Abandonment at common law still competent

Since the last article Ellison v Inspirations East Ltd now is reported at 2003 SLT 291, Samson v Fielding at 2003 SLT (Sh Ct) 48, Trad Hire & Sales Ltd v Campbell at 2003 SLT (Sh Ct) 41, Dingley v Chief Constable, Strathcyde Police at 2003 SCLR 160

Decree by default

In Canmore Housing Association Ltd v Scott 2003 GWD 9-243 Sheriff Principal Macphail allowed an appeal against the granting of decree by default at an Options Hearing as a result of the Pursuers failing to appear or be represented. Sheriff Principal Macphail firstly indicated that there had been no default as the Pursuers had not failed to comply with the rules as the failure to appear was the result of the erroneous noting of the relevant date in the Pursuers’ solicitors’ Court diary. In any event a Sheriff at first instance should not grant decree by default as a result of a party’s failure to appear  unless there was sufficient information before the Court to indicate that the party was in default. If no such information was present then the prudent course was to assign a diet in terms of OCR 24. If a stateable case was on record, then a diet in terms of OCR 24 should be assigned. A diary error on the part of a solicitor should not result in decree by default passing against the party.

Abandonment

In Beattie v The Royal Bank of Scotland plc 2003 GWD 11-301 the Pursuers sought to abandon an action but before doing so negotiated and paid expenses to the Defenders. Once this was done the Pursuer sought to abandon at common law which failing in terms of RCS 29. RCS 29 is in similar terms to OCR 23. The Defenders argued that it was no longer competent to abandon at common law and as the procedure laid down in RCS 29 had not been followed it was not possible for decree of dismissal to be granted. Lord Reed considered that abandonment at common law was still competent. In any event, in circumstances in which parties agreed expenses rather than requiring an account to be taxed in accordance with RCS 29, then the failure to follow the terms of the rule was an excusable reason allowing the Court to exercise its dispensing power to grant relief, the procedure being followed avoiding unnecessary proceedings and expense.

Remedies for delay in prosecution of an action

In Newman Shopfitters Ltd v M J Gleeson Group plc 2003 GWD 10-271 an action raised and sisted in 1995 for arbitration was sought to be returned to court in July 2002 no arbitration having taken place. The Sheriff refused the motion to recall the sist and granted decree of absolvitor instead due to the delay taken in prosecuting the litigation. Sheriff Principal Macphail upheld the Sheriff’s decision. The Court had an inherent jurisdiction which could be exercised so far as such an exercise was not inconsistent with the statutory powers. The fact that the delay did not constitute a default in terms of OCR 16 did not mean that the Sheriff could not grant decree of absolvitor in circumstances in which there was no attempt to prosecute the action. The Sheriff had exercised the inherent jurisdiction appropriately. The delay was inordinate and as a result the Defenders were prejudiced. Further OCR 16 could be read in an ECHR compliant way by allowing a remedy in circumstances in which the Defender’s right to have the litigation concluded within a reasonable time had been breached. Sheriff Macphail also indicated that if an action was sisted for arbitration, then unless the parties consented to the recall of the sist, then the Court could not grant a motion to recall the sist unless the arbitration process had broken down or was concluded.

Evidence from private investigators

One of the anticipated consequences of the introduction of the European Convention of Human Rights was that sooner or later an objection would be taken to evidence of investigators employed to ascertain whether the Pursuer in a reparation action was genuine in the consequences of the injuries sustained. This point arose in Martin v McInnes and was dealt with in an opinion by Lord Bonomy dated 2nd April 2003. The investigators employed by the Defender spoke to the Pursuer’s wife indicating falsely that he was an old acquaintance of the Pursuer. She considered that this account was unlikely which resulted in the Pursuer and his wife becoming concerned that they might be a target for housebreakers. The investigators further carried out surveillance from a neighbouring property. Lord Bonomy considered that the actions could be construed to infringe Article 8 of the convention subject to other considerations. These were whether the actions did in fact infringe the Pursuer’s right of privacy and striking a fair balance between the interests of the parties. His Lordship considered that it was appropriate to consider whether the interference was justified by reference to Article 8(2) whilst also balancing the competing interests previously referred to. He considered that there was a basis in law for admitting the evidence, namely the presiding judge deciding the issue by considering whether the admission of the evidence was fair by reference to the decisions in respect of the Convention and the domestic law on questions of admissibility of evidence. He considered that the presentation of a false case against a Defender infringed his rights to a fair trial and the protection of his property. In an adversarial system, it was for the parties to assemble the evidence and present their cases for determination by the presiding judge. In personal injury claims, it was relatively common for observations to be made on the claimant. Any party exaggerating his injuries was more likely to be off guard in private. In balancing the interests of the parties Lord Bonomy considered the extent of the intrusion against the Defender’s requirement to investigate the case against him and to protect his assets from a false claim and indeed the wider issues of the public in general that false claims should not succeed. He considered that the inquiries could be considered reasonable and proportionate steps for the Defender to take to protect his assets. Further, on a wider view, they could be considered reasonable and proportionate steps to take as a contribution to the protection of the wider rights of society and accordingly necessary in a democracy.  

Interim aliment – backdating

In Kirk v Kirk 2003 GWD 11-313 Sheriff Principal Macphail indicated that he considered that it was incompetent to backdate an award of interim aliment notwithstanding that parties may have agreed that an award would be so backdated. This observation of course deals with a situation often encountered in Courts when a motion for interim aliment is continued for multifarious reasons on the understanding that any subsequent award will be backdated to the date of the first calling of the motion.. Sheriff Principal Macphail also indicated that he considered that it was perfectly competent to appeal without leave any interlocutor which was incompetent.

Conduct of proof – objections

In the decision of the Inner House in Hislop v Lynx Express Parcels 3rd April 2003, one of the points in the Appeal was whether the Pursuer’s agent had ‘effectively’ objected to a line of questioning which attempted to introduce evidence for which there was no Record. The Inner House indicated that this was always a question of circumstances which had to be examined in every case. In the circumstances of the present case, the Pursuer’s agent had made objections on three occasions only for these to be repelled. On the third occasion the agent was rebuked by the Sheriff for interrupting the answer of the witness. The agent then did not object to questions of a similar nature put to another witness. Their Lordships indicated that they were not surprised that a further objection was not taken having regard to the ‘discouraging atmosphere’! They further indicated that when an objection was clearly made, there is no requirement to repeat the objection on every occasion the objectionable evidence is sought to be led.

Summary causes

Another decision has been reported from Sheriff Principal Bowen following the introduction of the new rules. In Reid v First Glasgow Ltd 2003 GWD 9-246 the Sheriff Principal upheld a Sheriff’s decision to dismiss an action at the first calling on the basis that the claim was unsound in law. If a claim appeared to be unsound in law then the Sheriff was obliged to hear parties forthwith on the question in terms of SCR 8.3(3) and if satisfied that the claim was so unfounded, to dismiss the action. The point behind the procedure was to get to the bottom of an action and if it was unfounded to dismiss it. As in the case of the decision in Armstrong v Brake Brothers reported in the March article this decision is perhaps of some significance as Sheriff Principal Bowen was the chairman of the Sheriff Court Rules Council at the time the new Summary Cause Rules were promulgated and accordingly these decisions may give an insight as to how the rules are intended to operate.

Expenses

In the present day it seems that a great many accounts are prepared by law accountants, if taxations take place the law accountants deal with that aspect as well. Perhaps for the sake of curiosity readers might wish to look at the decision in Magee v Glasgow City Council by Temporary Judge Gordon Reid which dealt with a Note of Objections following a taxation. It may give some readers an insight into this curious world which seems now to be more and more the realm of law accountants. The Court can only interfere if the Auditor in the taxation errs in the exercise of his discretion.

The usual caveat applies.