Civil court: Case management review?

There have been relatively slim pickings for procedure enthusiasts in the last few months. The sheriff courts have been very quiet in that sense, particularly the All Scotland Personal Injury Court which published no decisions between June and September. I have no idea why that should be so. Many recent decisions from the Court of Session relate to petitions for judicial review, and while of varied subject matter, few raise court procedural points.

We are gradually adopting judicial case management in most civil cases, but what is the position if a judge makes a case management decision that you do not like? Dickson v Dumfries & Galloway NHS Health Board [2021] SAC (Civ) 26 (27 July 2021) was a personal injury claim. It appears to have commenced life as an ordinary PI action under chapter 36 of the OCR but came to a case management hearing under chapter 36A by “some hybrid procedure following the OCR… largely as a result of the pandemic”.
I suspect sheriff court practitioners will have become familiar with “hybrid procedures” adopted in various courts during COVID.

The appeal was against the sheriff’s decision to allow proof before answer where the defenders sought a debate on the ground that the action was ex facie time barred. The important question of principle is whether such a decision is susceptible to appeal. Do sheriffs have an unfettered discretion to decide how to case manage any case, or on what grounds could a decision be successfully challenged?

This case is likely to be treated as setting a standard. It is worth reading fully but, putting it shortly, the court looked at the rules about case management in PI cases and observed that although there was no equivalent to the rule about debates in options hearings, the rules imply that a debate will only be fixed if it is clear that there is a real purpose to be achieved: “We consider that a debate should not be fixed if the issue raised does not go to the heart or root of the case. The issue should be material or substantial... A debate should be fixed only if that step has an ability to limit the scope or extent of any proof or indeed challenge the whole basis of a party’s case.”

The case management decision by the sheriff was not a question of law, but an exercise of discretion. The appeal was not a rehearing but a consideration of whether the court could be satisfied that the grounds for interference were met, and “the appeal court cannot interfere unless the sheriff has gone wholly or plainly or demonstrably wrong”. In this case, the SAC thought that he had, allowed the appeal and remitted the case for a debate to be fixed. The outcome of other cases may be much more difficult to predict.

In McLeod v Bank of Scotland [2021] CSOH 76 (23 July 2021) the pursuer, a party litigant, sought reduction of a sheriff court decree in absence against him for recovery of possession of his house over which he had granted a standard security. He said that he had not received a calling up notice, but gave no explanation for not defending the proceedings. He made various arguments about the background circumstances including allegations of fraud on the part of the defenders. His action was unsuccessful, the court having regard to the approach of Lord Woolman in Jandoo v Jandoo [2018] CSOH 14. A court decree is not to be lightly set aside. There is no precise test, but the pursuer must show that (1) the decree ought not to have been granted on the merits; (2) there is a reasonable explanation why they did not enter the proceedings; and (3) the whole circumstances of the individual case justify reduction.

In McLeod, the court referred to the “presumption of regularity” which established the procedural propriety of the decree despite allegations that there had been some defect in the original proceedings. I cannot recall coming across this presumption as such, but it is worth having a look at the authorities on presumptions generally, which can be found in Walker and Walker on Evidence (5th ed), chapter 3. Another presumption worth having in one’s armoury is that proof of posting an item raises a presumption of its receipt by the addressee, albeit the presumption is rebuttable. This was discussed in detail last year in Peter J Stirling Ltd v Brinkman Horticultural Service UK [2020] CSOH 79.

An old-fashioned battle about parties’ averments cropped up in GI Properties Ltd v Royal Bank of Scotland [2021] CSOH 78 (3 August 2021). The pursuers had a loan facility from the bank and there was a dispute about the terms surrounding their commercial relationship. Oral promises and representations were said to have been made, thus creating a complex factual and legal matrix. Both parties took the case to debate. The court had to pick its way through the pursuers’ lengthy pleadings which, amongst other things, incorporated a section of a witness statement giving the witness’s view about what he thought the commercial arrangement was. Lord Summers observed: “It is rarely appropriate to insert quotations from witness statements in pleadings… The pleadings should give notice of the facts the pursuer proposes to prove and the propositions which it is said can be derived from these facts”.

Regarding the defences, the pursuers argued that the use of “Not known and not admitted” in relation to matters which should have been within the defenders’ knowledge, and the use of bare denials of other matters, could be treated as implied admissions. The court rejected both arguments, referring to the authorities on these points. Ultimately, the court found the pursuer’s averments to be confusing and irrelevant and dismissed the action.

The decision of the Sheriff Appeal Court in Scottish Legal Aid Board v Ormistons Law Practice Ltd [2021] SAC (Civ) 22 (11 June 2021) looks likely to have reverberations in the future and will have been of real interest – but little comfort – to hard pressed legal aid practitioners. At first instance the sheriff granted declarator that SLAB was bound to pay statutory interest on the shortfall between what it originally paid the solicitors and the subsequent taxed account. The issue was said to affect many thousands of legal aid accounts.

In a lengthy and detailed judgment, analysing the full statutory background of legal aid, the legislation regarding late payments and the relative European directive, the Sheriff Appeal Court reached the view that “the relationship between the parties is not in the nature of a commercial transaction as defined and envisaged by the directive”, and SLAB was not required to pay interest.

It was noted that the Court of Session had reached a different view in relation to counsel’s outstanding fees in a case where the liability to pay interest had been conceded by SLAB. In a postscript the SAC said: “Considerations of consistency and, indeed, fairness would lead to the expectation that the solicitor branch of the legal profession should also have the benefit of the directive in respect of remuneration for fees and outlays from the fund overdue for payment. In our view, that is a matter that requires to be addressed by Parliament.” Don’t hold your breath?

In Graeme W Cheyne (Builders) v Wilson [2021] SAC (Civ) 24 (3 August 2021), the Sheriff Appeal Court refused an appeal against the grant of summary decree in a commercial action. The pursuer built a house for the defender and raised the action to enforce an adjudicator’s award. The defender counterclaimed for declarator that the award was invalid. The Appeal Court stated: “The various defences asserted by the appellant in his defence to the principal action and in the submissions before us represent… the very type of contrived or technical defences which the Court of Appeal… has cautioned the courts to examine with a degree of scepticism. The sheriff was correct to so examine the defences and to conclude that they had no real prospects of success.”

The test for such an appeal to be successful is worth highlighting: “We are not persuaded that in granting the respondent’s motion for summary decree the sheriff either erred in law or was plainly wrong.”

Two unfortunate cases are a painful reminder that things do go wrong. In Kosno v Robertson [2021] CSOH 79 (4 August 2021), a personal injury case in the Court of Session, the pursuer enrolled a motion for interim damages in terms of rule 43.11. The defender intended to oppose it and efforts were being made to identify a suitable date for a hearing. The gory detail is not explained, but no opposition was lodged, and the motion was enrolled as unopposed and was granted on 21 June. The defenders tried to rectify matters by contacting the court with the appropriate form of opposition and asking for the interlocutor of 21 June to be treated as pro non scripto.

The move was not insisted on before Lord Weir, who confirmed that he did not regard it as competent: “In [MBR (Iran) v Secretary of State for the Home Department [2013] CSIH 66)] at para 21, the court, under reference to a passage in Lees, Interlocutors (2nd ed), at p 35, drew attention to the very limited circumstances to which the power to hold interlocutors pro non scripto has been confined. None of those circumstances arise in the instant case. Indeed, it might be thought instructive that the text... is silent on any common law power of the court to recall (my emphasis) its own interlocutor.”

Ironically, had it been open to the court to decide on rule 2.1 relief, it would have granted relief. There had been a simple oversight against a background of correspondence, unknown to the court at the time, from which it was plain that parties were making arrangements for an opposed motion to be heard at a time when both senior counsel were available, and had identified a date only a few days after the motion was actually enrolled. Prompt steps were taken to address the consequences, and “The error was a human one which I would have been prepared to excuse.”

Secondly, in Murphy v Ogilvie Construction [2021] SAC (Civ) 27 (2 July 2021), another personal injury case, decree of dismissal by default was granted against the pursuer following a number of failures to comply with the timetable. The motion for decree was not opposed and the appellant’s solicitor did not respond to promptings from the other side and the court, including a hearing on the motion itself despite the lack of opposition. Before the Sheriff Appeal Court, it was explained, amongst other things, that the solicitor was under significant pressure and stress due to his domestic arrangements during COVID.

The decision makes uncomfortable reading for court lawyers. The court was at pains to say that wider considerations came into play in these circumstances. Compliance with the rules was essential to the efficacy of the personal injury procedure: “it is appropriate to consider not only the explanation now provided on behalf of the appellant, but the broader interests of justice… The appellant has not overlooked the rules and the purpose of the rules but has ignored the rules. The court has interests of its own to protect which involves not only the just resolution of disputes but also the effective and efficient progress of personal injury actions by requiring that the rules of court are followed… there will be circumstances where the court must apply a sanction to mark any serious and sustained failure to comply with the rules”.

Section 113 of the Courts Reform (Scotland) Act 2014 makes provision for appeals from the Sheriff Appeal Court to the Court of Session. Permission may be granted, but only if the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Session to hear the appeal (s 113(2)). The latest case to consider this section was JK v Argyll & Bute Council [2021] SAC (Civ) 25 (24 June 2021), in which the sheriff had granted powers to a welfare guardian which had the effect of depriving the adult of her liberty.

Section 113(4) makes the section subject to any provisions about appeals in other legislation, and the Adults with Incapacity (Scotland) Act 2014, s 2(3) provides that any decision of the sheriff principal may be appealed “with leave of the sheriff principal to the Court of Session”. Accordingly, the qualification in s 113(2) does not apply. That did not help the proposed appellant, however. The court considered whether it was appropriate to grant leave but was not persuaded that it should: “we conclude that the appellant has failed to establish a substantial and arguable point of law, or conflict in judicial opinion”.

It has been interesting to observe in recent cases the different ways in which evidence has been taken and legal arguments heard. The current consultation on remote hearings will no doubt prompt tales of good/bad experiences across the profession, but meantime here are just a few random examples. More mature court practitioners may want to look away now.

In Warner v Scapa Flow Charters [2021] CSOH 92 (3 September 2021), a tragic PI case about a man who died while diving from a boat off the north coast, parties had agreed a detailed and extensive joint minute, some evidence was given orally and heard principally by WebEx, and some was given by adoption of written reports or previous statements either in supplement of or in substitution for oral evidence. There were eight medical witnesses of fact, all of whose evidence was agreed as per their statements or reports. A demonstration of the equipment and evidence from an expert, together with the evidence of the defender, was taken in person on the first day of the proof. Written police statements taken shortly after the accident (nine years before) were used extensively. The proof appears to have lasted about six days and submissions were made in writing, amplified orally via WebEx.

Not all cases are given this treatment which, apart from anything else, obviously involved considerable thought and preparation, not to mention close cooperation between the opposing parties. By contrast – and no criticism implied – in Morrison v Oakden [2021] CSOH 96 (29 September 2021) the pursuer had fallen from a horse and there was a hotly contested dispute about liability and quantum. It seems that all the factual and medical evidence – five witnesses for the pursuer and four for the defender – was given in person, and submissions were made orally.

In VMS Enterprises Ltd v The Brexit Party [2021] SC GLA 49 (28 July 2021), a commercial action in Glasgow, proof was heard over three days. There were 11 witnesses. It was conducted remotely via WebEx, with parties participating simultaneously from various locations between Glasgow and London. Signed written statements of all witnesses were exchanged and lodged in advance. The content was deemed to constitute the evidence in chief of the signatories, subject to supplementary examination in chief, cross-examination and re-examination, all under reservation of issues of competency, relevancy and admissibility. This evidence was supplemented by oral testimony of each witness given remotely.

Finally, in McKay v MCE Insurance Co [2021] SC GLA 42 (7 June 2021), the court undertook a telephone hearing on the pursuer’s motion for certification of a skilled witness. It was refused.