Civil court: Suitable representative?

Group proceedings

The first reported case in relation to group actions under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 was Thompsons Solicitors Scotland v James Finlay (Kenya) [2022] CSOH 12 (2 February 2022). The rules for group actions are in RCS, chapter 26A. This case concerned two applications under the rules. The first was under rule 26A.5, seeking permission for the claimants’ solicitors to be named as the representative party in whose name group proceedings could be brought; the second was under rule 26A.9, for permission to allow such group proceedings in relation to claims on behalf of workers at Kenyan tea plantations who had allegedly suffered injuries while in employment there. Only the second application was opposed.

Lord Weir was addressed fully on the applications, and amongst other things was referred to a case, and the practice, in Canada relating to multi-party actions, as well as the Scottish Civil Courts Review and the Taylor review of expenses. The first question was whether the lawyers themselves would be permitted to be a representative party. The rules contain provisions about who can be named as such, but, without casting any aspersions on the lawyers, Lord Weir considered that the potential for an apparent conflict of interest (the lawyers being both the party/client and the agents) would not make the applicants a suitable person to act in the capacity of a representative party. He did however take the view that the nature of the proceedings and the issues that might arise would make these claims suitable for group proceedings in terms of the rules. An alternative representative party would be required to enable that application to be granted.

If you are interested in reading more about issues arising in similar types of proceedings, I recommend Mass Tort Deals by Elizabeth Chamblee Burch, published by Cambridge University Press. Like many such American books, it is an exhaustive and exhausting read, but it contains fascinating, and rather alarming, insights into the conduct of mass litigations
in the United States.

Extempore judgments

In the sheriff court, an extempore judgement is one pronounced “at the conclusion of any hearing in which evidence has been led”. There are rules about what it must contain and whether a note must be done: OCR, rules 12.2 and 12.3. In McLeish v McLeish [2022] SAC (Civ) 12 (9 March 2022), a divorce action in which evidence was led over many days and in which significant financial claims were made, the Sheriff Appeal Court commented on the practice. Evidence had concluded in December 2020 and the case had been continued for “issue of determination” (as the judgment puts it) about 11 weeks later. The sheriff gave a decision on that date. 

The SAC said that the written decision produced on that date was not an extempore judgment, and an interlocutor and note in accordance with rule 12.4, which relates to reserved judgments, should have been issued. I do not know how often extempore judgments are issued nowadays, but they always seemed to me to be rather unsatisfactory, unless an urgent decision was necessary, or the issues were simple and clear and the decision was very straightforward.

Oral testimony

I think it worth commenting in some detail on a few cases in which oral testimony has been under specific scrutiny and different methods of presenting witness evidence to the courts have featured. More flexible (some would say enlightened) approaches to proof of fact have meant that there is scope for uncertainty about the nature and extent of evidence required in some civil litigations. Credibility and reliability of witnesses are still of fundamental importance, but nowadays the courts are faced with a variety of sources of evidence which all have to be weighed in the balance.

In Henderson v Benarty Medical Practice [2022] CSOH 28 (24 March 2022), the pursuer sued her medical practice for various alleged breaches of duty which led to a delay in her treatment and necessitated life changing amputations. The critical issue for proof centred on the content of one single telephone call and whether the pursuer had cancelled an appointment with her practice on a particular day.

Evidence was led from six witnesses (in person, I think), and in addition there was evidence from five witnesses who had given written statements (not affidavits, I think), the contents of which were not challenged. A detailed description of the evidence led takes up 30 pages of the judgement. Ultimately the court concluded that the pursuer’s recollection of the telephone call was not accurate and the evidence of the person who took the call was preferred. 

Lady Wise prefaced her careful analysis of the evidence with reference to the English case of Gestmin SGPS SA v Credit Suisse (UK) [2020] 1 CLC 428, which contains numerous valuable observations about human memory and its reliability. She also referred to other Scottish cases in which Gestmin has been cited with approval. “While it continues to be acceptable to take the demeanour of a witness into account in appropriate circumstances, it is the consistency of a witness’ evidence both internally and taken with the other evidence, that tends to provide the best guide to reliability.”

In AB v English Province of the Congregation of Christian Brothers [2022] SC EDIN 7 (11 January 2022), Sheriff Dickson heard evidence in an abuse case from a forensic psychologist led by the defence as an expert, who spoke in general terms to the reliability of human memory. The pursuer’s case related to events that had allegedly taken place about 40 years ago. The expert had not met the pursuer and could not comment on any aspect of his memory of the abuse that he said he suffered.

After referring to Gestmin, the sheriff took the view that “the general evidence about the operation of a person’s memory and, in particular, that memory can decline and be vulnerable to distortion and suggestion, were matters within judicial knowledge”. He considered that the expert’s evidence was inadmissible and went on to accept the pursuer’s evidence on crucial matters.

Evidence

In CB v Principal Reporter [2022] SAC (Civ) 14 (28 March 2022), one of the issues the Sheriff Appeal Court had to consider was whether the allowance of evidence in chief by a signed written statement from two witnesses in a children’s hearing was unfair. The witnesses simply adopted the statements as their evidence in chief and were then subject to cross-examination.  

The court said: “We do not accept that evidence in the form of a written statement is necessarily of an inferior quality or less reliable than evidence given orally in court. It could be argued that evidence in the form of a written statement that has been carefully considered by the witness could be of a better quality than instant answers to questions in court… That having been said, the process by which such a statement is prepared is a relevant factor in assessment of the credibility and reliability of that evidence. It is not difficult to think of factors or circumstances which could cause a sheriff to conclude that evidence presented in such a way could not be relied upon… If a party is intending to present evidence in chief [in this way], it is important that the party seeking to do so has careful regard to the process by which such a statement is prepared to avoid unfairness and to minimise the risk of such a statement being considered… unreliable or incredible due to issues relating to the preparation of the statement.”

While that may well have been an appropriate and expedient way of proceeding in that particular case, the dangers (and possible abuses) caused by carefully constructed witness statements which are the words of the statement taker and not those of the witness have already been highlighted in numerous cases in England which should serve as a warning. I doubt if anyone relishes the prospect of large parts of a proof being taken up with exploring how statements were taken from witnesses.

In Benkert UK Ltd v Paint Dispensing Ltd [2022] CSOH 17 (11 February 2022) the pursuer sought damages of £29.6 million from the defenders for causing a fire at the pursuers’ industrial premises. The defenders denied liability and, in any event, argued that any liability was limited by the terms of their contract with the pursuer to £3,225. The way in which the evidence was heard was varied and interesting. The proof was conducted remotely. Evidence in the form of witness statements and oral testimony was given by an (unspecified) large number of witnesses. Three witness statements were agreed to be the entirety of their evidence. Expert evidence in the form of written reports and oral testimony was given by three witnesses, and in the form of a report, supplementary report and oral testimony by one other expert. The experts held a lengthy telephone conference and provided a joint report explaining in detail their areas of agreement and disagreement. At the proof the evidence of three of the experts was taken concurrently.

The pursuer succeeded on liability, but Lord Tyre also held that any liability on the defenders was limited by the parties’ contract to the princely sum of £3,225. I am sure there were good reasons for the case following this procedural course, but if the contractual limitation of liability issue had been decided before the merits were explored, it seems that it would have saved a substantial amount of time, effort and resources. 

Finally on expert evidence, it is interesting to note the postscript from Sheriff Campbell in McKenzie v The Highland Council [2022] SC EDIN 8 (16 February 2022). The pursuer was injured while participating in a training course. There were competing expert reports and the parties had agreed that these would stand as the “core” (sic) of their examination in chief. Apparently, the supplementary questions in chief for one expert took up many hours of court time. The sheriff was not entirely enchanted by this, stating: “The court gives encouragement to parties where possible to agree that expert reports can be treated as evidence in chief in order to promote efficient use of time at proof and to bring focus to the disputed issues and for skilled witnesses to address any new information in oral evidence. Reasonable supplementary examination in chief ought to be exactly that, supplementary.”

Appeals

In AW v Principal Reporter [2022] SAC (Civ) 6 (25 October 2021), there were two related appeals from the determination of a summary sheriff that grounds of referral had been established in respect of two children. The appeal was based on arguments about “sufficiency” of evidence of the conduct complained of, but the appellant’s counsel ultimately conceded there was no merit in that submission. The Sheriff Appeal Court then took the opportunity to comment on other general matters, which will serve as a useful reminder to practitioners engaged in this type of case. 

First, it restated the correct approach to be taken in appeals of this nature, under reference to the authoritative case of S v Locality Reporter Manager 2014 Fam LR 109, an Inner House decision, and other cases quoted at length in the judgment. Secondly, it reviewed the law on the appropriateness or otherwise of naming the alleged perpetrator. Finally, it commented on the standard of proof where grounds of referral contain an allegation of criminal conduct. The leading case on this point remains Scottish Ministers v Stirton 2014 SC 218.

The competency of an appeal from the SAC to the Court of Session was considered in the case of Frank A Smart & Son v Aberdeenshire Council [2022] SAC (Civ) 13 (28 March 2022), which started life as an appeal from the decision of a sheriff exercising their statutory function under the Environmental Protection Act 1990. After a debate the sheriff had decided to repel the appellant’s preliminary pleas and allow a proof. That decision was appealed. The SAC refused that appeal: [2022] SAC (Civ) 5 (14 January 2022), and the pursuer sought permission to appeal to the Court of Session under s 113 of the Courts Reform (Scotland) Act 2014.

However, such appeals can only be taken against a “final judgment in civil proceedings”, and the SAC had little difficulty in finding that neither the decision of the sheriff nor that of the SAC were final judgments. For good measure, the SAC expressed a view as to whether, if appeal had been competent, it would have satisfied the test for such appeals set out in
s 113(2)(a) – namely that the appeal would raise an important point of principle or practice. The SAC said: “An important point of principle or practice is one which has not yet been established. It does not include a question of whether an established principle or practice has been correctly applied… or disagreement with the conclusions of the Sheriff Appeal Court and the sheriff.”

Undefended actions

In Moneybarn No 1 Ltd v Harris [2022] SAC (Civ) 11 (14 February 2022) the pursuer raised an action against the defender who had defaulted on payments for a car under a conditional sale agreement. The remedies sought were the familiar ones of payment, recovery of possession etc. The action was undefended and the pursuer minuted for decree in absence. The sheriff refused to grant decree and made various observations about the terms of the craves. The pursuer appealed. The SAC noted that it had dealt with a similar issue in Cabot Financial UK v McGregor [2018] SAC (Civ) 47 and Santander Consumer (UK) v Creighton 2020 SLT (Sh Ct) 61, and granted the appeal subject to an agreed adjustment to the order in which the craves were set out. 

“The extent to which a sheriff may refuse to grant [decree in] an undefended action is something we regard as settled law. It is no part of the sheriff’s function to advocate for a non-compearing party whose remedy, in the event of injustice, is to take part in the action before the court. A sheriff may only refuse to grant a decree as craved in the event of its incompetency or there being a want of jurisdiction”.

Simple procedure

A matter of important practical significance was raised in Cabot Financial (UK) v Bell [2022] SC FAL 9 (8 March 2022), where Sheriff Livingstone was not satisfied that the claimants had properly served a simple procedure action on the respondent when they said that they had done so by Track and Trace and had lodged a confirmation of formal service form. Rule 18.2(4) of the Simple Procedure Rules states: “(4) After formally serving a document, a Confirmation of Formal Service must be completed and any evidence of delivery attached to it.” The sheriff took the view that there had to be proof of receipt of the document and that the rules required such proof. 

This contrasted with the view of two other sheriffs, in Cabot Financial (UK) v Finnegan [2021] SC DUN 34; 2021 SLT (Sh Ct) 237 at Dundee Sheriff Court and Cabot Financial (UK) v Donnelly [2021] SC LIV 39; 6 WLUK 142 at Livingston Sheriff Court. Sheriff Livingstone concluded that: “the clerks at this court will continue to look for Track and Trace documentation as evidence of receipt, or indeed any other such evidence as claimants may be able to provide (e.g. a letter acknowledging receipt of the claim form) in simple procedure cases”. I understand that this decision is being appealed and I will reserve any further comment until the appeal has been reported.

Case management

N v Astora Women’s Health LLC [2022] CSIH 6 (23 February 2022) was one of the lead cases in group proceedings against five defenders who were being sued for damages in respect of alleged defects in vaginal mesh products. The pursuer had asked the Lord Ordinary to order Astora to state whether it had assets or insurance cover sufficient to meet any liabilities in damages and expenses arising from these claims. The Lord Ordinary said she had no power to make such an order, and refused it. She said that her case management powers were concerned with how best to address and resolve the merits of the claim. The pursuer appealed that refusal. 

The Inner House observed that the general approach hitherto has been to respect the privacy of indemnity agreements. Efforts to obtain such orders in English courts had ultimately been rejected there. The court considered the case management powers available to the court under RCS, chapter 42A and the general power under rule 42A.10 to make such order as is “necessary to secure the efficient determination of the action”. This does not give the court jurisdiction to make an order of a different nature, and “one which would run counter to the general rule that personal financial and insurance information is private”. The court was also asked to make the order on the basis of its inherent general power to do what is necessary to discharge its function and to address abuses of process, but saw no merit in that argument.

Holiday ideas?

There may be little procedural significance in the case, but I could not help closing with a brief reference to Tierney v GF Bissett (Inverbervie) [2022] SAC (Civ) 3 (9 December 2021), a claim for payment for works carried out in relation to the construction of a luxury dog hotel in Aberdeen. Fear of a backlash from wealthy canine lovers, and Aberdonians, prevents any further comment.