Civil court: Hearing cases in a new way

Remote hearings

The SCJC consultation concluded on 15 November and many of the responses have been published on its website. The overall feeling seems to be that the proposals go too far too fast. Remote hearings for some procedural and administrative business would be perfectly acceptable, if not preferable, in future, but a vast majority of responses share concerns about evidential hearings and detailed legal submissions being conducted by electronic means unless parties and the court agree that it would be appropriate in a specific case. Our system has responded well to the pandemic with significant temporary changes in procedure and practice, and considerable flexibility and cooperation from all concerned. While it is not desirable for this to continue indefinitely, it may be preferable to making permanent rule changes at this stage without careful consideration of the long term consequences.

Proof by electronic means

An interesting example of how evidence was heard in one case can be seen in Boyle v Greater Glasgow & Clyde Health Board [2021] SC GLW 62 (4 June 2021).

“Of consent, the proof was conducted remotely via WebEx, with all parties participating simultaneously, by electronic means, from various remote locations under the control of the court... In advance of the proof, signed written statements of all witnesses had been exchanged and lodged, the contents of which were deemed by prior interlocutor to constitute the evidence-in-chief of the signatories thereto, subject to supplementary examination-in-chief, cross-examination and re-examination, and under reservation of all issues of competency, relevancy and admissibility.

“At proof, I then heard oral testimony via videoconference from the pursuer himself (from office accommodation kindly made available to him by staff at Leverndale Hospital) and from his expert witness,… a retired consultant psychiatrist based in London. For the defender I heard testimony in like manner from three [medical] witnesses... A joint minute of admissions was also lodged.”

While that approach to taking evidence is becoming more and more familiar, one immediate thought is that the detailed preparation for the proof must have been much more complex and time consuming (and possibly much more expensive) than formerly.

Nobile officium

The nobile officium is the exceptional and rarely exercised equitable power of the Court of Session to prevent an injustice or to provide a remedy where none exists. Mayor and Burgesses of the London Borough of Lambeth and Medway Council, Petrs [2021] CSIH 59 (21 September 2021) was one of a number of petitions to the nobile officium by English local authorities who place vulnerable children in residential care, and sometimes have to place them in Scotland. This involves depriving them of their liberty, and such measures must be authorised by the courts. There is no legislation about recognising High Court orders in Scotland, albeit that is apparently under urgent consideration. Although the court discouraged the notion that petitions to the nobile officium should be considered routine, it issued guidance to practitioners as to the procedure to follow in similar cases meantime.

Another very recent example is SU, Petr [2021] CSIH 65 (7 December 2021), an application in a complex family matter. The court decided that the petition was not competent since, in the particular circumstances, the petitioner was not devoid of another remedy.

Approbate and reprobate

Under the doctrine of approbate and reprobate a party may not both accept and reject a contract. The test for approbation is high. As Erskine puts it, “the approbatory acts must be so strong and express, that no reasonable construction can be put on them, other than that they were performed by the party from his approbation of the deed homologated”. It could be regarded as a type of personal bar, but its application to specific circumstances is not entirely clear.

In Integri Consultants Ltd v Midlothian Council [2021] CSOH 105 (20 October 2021), the pursuer had initially raised an action in the sheriff court for sums due under contracts for services. The defenders contested jurisdiction and the pursuers raised a subsequent action in the Court of Session. The question was whether, by lodging defences and a rule 22.1 note in the sheriff court action, the defenders had approbated the contracts, so that they were barred from contesting their validity in the Court of Session action. The court decided that there was no inconsistency between the defenders’ position in the two actions. All that the defenders were doing in the sheriff court was attempting to ensure that the dispute as to validity was held in the correct forum.

Count, reckoning and payment

In Journal, July 2021, 28 at 29, Lindsay Foulis included the case of Herberstein v TDR Capital General Partnership [2021] CSOH 64 in which Lord Ericht outlined the procedural structure of actions of count, reckoning and payment. In Gray v John Cape t/a Briggate Investments [2021] SAC (Civ) 32 (18 October 2021) the Sheriff Appeal Court gave an even more detailed and comprehensive tutorial on the appropriate procedure and practice in such actions, observing that much confusion still exists about them in the sheriff court. This decision should be essential reading for all practitioners thinking of raising such an action or feeling their way through the procedural maze which can sometimes derail the process.

Two matters in this case are worthy of additional comment. First, the action was raised in 2011 and by my “count and reckoning”, there had been eight different diets of proof fixed over the years (not to mention umpteen procedural callings) before it eventually proceeded. Secondly, when the sheriff issued his judgment he referred to an authority which had not been cited to him but which he had located himself. The SAC said that in such circumstances, before the sheriff reached his decision, the case should have been put out by order to give parties the opportunity to address the sheriff on that authority. Something to bear in mind for the future.

Prescription

The law about prescription continues to cause worries for parties and their advisers. In GGHB v Multiplex Construction Europe Ltd [2021] CSOH 115 (5 November 2021), shortly before the expiry of the five year period the pursuers sued four separate defenders for £72.8 million for losses arising from the construction of the Queen Elizabeth University Hospital in Glasgow. Putting it very simply, the contract provided for adjudication of contractual claims. Among other craves, the pursuers sought a declarator that the raising of the court action was a “relevant claim” for prescription purposes. The defenders argued that the action was incompetent because of the adjudication provisions and should be dismissed on the grounds of contractual bar. Lord Tyre considered that the action was not incompetent, but that the adjudication process had to be followed first. The action should be sisted pending that process. That being so, the declarator that the action was a “relevant claim” was unnecessary. The raising of the action was sufficient to interrupt the prescriptive period and so it had served its purpose in that sense.

Several defenders

When a party has a claim against several defenders, does settlement with one of them preclude any further action against the rest? Two recent cases – very different in their facts and circumstances – produced different results, and the possibility of an appeal to the Supreme Court may be lurking. This is not the place for a detailed exposition of the material circumstances in each case, although that is essential for a proper understanding of the ratio.

In Ward v Wm Morrison Supermarkets plc [2021] SC EDIN 53 (3 September 2021), a personal injury claim in ASSPIC, the pursuer settled with the first defender at a pre-trial meeting. The issue for consideration was whether the settlement was of the entirety of the action or only insofar as directed against the first defender. After hearing a proof about the circumstances of the settlement and identifying numerous significant factors, the sheriff concluded that the pursuer had received (full) satisfaction of his claim and could not proceed against the second defender.

In Kidd v Lime Rock Management LLP [2021] CSIH 62 (12 November 2021), a commercial action for substantial damages, the pursuer had received a settlement of his claim against B pre-litigation. He raised proceedings against the defenders named, who argued that the settlement with B precluded any further claim for the loss. The relevant parts of the settlement agreement are reproduced in the judgment, which is worth reading for this alone.

The court analysed House of Lords authorities on the general point and said that the question turned on the proper construction of the settlement agreement in its context. Is it enough that the settlement is in full and final settlement of the claim made against B for the whole loss, or must the agreement indicate that the amount payable was or is to be taken as full compensation for the loss, injury or damage sustained by the pursuer? On the facts, the pursuer was entitled to proceed against the named defenders.

Pleadings

I do not apologise for highlighting once again the topic of written pleadings. Cases keep cropping up in which pleadings cause problems for parties and the courts. The benefit of simple, clear and coherent expression of the essence of a case and defence in writing helps everyone. This could not be illustrated more forcefully than in Donnelly v South Lanarkshire Council [2021] SAC (Civ) 30 (7 September 2021), in which the Sheriff Appeal Court identified a veritable tsunami of failures in the written pleadings. 

The criticisms are lengthy and trenchant. One can tell that things are going to go badly when the relevant part of the judgment starts: “In this action, the record consists of 62 pages of averments, many of which are typed in small font size with minimal line spacing. There has been little attempt over these 62 pages to present the pleadings in any recognisable order; much evidence is pled, there is no consistent chronological sequence to the averments and no discernible attempt to lay out the averments in a manner which might focus the issues upon which the court is asked to adjudicate.”

I am afraid that the failings do not stop there. With some degree of inevitability, the submissions do not pass muster either. “A notable feature of the submissions for both parties has been to provide the court with cross references to a vast quantity of material, which the sheriff had aptly described as ‘bewildering’ in its scale. The appellant’s note of argument is particularly lengthy, diffuse and repetitive… Many words appear mid-sentence in capital letters, presumably by way of emphasis. Pages 5 and 6 are almost entirely in capital letters”.

And with a final, despairing, observation, Sheriff Principal Anwar noted: “I invited the parties to produce a one page summary of their salient arguments. The margins on the appellant’s summary had been extended so far that the words had fallen off the right hand side of the page.”

Nuff said!!

Appeal to Sheriff Appeal Court

There was a timely reminder of what can and cannot be appealed to the Sheriff Appeal Court in McMaster v McMaster [2021] SAC (Civ) 31 (11 October 2021), a family action with multiple craves. The sheriff made a decision on various matters at a procedural hearing and the pursuer purported to appeal. Referring to s 110 of the Courts Reform (Scotland) Act 2014, the appellant argued that the decision (1) fitted into the category of a “final judgment”; (2) amounted to an order ad factum praestandum; and (3) amounted to a sist of the cause. Sheriff Principal Turnbull dealt with each argument succinctly and ruled the appeal not competent on any of these grounds. Of course, if the pursuer had been granted leave to appeal, the arguments would have been academic.

Judicial expenses

A significant matter regarding judicial expenses was authoritatively decided by the Inner House in Cabot Financial (UK) v Weir [2021] CSIH 64 (30 November 2021), an appeal from the Sheriff Appeal Court. The question was whether a “success fee” could be recovered from an opponent as judicial expenses in a judicial account charged on an agent/client, client paying basis.

There are very clear statements by the Lord President about the basic principles on which judicial expenses are charged and taxed. He concluded: “The ‘success fee’ in this case is not an expense which is part of, or directly related to, the process. It is a private arrangement between solicitor and client which is outwith the boundaries of the process; it is an extrajudicial item. It is a form of incentive to the agent to represent the client in the litigation. It is not related to the work which the solicitor does in carrying out that task… The fee is an extrajudicial cost to the client. As such it is not an allowable item in the taxation of an account following upon an award of expenses, on whatever scale.”

One would normally expect such a point to arise in a case where a pursuer seeks to recover a success fee but, in this case, it was the defender who was attempting to do so. A subsidiary point discussed in the appeal was what the success fee should have been if allowed. The speculative fee agreement, quoted in the opinion, put a cap on the success fee as “not... more than 25% of the... settlement you win”. The court considered that this term must be given some meaning where a claim for £7,277.52 was successfully resisted in its entirety. It interpreted the agreement by taking that figure (the sum sued for) as the defender’s “win”.

Boundary disputes

Finally, in this time of peace on earth and goodwill to all, it may be appropriate to conclude with a reminder of the joys of boundary disputes as illustrated in Dougherty v Taylor [2021] SC INV 61 (19 August 2021). The dispute had been ongoing since 2007 and came to proof 13 years later. The sheriff set the scene memorably in his introduction, which tells you all you need to know: “The disputed boundary… at the widest... point represents less than one metre of differing opinion. So far as resolution of the dispute is concerned, the parties remain miles apart”.