thomson in allowing averments to go to Proof indicated that in actions based on fraud, the test for specification was whether the averments gave fair notice of the allegation. The Defender could not seek more than was necessary to give such notice. The serious nature of the allegation demanded as a matter of fairness a high standard.

In Smith v Jack 2003 GWD 5-122 Sheriff Macfadyen excluded certain averments from probation. Firstly he excluded claims for solatium on the part of parties

to missives where there was no separate crave for damages under this head. He further excluded from probation averments which had incorporated documents into the pleadings in circumstances in which the documents had not been lodged in terms of OCR 21.1. He further indicated that if after proof it was apparent that the Pursuers had not been frank in certain averments then they would pay a penalty

in expenses. I have referred to this case to remind readers of the necessity of separate craves which is on occasions overlooked in actions such as this. The other points raised are also timely reminders of the consequences of the failures referred to.  

Decree by default

In Samson v Fielding 2003 GWD 2-35 a local agent appeared for the Defender at the Proof and advised the Sheriff that he could give no explanation for the non appearance of the Defender and the principal agent. Decree by default was granted. The Defender appealed. Sheriff Principal Macphail allowed the appeal. The Defender was represented at the Proof. There was no basis to distinguish a solicitor fully instructed at such

a diet and one who appeared with minimal instruction.

A solicitor who appeared for a party was providing representation for the purposes of the rules of practice and procedure. In any event the Sheriff Principal indicated that there appeared to be a proper defence stated and in light of that and the prejudice the Defender would suffer if the Appeal was not allowed. The Appeal required to be allowed. Another failure to appear, this time in a Summary Application, and by both parties was remedied in Secretary of State for Trade and Industry v Stephen 2003 SLT (Sh Ct) 29. As a result of non appearance at a continued hearing of a motion, the Sheriff dismissed the application. On appeal Sheriff Principal Macphail allowed

the Appeal. The failure to appear did not signify

an intention not to proceed, or wilful non observance of practice rules or gross carelessness and the proper course would have been to allow the motion to drop. The Sheriff Principal also indicated that even if dismissal had been justified the Appeal would have been allowed as the default had arisen from a simple error and the application seemed to be prima facie stateable.

Conjoining actions

    In Wilkie v Direct Line Insurance plc 2003 GWD 8-192 the Defenders sought to conjoin two actions for damages for losses due to a fire in respect of the heritage and contents. The commencement dates of the respective cover were different and as the issue upon which the Defenders had repudiated the liability was misrepresentation as to the condition of the building, the condition of the building would require to be established at the two dates. In conjoining the actions Lord Drummond Young decided that the actions related to the same policy and fire. The defence was generally the same in each action. The dates were not far apart. There would be considerable evidence common to both actions. To require witnesses to give evidence twice would cause great inconvenience.  

Title to sue

The decision of the Inner House in McBain v McBain 2003 GWD 2- 41 is authority for the proposition that an argument of no title to sue will not be entertained without the appropriate plea in law.

Decrees ad factum praestandum

    In Sietech Hearing Ltd v Borland  2003 GWD 8-221 Lord Macfadyen refused to grant decree of delivery in circumstances in which it was unlikely that the Defenders still had the items in question, the granting of such a Decree always being one within the Court’s discretion. The onus to aver and prove that the granting of such a decree was inappropriate fell generally on the Defender. In the present case, if the Defenders no longer had the items, it was impossible to conclude that they were wilfully refusing to deliver the items as opposed to not being physically able to deliver the items.

Family actions

In Ali v Ali 2003 GWD 5-117 the Inner House in a Petition for suspension indicated that a Sheriff had wrongly granted decree against the Petitioner when he had failed to lodge valuations of his assets in terms of an interlocutor. The Inner House indicated that inquiry should have taken place before decree was granted. Evidence was required as to the financial circumstances of the parties and any other matters founded on. The decision further discussed how the action would proceed in the light of the decision of the Inner House. Numerous problems arose including the fact that there was no power to remit back to the Sheriff, there was no provision in terms of section 12 of the Family (Scotland) Act 1985 to vary a capital sum, the parties being divorced, if the capital award was reduced, there was no mechanism for the Respondent to claim capital afresh. The case was put out by order.

Expenses

In Erskine v Russell 2003 SLT (Sh Ct) 2 the Pursuers raised an ordinary action for reparation. They settled the action by accepting Minutes of Tender, both of which were for sums below the Ordinary Cause limit. The Auditor of Court taxed the Pursuers’ account of expenses by reference to the Ordinary Cause Scale on the basis that the sums accepted when aggregated amounted to a sum in excess of the Summary Cause level. The Defenders took a Note of Objections. Sheriff McDonald decided that the appropriate scale for expenses was determined by reference to the sums each Pursuer had accepted and accordingly the Auditor of Court had erroneously taxed the accounts by reference to the Ordinary Scale.
Summary causes
I think this is the first decision in terms of the new rules. In Armstrong v Brake Brothers (Frozen Foods) Ltd 2003 GWD 3-73 the Sheriff awarded the sum of £150 and no expenses in the first calling of a reparation action. The sum sought was £1,500. Sheriff Principal Bowen in allowing the Appeal made some interesting observations. It was argued that the Sheriff had not sought to negotiate and settle the claim. Having ascertained that the only issue was solatium, the Sheriff had inquired of each agent their valuation of the claim. The valuations were so far apart that the Sheriff, having considered the medical report, made the award. Sheriff Principal Bowen indicated that there will be cases in which it is clear after a preliminary inquiry that parties are so far apart that no further negotiation will bear fruit. Sheriff Principal Bowen then indicated that in the circumstances of the present case, it was open to the Sheriff to hear parties forthwith and grant decree. Indeed he indicated that the power should be exercised if the facts were readily ascertainable. He however felt that the Sheriff should have had material before her to base her decision apart from the competing figures put forward by the agents and judicial experience. The Sheriff further indicated that expenses should have been awarded.
I end with an apology for an oversight in the article in the Journal of November 2002.
I referred to a decision of Lord Eassie concerning taxation of expenses without naming the parties – not helpful!!! The decision is Dingley v The Chief Constable of Strathclyde Police dated 9th October 2002.