Leave the merits aside

Decrees in absence

The issue in the appeals Santander Consumer (UK) v Creighton; Santander Consumer (UK) v Simpson [2019] SAC (Civ) 36 (6 November 2019) was the power of a sheriff at first instance to refuse to grant decree in an undefended action. The court reiterated that a sheriff is only entitled to refuse to grant decree if there is a lack of jurisdiction or the remedy sought is incompetent. Delving into the merits of the action ran contrary to authorities. Any thought that a pursuer would not refund sums recovered which exceeded what was due under an agreement were unfounded. To give consideration to such a matter was akin to refusing to grant decree in absence in circumstances in which a defender might have a partial or complete defence.

The court also observed, in the particular circumstances of these disputes arising out of conditional sale agreements, that the pursuers were entitled to the grant of a common law warrant to search for the subject matter of the agreements. It did, however, determine that there were competency issues regarding aspects of the interest sought. Further, the charges of recovery agents were properly a matter for taxation as opposed to a specific crave.

Finally, the court noted that the monetary crave in the Simpson case was within the simple procedure limit and thus the issue of competency raised in Clydesdale Financial Services Ltd v Wojcik [2019] SC PER 29 arose. It reserved opinion on the simple procedure aspect without expressing a view, as it had not been the subject of submission during the appeal, and granted decree in favour of the pursuers. That issue may yet come before the Sheriff Appeal Court.

Jurisdiction

In University Court of the University of St Andrews v Student Gowns Ltd [2019] CSOH 86; 2019 SLT 1347 Lord Doherty emphasised that a pursuer who founds on the special jurisdiction under rule 3(c) of sched 4 to the Civil Jurisdiction and Judgments Act 1982 has the option to litigate in the place of the damage or the place of the event giving rise to the damage. Further, the plea of forum non conveniens cannot be sustained unless another court with competent jurisdiction can try the issue more suitably for the interests of all parties and the ends of justice. The burden falls on the litigant founding on the plea to establish that the other forum is clearly or distinctly more appropriate. Such matters as substantially less expense and which forum has the most real and substantial connection are to be considered, as are residence, place of business and the law governing the relevant transaction. Lord Doherty considered that there was no basis for upholding the plea.

Lis alibi pendens

In Promontoria (Chestnut) Ltd v Ballantyne Property Services [2019] CSOH 91 (8 November 2019) the pursuers sought payment of a debt. There was also a summary application relating to enforcement of securities over properties. In referring to previous authority Lady Wolffe noted that to establish a plea of lis alibi pendens there required to be a prior action in dependence, raised in another court of competent jurisdiction, between the same parties in the same legal capacities or interest, in which the same question was raised. In the instant case the decrees in the actions provided different remedies. Whilst the defences were on the same lines, in the summary application these issues were incidental questions. Decree in the action for payment would result in that debt being enforced. In the summary application decree was the means to realise the real right in security constituted to secure the debt. The plea was aimed at avoiding double decrees being obtained, each of which constituted res judicata, with one being either useless, or contradictory leading to confusion.

Confidentiality

In West Lothian Council v Clark [2019] SC LIV 97 (15 November 2019) Sheriff Kinloch noted that the confidentiality of communication between legal advisers and their clients was lost if the legal adviser gave evidence which went well beyond matters of simple fact. Confidentiality was not lost by the mere calling of the adviser. In the circumstances of that case, confidentiality had not been lost.

Motion procedure

In Hardie v Gefion Insurance A/S [2019] SC EDIN 93 (6 November 2019) Sheriff McGowan heard submissions in relation to an opposed motion for decree in terms of a minute of tender and acceptance. The motion was opposed on liability for and level of expenses. The determination of that issue was undoubtedly case-specific. However, Sheriff McGowan made certain pertinent observations regarding the preparation and pre-hearing activity which should be undertaken before an opposed motion is argued.

There should be dialogue between agents as to the basis for the motion and opposition, and an investigation as to whether a compromise is possible. It is preferable that this dialogue is conducted face to face, or at least orally, and in good time. If compromise is not achieved, parties should appear knowing clearly what is at issue and what is not. It is preferable if principal agents conduct such hearings, but if not, those appearing should have comprehensive instruction including answers to anticipated inquiry from the bench. If the history of the case is relevant, a written timeline should be prepared. If authority is to be referred to, notice should be given to the court well in advance. Any relevant documentation, if not already in process, should be provided prior to the hearing with the pertinent sections identified. Failure to follow these suggestions can result in a party being caught by surprise and thus unable to address the court properly. Hearings can take longer and the court may have difficulty in establishing the issues.

On the issues regarding expenses, Sheriff McGowan decided that some information had been provided to the original defenders and no response had been elicited. This included correspondence by recorded delivery. The pursuer was entitled to institute proceedings. Thereafter the pursuer’s failure to produce documentation was countered by the defenders’ failure to recover it. He accordingly found the defenders liable for 50% of the subsequent expenses. However, as the figure at which settlement was achieved was significantly lower than the ordinary level and there was nothing to persuade him that it had been reasonable to initiate proceedings as an ordinary action, expenses should be taxed by reference to the simple procedure scale.

Family actions

The problems produced by family actions arise not simply in determining factual and legal issues, but also through the tension between the requirements of case management and seeking to reach a prompt determination of issues, perhaps employing a degree of flexibility, on the one hand, and traditional civil procedure on the other. This can come sharply into focus in relation to how prior procedure may have a bearing on the conduct of any proof and the subsequent issuing of a judgment.

Such matters arose again in MN v ON [2019] SAC (Civ) 35 (29 July 2019). The Sheriff Appeal Court first observed that if the matter proceeds to proof, a final interlocutor is required dealing with the craves and pleas in law. Further, while case management is to be encouraged and this may involve notes being appended to interlocutors for that purpose, difficulties arise if such a note extends beyond recording what was discussed and ordered. Care is required, particularly to avoid an indication of a concluded view on disputed matters. Where a sheriff decides to write to a child explaining the reasoning behind a decision, care is required in the manner in which that explanation is tendered to the child. The court also observed that when an uplift in expenses is granted in terms of para 5 of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1993, a specific percentage requires to be detailed in the relevant interlocutor.

Final judgment

What constitutes a final judgment is of considerable importance, as it determines the day from which the time to appeal commences. The issue in Shine Properties v Biggar Museum Trust [2019] SAC (Civ) 37 (11 November 2019) related to the situation in which a judgment was issued after proof and a hearing on expenses allowed. At that hearing expenses were dealt with of consent. The pursuer appealed and an issue of the competency of the appeal was raised, as well as whether the appeal was lodged out of time. Sheriff Braid observed that the interlocutor dealing with expenses did not, of itself, constitute the final judgment. That required to be read with the interlocutor issued containing the decision following proof. These two interlocutors disposed of the whole subject matter of the action. In light of that, there was no question of the interlocutors which constituted the final judgment having been pronounced of consent. The lodging of the appeal had the effect of opening up the prior interlocutors in terms of s 116 of the Courts Reform (Scotland) Act 2014.

Expenses generally

I touched on the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 in relation to Hardie, above. This applies to proceedings commenced on or after 29 April 2019. Perhaps the provisions of greatest interest are, first, rule 2 which sets out the general principles of taxation. The expenses recoverable are only those which the auditor considers reasonable for the conduct of proceedings. In particular, the auditor can refuse to allow expenses which he considers were incurred as a result of fault or error on the part of the entitled party or their representative. In addition, expenses can be disallowed for parts of the proceedings in which the entitled party was unsuccessful.

In Hardie, Sheriff McGowan indicated that the default position regarding the scale of taxation was no longer determined by reference to the sum decerned for. It is also interesting to note that the auditor can disallow expenses regarding part of the proceedings, albeit there is no judicial determination. It would thus appear that the main result of moving for the expenses of aspects of the proceedings primarily is to ensure that there is ultimately no finding against a party for that part of the proceedings at some later stage. It appears still to be open to argue at a taxation diet that expenses should not be recoverable for part of process under a global award in the proceedings.

Rules 4 and 5 cover counsel’s and skilled persons’ fees. No fees are to be allowed for work undertaken by counsel unless the proceedings or the particular work undertaken have been sanctioned beforehand, or cause can be shown for not having applied for prior sanction.

With skilled persons, again certification is required before the work is undertaken. The sheriff can, however, determine that certification takes effect prior to the relevant interlocutor being pronounced, on cause being shown why prior certification was not applied for. Whether certification should be granted is determined by concluding that the person is skilled and that it was reasonable and proportionate that the person was employed.

If certification is refused, a further application can be made on a change of circumstances. These provisions seem to require a court to engage in an element of prediction as opposed to considering the issue of sanction once a debate or proof has been conducted and in full knowledge of the issues etc. Accordingly, the task may have become more complicated.

Additional fees are covered in rule 5.2, which largely reflects the previous practice. Schedule 6 confirms that liability to meet the expenses of a witness falls on the party citing the witness.

The provisions relating to sanction of counsel and skilled persons were considered by Sheriff McGowan in Finlay v Borders Health Board [2019] SC EDIN 99 (29 October 2019). He determined that generally, the effect of these rules was that retrospective sanction for counsel can only be sought for particular work in the conduct of the proceedings, and cannot cover the proceedings as a whole or part of them. The present case had been remitted to chapter 36A procedure. In such circumstances, once sanction was granted there was no need to apply again for sanction once the case was remitted. Turning to skilled persons, retrospective sanction had to be justified.

Expenses – legal aid

In Dobbie v Patton; Patton v Patton [2019] SAC (Civ) 39 (14 November 2019) appeals were taken against a sheriff’s decision to modify expenses to nil. In terms of rule 3 of the Act of Sederunt (Civil Legal Aid Rules) 1987 the words “assisted person” shall follow the name of the assisted person on every step of process and the legal aid certificate requires to be lodged forthwith in process. The appellants submitted that failure to comply with these provisions made it incompetent to grant any motion to modify the assisted person’s liability in expenses.

The Sheriff Appeal Court determined that, in the absence of any identifiable prejudice arising therefrom, the non-compliance did not preclude the motion for modification being made. The provisions were directory, not mandatory, and the parties opposing the modification had been aware that their opponent was in receipt of legal aid. Adopting the dicta of Lord Gill in Bell v Inkersall Investments 2007 SC 823, the court’s discretion was not unfettered. The court could not make an award which would constitute an unreasonable sum for the assisted person to pay. In reaching that decision, the court had regard to the means of the parties and the amount of expenses and, having assessed what would be a reasonable figure, the court could still modify the liability to a lesser figure or nil. In doing so, the court had to consider the parties’ conduct of the litigation and whether the assisted person had taken an unfair advantage of their status. If the court at first instance had fallen into error in determining matters, the correct approach was to remit back to that court to reconsider subject to any direction which the appellate court considered appropriate.

Appeals

In Explore Learning Ltd [2019] CSIH 53 (12 November 2019), Lord Brodie refused an application for leave to appeal. He observed that whilst the criterion set out in s 113(2)(a) or (b) of the 2014 Act required to be satisfied for permission to be granted, the fact that one or other was satisfied did not necessarily result in permission being granted. The court also had to consider the prospects of success of any intended appeal and the suitability of the particular case as a vehicle to advance the point which was intended to be argued. It is interesting to note that notwithstanding s 113 referring to permission to appeal, clearly old habits die hard, with reference being made to “leave to appeal” in the heading of the opinion!

Minutes for civil imprisonment

Whereas once applications for civil imprisonment for wilful non-payment of aliment were not uncommon, nowadays they probably can be filed under “historic interest”. However, such an application was raised in Aberdeen Sheriff Court in mid-2018. The decision of Sheriff Mann in Jaworowska-Dziewirz v Wojciechowski [2019] SC ABE 90 (12 November 2019) reiterates the special procedure which applies to such a process.

In terms of the Civil Imprisonment (Scotland) Act 1882 the application requires to be disposed of summarily without written pleadings. Sadly, this application did not proceed as envisaged by the legislation. There were numerous continuations for reasons which ex facie appeared not unreasonable but were not in accordance with the legislation. Most of these continuations were incompetent. There was no requirement to continue such an application to afford the aliment debtor time to clear the arrears.

Since the last article, Davis v Skyfire Insurance (May article) has been reported at 2019 SLT (Sh Ct) 272, Reid v Redfern (No 3) (July) at 2019 SLT (Sh Ct) 281, Clydesdale Financial Services Ltd v Wojcik (May) at 2019 SLT (Sh Ct) 286, Scottish Water Business Stream Ltd v McMath (May) at 2019 SLT (Sh Ct) 313, Mannas v Chief Constable, Police Scotland (March) at 2019 SCLR 909, and Whitehouse v Lord Advocate (July) at 2019 SCLR 941.