Drawing the line

Jurisdiction in defamation

In Cairns v Downie 2005 GWD 1-16 the issue was the basis of jurisdiction for an action of defamation. Sheriff Principal Bowen followed the decision in Schevill v Presse Alliance [1995] 2 AC 18. This was to the effect that in instances of international libel through the press, the injury occurred where the publication was distributed in the place where the claimant is known. The fact that the pursuer was resident in Glasgow accordingly did not necessarily result in the place of the harmful event being there.

Pleadings – how detailed?

The issue of fair notice in pleading can cause problems to practitioners, particularly as evidence should not be pled. In Tony Beal Ltd v Boyd, Glasgow Sheriff Court, 22 December 2004, Sheriff Principal Bowen refused an appeal against the allowing of a proof before answer in an action for damages for breach of contract. In reaching his decision, the sheriff principal observed that what constitutes fair notice will differ from case to case. Hard and fast rules are difficult to propose. He considered that it was not in the interests of economic or efficient justice to make detailed averments in each and every case. It was not necessary for averments to be so detailed as to avoid the need for a specification of documents. In the present case the pursuers gave details of the charges and averred that they were reasonable. If the defender took issue with this, resort to commission and diligence could be made. In Murdock v McQueen 2004 GWD 39-797 the crave for two pursuers for damages arising from a breach of contract was submitted to be incompetent. Sheriff Evans rejected the argument that the pursuers should crave the damages in separate craves. The pursuers were suing in identical capacities as joint sellers for damages caused by the delay in resale of the property. For a contrasting position see Tomas Dagg & Sons Ltd v Dickensian Property Co Ltd, Glasgow Sheriff Court, 19 January 2005. The pursuers were allowed to amend to crave a separate sum for each pursuer, thus curing the defect. The point had not been taken at an early stage by the defenders. They were not prejudiced.

Discharge of options hearing

In Dawson v Shaw, Stonehaven Sheriff Court, 2 February 2005, Sheriff Principal Young was prepared to accept that it was competent to discharge an options hearing at the diet and that the sheriff’s powers were not limited to those set out in OCR, rule 9.12. In reaching this decision, he indicated that he might come to a different view if fully addressed on the point. For what it is worth, it seems a perfectly competent procedure to follow. If a party moved to sist an action at the options hearing, there would appear to be no objection to such a course. In that event it seems to me that the options hearing would require to be discharged for no other reason than that it makes sense in light of the operation of rule 9.9. I am fairly confident that options hearings are regularly discharged! 

Motions – if in doubt oppose

Welding v Wilson 2005 GWD 1-13 teaches a salutary lesson to agents. The pursuer lodged a minute of abandonment consenting to decree of absolvitor in terms of OCR, rule 23.2(1)(a). The accompanying motion simply sought decree of absolvitor. It was silent as to expenses although in communication the defenders indicated that they would likely seek expenses. A diet of debate was discharged prior to the minute of abandonment and accompanying motion being lodged, the case being continued to a certain date for the minute of abandonment to be lodged and the interlocutor recording this as the reason for the discharge. Unfortunately when the motion and minute were in fact intimated no notice of opposition was lodged, and the motion to grant decree of absolvitor was granted prior to the next calling of the case. Expenses were dealt with on a no expenses due or by basis.

Perhaps not surprisingly, the defenders were none too chuffed on the last point and appealed to Sheriff Principal Young. In his note to the sheriff principal, the sheriff indicated that he had dealt with expenses in the manner he had as the motion was silent on that point. The sheriff principal considered that the sheriff was so entitled. The defenders should have lodged a notice of opposition to the motion. There was nothing in the interlocutors to give any indication that expenses were to be dealt with in any other way. In response to a submission that the sheriff principal should exercise his dispensing power in respect of the failure to oppose the motion, Sheriff Principal Young refused to do so. No reference was made to the dispensing power in the note of appeal. Further, the defenders were the authors of their own misfortune.

The lesson to be learnt from this case is as set out in the heading. I have to say I have a great deal of sympathy for the defenders. There is no suggestion in the report that the normal rule with regard to expenses on abandonment would not have been followed. Whilst it easy to see why the motion was granted, and indeed the sheriff was perfectly entitled to do so, in other circumstances the motion might well have been put out to call in terms of rule 15.5(1) as it was silent as to expenses and clarification might have been sought. Further, as a prior interlocutor had made reference to the case calling at a future date for the lodging of a minute of abandonment, it might have been decided to await the case calling on that date before dealing with the motion. Again, whilst on a reading of rule 31.4(3) it might be correct that if the dispensing power argument was to be aired before the sheriff principal, reference should have been made to it in the note of appeal, it could be said that the grounds of appeal deal with why it is submitted that the decision at first instance is wrong. If there was no submission about the dispensing power before the sheriff, could reference to that power be a ground of appeal? Perhaps another lesson from this decision is that reference to the dispensing power should always appear in the note of appeal to cover “the appellant’s final point”!    

Decrees by default

There have been a number of decisions relating to the granting of such decrees recently. Each, of course, is dependent upon particular circumstances but nonetheless they may be of some assistance to practitioners if they are faced with not dissimilar situations. In Mullan v Les Brodie Transport Ltd, 21 January 2005, Lord Hamilton in delivering the opinion of the Inner House refused an appeal by a party litigant against decree by default being granted against her, albeit that liability was admitted in her claim for reparation.

The litigation had a tortuous history in Glasgow Sheriff Court. The pursuer had had four sets of solicitors prior to her representing herself. The action had been sisted on a number of occasions. The record had been amended in terms of her minute of amendment. Eventually a proof diet was assigned. Less than three weeks before that proof the pursuer sought to amend further and convene a further defender. This motion was refused and she was ordained to lodge a record incorporating the previous amendment within 14 days. She failed to do this, instead lodging a further amendment in similar terms to that recently refused. The pursuer having failed to lodge an amended record, on the defenders’ motion decree by default was granted, the pursuer having failed to obtemper a court order. Her appeal against this decree was refused. There was no suggestion that the basis of the sheriff’s decision would allow the Inner House to interfere. Accordingly even with a party litigant, there comes a time when a line must be drawn even in circumstances where liability has been admitted.

In Belhaven Brewery Co Ltd v Bradbury, 20 January 2005, the defender, a party litigant, failed to appear at a proof, having previously been served with notification that he must indicate his intentions as to the action. He responded to this intimation by fax dated 29 November 2004, the day before the diet of proof. The fax indicated that the defender had recently returned to the United Kingdom but would be unable to attend at the diet due to travelling difficulties. Decree by default was granted by Temporary Judge Macdonald. The defender was aware of the diet. He was in the United Kingdom. No specification was given as to the precise nature of his difficulties. There was a history of his failing to appear. In Riddell v Riddell, Edinburgh Sheriff Court, 23 December 2004, as a result of failure to appear at a peremptory diet the cause was allowed to proceed as undefended and by affidavit evidence. Sheriff Principal Macphail did not accept the defender’s explanation for non-appearance. Further on examination of the information relating to his claims for finance, the sheriff principal did not consider that he had any basis for such a claim in the divorce action. The pursuer would still require to establish her claim for financial provision by evidence. Accordingly no injustice was caused to the defender by allowing the cause to proceed as undefended.

Discharge of proof

Falling into the same category of illustrative decisions, that of Lord Philip in Sheikh v Sheikh, 10 February 2005 is of passing interest. The defender was representing himself when the case called for proof. His solicitor had withdrawn two weeks before. He alleged that he did not have access to his papers. Two earlier diets of proof had been discharged when previous solicitors withdrew. The action had commenced over four years ago. In refusing the motion to discharge, Lord Philip noted that the account given by the defender did not appear to be wholly accurate. His conduct was indicative of an attempt to delay the proceedings. The pursuer had been ready to go to proof for over three years. The defender’s witnesses were present.

Limits in re-examination

In Wilson v D M Hall & Son, 17 December 2004, objection was taken to a question asked in re-examination of the pursuer on the basis that the issue to which the question was addressed did not arise from cross examination. Lady Paton first allowed the question reserving all questions of competency and relevancy. Her Ladyship further allowed counsel for the defenders to ask further questions of the pursuer as a result. Counsel, however, submitted that this did not cure the prejudice caused. If the question had been asked in examination in chief, the approach to cross examination would have been different. Lady Paton ruled that the evidence resulting from the question was inadmissible. The question had gone beyond the proper limits of re-examination and was an issue which should have been fully dealt with in examination in chief in order that the defenders had fair notice of the pursuer’s position. Accordingly even the further opportunity to ask a witness questions will not remedy the position in situations such as this.

Time’s up

The decision of Sheriff Principal Macphail in Newman Shopfitters Ltd v M J Gleeson Group plc 2003 SLT (Sh Ct) 83 has recently been followed by Sheriff Convery in Glasgow in Wilson v Drake and Skull Scotland Ltd, 10 December 2004. The action was raised in 1991. It was sisted from 1997 until 2004. The defenders sought decree of absolvitor. This was granted on the basis that the sheriff had an inherent power to dispose of an action without proof. There had been an inordinate and inexcusable delay. This would give rise to a substantial risk that there could be no fair trial without serious prejudice to one party. Actions should be determined within a reasonable time. The defenders’ motion was granted. Sheriff Convery, in effect, blew the final whistle in that litigation!

Abuse interdict – power of arrest

In Sinclair v Sinclair, Dingwall Sheriff Court, 18 February 2005, Sheriff Principal Young determined that the attachment of a power of arrest to an interdict granted in terms of the Protection from Abuse (Scotland) Act 2001 required two questions to be addressed. Was there a risk of abuse in the breach of the interdict? If there was, was the attachment of a power of arrest necessary to protect the party from this risk of abuse? In the present case, the duration of the dispute, the close proximity of the parties, and the number of incidents were factors justifying the attachment of the power notwithstanding that there had been no incidents since the granting of the order. The sheriff principal also indicated that it was no hindrance to the granting of such an order that the pursuer was also at fault.

Objections not unlimited

In Gupta v Ross, 11 January 2005, Lord Osborne, in giving the opinion of the Inner House, confirmed that the purpose of a note of objections following a taxation of expenses was to identify specific items in the taxed account and challenge the reasons for the auditor’s decision in respect of these items. The note of objections is not intended to challenge the conduct of or the procedure at the diet of taxation.

<>Antisocial behaviour – closure order

An application for a closure order was made in terms of part 4 of the Antisocial Behaviour etc (Scotland) Act 2004 to Sheriff Holligan in respect of 25 Letham Terrace, Leven: Kirkcaldy Sheriff Court, 3 February 2005. Although not argued before him, Sheriff Holligan did suggest that the tight timetable envisaged in the dealing with such applications might be subject to ECHR attack. The premises should be clearly specified, perhaps even by reference to a plan, in order that the respondent was in no doubt as to the extent of the prohibition. The grounds for an order should be the subject of averment. These might be supplemented by judicious use of supporting documentation. Further, the test of the necessity of the order is a high one. Consideration also requires to be given to continuing access to the property for any other purposes such as repair and maintenance.

The usual caveat applies.