When it falls, it falls

Decrees in absence

Sheriff Principal Young in Bennett v Bennett, Aberdeen Sheriff Court, 29 November 2004, made an observation to the effect that if a sheriff was minded to refuse a motion for decree in absence, the pursuer should be given the opportunity to address the sheriff before any interlocutor is pronounced. To fail to do so might fall foul of article 6(1) of the European Convention on Human Rights.

The falling of the instance

In recent years I have noted a number of decisions allowing reparation actions in the Court of Session to continue, notwithstanding that the summons was not lodged for calling timeously in terms of RCS, rule 43.3(2). The dispensing power contained in the Rules has been relied on in granting relief. I have not referred to these decisions for two principal reasons. First, it has always been my goal in these articles to concentrate on sheriff court procedure. Secondly, it seemed to me that these decisions did not rest easily with relatively recent decisions in the sheriff court – McCulloch v McCulloch 1990 SCLR 155 and Dunnett v Dunnett 1990 SCLR 135. The matter has now been authoritatively decided by the Inner House in Brogan v O’Rourke Ltd 2004 GWD 39-788. For those who practise in the Court of Session, Lord Reed, giving the opinion of the court, decided that in the event of a reparation summons not being lodged for calling within three months and one day from its being signeted, the instance fell. As a result, there was no dependent process upon which the dispensing power could be exercised. The significance of this decision in the sheriff court is in relation to the one year and a day rule. If no interlocutor is pronounced within a year and a day of the induciae expiring, the instance of the sheriff court action falls. The application of this rule is, by implication, confirmed by Lord Reed. This can have unforeseen consequences in practice. If a divorce action is served and the defender, rather than lodging a notice of intention to defend, agrees to negotiate with the pursuer, time can slip by unnoticed. If more than a year and a day passes before the affidavits and minute for decree are lodged, the instance has fallen. Another situation in which this may occur is the interdict action in which an interim interdict is granted and the writ is served. Thereafter the defender does not lodge any notice of intention to defend. Any motion for permanent interdict made more than a year and a day after the expiry of the induciae will fail as the instance will have fallen – as will the interim order previously granted.

Forum non conveniens

This plea was argued before Lady Smith in Banks v CGU Insurance plc 2004 GWD 36-729. The action arose out of an accident in Crete. The pursuer lived in southern England and Greek law applied to the claim. The defenders argued that the action would be more suitably litigated in England. Scots law did not apply to the claim and whilst the defenders had traded in Scotland, they no longer did so. Witnesses as to the pursuer’s injuries were English. The action on the face of it was time barred but section 19A of the Prescription and Limitation (Scotland) Act 1973 could have been founded on if Scots law applied. It was argued that it should be assumed that a similar provision applied in Greek law. Lady Smith allowed a proof before answer. Although there was no further connection with Scotland, and a greater connection with England through the pursuer’s residence, all matters including time bar were to be determined by Greek law. Accordingly the litigation was not substantially connected to England. The plea of forum non conveniens was not simply based on convenience. A previous action raised in England was of no great significance.

Lady Smith further made certain obiter remarks to the effect that if the litigation had had a substantial connection with England, the circumstances behind the raising of the previous action would have required to be looked at. Further, it would have had to be considered whether the interests of justice required the upholding of the plea against the background of the inevitable upholding of a time bar plea in England if any subsequent action was raised there. In the circumstances of the present case, the interests of justice would have required the upholding of the plea of forum non conveniens in that event.

Time bar: a preliminary plea?

In Humphrey v Royal and Sun Alliance 2004 GWD 36-328 the issue was whether a plea of time bar founded on section 17 of the 1973 Act was a preliminary plea, thus requiring a rule 22 note to be lodged if it was not to be repelled at an options hearing. Sheriff Principal Young decided that it was a preliminary plea and accordingly should have been supported by such a note. It is perhaps worth noting that in the submissions for the appellants before the sheriff principal, reference was made to a decision in Paisley Sheriff Court which came to a different conclusion.

Caution for expenses

As an incidental to the Inner House decision in Mahechani v Scottish Ambulance Service, 5 November 2004, it is worthwhile noting that while the action was before the sheriff principal a motion for caution for expenses was lodged. Although this motion was ultimately unopposed, it still required to be argued as the granting of the motion was a matter for the court’s discretion. Indeed whilst Sheriff Principal Macphail granted the motion, the amount of caution ordered was one half of the figure sought.

Was there a settlement?

In Chisholm v Wardrope 2004 GWD 34-688 Lord Emslie decided that settlement had not been achieved. The grounds of the decision are particular to the facts and do not require to be repeated here. However Lord Emslie, though not requiring to decide the issue, suggested that in such disputes the onus would fall initially on the party arguing that settlement had been achieved.

Value of the tender

In Martin v Had-Fab Ltd 2004 SLT 1192 the pursuer accepted a minute of tender for a specific sum together with expenses of process to the date of that tender. The defenders sought to argue that the sum specified in the tender was net of deductible benefits. A previous minute of tender had been lodged and the defenders argued that the gross value of the second tender was the same as the first. Accordingly the pursuer should only be awarded expenses to the date of the first tender, the net value of the second tender to the pursuer being different as a result of a second certificate of deductible benefits altering the previous certificate obtained when the first tender was lodged. The defenders accepted that they were attempting to modify the terms of the second tender. Their motion to restrict their liability in expenses to the date of the first tender was refused by Lord Clarke. The defenders had offered to pay the expenses of the process to the date of the second tender. The appropriate approach for them to take would have been to seek to modify the expenses awarded. I cannot help but thinking that there was an element of splitting hairs in this case. Where perhaps the defenders really fell down was in lodging a second minute of tender.

Remit to the sheriff court

In McKay v Lloyds TSB Mortgages Ltd 2004 GWD 38-757 Temporary Judge R F Macdonald granted a motion remitting an action for damages of £10,000 to the sheriff court. The action was typical of the sort of actions regularly raised in that forum. In light of the averments the true value of the claim could not at that stage be ascertained. However if the matter proceeded to proof in the Court of Session the expenses were likely to exceed the value of the claim. The law applicable and the facts were straightforward. The sheriff court procedure was also more appropriate with earlier disclosure of productions and witnesses. Leave to reclaim was granted and it may well be that a determinative decision will be forthcoming in due course. This might resolve the competing issues of a pursuer being entitled to choose which forum is more suitable with that of small value, straightforward claims consuming scarce judicial resources in the Court of Session.

Antisocial behaviour orders

In Glasgow Housing Association Ltd v Sharkey, Glasgow Sheriff Court, 4 November 2004 Sheriff Principal Bowen considered the criteria which required to be satisfied before an interim antisocial behaviour order would be granted. In the course of his decision he commented on the decision of Sheriff Holligan in Glasgow Housing Association v O’Donnell 2004 GWD 29-604 (discussed in the November article). Sheriff Principal Bowen agreed that the court required to be satisfied that, in the event of the conduct being established, it would amount to antisocial behaviour. The order also requires to be necessary to protect the relevant persons from further such acts. Sheriff Principal Bowen concluded that Sheriff Holligan’s observation that the necessity test was a high one went too far. Necessity was a matter of fact to be decided in each case. It was an exercise of judgment. The nature of the allegations, the likely delay to a proof, and the defender’s position were all factors to be considered.

The usual caveat applies. A belated best wishes for 2005. May you litigate successfully!