Family failings

Family actions

In Hall v Hall, Aberdeen Sheriff Court, 23 May 2014, Sheriff Principal Pyle observed regarding child welfare hearings, first that final decisions could be made at such hearings where a residence order was made and the remaining craves for divorce and interdict continued for further procedure. The residence order was not, however, a final judgment and thus leave to appeal had been required. He further observed that the sheriff’s decision at such a hearing was subject to the same protection in relation to assessment of witnesses as set out in, inter alia, Thomas v Thomas [1947] AC 484; and that the sheriff had been within his rights to refuse to hear evidence from a child of the parties who was not the subject of the residence dispute and had no right to be at the hearing.

The sheriff principal also observed that, in presiding over a child welfare hearing, while a sheriff had to make any comments in a measured fashion, one of the purposes of the hearing was to allow the sheriff to engage directly with parties, which might result in resolution. Sheriffs required to be given a degree of leeway in order for that to be achieved. In fractious disputes, an apparently flippant remark might simply emphasise the reality of the situation.

In Harper v Harper, Dundee Sheriff Court, 31 January 2014, following decree of divorce which included the award of a capital sum, the pursuer lodged a minute seeking an order in terms of s 14 of the Family Law (Scotland) Act 1985 to regulate the sale of heritage, which had been the subject of a minute of agreement. The dispute regarding the minute of agreement had no bearing on and did not arise from the terms of the decree pronounced, nor was it incidental to that decree, but was about the interpretation and implementation of a private contract. Accordingly, Sheriff Way refused the minute as incompetent.

Lately, in E v W 2014 GWD 26-514 (18 July 2014), Sheriff Jamieson set out clearly the obligations incumbent on the parent with residence when it comes to obtempering an award of contact. The decision is useful in putting an early 21st century gloss on the 1978-79 decisions of Blance, Brannigan, and Cosh. The impression sometimes gained is that parents and the persons to whom they turn for advice overlook these earlier decisions.

Sheriff Jamieson also observed that the issues involved in failure to obtemper an order are such that the wishes of a child were primary but not paramount, and there was no requirement to obtain a child’s views. In F v H 2014 GWD 26-515 (15 July 2014) he observed that the apparent concerns aired by the parent with residence were not such to justify her failure to obtemper. Her duty was to obey the order while meantime applying for its recall.

Interim interdict, then nothing

In Wanchoo v Aberdeen City Council, Aberdeen Sheriff Court, 9 May 2014, after an application for interim interdict was refused, the writ was withdrawn with refusal of the defenders’ motion for expenses. The question for Sheriff Principal Pyle was whether expenses could be awarded. He allowed the appeal. Once the writ was lodged and a hearing fixed on the interim order, a “cause” existed. The sheriff had erred in allowing the writ to be withdrawn without leave being sought. Had it been, it would have enabled the defenders to address the court regarding expenses.

Reponing notes

In Bialas-Krug v EUI Ltd, Edinburgh Sheriff Court, 14 August 2014, Sheriff Principal Stephen, in refusing a reponing note observed, first, that the defender was obliged to provide the court with all supporting material. The defender had no automatic right to be reponed. Five months had passed between the action being raised and the reponing note being lodged. There was no dispute as to the defender’s liability, thus a sanction regarding expenses was of little consequence. The content of the reponing note did not accord with the submission moving the note. It was not the sheriff principal’s function to consider new material and review the decision at first instance in the light of it. It was a factor that the pursuer would gain a windfall on refusal of the note, but the defenders were familiar with the litigation processes.

Of further interest, the sheriff principal observed that when close attention was being paid to case management, a casual approach to procedural rules led to expense and delay, and a stricter approach to compliance was appropriate. This case management theme is featuring more and more in decisions, with a consequent stricter approach to adherence to the relevant procedure.

Counterclaims

It might be stating the obvious, but the point nonetheless arose in Nicholson Bros v Anderson’s Exr 2014 GWD 24-447, where the defender sought to counterclaim for reduction of interlocutors in an action in which persons in addition to the pursuer were parties. Lady Wise unsurprisingly observed that a counterclaim is only competent in circumstances in which it was unnecessary to call any other party to the proceedings.

Productions in cross-examination

The decision of Robertson v Anderson 2014 SLT 709 appeared in an article in 2001 when it was issued, but has only now been reported. Lord Carloway, then in the Outer House, observed that if a party intended to use a document to prove an averment, it required to be lodged as a production. However, if the purpose was to test the credibility and reliability of a witness during cross examination, a document or copy which contained information contradicting the evidence of the witness did not require to be lodged. When the document was put in cross, a copy should be given to the opposition and the court, the document being usefully lodged at that stage as a production.

Personal injuries actions

Sheriff Principal Pyle made critical observations about the glacial progress of the litigation in Murdoch v Airtours Holidays Ltd, Aberdeen Sheriff Court, 24 June 2013. He also considered that a fresh application to amend in similar terms to one which had previously been refused was competent, albeit the circumstances would be taken into account in deciding whether to allow the later amendment to be received.

Perhaps of greater significance were the sheriff principal’s observations regarding the conduct of such actions. It was the duty of solicitors to carry out the necessary steps to ingather evidence to support averments. Where a triennium approached, general averments could be made to support a writ to avoid the time bar. Thereafter, investigations were required to ensure that averments were supported by evidence by the time the record closed. Expense was no excuse for failure.

Expenses

In Havlin v Hailes, Glasgow Sheriff Court, 17 June 2014, an ordinary action for damages was settled on a figure within the summary cause jurisdiction. Expenses were agreed to be dealt with on the summary cause scale. The issue was whether they should be taxed, or assessed by the sheriff clerk. Sheriff Reid considered that they should be assessed by the sheriff clerk for a number of reasons. First, the court had a wide inherent discretion as to the manner in which expenses should be dealt with, and that power included the mechanism by which the precise amount was ascertained. The court ultimately decerned for the amount so ascertained. The terms of OCR, rule 32.1, did not limit that power. The Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993, reg 5 strongly pointed to that wide power remaining extant. Having regard to a number of circumstances, including the settlement figure, the procedural history, and cost, Sheriff Reid considered that the less formal procedure should be adopted.

A tender in an ordinary action, Shad v Irfan 2014 GWD 25-495, was accepted in a figure above the summary cause limit. The auditor rejected the defender’s argument for expenses on the summary cause scale and a note of objections was taken, on the basis that the sum tendered would have been below the summary cause limit but for an element of interest. Sheriff Galbraith was not prepared to engage in any such hypothetical calculations. The sum decerned for dictated that the appropriate level of taxation was the ordinary cause scale. Frankly, I have to say that rule always pointed to the defender’s ingenious argument failing!

In Downie v Christie & Son [2014] CSOH 108; 2014 GWD 23-428, objection was taken to the certification of two skilled witnesses, an orthopaedic surgeon and a pain management consultant, on the basis that the latter was unnecessary duplication. Lady Scott certified both. The defenders had instructed a similar expert. The second opinion provided a different and broader purpose for the proof, notwithstanding that the pursuer’s averments relied heavily on the surgeon’s opinion and that expert was considered the best to use.

Party litigants

In Krajciova v Feroz, Aberdeen Sheriff Court, 28 September 2013, Sheriff Principal Pyle noted that, despite being informed of the role of the appellate court in reviewing the sheriff’s findings in fact and law, the defender endeavoured to present evidence. The defender had no idea as to what constituted relevant grounds of appeal. This resulted in the pursuer incurring unnecessary legal expenses which would not be recovered, and delayed the enforcement of a merited decree.

No doubt exasperated, the sheriff principal concludes by commenting that his experience in that appeal was not isolated. While the widening of a layperson’s right to represent themselves was not a matter for the courts to debate, policymakers had to take account of the problems caused by persons representing themselves when they have little understanding of the relevant law and procedure.

I believe all involved in the civil justice process would concur with these comments. Invariably, a dispute conducted by a layperson takes longer due to lack of familiarity with the procedure and the inevitable tendency for those legally qualified to give such litigants a degree of leeway. If case management is to be the way to progress disputes efficiently, there need to be clear powers available to parties and the bench to enable a firm line to be taken on matters which have no relevance to the dispute. Otherwise the tendency will be to give leeway to avoid an article 6 argument and/or a possible judicial complaint. Legal representatives, however, are not immune from scrutiny. The impression given is that, on occasions, no real quality control is applied to the evidence led or the positions adopted on behalf of a client.

Update

Since the last article, Burns v Royal Mail Group (March article) has been reported at 2014 SLT (Sh Ct) 73, and Lamb v Wray (January) at 2014 SCLR 303.