Steps to restraining the press

Reporting restrictions

In BBC, Petrs [2020] CSOH 35 (19 March 2020) Lord Doherty considered the operation of s 4 of the Contempt of Court Act 1981. His Lordship observed that if a court considered there were grounds for making an order postponing the report of any proceedings, it should make an interim order. That order required to make clear why the court considered that the requirements of s 4 were satisfied. Its making would be intimated to interested parties, who could make application for its recall.

Considering whether to make such an order, the court should first consider whether reporting gave rise to a substantial risk of prejudice to the administration of justice. If such a risk was perceived to exist, would an order in terms of s 4(2) eliminate that risk? If it would, the court required to consider whether that risk could be overcome by some less restrictive means. If the order was the only means, the remaining question was whether the degree of risk was tolerable when balancing the interests of fair trial and freedom of expression/open justice.

“Substantial” risk of prejudice in s 4 meant “not minimal”. In deciding whether the order was necessary to eliminate the risk, consideration had to be given to any less restrictive means by which prejudice could be avoided. The reasons given for the order had to indicate why reporting would give rise to substantial and unacceptable risk to the administration of justice and why no lesser measure would suffice. Such specification was to ensure the court applied the correct test and to inform interested parties why the order was necessary.

His Lordship also observed that if judges at first instance, on reflection, considered their decision was mistaken, the correct approach was to explain why the decision was made but acknowledge that that reasoning might be ill founded. If a mistake was made, it was better to acknowledge that to facilitate its correction.

Jurisdiction: consumer contract

In Heriot-Watt University v Schlamp [2020] SC EDIN 15 (24 February 2020) the issue was whether the contract to pay fees was a consumer contract. Sheriff Ross determined that it was. He took the following principles from both legislation and authorities. The individual circumstances of a contract are of central importance. A student undertaking a course may, but may not, be a consumer, depending on the purpose and content of the contract for the supply of educational services. The status of consumer is an objective and functional definition depending on all the circumstances, particularly the contract terms and the nature of the goods or services. A person cannot be deprived of the status of consumer by reason of general knowledge or occupation. The definition of consumer is applied by reference to the capacity of the contracting parties, particularly whether the party is acting for the purpose of a trade, profession or business. The purpose of the exception is to protect the weaker party. Only contracts to satisfy a person’s own needs in terms of private consumption are protected as consumer contracts. A defender has no onus to establish being a consumer. If the contract was not concluded exclusively with either a private purpose or a trade, business or professional purpose, the contracting party is a consumer unless the latter purpose predominates.

Jurisdiction: monetary value

The pursuers in Leafrealm Land v City of Edinburgh Council [2020] CSOH 34 (18 March 2020) sought inter alia declarator of ownership of a strip of land and interdict. The question arose whether the action fell within the privative jurisdiction of the sheriff court. The pursuers had averred that the value of the strip of ground exceeded £100,000 and thus the action could be entertained in the Court of Session by virtue of s 39 of the Courts Reform (Scotland) Act 2014. The true value of the land could not be ascertained until proof, as it constituted a ransom strip. In finding against the pursuers after proof, Lady Wolffe determined that cause had been shown why the action should not either be dismissed or remitted to the sheriff court.

Personal bar

In Troup v West Lothian Council [2020] CSOH 29 (10 March 2020), the defenders sought to argue that a compromise agreement entered into by the parties to conclude proceedings before an employment tribunal barred the present claim for damages for personal injury based on negligence and breach of contract. Such agreements were binding. However the two actions were different in character and the grounds of the present action had been excluded from the compromise agreement.

Interlocutors

In terms of OCR, rule 12.2 a sheriff can correct any clerical or incidental error in any interlocutor or note attached to it. In CWR v LVBR [2020] SAC (Civ) 3 (25 February 2020), following a proof on financial provision a sheriff issued two judgments. The sheriff had been invited to issue a judgment on issues but thereafter bring the matter out procedurally to pronounce an interlocutor which gave effect to the decision on the issues. The Appeal Court doubted whether this Court of Session practice could be readily adopted in the sheriff court when regard was had to the Ordinary Cause Rules.

The second judgment contained two errors. An arithmetical one could quite easily be corrected by the operation of rule 12.2. The second amended two findings of fact and law, two paragraphs in the note and substituted a new paragraph. The purpose of this was to achieve a certain net figure payable to the defender. The court held that this went far beyond what was envisaged in rule 12.2.

Summary decree

In Grier v Chief Constable, Police Scotland [2020] CSOH 33 (20 December 2019) the pursuer sought summary decree. The action was one of damages for unlawful and malicious conduct on the part of the defender’s agents resulting in alleged wrongful detention, arrest and prosecution. Lord Bannatyne referred to the observations regarding such motions made by Lord Rodger in Henderson v 3052775 Nova Scotia 2006 SC (HL) 85. These were, first, that the procedure envisaged an issue capable of being determined in summary fashion without the need for prolonged examination of matters of fact or law. Such motions were not to replace debates on questions requiring more detailed and extensive legal argument. Further, if there were actual disputed issues of fact to be resolved, the appropriate forum was a proof. The complexity of the dispute, with extensive averments and numerous complex issues of fact and law, rendered resolution by summary decree impossible.

Prior criminal convictions

The use and significance of s 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 was considered in Towers v Flaws [2015] CSIH 97; 2020 SLT 259, a recently issued opinion from 2015. The first defender had been convicted of a contravention of s 1 of the Road Traffic Act 1988. The effect of s 10 was to allow the pursuers to introduce the conviction into the proof and rely on it to reverse the burden of proof. To do this, the content of the libel was compared with the averments of negligence on record. If they matched up, the onus, so far as these matters were concerned, fell on the defender. There was no question of challenging the evidential basis of the conviction, and averments regarding its soundness were excluded.

Aspects of assessing evidence

In T v English Province of the Congregation of Christian Brothers [2020] SC EDIN 13 (30 January 2020), a case for damages based on historic abuse, Sheriff McGowan observed that matters such as inherent probability, namely the more serious the allegation the less likely it had occurred, the risk that memory had been affected by the passage of time, the loss of other sources of evidence, and prejudice, were all relevant factors to be taken into account when assessing evidence. There might, as a result, be a marked deterioration in the quality of justice. He referred to the observations from Lord Drummond Young in B v Murray (No 2) 2005 SLT 982 at paras 21-24. However, a court still had to determine matters on the basis of the evidence before it.

Commercial actions

The critical issue for Lord Doherty to consider in W M Morrison Supermarkets v LEM Estates (in liquidation) [2020] CSOH 31 (11 March 2020) was whether any of the pursuers’ adjustments sought to enforce obligations different to those sought to be enforced in the summons. This raises an interesting contrast with ordinary procedure, where such an issue only arises if such an attempt is made after the record closes. After considering the adjustments, his Lordship observed that whilst in commercial actions parties were encouraged to use abbreviated pleadings, where issues of prescription arose a pursuer should take care to make reference in the summons to each obligation sought to be enforced. This could be done by incorporating a report into the pleadings brevitatis causa. If such an approach was attacked as lacking specification, the relevant parts of the report could be identified.

Legal aid

In Ormistons Law Practice v Scottish Legal Aid Board [2020] SC EDIN 11 (6 January 2020), in case readers have missed it, Sheriff Holligan determined that the defenders were under an obligation to pay solicitors statutory interest on an account rendered under the legal advice and assistance scheme.

Expenses

In Clarke v Keenan [2019] SC EDIN 74; 2020 SLT (Sh Ct) 17 the pursuer in an action for damages arising out of a road traffic accident sought expenses from the defender, who did not enter the process, the defender’s insurers having entered the action as party minuter. Sheriff Braid refused the motion in hoc statu. He considered that there was no authority that it was competent to award expenses against a party who had not entered the process and thus had not contributed to the expenses incurred. An unsuccessful party was only liable for the expenses he had caused the successful party to incur. An order could be made against the defender in respect of the expenses of raising the action and taking decree in absence.

Sheriff Braid further observed that the correct approach in such instances was not to endeavour to obtain an award of expenses to create a right of recovery. Instead the court should make such order as was consistent with existing law and practice. Thereafter insurers could exercise what remedies they had open to them. Motions for decree or joint minutes required to be framed by reference to what could be justified, as opposed to acceding to the requests of insurers.