Testing competency

Changing rule 22 notes

In a recent decision from Sheriff Principal Young, Wright v Turriff Contractors Ltd, Banff Sheriff Court, 12 August 2008, an issue regarding rule 22 notes was aired. At the original options hearing a note had been lodged by the third party inter alia against the relevancy and specification of the defenders’ pleadings as directed against the third party. In the note the third party gave notice of two points to be taken at debate.

The defenders lodged a minute of amendment which necessitated the discharge of the debate assigned. During the amendment procedure the third parties lodged a fresh rule 22 note which reiterated the previous points but added a fresh point, also on relevancy and specification. No new preliminary plea had been added to the third parties’ pleadings. At the conclusion of the amendment procedure, the new point in the second rule 22 note was the only one that the third parties insisted on. The sheriff however refused a debate and allowed a proof before answer, apparently on the basis that it was unclear whether the preliminary plea would, as opposed to could, lead to dismissal.

On appeal Sheriff Principal Young considered this was too stringent a test and assigned a debate. It appears that considerable submissions were aired before him as to whether it was appropriate to assign a debate in respect of a point that only appeared in a supplementary rule 22 note lodged after the options hearing, on the basis that having regard to OCR, rule 22.1(4) the only stage at which such further points could be raised was at the debate or proof before answer and only on cause being shown. The sheriff principal had little difficulty in rejecting this submission. The purpose of the note was to give prior notice of the points to be argued at any subsequent diet and thus allow the court to determine whether a debate or PBA should be assigned, and further allow the parties and the court to prepare for that diet. The supplementary note fulfilled that purpose.

The sheriff principal further granted a partial sist of the cause in respect of the issues between defenders and third party, allowing the action to proceed to proof quoad pursuer and defenders, in light of the time which had elapsed since the accident in question. Further, if the defenders were absolved no further procedure would be necessary between them and the third party.

As an aside, he noted with regret that before the court at first instance, submissions involving counsel for three parties had taken place in the ordinary court. Of necessity time would be at a premium and if parties had prior notice that a hearing was likely to be lengthy, it might be preferable if attempts were made, after consultation with the sheriff clerk, to assign a special hearing. It may be worthwhile for practitioners to bear this in mind, although I have doubts as to how far a court diary could oblige!

Sist pending other proceedings

In Morton v Bank of Scotland, Edinburgh Sheriff Court, 26 August 2008, Sheriff Morrison was moved to sist the action, which related to bank charges, pending the outcome of the proceedings involving the Office of Fair Trading before the courts in England. There have already been two decisions regarding such applications from Sheriff Pyle in Inverness, to which I have previously referred.

In the present case, Sheriff Morrison granted the motion. He considered that there was a considerable overlap between this litigation and the one in England. Further the law in both jurisdictions on the relevant points was such that there was a very real prospect of the courts in England and Scotland coming to the same conclusion. There were many actions raised in both jurisdictions and uncertainty would remain until such times as the issues were authoritatively decided. If courts in different jurisdictions came to different decisions prior to that stage, the resultant uncertainty would be unhelpful for business. Sheriff Morrison did not consider the administrative burden of the many actions of any consequence. Resources have to be available for litigants.

Counterclaim for assigned claim

In Barr Roads and Contracting v Lusk Construction Ltd, Kilmarnock Sheriff Court, 7 August 2008, an action for payment, the defenders counterclaimed for recovery of sums said to be due by the pursuers to a company which had assigned its claim to the defenders. The issue at debate was whether the counterclaim was competent. Was the counterclaim necessary for determination of the question of controversy between the parties in terms of OCR, rule 19.1(1)(b)(ii)? Sheriff Ireland decided that the provision was an enabling one to allow issues in dispute between the same parties to be decided in the one action, thus in theory saving time and expense. A question of controversy between the parties could cover issues wider than those raised in the principal action. Sheriff Ireland considered that a court still had discretion to refuse to allow a counterclaim to be received. This would be exercised with regard to issues of expediency. The provisions of OCR, rule 19.4 gave the court wide powers to regulate procedure vis-à-vis the principal action and counterclaim. In the present case the counterclaim was admitted to probation.

Amendment of the instance

In Royal Insurance (UK) Ltd v Amec Construction (Scotland) Ltd [2008] CSOH 107; 2008 GWD 27-423, Lord Emslie was moved to allow amendment of the instance by the addition of words confirming that the pursuers were suing as trustees. The defenders submitted that this was an attempt to cure either a fundamental lack of interest or title to sue or a radical incompetence. Lord Emslie considered that whilst the action was incompetent without the proposed amendment of the instance, it fell well short of a radical or fundamental incompetence. Rather it was of a formal and technical nature. It did not undermine the pursuers’ title and interest to sue. The action was properly pled between the correct parties and founded on the correct grounds of action. There was no issue of jurisdiction and decree could be competently granted. His Lordship allowed the amendment. 

Questions at debate

In Jackson v Hughes Dowdall [2008] CSIH 41; 2008 GWD 26-404, an appeal was taken against the procedure adopted by a sheriff following a debate in an action conducted under the rules of court for commercial causes in the sheriff court. At the debate the defender had sought dismissal of the action. After avizandum, the sheriff issued a note determining that certain averments were irrelevant and should be deleted, although no leave to amend in that manner had been sought. The sheriff thus refused probation of these averments but allowed a proof before answer.

The Inner House determined that the issue at debate was the relevance of the pursuer’s averments and nothing suggested that the sheriff had been required to do otherwise than adjudicate upon the submissions made in support of the pleas debated. If the pursuer had sought to amend, the terms of such an amendment would have been for the pursuer to determine. By, in effect, amending the pursuer’s averments ex proprio motu, the sheriff prevented the defenders debating the issue of the amendment. Whilst a sheriff was involved in the case management of a litigation, this did not allow him to depart from the role of impartial adjudicator nor detract from the adversarial nature of the proceedings.

There are a number of issues which arise from this decision. First, it reaffirms the task of a sheriff when a debate is conducted. That function is to adjudicate on the submissions put forward in support of a preliminary plea. If no motion is made for leave to amend, then no such issue arises for the sheriff, the only issue being to adjudicate on the preliminary plea(s). The only exception to that rule is if a formal pleading defect requires rectification. In such circumstances, it is permissible to allow a party an opportunity to remedy such a defect.

The decision also highlights potential problems which can arise from the different roles which a sheriff has to perform in light of the various provisions in the rules. At certain stages in certain actions a sheriff is required to secure the expeditious progress of a case, the expeditious resolution of disputes, or to seek to negotiate and secure a settlement. Such roles may not sit easily with the role of independent arbiter and as a result problems can occur. In the course of delivering the opinion of the division, Lord Reed also made observations that the callings of a case being conducted by conference calls might not sit easily with the general principle that the conduct of a case should be in public. Further, the use of emails to deal with other than administrative matters seems also to have concerned their Lordships. Matters such as legal submission, which normally should be aired in public, had been transmitted by email.

Family actions

An issue of jurisdiction arose in MB v CB, Dunfermline Sheriff Court, 18 August 2008. On 3 October 2007 a final interlocutor had been pronounced in respect of a child, making various orders in terms of s 11 of the Children (Scotland) Act 1995. The child then moved to Bristol, attending school there and having medical care arranged there. The pursuer had consented to the order in anticipation of this move. A minute to vary the interlocutor of 3 October 2007 was lodged by the pursuer in Dunfermline Sheriff Court on 10 June 2008, some eight months after the child had moved to Bristol. An action had also been raised in Bristol relating to the child by the defender. Sheriff Dunbar was referred to Council Regulation (EC) 2201/2003 and s 17A of the Family Law Act 1986. He noted, however, that s 15 of that Act had not been amended in any way. The minute was not a new action but had been competently brought in the existing process in terms of the ordinary cause rules. Section 15 applied to the present action and the court had jurisdiction to deal with the minute.

Sheriff Dunbar further refused to sist the proceedings in Dunfermline, notwithstanding the proceedings in Bristol. The original action had been resolved a matter of months before in Dunfermline. If there was any issue of the defender misleading the court, a sheriff at Dunfermline was best suited to determine that. Much time and effort had been expended previously with a court report prepared. Any inconvenience caused by the action proceeding in Dunfermline would be mirrored if the action proceeded in Bristol.

Expenses issues

In McAvoy v Scottish Ministers 2008 GWD 23-372, Sheriff Liddle refused to certify a medical witness as an expert. This witness had provided reports as to the psychological effects of slopping out. He had worked as a medical officer in prisons and had interviewed the pursuer and read relevant reports and literature. However he had no relevant qualifications entitling him to produce psychological reports, and lacked the necessary expertise to give evidence on such matters. He further had failed to carry out any examinations in support of his findings.

In Snowie v Stirling Council 2008 GWD 27-427 a motion was made for expenses to be taxed on an agent/client basis. Sheriff Cubie refused the motion. As a litmus test as to whether such an application might be granted, Sheriff Cubie noted that the test to be satisfied was a very high one: the conduct of the liable party had to be “irresponsible”. I don’t think that is a bad yardstick.

Adults with incapacity

There have been two decisions of some practical interest issued in the last couple of months. In the Application by JO’B, Glasgow Sheriff Court, 14 August 2008 Sheriff Baird noted the difficulties regarding the finding of caution for lay persons appointed guardians. There is now a system in place covering estates up to a value of £500,000 which carries a presumption that a person appointed guardian by a court is a suitable person. The premiums have been substantially reduced for small estates [see p 31: Ed].

In two applications in Edinburgh Sheriff Court by Francis Galashan and John Lynn, 7 July 2008 Sheriff Mackie observed that whilst there was no general rule, normally the expenses incurred in making an application would be taxed on an agent/client, client paying basis. However, the decision was one for a sheriff to determine and the interlocutor should specify the basis of taxation.

The usual caveat applies. 

Update

Since the last article Trunature Ltd v Scotnet (1974) Ltd (July article) has been reported at 2008 SLT 653, Cultural and Educational Development Association v Glasgow Council (May) at 2008 SLT 670 and CSC Braehead Leisure v Laing O’Rourke (July) at 2008 SLT 697.

Sheriff court rules amended

As a result of the provisions of ss 146 and 169 of the Bankruptcy and Diligence etc (Scotland) Act 2007, which came into force on 1 April 2008, giving a sheriff the power to grant a warrant to inhibit, procedure for applying for diligence on the dependence including inhibition was introduced by the Act of Sederunt (Sheriff Court Rules Amendment) (Diligence) 2008, which came into force on the same date. Perhaps the most relevant aspect of these amendments is contained in what are now OCR, rules 6.A1 to 6.A7. These rules provide that an application for diligence on the dependence and any recall thereof is made by motion. The former has also to be accompanied by a form G4A. The provisions also set out the manner in which an inhibition is registered and provide for the registering of a notice. Similar amendments are made to the summary cause and small claims rules.

In addition, with effect from 1 July 2008 the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2008 came into force. The provision which is likely to be made most use of is that now provided in OCR, rule 33.33A. This enables a party to many family actions to be treated as if he had lodged a notice of intention to defend, or appear and be heard at a proof even although that party has not lodged such a notice. In the latter case, the defender is not allowed to lead any evidence without the pursuer’s consent. A similar application can be made within 14 days of decree in absence in such an action being granted. Such an application is by way of note setting out the proposed defence and the reason for failure to lodge the appropriate notice. If the order is granted, the court can attach such conditions as are considered appropriate. A similar provision in OCR, rule 33A.33A applies to actions regarding civil partnerships.

Further, in summary causes for recovery of heritage where a monetary crave is also sought, it is confirmed in terms of SCR, rule 30.9 that any offer to pay the monetary crave is not to be taken to amount to a concession over the granting of decree for recovery.