Civil court: Redaction – completing the picture

I start with two matters of significance for civil practitioners. First, the Sheriff Appeal Court has celebrated its sixth anniversary, not with a party (although who knows?) but with a new set of rules which came into effect on 6 January 2022.

Broadly speaking, the changes are designed to assist the case management of appeals at the procedural stage, distinguishing between pre-hearing procedures in appeals requiring one appeal sheriff and those requiring three appeal sheriffs.

Secondly, the eagerly awaited fourth edition of Macphail will shortly be on the shelves, or their electronic equivalent. Congratulations to general editor Sheriff Andrew Cubie and all the contributors for their efforts in pulling this together. I am told that it even includes material on the new SAC rules. (More from Sheriff Cubie below.)

Reduction ope exceptionis

I probably should not admit it, but I never really understood what this meant – not that it did me any harm. An opportunity to assist those similarly challenged came in Eastern Motor Co v Grassick [2021] CSIH 67 (17 December 2021). The parties had contractually agreed to be bound by an expert’s determination of a dispute. The defenders wanted to challenge that determination; the pursuers, seeking implement, argued that this could only be done by judicial review. The defenders proposed to challenge the decision in the course of these proceedings. The Inner House was asked to consider, first, whether the court was entitled to interfere with the decision at all, and secondly, whether it was competent to do so by challenging the decision ope exceptionis.

Finding for the defenders on the latter point but not the former, the court explained the basis for this remedy and the circumstances in which it might apply, in paras 51-62 of the judgment. In simple terms, it provides that where a writing is founded on by a party, all objections to it can be stated “by way of exception” in the action itself, rather than having to raise a separate action of reduction. This option was introduced in the Court of Session in 1907 and subsequently in the sheriff court. The current rules can be found in RCS, rule 53.8 and OCR, rule 21.3, although it should be noted that the remedy would not be available in the sheriff court if it involved a proposed reduction of a court decree, because the sheriff court has no competence to do so: Courts Reform (Scotland) Act 2014, s 38(2)(g).

The remedy was also invoked by the defenders in GWR Property v Forrest Outdoor Media [2022] CSOH 14 (3 February 2022) in relation to a completion certificate in a building contract, said to have been obtained by fraud, proof being allowed on this issue.

Documentary evidence

The rules and practices regarding documentary evidence have come a long way from the days when failure to comply with what might now be regarded as ancient formalities would often be fatal to a claim or defence. In Guidi v Promontoria (Chestnut) [2021] SC GLW 59 (1 October 2021), Sheriff Reid considered two issues of procedural significance during a commercial action debate. The defenders were assignees of multiple debts and securities on the books of the Clydesdale Bank. As is well known, they have been taking enforcement steps in a number of actions throughout the UK and have faced a variety of defences. The first 105(!) pages of his judgment deal with whether the bank could competently assign this security (he considered they could not), but the second issue was whether the assignation had to be lodged and, where it was redacted, whether that was sufficient to comply with the rules. The redactions were said to be justified on grounds of “commercial sensitivity”.

The sheriff considered at some length the position regarding the lodging of redacted documents, observing that “It has become quite the fashion” for parties to do so without obtaining leave of the court. He carried out a comprehensive review of the law and practice regarding the lodging of documents in civil proceedings (practitioners would be well advised to keep a copy of this section for future reference), noting the fundamental principle that a party who founds on a document must lodge the original, complete and unredacted version. He discussed the status of copy documents and the relative procedural rules, then dealt with redacted documents. A party wishing to lodge a redacted version of a document founded on, he said, should seek leave of the court and must justify their request. It is for the court, not the party, to decide what can be redacted and why. There will be situations where challenging the lack of a “clean” and technically acceptable document might be regarded as opportunism rather than a genuine defence, so redactions should not automatically be regarded as a smokescreen to hide some fundamental flaw in the claim.

Interestingly, since this was a commercial action, the sheriff dealt with this by exercising his powers under OCR, rule 40, ordaining the defenders either (1) to lodge in process, complete and unredacted, the documents founded on (or a true copy certified in terms of s 6 of the Civil Evidence (Scotland) Act 1988), or (2) to seek and obtain leave of the court to lodge redacted certified copies in discharge of the obligation incumbent upon them in terms of OCR, rule 21.1(1).

As a postscript to this judgment, although I doubt they would see it this way, the Court of Appeal in England said virtually the same thing six weeks later in Promontoria (Oak) v Emmanuel [2021] EWCA Civ 1682. Real civil geeks may want to do a comparison of our respective systems and procedures on such matters and note that nowadays they are not very different at all: see paras 43-48 of that judgment.

A completely different issue about a critical document was centre stage in Glasgow City Council v First Glasgow (No 1) [2022] CSOH 9 (27 January 2022) – the Glasgow bin lorry case. The council was seeking to recover the £6.5 million damages it had paid out from the party that had provided what the council alleged was a negligent reference for the lorry driver. The actual written reference was not lodged because it was nowhere to be found. Evidence was nonetheless led about it, objection being taken in reliance on the best evidence rule.

Lord Ericht repelled the objection and admitted secondary evidence of the reference and its wording. Another remarkable feature of the case was that not a single witness spoke to remembering ever having seen a reference. Lord Ericht ultimately decided that “Where, as here, a pursuer’s case turns on the precise wording of a document which is not produced, then clear and cogent evidence will be required that the document exists and what the wording said. Even if such evidence is available, there are obvious difficulties in assessing that evidence as it is not possible for the evidence of the pursuer’s witnesses as to the wording of the reference to be tested against the document itself.” The failure to produce and prove the reference which was the whole foundation of the pursuer’s case was fatal.

Title to sue

The pursuer’s title to sue was successfully challenged in Riddell v Arcus Solutions (Holdings) [2022] SC EDIN 1 (3 November 2021). The pursuer sued in his purported capacity as executor dative of his late wife in relation to a claim arising from an accident she sustained in February 2018. She died of unrelated causes in July 2018. An action was raised in February 2021. In July 2021 he moved for the action to be sisted, so that he could be confirmed as executor dative, no such confirmation having been obtained previously. Sheriff Mundy decided that as at the date the proceedings were raised, the pursuer had no authority to act as executor and no power to instigate proceedings. That situation could not be cured retrospectively. The action was dismissed. I must confess that, at first sight, this struck me as a surprising outcome.

Title to sue was established in Club Los Claveles v First National Trustee Co [2022] CSOH 6 (20 January 2022). The first pursuer was an unincorporated association. The three other pursuers were individuals who said they were on the club’s committee. Members of the club held timeshares in properties in Tenerife. The defenders unsuccessfully contested the individuals’ status. Following a proof Lord Clark carried out a detailed analysis of the club’s constitution, which appeared to have been drafted with a view to giving lawyers something to argue about. There is some discussion about the law on title to sue in relation to unincorporated associations, but ultimately the case turned on very particular and abstruse facts.

Right of relief

In Loretto Housing Association v Cruden Building & Renewals [2021] CSOH 127 (21 December 2021) Lord Braid poses the question succinctly at the start of his judgment: “Does a person who settles a court action, obtaining decree of absolvitor in their favour, have a right of relief against any joint wrongdoer under s 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) 1940, failing which, at common law?”

A defender (D) settled a claim by a pursuer against several joint wrongdoers and obtained absolvitor. D tried to recover a portion of the settlement from a defender not party to it. It was argued that they were not entitled to do so. Read shortly, the statute says that anybody who has paid damages in which “he has been found liable” shall be entitled to recover a “just” contribution from a joint wrongdoer. As Lord Braid put it, “The submission that it is less than obvious to hold that a decree of absolvitor is a decree finding a party liable, is something of an understatement.” He found the claim for relief under statute to be neither relevant nor competent. I suspect that came as no great surprise to anyone involved in the case.

The additional argument for D, that a right of recovery existed at common law, was contrary to the authoritative decision in National Coal Board v Thomson 1959 SC 353. The court was asked to overturn or distinguish that case, but Lord Braid considered that neither was justified despite some judicial and academic reservations about the decision. Perhaps the door is not completely shut, but meantime the moral is for a settler to take everyone with them, formally or informally, to avoid any such problems. Easier said than done though.

On a related point, although it did not involve joint wrongdoers as such, I note that in the bin lorry case above the defenders also argued that the council was not entitled to recover from a third party the amount it had paid in settlement of actions in which it had not run a potential defence, i.e. automatism on the part of the driver. It was submitted that, by settling the claims, the pursuer had failed to mitigate its loss and the settlements achieved were not reasonable ones. The council’s response was that the claims had been settled on the advice of senior counsel. Interestingly, the court expressed no view on this, having decided that there was no factual basis for the claim.

Personal injury procedures

Personal injury actions, in which case management is much more prevalent than in ordinary actions, throw up many issues about procedure which will, I am sure, impact on all types of civil proceedings in future.

In Thorvaldsen v Dundee City Council [2021] CSOH 120 (2 December 2021), the court noted that the proof had been set down for four days by Webex, but “as a result of frequent interruptions caused by technical difficulties it required to be split over seven days… having regard to the overrun… parties invited me to dispense with oral argument and to require written submissions (only)”. Written submissions were lodged just over a week after the conclusion of evidence. Might written submissions (only) after proof be the shape of things to come?

EG v Governors of the Fettes Trust [2021] CSOH 128 (22 December 2021) was an abuse claim in which the pursuer sought a jury trial. That motion was opposed on the grounds that averments of similar behaviour towards other children were of doubtful relevancy, there had been substantial delay in bringing the proceedings (the events were in 1975-76), and difficulties would arise in assessing damages and interest. It is noted that the court “had the benefit of written submissions for each party”, but it appears there were oral submissions too. No doubt this method of proceeding was all agreed beforehand, but it is interesting to speculate whether we will end up with formal rules governing when and how such written/oral submissions should be made, and what is expected of parties in each.

As it happens, the motion was refused on the basis that objections to evidence about similar behaviour would give rise to undesirable interruptions during a jury trial, and there was room for material uncertainty in a case like this about the jury’s views on the various matters that bear on damages and interest, so much so that it would be difficult for a judge fully and accurately to understand the individual elements which in the jury’s mind made up the sum awarded in damages. Whether this will set a precedent for such cases remains to be seen.

A v Glasgow City Council [2021] CSOH 102 (13 October 2021) was a claim for damages arising from alleged abuse of the pursuer by a foster carer. The detailed history was extremely complicated and would have been a nightmare to establish at proof, regardless of anything else. An extensive joint minute had been agreed prior to the proof which covered numerous factual background matters and no doubt made it easier for the parties and the court to conduct this proof. This is a useful reminder of the benefits of deploying joint minutes and/or notices to admit in all civil actions.

Pleural plaques and limitation

For the purposes of limitation of actions, does the fact that a person knows he has pleural plaques set the clock running? In the particular circumstances of Kelman v Moray Council [2021] CSOH 131 (24 December 2021), Lady Wise said no. The pursuer was diagnosed with pleural plaques in 1999 and continued well and working until 2019 when he developed symptoms of breathlessness, sadly diagnosed as mesothelioma. At a preliminary proof the three witnesses for the pursuer were led in three different ways, and the defenders’ three witnesses in the traditional way. The case raised important and difficult issues, but there was no concern about credibility and little about reliability. The different modes of proof suited all parties and witnesses – and the interests of justice, it would seem.

On the merits, it was held that the claim was not time barred because the pursuer did not become aware that he had an injury sufficiently serious to trigger making a claim until his diagnosis in 2019. Before that, he was unconcerned about his health because, amongst other things, the way in which his diagnosis of pleural plaques was explained to him was “reassuring rather than alarming”. If it had been held that the claim was time barred, the court would have exercised its discretion to allow it to proceed under s 19A.

Cubie’s law

As a reward for editing Macphail, Sheriff Andrew Cubie seems to have been appointed the nominated sheriff at Glasgow for obscure civil cases, if the next two are anything to go by.

Section 38(2) of the 2014 Act extended the jurisdiction and competence of the sheriff to proceedings for proving the tenor of documents which had, until then, been exclusively with the Court of Session. In RW v JW [2022] SC GLW 2 (12 January 2022), Sheriff Cubie had to consider what appears to have been the first reported such application in the sheriff court. The rules can be found in OCR, chapter 53. The missing document was a will and the pursuer provided a copy of the principal will along with an affidavit from the solicitor involved. This relatively brief note provides useful guidance on the legal test to be satisfied and what evidence is required in support.

AB, Applicant [2022] SC GLW 3 (7 January 2022) was an unusual (in my experience) application by the child of an adopted person to have access to the court process of the adoption itself. The adoption took place in 1933. The Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (SSI 2009/284) makes such papers confidential for 100 years unless there are special circumstances. However, after some sterling investigative work, the court found that, at the time the adoption took place, the embargoed period was only 20 years. While that was not determinative of the issue, Sheriff Cubie considered all the circumstances, including the likelihood that anyone would be affected by the disclosure of the information, and granted the application.