Should the party pay?

Refusing a reponing note

It is perhaps relatively uncommon for a reponing note to be refused. In Russell v Van Overwaele, Dumbarton Sheriff Court, 2 March 2005, a reponing note was refused at first instance and appeal. The reason given for failure to lodge a notice of intention to defend was the failure to arrange for mail to be redirected. The defence proposed was one under article 8 of the European Convention on Human Rights, namely that the remedy of the sale of property was disproportionate to the debt originally due, £230.87, increasing to £1,573 when the defender was sequestrated. The other creditors amounted to £17,000 with the costs of administration of the sequestration being in excess of £80,000. Sheriff Principal Kerr considered that for such a defence to succeed, comparison of figures alone was insufficient. There required to be a positive assertion made that the trustee had acted improperly in fulfilling his duties, with the appropriate specification. He further observed that in considering a reponing note, if the explanation for failing to lodge a notice of intention to defend was weak, then the proposed defence required to be sound. In that event a court would in all probability be prepared to grant the reponing note, as to do otherwise would result in such a defence going untested. 

Decree by default

In Mills v Chief Constable, Lothian and Borders Police, Edinburgh Sheriff Court, 25 April 2005, the pursuer appealed against the granting of decree by default in an action of reparation. The grounds of default were the failure to lodge an options record and subsequent failure of the pursuer’s agent to appear at the options hearing. These failures appeared to be due to administrative failures on the part of the pursuer’s agents caused by illness, holidays and pressure of business. In opposing the appeal, the defender referred to correspondence which had given plenty of notice to the pursuer’s solicitors of the approaching options hearing. Further the pursuer’s pleadings were lacking in specification. The dismissal of the action meant that any claim was time barred. Sheriff Principal Stewart allowed the appeal. He accepted that the administrative systems in the pursuer’s agents’ practice were inadequate and open to criticism. However, this did not mean that the pursuer should necessarily suffer. Even if a further action could be raised against the agents, this would result in delay. The action was clearly raised to avoid the case being time barred and was for a substantial sum. The sheriff principal considered that further information should have been obtained before the action was dismissed. There had been no indication given that the pursuer had decided against pursuing the litigation. If a claim would be time barred as a result of the dismissal of an action, Sheriff Principal Stewart considered that this step should only be taken after careful consideration of all available facts.

As an interesting postscript, the sheriff principal found the pursuer’s agents personally liable for the expenses of the options hearing and the appeal, both to the defender and the pursuer. He felt that the pursuer should not be out of pocket as a result of her solicitors’ failures. I have to say I have never come across an award where agents are found liable for their own client’s expenses in process. I would have thought that the sheriff principal’s note would have been the foundation of a claim for inadequate professional service which would potentially have precluded the solicitors charging for their work in relation to the options hearing and the appeal. My initial reaction is to query whether the court can make any award of expenses which deals with the position between solicitors and their client. If my reservations are wrong, I simply would plead in mitigation that my thoughts are at present based on instinct rather than research!

Caledonia Subsea Ltd v Micoperi Srl 2005 GWD 9-131 is another example of “enough is enough”. The defenders had unsuccessfully attempted to discharge a proof as a result of their relieving their initial solicitors from acting, the new agents being unable to prepare. At the proof, the second solicitors had in fact withdrawn and the defenders’ Italian solicitor appeared. He had no right of audience, nor had he instructed someone who had. Lord Mackay granted decree by default. The first solicitors had taken steps to prepare for the proof on behalf of the defenders, but the defenders had not co-operated with that firm in the preparation.

Summary decree

In NVC Constructional Services Ltd v Teal 2005 GWD 12-199 Sheriff Cusine refused a motion for summary decree. One submission made in support of the motion was that the defences did not contain a plea in law which might support the averments. Sheriff Cusine observed that the test for summary decree was whether there was a substantive defence to the action. The fact that it was not pled or at least adequately pled at the time of the hearing of the motion was not fatal to the opposition to such a motion. As an observation, I suggest it would be the exception rather than the rule for a motion for summary decree to be granted prior to an options hearing.

Splitting the proof

In McFarlane v Thain 2005 SLT 221 Lady Paton allowed all issues in a reparation action with the exception of quantum to be resolved in a proof prior to a proof on quantum. Her reasons were that the issue of liability could be resolved with substantially less court time being required than if liability and quantum were heard together. Resolution of the issue of liability would inevitably result in one of the defenders being assoilzied. As the pursuer was legally aided, it was unlikely that expenses would be recoverable from the pursuer. Accordingly, if issues of liability and quantum were not split, these irrecoverable expenses would be far greater for one defender.

Taking a child’s views

The issue of the views of a child arose in an appeal before Sheriff Principal Kerr in C v McM, Greenock Sheriff Court, 7 March 2005. An appeal was taken against a decision to make section 11 orders. The ground of appeal was that the sheriff had failed to take the up to date views of the elder child. This constituted a procedural irregularity and the decision could not stand. In considering Shields v Shields 2002 SCLR 334, Sheriff Principal Kerr considered that before a section 11 order was made, the views of the child generally required to be obtained at the time the making of the order was being considered even if intimation had been dispensed with. This meant that at the time the court was considering the making of such an order, it had to consider whether the requirement to ascertain the views of the child had been adequately complied with. The sheriff principal observed that the ages of the children in the appeal, namely six and eight years, did not obviate the requirement that their views be obtained. The sheriff principal however concluded that there had not been a failure to obtain their views. Although these views were not taken at the time of the proof, they had been recorded in an earlier social work report. Further, the issue on which the views were sought was a general one, namely in which house did they wish to reside. The sheriff had considered at the proof whether to give the children a further opportunity to express their views and decided against it.

Looking again at Shields, Sheriff Principal Kerr considered that if the views of a child had not been taken, then subject to the practicality of obtaining such views, the views required to be taken prior to deciding the issue of a section 11 order. If, however, the views of a child had already been taken, the issue to consider was whether a further opportunity to express views should be given. It was not mandatory to give a further such opportunity. One factor clearly might be the length of time that had elapsed since the views were expressed. Another could be what had generally taken place in the intervening period.

Leave to appeal required

In Fergus v Eadie 2005 SCLR 176 an appeal was taken to the sheriff principal against an award of interim contact. The appellant’s solicitor argued that the interlocutor appealed was one granting an order ad factum praestandum and accordingly no leave to appeal was required. Sheriff Principal Macphail had little difficulty in concluding that this argument was misconceived. An order ad factum praestandum required a party to perform an act other than pay money. It must specify what the party on whom the obligation falls requires to do. With an interlocutor relating to interim contact, the defender did not require to do anything.

Expenses on varying contact

In Cowan v Ramsay 2005 GWD 7-97 a note of objections was taken from an auditor’s report in relation to an award of expenses in a post-decree minute to vary contact. Sheriff Barr decided that the minute was not a new action for the purposes of the relevant table of fees. The minute was made in a process which already constituted a family action. The auditor was correct in taxing the account by reference to paragraph 14 of chapter 2 of part 2 of the table of fees.

The usual caveat applies.

POSTSCRIPT

Since the last article Connelly v GA Group Ltd (September article) has been reported at 2005 SLT (Sh Ct) 16, Cairns v Downie (March) at 2005 SLT (Sh Ct) 14, Humphrey v Royal and Sun Alliance plc (January) at 2005 SLT (Sh Ct) 31, Rennie v Norquoy (November) at 2005 SCLR 171 and Martin v Had-Fab Ltd (January) at 2005 SCLR 129.