Whereabouts unknown?

Unable to ascertain

It is not unknown for agents to seek newspaper or walls of court citation and not provide any information as to attempts which may (or may not) have been made to ascertain the defender’s whereabouts. There are other rules whereby intimation can be dispensed with, again if a person’s present whereabouts cannot reasonably be ascertained. The Inner House decision in Gordon Petr [2015] CSIH 51; 2015 SLT 461, which relates to an application to the nobile officium, may nonetheless give an indication as to what information should be provided.

Lady Dorrian, delivering the opinion of the court, observed in relation to the rule which provides a party with a remedy if no person with a right of audience is available, that “unable” means that efforts have been taken but they have been unsuccessful. What may suffice will vary depending on circumstances. The judge is also directed to scrutinise the writ for that information. Accordingly it is suggested that when a step can be taken in relation to reasonably ascertaining someone’s whereabouts, the necessary averments should be in the writ presented to the court. It is not for the court to assume!

Commercial actions

In Heather Capital Ltd (in liquidation) v Levy & McRae [2015] CSOH 115 (14 August 2015), the pursuers claimed damages for alleged professional negligence. They moved Lord Woolman to order the defenders to clarify the position regarding insurance cover: referring to dicta from English authorities, such disclosure could be consistent with the “cards on the table” approach to litigation. The existence and extent of insurance cover could be a relevant consideration in litigation. Disclosure could be ordered under RCS, Chapter 47. Lord Woolman refused to do so. The insurance details were a private matter. Disclosure might encourage speculative litigation.

I suspect this matter may be revisited in future. In England, limited disclosure has been ordered in one case and the Court of Appeal has indicated that determination of the matter is by no means clear.

Lord Woolman was also asked to order a witness to provide a statement to enable the pursuers to make their averments more focused. Lord Woolman refused to order one witness to produce a statement before others, without a compelling reason.

Previous decisions have raised the issue of statements produced earlier influencing the content of statements from other witnesses which are produced at a later date.

Res judicata

In Cole v Advocate General for Scotland [2015] CSOH 102; 2015 SLT 504 the family of a deceased sought to lodge a minute in an action the deceased had previously raised and which had been resolved by joint minute in 1991. That joint minute had reserved to the deceased the right to claim further damages in terms of s 12 of the Administration of Justice Act 1982. The deceased had raised a further action and the present pursuers were sisted as parties following his death. The defender was assoilzied in this subsequent action. The pursuers were then sisted as parties to the original action and sought to claim further damages in light of the original joint minute. Lady Stacey determined that this subsequent procedure was res judicata as a result of the decree of absolvitor granted in the second action.

Undertakings

In M v K [2015] CSIH 54; 2015 SLT 469 the refusal of an application for contact was successfully appealed. The comments of interest are at the conclusion of Lord Eassie’s opinion. During the proceedings at first instance, the appellant had been found in contempt as a result of failing to comply with the terms of an undertaking. Lord Eassie observed that to found a subsequent finding of contempt, the terms of the undertaking required to be formally recorded. They required similar precision to the terms of an interdict. In addition, before a finding of contempt was made, it would normally be expected that the party allegedly in breach would be offered the benefit of legal advice.

Competency

In Shenken v Phoenix Life Ltd [2015] CSOH 96 (17 July 2015) an issue was taken regarding the competency of the action and whether an amendment should be allowed replacing one erroneous pursuer with the correct one. The action was at the instance of trustees for two persons who had taken out two policies with the defenders. When the action was raised the pursuers had no title to raise an action in respect of one of the policies taken out, in respect of one of the persons for whom a trust had been set up. The action was competently raised in respect of the other policy. Lord Tyre determined that there was no question of the action being a nullity and allowed the amendment. What was sought to be achieved was the addition of a correct pursuer. As the claims in respect of the policies were very closely linked, it was appropriate that both be pursued in the same action.

Amendment

In W v Advocate General for Scotland [2015] CSOH 111 (13 August 2015), a proof on quantum in an action for provisional damages had commenced before Lord Pentland, liability having been admitted. Following a break in proceedings, the defender sought to amend by deleting the admission of liability. This was opposed and ultimately refused by his Lordship. One issue was whether it was competent to withdraw an admission of liability by way of amendment. Lord Pentland considered that there was no reason in principle why such an admission could not be withdrawn, albeit such an amendment might be difficult to justify and the circumstances in which it would be allowed would in all probability be exceptional.

He also observed that the interlocutor allowing a further application for damages required to specify the conditions the development of which would allow a further application. The basis of any such claim would require to be established in the proof which resulted in the prospect of a further claim being made in the future.

Expenses

In M v Lothian NHS Board [2015] CSOH 89; 2015 GWD 23-411 an action for damages for personal injuries settled when a tender was accepted after a pre-trial meeting. The sum accepted was very significantly below the sum sued for. Prior to the meeting the defenders proffered a minute of amendment, the terms of which suggested that the pursuer was a malingerer and the claim was grossly exaggerated. The minute together with surveillance information was provided to the pursuer’s agents, but no motion was ever made to allow the minute of amendment to be received. The defenders opposed the certification of three skilled witnesses employed by the pursuer, on the basis that the pursuer had deliberately falsified her symptoms and thus should be penalised in expenses.

Lady Clark rejected this proposition. The pursuer had been successful, having accepted a sum tendered in settlement of her claim. At the time of settlement, liability was not admitted, there was a plea of contributory negligence, the pursuer had no legal aid and faced a lengthy proof, all factors which might affect the level of settlement. Lady Clark was not prepared to infer that the level of settlement supported the defenders’ contentions. She further observed that such significant issues could not be resolved without at least some evidence being led.

In Murray v Admiral Insurance Co Ltd 2015SCGREE53; 2015 GWD 22-395 Sheriff Principal Murray allowed an appeal against a finding of expenses at first instance. Following intimation of a claim with an invitation that it be dealt with on the basis of the pre-action protocol, the defenders did not respond in terms of that protocol. They subsequently indicated that they were prepared to deal with the claim on a without prejudice basis. An initial offer was rejected and, after the pursuer provided his valuation of his claim, a further offer was forthcoming with expenses calculated by reference to the protocol. This was not accepted and an action was raised. A tender was lodged for a lesser sum and was accepted on the eve of the proof. Sheriff Principal Murray noted that whilst the defenders had not abided by the time limits laid down by the protocol, it was accepted that as a matter of fact they were dealing with the claim in terms of the protocol. He further noted that without an admission of liability, the pursuer had been entitled to litigate. However, the triennium was not due to expire imminently and thus there was no urgent need to move to litigation. Expenses should be modified to those which would have been payable in terms of the protocol in the event of the action being settled without litigation.

In doing so he followed the approach of Lord Osborne in Neilson v Motion 1992 SLT 124. This award addressed the access to justice issue in giving the pursuer the expenses he would have recovered if he had settled pre-action. The defenders had offered that sum in expenses. Sheriff Principal Murray also observed that the provision of an agreed timeline and the relevant correspondence, together with information of the level of expenses payable and a draft account of judicial expenses, was most helpful in determining such matters.

Provisional damages

In Boyd v Gates (UK) Ltd [2015] CSOH 100; 2015 SLT 483 the pursuer accepted an offer from three defenders for a sum in damages together with a right to apply for further damages in the event of his developing three specific conditions. The second defenders refused to sign the terms of a joint minute, seeking to preserve the right to challenge liability in the event of one of the specified conditions developing. Having considered s 12 of the Administration of Justice Act 1982 Lord Uist considered that, if a settlement was reached in which an award of provisional damages was made, the issue of liability had been conceded. The court was pronouncing an award of damages and it was implicit that liability was no longer at issue.

Update

Since the last article, Tallo v Clark (July article) has been reported at 2015 SLT (Sh Ct) 181, Kirkham v Sneddon Morrison (July) at 2015 SLT (Sh Ct) 184; Fortune v Boyd (January) at 2015 SCLR 361, and Phee v Gordon (July 2014) at 2015 SCLR 343.