Two in one

Separate defenders, separate conclusions

In Toner v Kean Construction (Scotland) Ltd [2009] CSOH 105; 2009 SLT 1038 the pursuers sued two defenders for damages for breach of copyright. It was averred that the second defenders had copied parts of drawings the pursuers had prepared for the first defenders. Damages were sought against both. It was submitted that the action was incompetent. Lord Bannatyne determined that in this instance, as the cases against both defenders were inextricably linked both factually and legally, based on the same wrong, and the same remedy was sought, the action was competent. There was a common interest in the position of both defenders and thus it was in the interests of justice that they be sued in the same action. Lord Bannatyne further considered that there was no need to make reference to the legislation upon which the action was based in circumstances in which it was patently obvious that the action was based on the terms of the statute.

Jurisdiction

In HSBC Bank plc [2009] CSOH 147; 2009 GWD 37-629 a winding up order was sought against a company incorporated in Gibraltar. Lord Hodge decided that he had jurisdiction to wind up the respondents. Their business was to develop property in Scotland, their principal place of business was here, their principal asset was here, and the petitioners were likely to benefit from the order if the development could be completed and thus a better price obtained.

Res judicata

In Clark’s Judicial Factor v Maclehose [2009] CSOH 153 (19 November 2009), the defenders sought to argue that the action was res judicata. A previous action had been raised by the pursuer in an individual capacity. This action had been dismissed at debate. She now pursued an action in the capacity of judicial factor. It was further argued that the mere fact that the pursuer had been appointed judicial factor did not per se give her the right to pursue the claim. Morag Wise QC, sitting as a temporary judge, concluded that as a judicial factor, the pursuer had title and interest to pursue any claims arising from the estate. The fact that her predecessor in office had not pursued the same claims did not restrict her power. Turning to the issue of res judicata, the pursuer now pursued the action in a different capacity to that in the prior action.

Decrees

This really is an aside from an action of reduction, Campbell v Glasgow Housing Association Ltd [2009] CSOH 154 (20 November 2009), in which the pursuer sought to reduce a decree for recovery of heritage. One point was that the terms of the extract decree referred to the decree “in absence”. Lord Bannatyne rejected a submission that he could not look behind the terms of the extract. In the circumstances of the granting of the decree, Lord Bannatyne considered the words “in absence” only reflected that at the time decree was granted Mr Campbell had not been physically present. It further was clear from the history of the prior proceedings that the decree pronounced was one in foro.

Expenses

In Smith v Highland Council [2009] CSOH 149; 2009 GWD 37-624 an action had been settled extrajudicially with the pursuer being awarded expenses as taxed. The auditor taxed off charges in respect of work carried out by a compensation service and a note of objections was taken. The objection was repelled. There was no basis for including charges for work carried out prior to the instruction of a solicitor and not instructed by a solicitor. Pre-litigation information passed to a solicitor could not be adopted by the legal adviser and charged as if his own.

Contempt of court

One of the bases for Sheriff Cubie finding the defender in contempt in EB v FR, Stirling Sheriff Court, 30 September 2009, was that the defender had caused and permitted pleadings, which were untrue and which he knew to be untrue, to be lodged in court. Sheriff Cubie observed that whilst pleading which was untrue and unsupported was inherent in the adversarial system, the defender had used his pleadings to give an untrue and self serving account of events, intending that his child would be blamed for court orders not being obtempered. Indeed, the averments had had that result. The defender had further accepted that certain averments were untrue. To delay the court process when there was no defence in fact and law to the application constituted an abuse of process. The defender knew what he was doing, had no regret for what he had done, and had achieved his ends as a result.

It is further worthy of note that Sheriff Cubie was moved to find the defender in contempt for his conduct of the hearing. He had been disrespectful of the other parties, their representatives and the sheriff. Sheriff Cubie refrained from finding the defender in contempt in that regard. He had apologised for much of his behaviour, he was unrepresented, and he was reacting to the progress of the action. This was, I have no doubt, an extreme example, but is worthy of note.

Summary causes

In Glasgow Housing Association v Duffy 2009 GWD 40-691 decree was granted in absence at a pre-proof hearing in an action for recovery of heritage. The defender lodged a minute for recall on the basis that the hearing had been a continuation of the first calling and it had not been competent to grant decree by default in terms of summary cause rule 22.1(1). Sheriff Drummond decided that as the pre-proof hearing was neither a diet of proof nor the hearing of an incidental application, it had to be a continuation of the first calling. In those circumstances, the minute was competent.

In West of Scotland Housing Association v Daly 2009 GWD 40-679 Sheriff Principal Taylor determined that the lodging of a minute for recall of decree was sufficient to constitute an application for recall of a decree. Accordingly, when the first minute for recall was refused through want of insistence as a result of the defender failing to attend the hearing, a second minute for recall could not be competently entertained.

Update

Since the last article S v Argyll and Clyde Acute Hospitals NHS Trust (May article) has been reported at 2009 SLT 1016, and Napoli v Stone (November) at 2009 SLT (Sh Ct) 125.