A judgment on judgments

Judgments and appeals

There is a lot more in the decision of MacLeod v Highland Health Board [2016] CSIH 25 (7 April 2016) than matters relevant to appeals. Dealing with those initially, however, the Lord Ordinary’s decision was criticised on a number of grounds. Lord Brodie, speaking for the Inner House, made a number of observations which may assist in considering whether a judgment is open to challenge. A judgment is expected to resolve issues arising from disputes as to the law applicable to agreed or disputed facts and to determine what facts have been established. It should identify these issues and record the facts or law by means of which they are resolved. It has to address three audiences: the parties, the wider public, and the appeal court. The basis on which facts are established and disputed issues resolved, and how the law has been applied to the evidence and the facts, should be clear.

The appellate court has to determine whether the reasons given by the court at first instance are satisfactory. If not, it must still determine, considering the matter at large, whether it would have come to a different decision. The Inner House did not have power to remit to the Outer House for another judge to consider.

One complaint in this appeal was the delay in issuing the Outer House decision. The Inner House accepted that this might result in the judge at first instance forgetting the impression made by witnesses or indeed their evidence. It made observations concerning the difficulties for judges finding time to deliver judgments. I suspect my audience may not have a great deal of sympathy! However, I suggest one or two observations are worth considering. After a six-week proof, parties had produced voluminous written submissions, but did not appear to highlight the points to be decided and the relevant material. In short, the more focused the submission, the easier it is for a judge to follow and produce a judgment. It might also be observed that the less evidence led, the easier it is to determine facts. The more facts can be agreed, the better.

Similarly, on the impression witnesses made, it is clearly preferable for proof to take place on succeeding days. Court resources being as they are, that frankly is not possible for a lengthy proof. Aside from anything else, the proof may resolve. Greater focus on what evidence actually requires to be led may reduce the days required. Further, if additional days are required, every effort should be made to have the remaining evidence led shortly thereafter. That may mean practitioners rearranging their diaries, and court staff their programmes.

In Liquidator of Glasgow & Weir Blacksmiths v Glasgow [2016] SC EDIN 20 (29 February 2016) Sheriff Principal Stephen determined that the interlocutor dealing with expenses, pronounced of consent after a judgment had been issued, did not render an appeal against the judgment incompetent. The later interlocutor was simply one that made the earlier judgment a final one for the purposes of appeal.

Time bar and delay

In Ecclesiastical Insurance Office plc v Whitehouse-Grant-Christ [2016] CSIH 12A (2 March 2016) the pursuers sought to avoid a policy insuring the defender against risks including fire. The defender did not formally counterclaim until 10 years had elapsed from the event, but within two years of the event the defences contained a plea to the effect that the pursuers were obliged to perform their contractual obligations.

The Inner House rejected an argument that to interrupt the prescriptive period a claim required to take the form of a crave or conclusion for a sum of money. The plea would have achieved interruption if it had appeared in a counterclaim and constituted a relevant claim. It was an explicit request to the court to enforce the defender’s rights under the policy. There had been no doubt as to her intention standing the plea.

Their Lordships gave short shrift to an argument that the pursuers had been guilty of undue delay. The action had been sisted on the defender’s motion; she had the dominant interest in the outcome; she had taken no steps to recall the sist. Further, the pursuers’ grounds of action related to matters within her knowledge.

Skilled witnesses

JQ v CC, Glasgow Sheriff Court, 1 March 2016 concerned relocation of children. Two child psychologists gave evidence, one through a joint remit. Sheriff Anwar, who heard their evidence under reservation, concluded that it was inadmissible. The experts were being asked to perform the court’s function. Child psychologists should not be instructed as a matter of course. Whilst highly trained, their appointment inevitably involved an intrusive and detailed interview of a child, which might be distressing and daunting. Consideration had to be given to what was to be adduced. Here there was no suggestion of psychological issues. The child was normal and resilient, and had a loving and strong bond with both parents. Courts were familiar with what might or might not be in a child’s best interests. With normal ordinary children having no diagnosed or suspected psychological condition, facing everyday challenges, the courts were well able to balance the competing issues.

Sheriff Anwar also determined that whilst the fact that there had been mediation was admissible, the various discussions in the process were inadmissible in light of the Civil Evidence (Family Mediation) (Scotland) Act 1995.

Joint and several liability

In SDG Tulloch Homes v European Development Co (Hotels) [2016] CSOH 36; 2016 GWD 8-151 a developer sued two unrelated former prospective purchasers of an area of ground for breaches of contract. Lord Tyre concluded that the authorities on whether an action could be competently raised against two or more defenders required that the alleged wrongs be not disconnected. There was no support for a submission that it was sufficient to identify a loss to which each had made a material contribution; such a test was likely to cause considerable uncertainty as to the scope of joint and several liability. The present claims arose from two disconnected breaches of contract, and the pursuers had failed to aver a single common result or wrong. Lord Glennie’s three propositions in PS Independent Trustees Ltd v Kershaw [2007] CSOH 50 were adopted: the alleged wrongs must not be disconnected; they do not have to be of the same character; each requires to make a material contribution to the overall loss.

Recovery of documents

In Cumming v Tayside Health Board [2016] CSOH 58 (21 April 2016) the pursuer sought recovery of documents prepared by a doctor which had been available to and relied on by the defenders in a case review. A witness for the defenders had based his conclusions on these documents. It was subsequently made clear that this witness would not give evidence. The documents would enable another witness to be tested by reference to contemporaneous material. It was argued that the disclosure of a review report waived any privilege in terms of the post litem motam rule. Temporary Judge Beckett concluded that there were strong policy considerations preventing the recovery of documents post litem motam. It would inhibit legitimate investigation, which might prevent remedial measures being taken.

Title to sue

Lady Wolffe in Chiswell v Chiswell [2016] CSOH 45 (22 March 2016) determined that a discharged bankrupt, whose sequestration continued and who had not secured the consent of his trustee, had title to sue. The test was whether the proposed action was detrimental to the interests of his creditors or inimical to the purposes of the sequestration. Did it compete with the interests of his creditors and the trustee?

Actions of reduction

Lord McEwan in Harper v Letley [2016] CSOH 39; 2016 GWD 9-165 dismissed an action for reduction of sheriff court decrees where it was averred that the defender had made a false statement in the actions giving rise to the decrees complained of. The original decrees had been granted as a result of the present pursuer seeking an incompetent remedy. Accordingly the veracity of any statement was neither here nor there.

Adults with incapacity

In Application by J in respect of F [2016] SC EDIN 24 (22 March 2016) Sheriff Braid determined that a solicitor who had acted for an adult for about a year did not have sufficient interest to present an application for financial powers. To satisfy “a person claiming an interest”, the interest had to be a real one. In relation to financial powers, it had to be some form of patrimonial interest. Simply acting as legal adviser did not suffice. A close relationship and moral duty to bring an application might suffice in an application for welfare powers.

Summary applications

In Wishart, Petitioner [2016] SC FOR 29 (3 August 2015), where an order was sought under ss 994 and 996 of the Companies Act 2006, Sheriff Collins first observed that the procedure adopted for summary applications was, by its nature, summary. It was more flexible than ordinary procedure but required to ensure fairness to the parties. He also concluded that in an application under these provisions it was perfectly competent to seek an order for payment and a warrant to execute diligence on the dependence.

Sanction for counsel

Two decisions have appeared in relation to the All-Scotland Personal Injury Court. In V v M & D (Leisure) [2016] SC EDIN 22 (17 March 2016), Sheriff Braid, in his own particular style, examines the provisions of s 108 of the Courts Reform (Scotland) Act 2014. Sanction must be granted if it is reasonable. This is objective reasonableness considered at the time, having regard to the parties’ interests. The court requires to consider that the proceedings merit the employment of counsel, and the desirability that no party gains an unfair advantage by such employment. As to merit, the court has to have particular regard to the actual or likely difficulty or complexity of proceedings and their importance or value. Other matters can also be considered. Sheriff Braid granted sanction, as did Sheriff Reith in Dow v M & D Crolla [2016] SC EDIN 21 (14 March 2016).

Interlocutors

If interlocutors do not record what has occurred or should happen, problems can arise. In McDowall v G4S Care and Justice Services (UK) [2016] SC EDIN 11; 2016 GWD 7-141 a sheriff had granted declarator at a debate to the effect that the pursuer’s human rights had been breached, reserving quantum of damages to a proof. No interlocutor had been pronounced; parties had treated the decision as one granting summary decree and allowing proof on quantum. On appeal, parties agreed that whatever the outcome, proof at large on just satisfaction, and if appropriate quantum, was required. Sheriff Principal Stephen observed that an interlocutor was necessary to give effect to the sheriff’s decision and for the purpose of appeal and certainty. It should record what pleas were sustained and repelled, and provide a clear trail of the orders made and the nature of the proof allowed. Some informality just goes too far!