More rules to grapple with

Personal injury actions

With effect from 22 September 2015, new rules in the form of Chapter 36A have been introduced for certain actions by SSI 2015/227. These make provision for case management. A procedural hearing is assigned after the record closes. A written statement of proposed further procedure requires to be lodged prior to that hearing. At the hearing the sheriff determines further procedure. If a debate is allowed, written arguments may be ordered. If the action is proceeding to proof, significant information will be provided and discussed at the hearing. A pre-proof timetable will be prepared setting out dates by which various steps and/or hearings require to take place.

Provisions are made in a new Chapter 36B for jury trials in the all-Scotland Personal Injury Court.

Family actions

On 26 October 2015 new provisions (SSI 2015/312) came into force in respect of the ordering of reports, now called child welfare reports in family actions as defined in OCR, rule 33.1. The relevant reports are those seeking the views of a child or making enquiries in relation to a child. In relation to the latter, a report should only be ordered if the court is satisfied that it is in the best interests of the child and will secure the effective and expeditious resolution of an issue regarding a child. This potentially could restrict the instances when a report would be requested.

The ordering of a report will specify what enquiries are required and upon which issues. A date requires to be specified when the report will be available and thus parties should be aware of the enquiries which will be carried out, how long they will take, and the likelihood of the reporter complying with the timescale. The sheriff can make directions for the reporter. Provision is made regarding liability for the cost of the report, but the norm will be equal liability. There is also provision for local authority reports.

Decrees in foro

In 3052775 Nova Scotia Ltd v Henderson [2015] CSOH 126; 2015 SLT 691 Lord Jones indicated that whilst a decree by default granted as a result of failing to do something ordered by a court could be indicative of the party in default having lost the right to contest that action, where that party had the right to appeal it could not be conclusively determined that the party was held as confessed as a result of the default and thus the decree was not final and conclusive. Accordingly in an action of reduction in which the pursuers offered to prove that decree by default had passed against them without any fault on their part and the failure to exercise the right of appeal had likewise not been the result of fault on their part, they were entitled to a proof.

Amendment

In Perth & Kinross Council v Scottish Water Ltd [2015] CSOH 138 (20 October 2015), the pursuers sought to amend the instance by substituting Scottish Water for Scottish Water Ltd, after the prescription period had expired. Referring to Gray Aitken Partnership Ltd v Link Housing Assoc Ltd 2007 SC 294, Lord Stewart noted that the initial defender and the proposed defender were separate legal entities. However, in the circumstances, he considered that the error fell into the category of a clerical error. Communication was addressed to the correct legal entities. Proceedings were served on Scottish Water and not the defenders actually convened. The action was based on a statutory duty, not a private contract. Scottish Water were also the only persons who could have instructed the defence of the action. The provision in the rules allowing the correction or supplementing of a designation referred to designation in the broadest sense. The reason that the error arose from a practitioner copying the name of the original defenders from pre-litigation correspondence without checking was a reasonable excuse which permitted the amendment. No significant prejudice would be suffered, and expenses could remedy any actual prejudice suffered.

Settlement

The decision of Glasgow City Council v Smith [2015] CSOH 143 (23 October 2015) is an example of a minute being lodged in process seeking declarator that an extrajudicial settlement of an action had been concluded. This is the correct procedure to be followed where one party considers that settlement terms were agreed and the other disputes that contention. In this case the minute was unsuccessful.

Appeals

In Avondale Coaches Ltd v Strathclyde Partnership for Transport 2015SCGLA63; 2015 GWD 32-519 Sheriff Principal Scott reiterated that the marking of an appeal was a significant stage in process and thus the grounds of appeal required to be framed with sufficient detail and precision to provide the respondents with full and fair notice of the basis of the appeal. It was to be assumed that the appellants were clear as to the basis on which the judgment at first instance was to be challenged.

Small claims and summary causes

In Scottish Water Business Stream Ltd v Chataroo 2015SCEDIN60 (28 August 2015), Sheriff Principal Stephen indicated that a challenge to jurisdiction in a small claim requires to be made prior to proof.

In Caldwell v Easyjet Airline Co Ltd 2015SCEDIN64 (15 October 2015), Sheriff Welsh determined that in summary cause procedure, and by implication small claim procedure, all evidence should be admitted and thereafter it is for the court to decide what weight to give it. In that dispute he held that a contract for international carriage by air was not a consumer contract. Jurisdiction was based on the Montreal Covention 1999, article 33.

In Ewen v Smart 2015SCABE66 (28 August 2015), the pursuer appealed a decision to dismiss a summary cause action after it had been continued on a number of occasions for further information to be provided regarding the identity of the driver of a vehicle involved in a road accident, the defender disputing that it was him. Having failed to secure any information on this matter at the fourth calling of the case, the sheriff dismissed the action. On appeal Sheriff Principal Pyle observed that the sheriff was entitled to enquire as to the evidential basis of the averment alleging the defender was the driver. Whilst it was inappropriate to stray into areas properly the function of a proof, to ascertain the factual basis of any action and to investigate the possibility of a compromise it was inevitable that a sheriff properly would make such inquiries. Accordingly the person appearing should have sufficient information to enable the hearing to be conducted properly. This was in the interests of the parties and the administration of justice generally, in which parties and their representatives had to play their part. Inadequate instruction was no longer acceptable.

Sheriff Principal Pyle also hinted that the name of the solicitor actually conducting the litigation should appear in the summons. Once again this decision, albeit a summary cause, gives an indication as to what is to be expected in the case management environment coming, and what could happen if there is a failure to comply with what is expected.

Provisional damages

In Fraser v Kitsons Insulation Contractors Ltd [2015] CSOH 135 (20 October 2015), the pursuer concluded for provisional damages. A minute of tender for provisional damages was lodged and was accepted. The pursuer enrolled a motion for decree in terms of the minute of tender and acceptance. This was opposed on the basis that the order sought should have made clear that the pursuer was only entitled to return for further damages in the event that he developed specified conditions. Lord Doherty considered that while the tender and acceptance constituted a contract, that did not compel a court to award provisional damages. The court was in effect being asked to make an order for provisional damages by the appropriate exercise of its discretion. The court had to be satisfied that there was a future risk of development of serious disease or further deterioration. Clarity had to be given to the court as to these future risks. In those circumstances the court could not proceed on the basis of the pursuer’s averments, many of which were not accepted.

Where provisional damages are sought and the action settles, his Lordship considered that the joint minute should specify the serious disease or deterioration which would constitute a relevant risk for further application. A minute of tender should likewise contain that information. Such a requirement did not undermine the principle that a tender should constitute a clear, unambiguous and explicit offer.

Update

Since the last article, W v Advocate General for Scotland, discussed there, has been reported at 2015 SLT 537.