The good and the bad

Pleadings and practice

Every so often a decision comes along which in itself has no significance beyond the boundaries of the litigation, but in which in the course of the opinion the judge takes the opportunity to make useful observations concerning issues of practice. One such decision is that of Tods Murray WS v Arakin Ltd [2010] CSOH 90 (9 July 2010). Lord Woolman presided over a debate. In his opinion, he first reiterated that a court had an inherent power to dismiss a claim where a party was guilty of abuse of process. Such a power was a drastic one to be exercised sparingly, and was designed to avoid a party putting the opponent to an unfair disadvantage and compromising the just and proper conduct of a litigation. Such an abuse could occur by pursuing a claim or defence in bad faith with no genuine belief in its merits, by fraud, or for an improper motive. Where a party was dishonest in pursuit of a claim, the court had to decide whether such actings rendered a fair trial impossible. If this was the case, the court had a duty to stop proceedings. If the dishonesty ceased and a fair trial was possible, there was no power to stop the action.

His Lordship then considered an issue regarding a skilled witness. In an action in which allegations of professional negligence were made, an expert was required. It was not sufficient to allege that a solicitor failed to implement instructions. An expert required to confirm that the course taken was one that no solicitor exercising ordinary skill and care would have taken. The expert required to be skilled in the relevant field.

His Lordship further observed that pleadings required to be intelligible in order that proper notice of a case was given to the opponent, with the main facts highlighted. The wholesale incorporation of a document, only parts of which were relevant, was not satisfactory. Further, if calls for greater specification were unanswered, then a pleader imperilled their case. The opposite side of that coin, of course, is that by making numerous calls in pleadings, the opponent may become aware of the deficiencies in the averments and take steps to remedy these!

Title and interest

In Advocate General for Scotland, Petr [2010] CSOH 82 (30 June 2010), Lord Glennie observed that when parties are convened in petition proceedings, they are so convened for any interest they may have. The very fact that they are convened does not give them title and interest to oppose the application. It is for such a person to explain and justify that they have the necessary relevant title and interest.

Res judicata

In The Winding-Up Board of Landsbanki Islands HF v Mills [2010] CSOH 100 (20 July 2010), Lord Glennie observed that there was no authority in support of the proposition that for a plea of res judicata to be founded, it was necessary for judgment in the proceedings relied on to have been pronounced before the commencement of the proceedings in which the plea was taken, and that the submission was without foundation.

Caution for expenses

In Ewing v Times Newspapers Ltd [2010] CSIH 67 (29 June 2010) the Lord Justice Clerk, Lord Gill, observed that in an action in which the pursuer was impecunious and it appeared that the action was unlikely to succeed, the early application for a finding of caution was wholly appropriate.

Inexcusable delay

In Hepburn v Royal Alexandra Hospital NHS Trust [2010] CSIH 71 (27 July 2010), the pursuer appealed the dismissal of the action in terms of the authority of Tonner v Reiach and Hall. The First Division allowed the appeal and in the course of doing so made observations of some significance. The Lord President, Lord Hamilton, observed that from the time the action was raised in April 1998 until late 2004 the pursuer’s then advisers had been guilty of inexcusable inaction. However, from November 2004 her new advisers had been very active. His Lordship observed that in an application for dismissal for want of insistence the actings of the defender were relevant. If after the pursuer was guilty of inexcusable delay, the defender acted in such a way as to induce the pursuer to incur further cost in the reasonable belief that he intended to proceed to push his defence to proof, then an application for dismissal for want of insistence would fail unless the pursuer was guilty of further unreasonable delay.

Further, the test of unfairness to a party related to unfairness such that it was impossible now to have a fair trial. Further, although the defenders were put to a disadvantage as a result of the death of one of their main witnesses, the onus of proof was still on the pursuer and at the time of the action being raised, that witness might not have been in a better position regarding his evidence. His Lordship also observed that if an action was dismissed for want of insistence, that should be recorded in the appropriate interlocutor as opposed to the sustaining of any plea in law.

Lord Reed observed that the court had an inherent power to regulate procedure when circumstances were such that the court could not fulfil its constitutional function to act as a court of justice. Lord Carloway, however, whilst agreeing that the court had an inherent power to do whatever was necessary to discharge its function, commented that the court had to have regard to the rules of procedure which had been in place for a long time and which aimed at dealing justly, fairly, and expeditiously with actions. Judges could not and should not substitute their own, perhaps idiosyncratic views on such procedural rules. Further, litigants were entitled to expect that an action would be governed by settled procedure and not a new practice suddenly thought of.

Determining time bar

In CG v Glasgow City Council [2010] CSIH 69 (23 July 2010) Lord Eassie, in delivering the opinion of the Inner House, observed that when issues arose relating to the operation of s 19A of the Prescription and Limitation (Scotland) Act 1973, these should be determined by a preliminary proof restricted to that issue; but there can be factors such as the passage of time, the desirability of avoiding repeated testimony, and the content of defences, which may, as in that action, persuade the court that a proof before answer is more appropriate.

Minutes of tender

In McIlvaney v A Gordon & Co Ltd [2010] CSOH 118 (16 July 2010), Lord Tyre confirmed the absolute discretion given to a judge in determining expenses following the acceptance of a minute of tender. The defenders offered the same figure to settle the claim pre- and post- the commencement of litigation. The offer after the action was raised was contained in a tender in proper form. The pursuer argued that the acceptance of the tender resulted in the expenses he would require to pay his compensation claims adviser being reduced. Lord Tyre rejected this. There was no authority which required account to be taken of the agreement between a litigant and such a company. Further, to raise an action simply to obtain a favourable expenses award was an inappropriate reason to litigate. Lord Tyre made no award of expenses.

Interdict of enforcement?

In Steel v Steel [2010] CSIH 65 (9 July 2010), the Inner House upheld the refusal to interdict the enforcement and diligence of a court decree. It was incompetent to interdict a party from enforcing an absolute right.

This was not an apprehended violation of any right of the pursuer.

Recall of sequestration

In Liandu v Go Debt Ltd, Dundee Sheriff Court, 9 August 2010 Sheriff Way, in the course of granting a petition to recall an award of sequestration, observed that insolvency proceedings if used to avoid the ordinary litigation process were undertaken at the risk of the petitioning creditor. Accordingly the information in a statutory demand required to be of such a calibre that the debtor understood to what it related. The sheriff observed in this case that the demand did not satisfy that test without copies of the assignation and finance agreement.

Update

Since the last article Rennie v Lothian Health Board (July article) has been reported at 2010 SLT 725, and Mackie v Askew (September 2009) at 2010 SCLR 437.