Be ready for the options hearing

Citation in England

In McKie v Jack Robinson (Trawlers) Ltd, Portree Sheriff Court, 13 July 2004 the issue was whether the defenders had been lawfully cited in terms of OCR, rule 5.5(1)(a)(i). The citation had not been signed before it was forwarded to process servers in England. Sheriff Principal Young decided that there were two questions to be answered. The first was what required to be served upon a defender; the second was by what means it required to be served. The first question, in an action raised in Scotland, required to be answered by reference to Scots law. As the citation had not been signed by a solicitor or sheriff officer there had been no citation of the defender. This followed Lord Penrose’s decision in Blackfriars (Scotland) Ltd v Shetland Salmon Co’s Trustee 2001 SLT 315. The second question, for the same reasons, also required to be so answered. As the defenders were a limited company personal service could not be effected upon them in light of the decision of Rae v Calor Gas Ltd 1995 SLT 244.

Defences to a furthcoming

In North Lanarkshire Council v Sexton, Airdrie Sheriff Court, 3 August 2004 Sheriff Principal McInnes in the course of allowing an appeal and recalling a decree in absence, referred to Graham Stewart on Diligence. There it is observed that when an arrestment is served on the strength of a registered agreement, thus preventing the debtor an opportunity to oppose the decree, all defences which could be stated to an action for payment can be stated in any action of furthcoming. This principle could arguably apply to a summary warrant.

Averments supporting arrestment

In Kelvin Homes Ltd v Ritchie Brothers (Public Works Contractors) Ltd 2004 SCLR 506 the defenders sought the recall of an arrestment on the dependence. One ground for the motion was that the grant of the warrant to arrest was incompetent. This was held to be incompetent. Another ground was that there were no averments to support the grant of the warrant. Sheriff Principal Macphail decided that the absence of averments was not fatal to an application for a warrant to arrest on the dependence. The application had been considered by the sheriff and there was sufficient information placed before him which could justify granting the warrant. The absence of averments did not prejudice the defender in any application for recall. Normally the information supporting such a motion would be within his own knowledge, i.e. the strength of the pursuer’s case, his financial stability, dissipation or flight.   

Left without options

If the profession has taken a more relaxed attitude to the cornerstone of the 1993 Rules recently, a judicial warning shot is fired across its bows by Sheriff Principal Macphail in O’Callaghan v Simpson, Edinburgh Sheriff Court, 2 July 2004. At an options hearing the record left something to be desired. Part of answer 2 was in answer 3 and there was an answer 4 to no corresponding article of condescendence. The options hearing was continued. In the intervening period, the defender adjusted to remedy these errors. When the record for the continued options hearing was prepared the initial errors remained in that document notwithstanding the adjustment. This record was lodged late. The day before the continued options hearing, the principal agents noticed the problems and arranged to fax an accurate record to the Edinburgh correspondents. It arrived after the agent had left for court. When the case called, the sheriff noted that the record made no sense. The defender’s agent indicated that she had an accurate copy of the record. The sheriff suggested copying and certifying it. The pursuer’s correspondent did not take up this suggestion and contacted the principal agents who advised of the fax to his office. When the case recalled, the record faxed to the pursuer’s correspondents in Edinburgh had still not arrived at court. The pursuer’s agent accordingly sought to amend the record but did not do so accurately. Patience was no doubt exhausted at this point, and no further suggestion coming from the pursuer’s agent, the action was dismissed. At appeal Sheriff Principal Macphail made the following observations. An inaccurate options record which cannot be understood prevents a sheriff performing the duties imposed on the bench at such a hearing in the same way as the lack of a record. A sheriff cannot be expected to appoint a case to proof even if there are no preliminary pleas, if the “pleadings are to any material extent unintelligible”. It was no answer to say that a party could amend. Amendment was at the discretion of the court. The sheriff principal considered it was inappropriate for the exercise of the dispensing power and upheld the decision to dismiss the action. Whilst this case may be an extreme example, it cannot be said that it is the only litigation in which the record or part of it is incomprehensible. A favourite is a pursuer being erroneously called the defender. It remains important for agents to check and read the record before the options hearing to ensure the pleadings are accurate and to know what the case is about if they are acting in a correspondent capacity. To fail to do so can at least result in an unexpectedly uncomfortable time!

In Cyma Petroleum (UK) Ltd v Total Logistics Concepts Ltd 2004 GWD 22-477 Sheriff Principal Kerr reiterated that it was for the party seeking a debate to persuade the sheriff that there was a substantial point for debate. If there was a doubt as to the likelihood of a substantial matter emerging from fuller argument at the diet of debate, the appellate court  should generally adhere to the decision at first instance.

Arguing a different motion

It is a fact of life that certain procedural rules are often overlooked. For instance, how often is OCR 9.4 complied with? In Richardson v Rivers, Edinburgh Sheriff Court, 23 August 2004 another provision, often overlooked, was the subject of comment by Sheriff Principal Macphail. A written motion inter alia seeking to fix a hearing on expenses had been intimated, lodged, and opposed. At the hearing of the motion, however, the sheriff awarded no expenses to or by either party. In the appeal, the appellant’s account of that hearing differed from that of the respondent and the sheriff. Sheriff Principal Macphail noted that the motion argued before the sheriff was not that intimated, but was for no expenses to be found to or by either party. The sheriff principal referred to the terms of OCR, rule 15.1(1) which allows a verbal motion to be made at any hearing of the cause with leave of the court. He observed that if a party wishes to move an important, materially different, and highly unusual new oral motion then leave of the court should be sought and the onus for seeking such leave lies upon the party moving the motion. The fact that the opposing party did not object to the amended verbal motion did not result in the appeal being unsuccessful; the question of expenses was remitted to be heard by a different sheriff. In practice, if you propose moving a significant motion, even if the case is calling procedurally, it is safer to give written intimation.

Sibling contact?

In E v E 2004 GWD 26-548 Sheriff Crowe decided that a 14-year-old could competently apply for a contact order in respect of her siblings. He disagreed with the decision of Sheriff Principal Bowen in D v Y 2004 SLT (Sh Ct) 73. The way the matter came before the court for argument is interesting for anyone looking at the decision on the SCS website.

Who pays the third party?

In Connelly v GA Group Ltd, Glasgow Sheriff Court, 9 July 2004 the point raised in appeal before Sheriff Principal Bowen was the extent of a defender’s liability in expenses to a third party. Once the third party had been brought into the action, the pursuer adopted the defenders’ case against the third party. The pursuer failed against that party. The sheriff awarded expenses against the defenders in favour of the third party up to the point at which the pursuer adopted the defenders’ case against the third party. Sheriff Principal Bowen held that the defenders were the party responsible for bringing in the third party to the action. In those circumstances, the normal rule should apply in the absence of any special circumstances. The defenders should be liable in expenses to the third party, albeit the pursuer subsequently adopted the defenders’ case against the third party.

In McNeish v Advocate General 2004 GWD 26-560 Temporary Judge J Gordon Reid required to consider a legally aided pursuer’s motion for modification of an award of expenses in favour of the defender following the pursuer’s eventual acceptance of a minute of tender. In refusing the motion, the temporary judge made certain observations as to the principles which should apply in such cases. First, tenders were meant to avoid unnecessary procedure by encouraging settlement. Secondly, a defender tendering should not lose the normal protection as a matter of course even if the pursuer is legally aided. Thirdly, the conduct of the pursuer requires to be judged objectively. Fourthly, if the pursuer has funds as a result of the settlement or a decision, the court should be less sympathetic to a modification motion than if the pursuer failed completely. Finally, the pursuer’s expenses should be set off against the defender’s with any balance being deducted from the damages.

Appeal: practical compliance

In Smyth v Pearce, Edinburgh Sheriff Court, 13 July 2004 Sheriff Principal Macphail agreed with Sheriff Principal Ireland in Tait v Main 1989 SLT (Sh Ct) 81 in holding that leave was required to appeal against the refusal to recall an arrestment upon the dependence. In so doing he disagreed with Sheriff Principal Cox in Ian Gordon Commercials v Richmond Light Transport 1998 SLT (Sh Ct) 69.  In this case however, the appellants lodged a note of appeal without any specific grounds of appeal. They justified this course of action, somewhat ingeniously, by arguing that it was only when they received the sheriff’s note that they could frame their grounds of appeal. The original ground of appeal was simply “the sheriff erred in law”. Sheriff Principal Macphail observed that such a ground of appeal failed to comply with the terms of OCR, rule 31.4 and was of no practical use as it did not identify the points at issue in the appeal.

The usual caveat applies.