Drop dead date

Cohabitant claims

In Simpson v Downie [2012] CSIH 74 (3 October 2012) the Inner House had to consider s 28 of the Family Law (Scotland) Act 2006.

Sheriff Principal Dunlop had considered that s 28(8), which requires a claim to be brought within 12 months, only imposed a procedural bar similar to a limitation provision and thus the time limit could be waived. The Inner House determined that the time limit was not a procedural one but rather one which had to be complied with if the court was to be able to entertain the new type of claim created by the statute. The matter was one of jurisdictional competency. The issue regarding competency of the defender’s claim could have been entertained even without a plea.

The court was also of the view that the amendment to introduce the necessary plea in law proposed before the sheriff principal should have been allowed. There was no question of the pursuer waiving the issue of competency. Intimation of the point had been given prior to the initial debate and the argument was made without objection. The defender had suffered no prejudice and the counterclaim for an order in terms of s 28 did not comply with the provisions of OCR 19.1.

Expenses

Bank of Scotland plc v Forbes [2012] CSIH 76 (5 October 2012) saw the Inner House deal with an application by a party litigant in respect of a motion for expenses in which he submitted that the Act of Sederunt (Expenses of Party Litigants) 1976 was contrary to articles 6 and 14 ECHR. Lady Smith, speaking for the court, noted that the two thirds rule regarding expenses for party litigants was, in real terms, more favourable than the expenses awarded to a represented party. The latter received expenses to reimburse what was paid to legal advisers. The party litigant, in receiving expenses in addition to reimbursement of outlays, actually received some recompense for the preparation any litigant carried out, whether represented or not. Applications made by the party litigant for an additional fee, or taxation on an agent/client basis, could not be entertained as no power was available to make such orders.

Arrestments

In Prosper Properties Ltd v The Scottish Ministers [2012] CSOH 136 (23 August 2012), arrestments on the dependence of an action had been served on the Scottish Executive Environment and Rural Affairs Department. An issue was taken as to the validity of the arrestments, the arrestee being a Government department as opposed to an independent legal person. In considering whether the arrestments were valid, Lord Woolman considered that the real question was whether there was any real misunderstanding as to the true identity of the intended arrestee. There was no such misunderstanding and thus the arrestments were valid.

Caution

In Total Containment Engineering Ltd v Total Waste Management Alliance Ltd [2012] CSOH 163 (6 September 2012), the pursuers were a Maltese company. As a result s 726(2) of the Companies Act 1985 did not apply. However, an application could be made at common law. Lord Hodge saw no reason why an order for caution at common law in respect of a non-British company should be more difficult to obtain than an order in terms of s 726 in respect of a British company.

Summary decree

An interesting point arose in Pihl UK Ltd v Ramboll UK Ltd [2012] CSOH 139 (29 August 2012). After a preliminary hearing in a commercial cause, an early diet was assigned to determine the case. At that diet, the pursuers also enrolled a motion for summary decree. The preliminary issue for Lord Malcolm was whether he should entertain the motion for summary decree or simply proceed with the diet which had already been assigned. Either way the result was almost certainly going to be the same. The defenders moved his Lordship to proceed with the expedited hearing, as the purpose of such an assigned diet had been to produce an early final determination of the dispute. To proceed with a motion for summary decree was to subvert this intended procedure. A final decree from an expedited hearing could be appealed without leave; a decision on a motion for summary decree was only appealable with leave.

While Lord Malcolm considered that there generally was a great deal of weight in the defenders’ position in most instances, in the particular circumstances he was persuaded that it was appropriate to entertain the motion for summary decree. The implication of this case, when taken with other authorities, is that there is an optimum time to apply for summary decree, namely after the opposition has had reasonable time and opportunity to make their position clear but before a hearing which will result in a final decree being pronounced.

Amendment

Lord Brodie observed in Tortolano v Ogilvie Construction Ltd [2012] CSOH 162 (10 October 2012) that, when considering whether a record should be altered by averments in an amendment and answers, the relevant principles applying to amendment apply with equal force to any answers. If averments in answers are truly in response to those in the minute of amendment, then allowing these averments may well be seen as a consequence of the initial minute of amendment. However, if the amendment is used to introduce averments truly independent of those in the proposed amendment, these averments will be considered as if contained in a separate minute of amendment. They will be the subject of a court’s discretion. In this case Lord Brodie refused to allow averments in respect of the assumed rate of return on investment of damages.

In Rafique v Ashraf [2012] CSOH 155 (2 October 2012) Lord McEwan refused an application to amend during a debate in an action which had commenced in 2006. His Lordship succinctly observed that albeit the amendment related only to the insertion of a plea in law, no acceptable reason or excuse had been proffered for the previous failure for the inclusion of the plea. The amendment would radically alter the case and present the pursuers with difficulties in reinvestigation.

Appeals

In Taylor v Chief Constable, Lothian and Borders Police, Edinburgh Sheriff Court, 31 August 2012 Sheriff Principal Stephen reiterated that a note of appeal is not simply a formality. Its purpose was to give notice to the other parties and the court as to the points to be argued at appeal. Here the grounds of appeal gave no hint as to the true argument to be presented.

The sheriff principal also observed that there was power to amend the grounds of appeal within a specific time limit. The reason for that time limit was to give the other parties and the court notice of the change in argument. This had to be borne in mind if an application to amend grounds of appeal was made later than prescribed in the Ordinary Cause Rules.

Actions of reduction

In The Royal Bank of Scotland plc v Matheson [2012] CSIH 64 (31 August 2012) the Inner House indicated that the approach to be taken by a court in considering the reduction of a decree in absence had to take account of the whole circumstances bearing upon the justice of the case. Errors and omissions on the part of a party’s advisers were not predominant. There was a substantial defence to the original action. Any action against the advisers could be lengthy.

Actions for repossession

In NRAM plc v Fowlie, Banff Sheriff Court, 25 September 2012 Sheriff Mann opined that in the event of heritable creditors raising an ordinary action for declarator and for repossession on the basis that the property was not being used for residential purposes, it was necessary that the pursuers, if moving for decree in absence, should lodge reports to confirm the assertion that the property was not being so used. Reports from the likes of sheriff officers or field agents would suffice. It was essential that if heritable creditors elected to proceed by ordinary action, they demonstrate that the property was not being used for residential purposes.

In NRAM plc v Youngson, Banff Sheriff Court, September 2012, Sheriff Mann observed that, having regard to the provisions of s 24(5) of the Conveyancing and Feudal Reform (Scotland) Act 1970, a pursuer should aver compliance with s 24A of the Act and that it was reasonable in the circumstances for decree to be granted.

Liquidation

Lord Hodge observed in Burton, Noter [2012] CSOH 167 (11 October 2012) that applications to waive the requirement on the part of the liquidator to lodge six-monthly accounts etc should not be considered a matter of routine. In the present application the reason was that the liquidator only had limited funds available. Liquidators and other insolvency practitioners were officers of court, and their obligations required them not simply to keep the creditors updated but also the court, the latter having a supervisory capacity. The lodging of accounts periodically enabled mistakes to be brought to light or malpractice unearthed.

• The Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No 3) 2012 came into force on 1 November 2012. It makes provision for audio and audiovisual recordings of children, and custody of and access to such recordings.

Update

Since the last article B v G (July article) has been reported at 2012 SCLR 428; The Royal Bank of Scotland plc v Wilcox (July) at 2012 SCLR 479, Percy v Govan Initiative Ltd (May) at 2012 SCLR 476; M v A Scottish Local Authority (September 2011) at 2012 SCLR 443.