Determining place of payment

Jurisdiction and place of payment

In Universal Steels v Skanska Construction UK, 31 October 2003 the issue was whether the pursuers were entitled to insist on payment only within Scotland. They had three addresses, two of which were in England. Lord Drummond Young decided that whether the pursuers were entitled to accept payment at any of these addresses was a matter of contractual interpretation. It was necessary to identify where the pursuers could insist on payment being made and where the defenders could insist on the pursuers accepting payment. That was a question of fact. His Lordship did not consider that there was no presumption that payment could only be insisted on in one place. In allowing a proof on jurisdiction, his Lordship considered the following of significance. The main obligation of the contract, apart from payment, was performed in Scotland. The proper law was Scottish. The invoices were issued, and the contract operated, from the Scottish address. The contract was concluded in Scotland. It was necessary to identify, if possible, where the defenders would know that the pursuers would conduct their dealings relating to the contract. The place of the pursuers’ external dealings in relation to the contract was of significance.

Independent and impartial tribunal

In Brown v Scottish Ministers 2003 SLT 1002 the test to be satisfied before a judge is disqualified was reiterated as being whether a fair minded and informed observer, fully appraised of the facts and having considered such facts, concluded that there was a real possibility that the judge would not be impartial.

Joint and several liability

In Ocra (Isle of Man) v Anite Scotland 2003 GWD 33-926 the pursuers sought a joint and several decree for damages against A and B, A being a wholly owned subsidiary of B, having sold its entire business to B. B was averred to have continued A’s business and held itself out as A’s successors. All correspondence after the date of transfer had been with B. B had sent a letter indicating that it was A’s successor and calling on the pursuers to implement reciprocal obligations. Lord Eassie decided that B had not taken over A’s liabilities. The presumption to the effect that a successor, taking over the total assets, took over the liabilities did not apply as B had not acquired A’s business gratuitously. B’s letter could not be construed as an acceptance of existing liabilities. He further decided that the fact that an action against one defender, sued jointly and severally with another, was misconceived was not fatal as far as the action laid against the other defender was concerned. In Duncan v Beattie 2003 GWD 28-798 it was decided that an action of damages raised against a partnership of general practitioners and a hospital trust was irrelevant as directed against the partnership. The action had been pled as if the partnership was a single doctor and the relevant issue was whether an individual doctor had been negligent. In short, take care that the averments made are actually applicable to the case.

Sist recalled – legal aid pending

In Walker v Roberts 2003 GWD 32-889 a sist was recalled albeit the pursuer’s application for legal aid had not been determined. Three previous applications had been made and refused. Two reviews had been refused; a third was still to be decided. The pursuer submitted that it was difficult to understand how SLAB could conclude that there was no probable cause. Pressure was being put on the Board and there was no fault on the part of the applicant (where have I heard these observations before?). The temporary judge had little difficulty in recalling the sist, the defender having shown considerable patience and no progress having been achieved in 20 months since the action commenced.

In Gallacher v Morrison & MacDonald (Paisley) Ltd 2003 GWD 33-924 summary decree was sought in an action previously been thought to have settled by negotiation. Refusing the motion, the Inner House decided that those circumstances were of no relevance. Such a motion had to be determined by reference to the appropriate procedural rules and relative authorities.

Remit to the Court of Session

In Gallagher v Birse 2003 SCLR 623 Sheriff Davidson granted a motion to remit a reparation action to the Court of Session. The sheriff took account of the fact that while the potential value of the claim was substantial, such actions were also litigated satisfactorily in the sheriff court, often with the assistance of counsel, at a lesser expense. There was no appreciable difference in time scale. The issue of convenience of witnesses was not of concern. The availability of a trial by jury was a factor although Sheriff Davidson did consider it somewhat paradoxical if a case was too complicated for the sheriff court, that the same case would be suitable for a jury. However, he considered, with hesitation, that the litigation was of sufficient difficulty and importance to be remitted.

Appeal against power of arrest

In Henry v McGrane-Langvik 2003 GWD 34-958 an appeal was taken against a decision to attach a power of arrest to an interim interdict in terms of the Protection from Abuse (Scotland) Act 2001. The sheriff had attached the power for a three year period, the defender having acted in breach of the interdict in three incidents lasting in total one hour, all taking place five days after the grant of interim interdict. The defender’s main residence was in Norway. Sheriff Principal Young refused the appeal. The sheriff had applied the correct tests in the Act and reached a reasonable decision in light of all the factors. The pursuer had spoken of being intimidated and terrified by the defender’s behaviour. There was sufficient for the sheriff to conclude that the power was necessary to protect the pursuer from a risk of abuse. The defender’s residence was less significant in view of the fact that she had a close connection with the city in which the pursuer resided, made frequent visits there and intended to return. The grounds for interfering with such a decision were essentially the same as those applicable to the granting of an exclusion order.

Expenses and Compensure premium

In McNair’s Executors v Wright’s Insulation Co Ltd 2003 GWD 33-939 the pursuer sought to recover by an award of judicial expenses the premium paid into the Compensure scheme set up by the Law Society. It was argued that this was “a reasonable expense incurred as a step in process to conduct a case in a proper manner”. Lord Carloway concluded that outlays required to be incurred in respect of work reasonably undertaken to conduct the litigation if they were to be recoverable. An arrangement to insure against an adverse award of expenses was not an expense of process. The fact that a solicitor might reasonably require to advise a client to pay such a premium and accordingly might have acted reasonably in incurring the outlay did not result in it being recoverable.

Legal aid expiry condition invalid

Though not strictly falling within the ambit of this article, it may be useful to refer to the recent decision of Sheriff Holligan at Glasgow in Connelly v GA Group and E J Steill & Co Ltd, which can be found on the Scottish Courts website. The matter of interest is the sheriff’s view to the effect that the condition often seen on a legal aid certificate that the certificate ceases to have effect unless proceedings are commenced within a certain date is of no significance or effect. The reason is that legal aid is in fact made available prior to the issue of the certificate. Conditions can be applied to the grant of legal aid in terms of section 14(2) of the Legal Aid (Scotland) Act 1986 but these are limited to the applicant being required to do something. As a result SLAB can determine whether it is reasonable for the applicant to continue to receive legal aid. SLAB is required to exercise a judgment in the light of the information supplied in those circumstances rather than determining at the time of issuing the certificate that legal aid will cease on a future specified event.

Update

Since the last article Behrent v MacKillop is now reported at 2003 SLT 1049, Martin v McInnes at 2003 SCLR 548, Ross and Liddell Ltd v Haggerty at 2003 SCLR 491, Orkney Islands Council v J D Robertson & Co Ltd at 2003 SCLR 636, Gillespie v Fitzpatrick at 2003 SLT 999 and Newman Shopfitters Ltd v M J Gleeson Group plc 2003 SLT (Sh Ct) 83.

The usual caveat applies.