Appeals: the new landscape

Personal injuries actions

In Moran v Freyssinet Ltd [2015] CSIH 76; 2015 SLT 829 the defenders reclaimed the grant of a decree by default following their failure to prepare a statement of valuation for the pre-trial meeting. By the proof, which went ahead following their unsuccessful attempt to discharge it, the defenders had not lodged any productions or list of witnesses. The defences remained skeletal. They then sought to lodge two valuations, against opposition.

The Inner House refused the appeal. The Lord Ordinary was unlikely to have been unaware of the reasons for the default. Further, the default had an effect on the progress of the litigation. In those circumstances, the appeal court should confine itself to the usual matters considered in a review of exercise of discretion. Considering the appeal, the court observed that the thinking behind the procedure was that early, full and open disclosure by litigants encouraged resolution. The statement of valuation was a key element. The intention was to bring eve-of-proof discussions forward. The defenders’ failure to comply with the necessary provisions resulted in loss of these intended benefits. Once an action was instituted, defenders should immediately initiate the necessary investigations, working towards three crucial dates: the date for the valuation, the pre-trial meeting, and the proof. The defenders’ approach suggested a casual view towards the proper conduct of the litigation. A court, considering a motion for decree by default in such circumstances, did not require to consider what constituted justice between the parties or determine the proper defence. Rather it had to have regard to the interests of the public and court users generally. It was only by the imposition of sanctions for failure to comply that the rules would provide a procedure that was efficient and effective.

The observations regarding the requirement to comply with the procedural rules clearly have a direct relevance to the compliance with the personal injuries procedure. However, I suggest that with the emphasis towards case management, when the new rules regarding sheriff court procedure come into effect, such an approach may well be adopted. For those of a certain age, remember when the 1993 Ordinary Cause Rules were implemented, and what happened when options records were not lodged timeously. It may be worthwhile to be ahead of the wave when it comes to case management.

Appeals

A body of new rules came into force in respect of civil appeals taken to the Sheriff Appeal Court from 1 January 2016. Set out in the Act of Sederunt (Sheriff Appeal Court Rules) 2015, they apply to ordinary actions, summary causes and small claims. The rules run to 30 chapters, quite an increase from the provisions previously in force. Perhaps the rules that should be highlighted are, first, those providing relief from non-compliance. Default is specified as occurring when a party fails to comply with a timetable, fails to implement an order of the court within a specified time, fails to appear or be represented at any hearing, or otherwise fails to comply with any requirement imposed. Default can result in the appeal being granted or refused.

Greater specification is given regarding the note of appeal. It requires brief specific paragraphs setting out the grounds of appeal, appending the sheriff’s note if available, or indicating that a note has been requested or that the appeal is urgent and requires to be heard without one. It should also specify whether the standard or accelerated appeal procedure is appropriate. The time for appeal is 28 days. A procedural hearing will determine which procedure the appeal should follow. Factors taken into account are the importance and complexity of the appeal and the novelty of points of law raised. Appeals in respect of decrees by default and refusal of reponing notes are presumed to follow accelerated procedure. A timetable is to be followed in appeals under standard procedure; there are various rules to comply with, including the lodging of notes of argument and estimates of the time the appeal will take. Certain appeals can be heard by one appeal sheriff, including appeals in summary causes and small claims.

Whilst on the issue of appeals, a warning comes from W v M [2015] SCPAI 72 (7 October 2015): Sheriff Principal Murray found agents liable in the expenses of an aborted appeal hearing as the shorthand writer’s notes required for the hearing had not been extended. If any challenge is to be taken to findings in fact, it is almost inevitable that the notes will require to be extended. Failure to do so may have a similar result as in this case.

Family actions

In an interesting decision by Sheriff Paterson, AK v AK, Selkirk Sheriff Court, 23 November 2015, the issue of expenses in actions involving children was explored. An appeal had been taken against his decision. Following determination of the appeal, the case was remitted to Sheriff Paterson to determine the expenses of the appeal. At a hearing the respondent moved the sheriff to remit the case back to the sheriff principal as she had a better knowledge of the matters argued. Sheriff Paterson determined that he had no power to do so.

In considering the principles behind issues of expenses in such actions generally, reference was made to the Supreme Court decision S (A Child) [2015] UKSC 20, in which Lady Hale observed that in actions involving a dispute over a child’s future, the proceedings are in part inquisitorial with the hope that the child is the only winner. Fear of an expenses award might dissuade a party with an interest from becoming involved, or reduce the possibility of cooperation between parties for the sake of the child. The sheriff did express some doubts as to her Ladyship’s observations that in disputes regarding children it can generally be assumed that each party is intent on assisting the court as opposed to following their own agenda, and that parties are motivated by concerns for the welfare of the child. If one party’s position had been untenable, the lack of an award of expenses might increase resentment. For no award of expenses to be made, a party’s conduct should not be reprehensible or unreasonable and it was for the party seeking such an outcome to demonstrate this. There should be no presumption for no award being made. In the context of an appeal, whilst Lady Hale observed that the norm would be for no award, notwithstanding that a determination had been made at first instance, Sheriff Paterson observed that it would be for the appellant to persuade the court that the appeal was not reprehensible or unreasonable but rather was genuinely motivated by the child’s best interests.

A couple of notes of caution may be made. First, as observed, a judicial determination has already been made. Further, on a number of occasions appellate courts have observed that appeals in children’s cases are to be discouraged, the preferable approach being a minute founded on a change in circumstances. 

Actions of reduction

A familiar tale of what can happen when litigants try to conduct an action themselves lies behind the decision of Lord Matthews in Anderson Floor Warming v Antrim Electrical & Mechanical Engineers [2015] CSOH 164 (4 December 2015). In refusing to grant reduction of a decree in foro his Lordship reiterated the test which requires to be satisfied in such applications, namely the pursuers require to aver and prove exceptional circumstances and that substantial justice requires granting the decree. Simply for the sake of information, the decision of Lord Boyd in Garg v McNaught [2015] CSOH 148 (5 November 2015) can also be considered.

Contempt of court

In Martin & Co (UK) v Stenhouse [2015] CSIH 86; 2015 GWD 40-625 the Inner House considered the approach to be adopted in considering issues of contempt of court in failing to obtemper a court order. The respondents were alleged to have failed to comply with an order under s 1 of the Administration of Justice (Scotland) Act 1972 by hindering the commissioner in a variety of ways. Their Lordships observed that if contempt of court is alleged, the court should ascertain whether the contempt is admitted. The alleged contemnor should have legal representation available. If the contempt is denied, a proof should take place on a minute and answers, at which point a finding can be made. If the contempt is admitted, the contemnor should be given the opportunity to purge the contempt if possible, and address the court in mitigation before any penalty is imposed. If there is any question as to whether the behaviour complained of was too trivial to warrant a finding, the test to be applied is, if all the averments are proved, is the behaviour complained of so trivial that no further procedure is merited. Impecuniosity is not a relevant factor, as other penalties could be imposed. Although the parties’ private interests may be a significant factor, there has to be considered the public interest that the rule of law requires to be upheld and the authority of the court preserved.

Breach of interdict

On a related subject, in J & E Shepherd v Letley [2015] CSIH 87; [2015] GWD 40-626 a bench of five judges determined that an appeal from a finding that a party was in breach of interdict could be pursued in the normal way. A finding that a third party was in contempt might be different. For the future, matters would be determined by ss 47, 110 and 136 of the Courts Reform (Scotland) Act 2014.

Reluctant witnesses

The decision of Lord Tyre in Dickens v Anderson [2015] CSOH 161 (3 December 2015) is referred to as an example of an order in terms of the Attendance of Witnesses Act 1854 to secure the attendance of a witness who was outwith the jurisdiction.

Sequestration

In Mackin v Mackin [2015] SCGLA 73 (25 November 2015), Sheriff Deutsch, having heard parties as to whether the first order should be granted in a sequestration, determined that, notwithstanding that an application to have a payment programme approved had been made with the appropriate entry in the DAS register, a warrant to cite required to be granted. Presentation of a petition for a warrant did not amount to petitioning for sequestration, which only occurred after citation and the calling of the petition on the date assigned. The regulations regarding applications for payment programmes related to the moving for sequestration to be granted. They did not apply to seeking a warrant to cite. 

Update

Since the last article, Perth & Kinross Council v Scottish Water (November article) has been reported at 2015 SLT 788; Caldwell v eayJet Airline Co (November) at 2015 SLT (Sh Ct) 223; Murray v Admiral Insurance Co (September) at 2015 SLT (Sh Ct) 236; Macallans v W Burrell Homes Ltd (July) at 2015 SLT (Sh Ct) 243; Mazur v Primrose & Gordon (March) at 2015 SCLR 509; West Lothian Council, Petrs (May) at 2015 SCLR 549; and City of Edinburgh Council v MS and NS (May) at 2015 SCLR 631.