Party confidential

Citation

In Chief Constable, Northern Constabulary v A 2010 GWD 19-373 an interim sexual offences prevention order and the summary application in terms of which the interim order was granted were delivered to the defender by police officers. There was no authority for such service. Sheriff Principal Young determined that the purported citation was irregular. Citation required to be by post or officer of the court. Police officers were not officers of court. Regular citation required not only delivery of a copy of the writ upon a party but also the delivery of various forms.

The order was granted in absence and the defender appealed. The issue then was whether the defender appearing at the appeal cured the defect. The sheriff principal, after considering authority, concluded that the critical question was what is meant by “appear” and “appearance” in rule 2.17(1) of the summary applications rules, and the corresponding provisions for ordinary cause, summary cause and small claims. He did not consider that the taking of an appeal prevented arguing irregularity of citation. Appearance by a defender meant the lodging by him of a notice of intention to defend, or in the context of a summary application, appearing or being represented at the initial hearing.

He was however inclined to the view that lodging an application for a time to pay direction could constitute appearance. The object of all citation was to bring to the knowledge of the defender the proceedings which were impending against him in order that he might have time and opportunity to take the necessary steps to protect his interests. If the defender took the opportunity to take one of the steps which the citation was designed to afford him, he ought not thereafter to be entitled to plead an irregularity in the citation.

Delay

In Rennie v Lothian Health Board [2010] CSOH 61; 2010 GWD 17-328 an action had been raised for damages for medical negligence arising from the birth of a child in 1980. The action was raised in 2006. The child was and would always be incapax. The defenders took a plea of mora and also sought that the action be struck at on the basis of unreasonable delay. In considering the plea of mora Lady Clark acknowledged that account could be taken of events both before and after the action was raised. She further observed from authority that mere lapse of time will not found an effective plea of mora. The remedy provided by the law for delay lay in the various prescriptions and limitations. However, if in addition to the lapse of time, there have been actings or conduct fitted to mislead, or to alter the position of the other party to their detriment, the plea of mora may be sustained. But for such a plea to receive effect, her Ladyship considered that there must have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party. It did not arise in the present litigation. If such a plea was upheld, decree of absolvitor was the appropriate disposal.

Turning to the Tonner v Reiach and Hall point, focus required to be applied to the period since the raising of the action. Her Ladyship considered that the issues involved were complex. The pursuer, a curator bonis appointed in 2001, required to explore and advance the claim, with the inevitable restrictions and delays involved with legal aid. There was substantial adjustment by both parties. There were at least five consultations with five different experts on behalf of the pursuer. This was not unusual and often in the course of this work the case was clarified and developed. It had resulted in the averments of fault which now formed the only basis of the present action being focused in October 2009. Her Ladyship did not consider this unusual in the context of a complex case made more difficult because of the passage of time.

The difficulties faced by the pursuer included some for which the defenders were responsible, such as problems with medical notes and the failure of the midwife employee to write her notes in a form which enabled her to be identified. That had caused difficulties for the pursuer as well as the defenders. If there had been substantial and unreasonable delay since the raising of the action, the post-litigation delay would have been judged more severely. Her Ladyship considered that there had been nothing in the delay since this action was raised which could be considered “inordinate”.

Even if there was, in the context of the development of this complex case with the constraints of legal aid, it was excusable.

Designation of party

In AWB v JP 2010 GWD 19-371 Sheriff Ian Miller was required to consider when a party could avoid disclosing their present address to the other party. Sheriff Miller first considered the averments the defender founded on to justify non-disclosure. These included bare allegations of physical and verbal abuse and of having to act in self defence against violent conduct, a charge of assault in 2002 that resulted in a verdict of not guilty, and an allegation of assault in February 2006. The most recent incident related to verbal abuse in December 2006. In addition she averred that the pursuer had been abusive to her mother and her new partner prior to that last date. The pursuer denied all of these averments. After a review of authorities Sheriff Miller considered that a number of principles applied:

1. The general rule is that the present address of a party to an ordinary cause action must be disclosed.

2. Should a party change address while such an action is in dependence, that party is under an obligation to inform the court.

3. If that party does not wish to disclose their present address, they must set out why in their pleadings.

4. The reasons to support that departure from the general rule must be stated fully. An averment that one party was not residing with the other is insufficient to justify non-disclosure.

5. In deciding whether to allow a party to preserve the requested anonymity, the court exercises a discretion.

6. The discretion is wide. It can extend to denying to the party who wishes to maintain their anonymity of residence the right to proceed with the action, at least until the issue of disclosure has been addressed to the satisfaction of the court. It could involve requiring disclosure in a way that inevitably brought the address to the knowledge of the other parties to the action.

7. The discretion has to be exercised on the basis of the information supplied to the court at the hearing when the issue is being debated.

8. The discretion can involve whether to allow the party to disclose the address to the court alone.

Sheriff Miller then considered that the general rule applied to all actions, both family and other ordinary actions. The obligation to disclose or explain fully why there should be no disclosure rested on the party seeking non-disclosure. Here the averments were of some antiquity, predating the raising of the action in 2007. Sheriff Miller concluded that there should be disclosure. He then considered whether such disclosure should be restricted to the court. This would always depend on the facts and circumstances of the individual case in ascertaining what was in the interests of justice. The requirement to disclose attached to the action as such and not just to the hearing on which the court was currently engaged. If a party wished to restrict disclosure, reasons must be adduced in support of that restriction that satisfied the court as to its justification on the facts and having due regard to the proper interests of the administration of justice. This the defender had not done.

Decree by default

In Battenberg v The Firm of Dunfallandy House [2010] CSIH 41; 2010 GWD 19-370 the Inner House, in considering whether to allow an appeal against a decree by default, observed that a judge granting decree may well be unaware of the reasons for the non-appearance of the party in default and those reasons may make that non-appearance wholly excusable. In principle, therefore, the decision whether to recall a decree by default should not be confined to the question whether, on the information available to it, the first instance court granting that decree had exercised its discretion reasonably but also information that is available to the appellate court.

By contrast, in Scottish Ministers v Smith [2010] CSIH 44; 2010 GWD 20-387 the Second Division refused an appeal through want of insistence when the appellant failed to appear.

A medical certificate was produced which predated the hearing. The certificate stated that the appellant was medically unfit to attend court of the day of the appeal. Their Lordships observed that whilst the certificate was not on soul and conscience this was no longer essential.

However, the certificate failed to specify the appellant’s medical condition, how long she had suffered from it, how long she was expected to continue to suffer from it, and why it rendered her unfit to attend. Further the date of the certificate was that of a by order hearing at which the appellant had appeared and had moved unsuccessfully to discharge the appeal hearing. This might of course be the real reason for the decision!

Amendment

In Lawley v Sutton 2010 GWD 14-257 the defender lodged a minute of amendment introducing a counterclaim in terms of s 28 of the Family Law (Scotland) Act 2006 and a crave for division and sale. The pursuer’s crave was also in terms of s 28. Sheriff Berry allowed the amendment. It corrected the defender’s position. It did not introduce a new case. The defender’s intention to claim a capital sum had been averred at an early stage and thus was not time barred. OCR 19 did not prevent a counterclaim for division and sale.

Additional proof

In Rankin v Jack [2010] CSIH 48; 2010 GWD 21-405, an application for additional proof to be led as a ground of appeal, the Inner House made certain observations. It was a matter of judicial discretion as to whether additional proof was allowed in the context of an appeal on the ground of res noviter veniens ad notitiam. In looking at the interests of justice and the need for finality in litigation, a party would not be allowed a second chance where that party had failed to lead evidence at proof which had then been available, or would have been had proper investigation been carried out. Even if evidence fell within that category, the court still had to consider whether hearing such evidence overrode the need for finality in litigation. The court would consider its cogency bearing in mind it was being heard to support a ground of appeal.

Expenses

In Albert Bartlett & Sons (Airdrie) Ltd v Gilchrist & Lynn Ltd [2010] CSIH 33; 2010 GWD 21-407 the Inner House reaffirmed the general rule that the cost of litigation falls on the person who has caused it. Therefore, if the pursuer loses their case, or a material part of it, they must pay the relative expenses of the other party, since they have caused that other party the expense of vindicating their position. But it follows from the nature of the rule that the unsuccessful party’s liability is limited to paying the expenses of the party against whom they have directed his cause. In the absence of some unreasonable behaviour, the expenses of third parties are generally only recoverable against the party who has directed a case against them.

Just as a reminder, in Phoenicia Asset Management SAL v Alexander [2010] CSOH 71; 2010 GWD 21-409 Lord Hodge allowed a haver to have an account of expenses taxed. A haver could be entitled to a reasonable fee for time spent and expense reasonably incurred in putting voluminous documents into electronic form in order that the relevant documents could be chosen for disclosure, if that method was no more expensive than other methods.

Family actions

In Fleming v Bradshaw, Perth Sheriff Court, 11 May 2010 (2010 GWD 20-395), the issue raised was whether a solicitor could be ordered to pay his client’s share of fees incurred by a curator ad litem appointed to look after the interests of a child who was the subject of the action. On a review of authorities, the sheriff decided that there was no reason why a solicitor acting for a party could not be ordered to pay that party’s share of the curator ad litem’s fees. Curators perform a very important task and it was essential that they should receive payment for their services. If a solicitor was to avoid such potential liability, they would require to advise the court at the time a curator was appointed that their client could not meet any such potential fees. This information should be available to the solicitor at that time.

In Dundee City Council, Petrs, Dundee Sheriff Court, 18 May 2010 (2010 GWD 18-357) Sheriff Pyle considered the effect of the Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009. He concluded that a freeing order granted after 28 September 2009 will be deemed to be a permanence order.

Adults with incapacity

In Matthew, Petrs, Dundee Sheriff Court, 20 May 2010 (2010 GWD 21-408), Sheriff Davidson, after considering authorities, determined that in the absence of litiscontestation, expenses in respect of a summary application under the 2000 Act for the appointment of a guardian should be on an agent and client basis, and the interlocutor should specify this. This reflected the correctness of ensuring that someone prepared to take responsibility in a fiduciary capacity was not personally out of pocket for doing so. Such expenses would still be those “reasonably and necessarily incurred”, and that was a matter initially for the discretion of the Auditor of Court and thereafter for the sheriff if objections to the account were taken.

There was possibly a need for the Public Guardian from time to time to consider whether accounts appeared to demonstrate charges that were being unreasonably and unnecessarily incurred, but that did not affect the principle applicable to the basis on which such accounts should be charged. An award of expenses on a party and party basis was foreign to an uncontested application for the appointment of a person to act in an administrative and representative capacity.

Update

Since the last article Komori v Tayside Health Board (May article) has been reported at 2010 SLT 387, and Williamson v Williamson (November 2009 article) at 2010 SLT (Sh Ct) 41.