Fair hearing with prior knowledge?

Fair and impartial hearing

In Aberdeen City Council v Robb 2004 GWD 5-90, Aberdeen Sheriff Court an interesting point was raised by Sheriff Principal Young. The appeal was taken against a decision to grant decree of recovery of possession of heritage. The proof was due to be heard by a sheriff who had imprisoned the defender for breaching an anti-social behaviour order. The sheriff had declined to hear the evidence because of this. The proof was discharged and called at a procedural hearing before the same sheriff. The purpose of this hearing had been to establish whether the defender could obtain legal representation. The defender had been unable to do so. At this stage, although no witnesses were present, the pursuers indicated that they were opposed to a further adjournment. The sheriff was persuaded to grant decree. The sheriff principal queried whether the defender had his dispute determined by a fair and impartial tribunal, decree being granted by a sheriff who had previously declined to hear evidence at the proof. The sheriff principal did not consider that the fact that the sheriff had convicted the defender of breaching an anti-social behaviour order necessarily prevented that same sheriff presiding at the proof. The problem arose in the present case as a result of the sheriff initially declining to hear the evidence and then subsequently presiding and granting decree at a later hearing. In those circumstances the sheriff principal recalled the order made.

Parental rights of a child?

In D v H, Glasgow Sheriff Court, 23 February 2004 Sheriff Principal Bowen was asked to grant a warrant of citation in an action by a 15 year old child for contact to his 14 year old sister, who had been adopted. The sheriff had refused to grant a warrant for three reasons. First, the sheriff considered that the action was incompetent: a parental right could not be made in favour of a person under 16. Secondly, reservations were expressed as to the pursuer’s title and interest to sue as he was no longer “legally related” to his sister. Finally, the sheriff was concerned as to the implications of intimation of the proceedings upon the sister. Sheriff Principal Bowen refused the appeal. He decided that section 11(2) of the Children (Scotland) Act 1995 referred back to section 11(1) of that Act. The pursuer was seeking to exercise a parental right in circumstances in which he was under 16 years of age. The action was accordingly incompetent by reference to section 11(2)(b) of the Act.

Party litigant’s defective minute

In Clydebank Housing Association Ltd v McEmerson 2004 GWD 3-45 Sheriff Principal Kerr decided that it was necessary for a minute of recall of decree to be competent before the sheriff was required to recall the decree in terms of summary cause rule 24.1. In particular the minute must contain a statement which would amount to a statable defence. In this case the sheriff had refused the minute lodged by a party litigant in an action for recovery of possession. Notwithstanding that the defender was a party litigant, substantial conformity to the rules was required. The minute contained no information as to the defence. The sheriff principal decided that even if the statement in the minute could be construed as raising the issue of whether the granting of a decree was reasonable, nonetheless this did not constitute a complete defence but rather was a reason for postponing decree.

Creditor’s oath not intelligible

In Punch Taverns Properties Ltd v Rowe, Haddington Sheriff Court, 17 December 2003 the issue raised on appeal against the sheriff’s refusal to award sequestration was whether the oath by the petitioning creditor complied with the statutory requirements. It was held that the oath requires to contain sufficient information to be intelligible to anyone with sufficient interest reading it. In particular it must provide information as to the origin, nature, and validity of the claim. In this case the details of the debt were deficient. There were numerous heads of claim. The claim for rent did not specify the subjects for which the rent was due nor the period. Other matters were simply defined by bald words or phrases with no information expanding what the basis of the claim was: for instance, reference was made to “goods”. The evidence for the debts made reference to an extract registered lease and a certificate of indebtedness. The lease did not assist with matters such as the period over which the rent was unpaid. The certificate of indebtedness did not clearly comply with the terms of the lease insofar as it referred to such a certificate. Sheriff Principal Macphail further decided that the charge purporting to establish the debtor’s apparent insolvency was not duly executed. In respect of some heads of claim the petitioners had not carried through the procedures laid down in the lease to ascertain the sums due under those heads. Further there was no proper warrant for the charge. The relevant certificate of indebtedness had not been presented for registration.

Time for certifying experts

In Allison v Orr 2004 GWD 2-26 an appeal was taken against the refusal to certify witnesses as experts. The Inner House decided that the value of a claim was not an important test in deciding whether an expert witness was required. First, the settlement figure of a claim did not necessarily mean that the action was simple or that it was of modest value. In deciding whether it was necessary to instruct an expert the appropriate time to examine was the point at which the expert was instructed. In this case the experts were instructed in preparation for the proof when the ultimate path of the litigation could not be foreseen and whether the action would settle or proceed to the hearing of evidence. In answering this question, it had to be assumed that at the time the expert was instructed the proof would proceed and that proof was required of certain aspects of the case. It was unnecessary to instruct an employment expert to assess both whether loss of employability had occurred and, if it had, what the value of that head of loss was. The courts assessed such factors regularly without expert evidence. Likewise evidence of loss of promotion prospects did not require expert evidence. However it was reasonable to instruct an actuary to calculate the loss of pension rights notwithstanding that the pursuer was the only person speaking to the factual evidence upon which such a claim was based at the time the actuary was instructed.

The usual caveat applies.