ASBOs: what standard?

Caution for expenses: legal aid

In Ballard v Bohannon [2009] CSOH 56 (17 April 2009), Lord Brodie was moved to order caution to be found by the pursuer in a petition to recall sequestration. His Lordship observed that while an award of legal aid was a factor pointing away from an order to find caution, it carried less weight in the event that the grant of legal aid was made with limited information. Lord Brodie was less than convinced as to the strengths of the pursuer’s case. There were reasons to doubt the pursuer’s credibility, questions as to the manner in which the litigation had been conducted to date and doubts as to what in real terms the present action would actually achieve. Lord Brodie subsequently awarded the defender expenses out of the Scottish Legal Aid Fund in both this action and a related action of reduction: [2009] CSOH 89 and 90 (24 June 2009).

Summary decree: an admission?

In Van Klaveren v Servisair (UK) Ltd [2008] CSOH 136; 2008 SLT 982 summary decree was granted restricting further issues simply to quantum on the basis of liability having been admitted on a reasonable interpretation of correspondence (see November 2008 article). The decision has recently been overturned in the Inner House: [2009] CSIH 37; 2009 SLT 576. Their Lordships considered that the letter amounted only to an extrajudicial admission which could be withdrawn at any time prior to the record closing. It did not suggest that the defenders were undertaking a binding obligation. Any admission of liability generally was provisional, open to variation in the event of new information emerging, until such times as parties’ positions were formalised. Subsequent correspondence did not contain an acceptance of any offer which the letter might have set out.

Delay, but no article 6

Lord Brailsford’s decision in the application by Baden-Württembergische AG (see March article), to allow registration of a foreign charge despite a considerable delay, was upheld in the Inner House on 29 April 2009 ([2009] CSIH 47). In particular their Lordships observed that article 6 of the European Convention of Human Rights had no application to the passage of time between the execution of the instrument and steps being taken to register it.

Sist pending other actions

In Allison v Henry Robb Ltd [2009] CSOH 83 (12 June 2009) a motion was made to sist actions for damages arising out of the pursuer developing pleural plaques, on the basis that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was subject to challenge by judicial review. The pursuer argued that the defenders were part of a nationalised industry and the European Convention could not assist them. Lord Hodge granted the motion. In addition to avoiding unnecessary expense and inconvenience, his Lordship took account of the asymptomatic nature of the pursuer’s condition.

Productions: averments needed

The mere lodging of a production is in no shape or form significant. In Aberdeen Joinery Windows and Doors Ltd v Salaam, Aberdeen Sheriff Court, 30 April 2009 the defender’s agent lodged an expert’s report as a production. Its content was not subject to averment. The defender’s agent sought to cross examine by reference to the content of the report. Objection was taken and upheld. The central parts of the report should have been the subject of averment.

Proof in replication

In Watt v Watt, 29 April 2009, Lady Smith was moved to allow proof in replication after submissions had commenced. Her Ladyship considered such a course of doubtful competency, and further that a party who had moved to submissions without seeking proof in replication might well have waived any such right. By that time all evidence had been led; thus a party knew everything concerning the evidence and was able to consider his or her position and determine whether further evidence was necessary. If a party did not make such a motion but moved on to submission there was an attraction in the argument that any right to lead further evidence was waived. Different considerations applied to a motion to lead additional evidence as a result of new information.

Appeals: whether leave required

In Brown v Brown, Ayr Sheriff Court, 11 May 2009 Sheriff Principal Lockhart determined that it was not necessary to seek leave to appeal against an interlocutor which varied a residence order moving the children from one parent to the other: implicit in such an order was an order ad factum praestandum since implementation required delivery of the children. The sheriff principal further observed that there was no absolute rule prohibiting a residential parent from moving with the children to another jurisdiction; in the present case it was appropriate that the mother be given the opportunity to present a fuller picture regarding the children.

Family actions: interim interdict

In DM v JM [2009] CSOH 65 (8 May 2009), a divorce action, the second defenders sought the recall of an interim interdict against them disposing of trust property. The pursuer contended that the first defender had transferred significant funds into the trust with a view to defeating the pursuer’s claims for financial provision. Lady Clark of Carlton considered that the grant of an interim interdict against a third party fell within the ambit of s 18 of the Family Law (Scotland) Act 1985 and an amended interim interdict remained in place.

Commercial actions: missives

In Stewart Milne Group v Cruickshank, Aberdeen Sheriff Court, 26 May 2009 the issue considered by Sheriff Tierney was whether an action of implement of missives was a commercial cause. The pursuers were in the business of constructing and selling residential properties. The defenders were not so engaged in any way, albeit there was a question of the purchase being for the purposes of “buy to let”. Sheriff Tierney, having considered the background to the introduction of commercial actions, considered that the definition was a wide one. The crucial factor was not the relationship between the parties but the underlying transaction or dispute. Did it have a commercial or business nature? Sheriff Tierney did not consider that the definition of “consumer contract” in the jurisdictional context assisted. That had a special function. He decided that the actions were commercial causes. The purpose behind the purchase was a further reason for reaching that conclusion. The sheriff further observed that had he decided that the action was not a commercial cause, he had difficulty in considering that the appropriate disposal was dismissal. Commercial causes came under the general umbrella of ordinary causes.

Antisocial behaviour orders

In Glasgow City Council v Ferguson, 22 May 2009 Sheriff Beckett, granting an antisocial behaviour order, concluded that the standard of proof was on balance of probabilities. In considering whether the order was necessary, the fact that there had been a change in the defender’s behaviour after the grant of an interim order was not crucial. The potential consequences of such an order and of a breach of the interim order would be a primary motivation in the defender moderating his behaviour. The order was necessary when account was taken of the nature and frequency of the defender’s previous behaviour.

In Stirling Council v Harris 2009 GWD 19-301 Sheriff Cubie came to a different conclusion, deciding that the standard of proof was beyond reasonable doubt. Whilst the behaviour complained of could be described as unpleasant and confrontational, in the context of neighbours having a marked difference of opinion, it did not amount to antisocial. Even if it was, the pursuers had taken no steps to resolve matters prior to instituting procedure and thus it had not been established that the order was necessary. In addition the terms of the order were too inspecific.

Jurisdiction: Insolvency Act

In Gerrard (Hynd’s Tr) [2009] CSOH 76; 2009 GWD 20-333 the issue was whether an application for an order in terms of s 426 of the Insolvency Act 1986 should be made to the sheriff court or could be made to the Court of Session. This question arose because the sheriff court now had exclusive jurisdiction over petitions for sequestration, courtesy of the Bankruptcy and Diligence etc (Scotland) Act 2007.

Lord Glennie considered that the application, for a declaration that the bankrupt’s interest in property in Dundee formed part of his estate in English bankruptcy proceedings, could be entertained in the Court of Session. The recent legislation gave the sheriff court exclusive jurisdiction only in petitions for sequestration. Further, jurisdiction was based on the debtor’s residence. In an application under s 426, the connection would be the situation of the property. If there was more than one property in different places, a number of applications might be required if the Court of Session had no jurisdiction. Further, as the application was for enforcement of an English bankruptcy order and the manner of enforcement was not stipulated, there was no reason to suppose that the court had no jurisdiction. In the case of an application in terms of s 426(4) for assistance from courts in other parts of the UK, the appropriate court might well depend on the assistance sought.

Vexatious litigants

In Lord Advocate v McNamara [2009] CSIH 45 (4 June 2009) the Inner House considered the terms of s 1 of the Vexatious Actions (Scotland) Act 1898. Their Lordships observed first that the purpose of the legislation was to anticipate potential future abuses of process. The institution of proceedings included counterclaims, but the Inner House had doubts as to whether an appeal would ordinarily fall within the definition. Proceedings were vexatious if they were devoid of reasonable grounds for their institution. The fact that previous actions had failed or were abandoned did not necessarily mean that they fell within that category. Whether a person had habitually and persistently raised such actions went beyond the number of proceedings. It was necessary to look at the whole history of a litigant’s activity in the courts. If some actions raised were not vexatious, this might have a bearing on the issue as to whether vexatious proceedings were commenced habitually. In considering whether an order should be made, the party’s conduct in other proceedings, the need to protect persons from further unfounded actions, the drain on a court’s resources, the prima facie right to raise an action and the availability of other powers to deal with any abuse of process were all factors to be taken into account in the exercise of discretion.

Update

Since the last article Mulhern v Scottish Police Services Authority (May article) has been reported at 2009 SLT 353, J A McClelland and Sons (Auctioneers) Ltd v I R Robertson and Partners Ltd (March) at 2009 SLT 531, Lujo Properties Ltd v Schuh Ltd (March) at 2009 SLT 553, Kevan M Smith Ltd v Tevendale and
B v B (both November 2008) at 2009 SLT (Sh Ct) 21 and 24 respectively, Mono Seal Plus Ltd v Young (May) at 2009 SLT (Sh Ct) 31, and Black v Black (January) at 2009 SLT (Sh Ct) 43.