Call for restraint

Conduct of litigation

In NJDB v JEG [2010] CSIH 83, the Lord President, in giving the decision of the First Division, observed in an appeal in a residence/contact proof lasting 52 days that the primary responsibility in ensuring that the issues were focused and presented properly lay primarily with the agents and counsel. Tangential matters should not be investigated.

A duty lay upon advisers to take all necessary measures to ensure that an expedited and correct disposal was achieved. It was not easy for the presiding judge to exercise such control. His Lordship also observed that a presiding judge could criticise the legal advisers on their conduct of the proceedings, provided it was measured and not gratuitous. Further, if parties put their personalities and characters in issue, it was almost inevitable that any judgment might contain criticism of the parties.

Under this heading can also be considered the recent decision of Sheriff Mitchell in Walker v Chesapeake Hillington Ltd, Glasgow Sheriff Court, 11 October 2010. This was an action pursued under the personal injury rules in the sheriff court.

One head of claim related to hire charges which were of such a nature that the pursuer could only recover if his impecuniosity at the material time could be established. The pursuer's averments suggested that he was not impecunious. The defender enrolled a motion to ordain the pursuer to state on record whether he was impecunious at the material time.

This was a novel application, but Sheriff Mitchell observed that in light of the present averments, the law on the matter, and the fact that there was no provision for a debate in the personal injury procedures, if this issue of relevancy was not determined in this way, the litigation would require to be transferred to the ordinary roll, which seemed unnecessary and expensive.

Rights of audience

In Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd [2010] CSIH 80; 2010 GWD 33-686, the Inner House determined that a company director could not represent the company in proceedings or sign court writs. There was no provision in Scotland for representation of a company, as opposed to a party litigant, by a lay assistant. The extension of rights of audience should be achieved by legislation to take account of questions such a social policy. It was inappropriate to achieve this by Act of Sederunt or the inherent power of the Court of Session. Extension of representation of companies to their officers raised the possibility of prejudice to due performance of the justice system.

Decree by default

Two decisions have appeared recently indicating when decree by default granted as a result of a party's non-appearance may be justified and when it may not. In Martens v James Aird & Sons [2010] CSOH 126; 2010 GWD 31-636, the pursuer sought to reduce a decree by default. She had been the defender in an action for payment and at one point advised the court that she had to travel abroad to see to her ailing mother. As she left the country, the action called in court. Decree by default was refused on that occasion in light of the content of the information given to the court by the defender in her letter. A peremptory diet was assigned and ex facie valid intimation was achieved. When the action next called, the defender still being out of the country, decree by default was granted.

In refusing to reduce this decree, Lord Woolman observed that once litigation has commenced, one party cannot walk away from the action. If they do, they risk decree being granted. In the present action, the party had been aware that she needed to be present or represented in court.

There were numerous steps she could have taken to be aware of the calling when decree was granted. These included contacting her opponents' solicitors to seek further time, and giving the court further information as to when she was likely to return. She further could have contacted the court and ascertained when the litigation was next to call. Communication from abroad was not difficult. Simple prudence on her part could have avoided decree by default. Decree for reduction was refused.

By contrast, in Grant (Berry's Curator ad Litem) v Barnett, Edinburgh Sheriff Court, 14 October 2010, Sheriff Principal Bowen recalled decree by default granted as a result of non-appearance at a pre-proof hearing. The defender had been representing himself and had been present at callings prior to the decisive calling. In those circumstances, it was considered inappropriate to have granted decree by default.

Caution for expenses

In McGregor v Alpha Airports Group plc [2010] CSOH 137; 2010 GWD 33-681, Lady Dorrian ordered the pursuer to find a significant sum in caution. It was clear that the pursuer's case did not correspond with what was averred. Further, while his inability to find caution might result in his action coming to a conclusion, it was inappropriate to put the defenders to significant expense in continuing to resist the action without the prospect of recovery of such expense.

Remit to the sheriff court

In Bell v Chief Constable of Strathclyde Police [2010] CSOH 140, Lord Malcolm refused to remit a reparation action to the sheriff court. While the defender had little chance of recovering expenses from the legally aided pursuer, the costs of the action might have to be met by the public purse, and personal injury rules of procedure had been introduced to the sheriff court, the power to remit was not one to be used to redistribute cases. Subject to the privative jurisdiction limits, a party could choose in which court to litigate. The court required to consider the nature of the particular litigation before it, not general financial factors faced by a party.

Evidence of loss

In Logan v Logan [2010] CSOH 123, the pursuer sought damages for inter alia loss of income as a talented tattoo artist. Lady Stacey observed that when a claim is made by a party for such a head of loss and that party is involved in a small one-person business making relatively small amounts of income, there is no need for a forensic accountant to be involved, provided there is some information before the court. In this case, there was agreement as to the accounts for three years between 2006 and 2009.

Interdict

In Hamilton v Nairn [2010] CSIH 77, one of the criticisms aired by the defender was that part of the interdict crave sought to prohibit the impeding of the pursuers from taking access and egress by placing an obstruction across the verge or any other means. Reference to "any other means" was inspecific. The Inner House considered that where a prohibition was sought against the interference with access, it was unreasonable to expect the pleader to aver every means of obstruction.

In Strathclyde Business Park (Management) Ltd v BAE Systems Pension Funds Trustees Ltd, Hamilton Sheriff Court, 14 September 2010, Temporary Sheriff Principal Stoddart adopted the observations of the Second Division in WAC Ltd v Whillock 1989 SC 397 to the effect that in considering whether to recall an interim interdict before there are proper pleadings to reach definite conclusions on legal issues, the approach should in general be whether the pursuer has a prima facie case.

Sequestration

In Mitchell v Paris, Edinburgh Sheriff Court, 27 September 2010, Sheriff Holligan determined that the appellant had no interest to pursue an appeal in terms of s 3(7) of the Bankruptcy (Scotland) Act 1985. The appellant, even if successful, was unlikely to achieve any discernible benefit as a result. His prospects of a dividend were not enhanced. He had not claimed in the sequestration.

Expenses

In CMS Scotland Ltd v Ing Lease (UK) Ltd [2010] CSOH 127, Lord Matthews simply restates the general rule that in the event that a pursuer fails in his action and a third party has been convened in that action, the liability for the third party's expenses generally falls upon the party who brought the third party into the litigation.

Update

Since the last article, McLean v Argyll and Clyde Health Board (May article) has been reported at 2010 SCLR 463; Chief Constable, Northern Constabulary v A (July) at 2010 SCLR 496; and HSBC Bank plc (January) at 2010 SCLR 510.