Civil court: Issues on appeal

There have been some interesting procedural and substantive issues relating to appeals in the last two months. The Courts Reform (Scotland) Act 2014 made significant alterations to the appeals structure, with a view to restricting appeals generally and excluding unmeritorious appeals which took up disproportionate judicial time. It is difficult to assess whether those aims have been achieved, but there are still many appeals that simply do not get off the ground. 

On an entirely different point, there have only been a handful of published decisions from the sheriff courts in the last three months, and only four published decisions from ASSPIC since the beginning of this year. Does anyone know why that should be?

Appeals

O’Neill and Lauchlan v Scottish Ministers [2022] CSIH 13 (9 March 2022), was an application seeking leave to appeal to the Supreme Court against the dismissal of the applicants’ petition for judicial review. Section 117 of the 2014 Act introduced a new s 40A of the Court of Session Act, providing a test for leave that “the appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time”. 

The inner House refused leave, saying: “The primary issue which arose in this case was a simple question of statutory interpretation. The main arguments… were not only not advanced previously, they contradict the clear position… previously advanced, and are not in any event arguable. It is not appropriate to grant leave to appeal to the UKSC on such a basis… Otherwise the matters raised simply disagree with the outcome of the case.” 

In Warner v Scapa Flow Charters [2022] CSIH 25 (10 May 2022), the Inner House overturned a decision of the Lord Ordinary after proof before answer. The court found that the Lord Ordinary had erred in law and therefore it could intervene as an appellate court. The action concerned a “technical” diver who injured himself when crossing the deck of the dive boat to make his dive. The skipper was blamed for failing to take reasonable care. 

“Defining the standard of reasonable care requires the judge, as the hypothetical reasonable person in the position of the defenders, to weigh various elements”, Lord Carloway said. “The equation notably, but not exclusively, involves evaluating the risk of any accident occurring, the seriousness of any potential injury, the practicality of any specific precaution, and the effect of any prohibition on the activity in question. It is in carrying out this exercise that the court considers that the Lord Ordinary has erred… 

“The fundamental question remains one of whether the standard of care extended to prescribing, monitoring and controlling the manner in which each member of a group of highly skilled and experienced technical divers put on their diving gear and moved to the exit point.”

On the other hand, in McDonald v Indigo Sun Retail [2022] SAC (Civ) 15 (21 April 2022), the Sheriff Appeal Court declined to overturn the sheriff’s decision after proof before answer to award the pursuer substantial damages for hearing loss. The pursuer had been subjected to a lengthy exposure to a fire alarm on a single occasion. One of the main arguments was whether the sheriff had been entitled to conclude that this incident had actually caused her symptoms. 

The SAC said that causation was a matter of fact. The pursuer’s evidence about the symptoms arising immediately after the exposure raised “a prima facie presumption that the hearing loss was caused by the noise of the alarm”. Her evidence, taken along with the evidence of an acoustic expert was “sufficient to allow the sheriff to draw the inference that [her] hearing loss and tinnitus were more likely than not to have been caused by her exposure to noise”.

I thought there might have been some discussion of Dingley v Chief Constable, Strathclyde Police 1998 SC 548 (a case of mine) in relation to causation, but it was not referred to. In that case, the judge at first instance had been satisfied that a particular trauma had caused multiple sclerosis, but that finding was overturned on appeal, a decision upheld by the House of Lords.

Smith v Duncan [2022] SAC (Civ) 16 (2 May 2022) was an appeal under s 82(1) of the 2014 Act in a simple procedure action. It raised an important point of principle and practice about the content of the sheriff’s appeal report in terms of rule 16.3 of the Simple Procedure Rules. In short, the sheriff must prepare a draft report setting out the factual and legal basis for the decision reached, and legal questions for the SAC to answer. The case concerned a dispute about the ownership of a dog(!). The details are in the judgment, which is brief and to the point. 

The SAC considered that the principles which applied to stated cases in summary cause actions, and to judgments in ordinary actions, should apply equally to simple procedure appeal reports, “no matter the informality required”. The sheriff must establish (and state) the facts, summarise the accepted evidence, explain how conflicting evidence was resolved, discuss the submissions of the parties on the law, reach a reasoned conclusion on the law and apply the law to the facts. “To do otherwise is to leave the appeal court in the dark as to the basis for the decision.” 

Afandi v Edinburgh City Council [2022] SAC (Civ) 10 (4 March 2022) was another appeal in a simple procedure action, but one which raised a novel point. It did not focus on the merits of the party litigant’s claim as such, but the rule that damages arising from the same cause of action must all be assessed and recovered in one action. Did that principle apply to simple procedure?

Briefly, the party was claiming payment of hotel bills over a period of time after she had become homeless. She said a council official had told her to stay in hotels and send them the bills. She had already raised two simple procedure actions for payment of earlier bills (these were still outstanding, it seems); the present action was for a further period and proceeded on identical grounds. The claim for each of the three periods was just under £5,000. The sheriff dismissed the claim as incompetent.

The appeal was unsuccessful. The SAC said that it was “pars judicis” to consider the competency of the proceedings at that stage, and the existing law and practice was clear. The court acknowledged that simple procedure was designed “with unrepresented litigants in mind and the sheriff is encouraged to adopt an interventionist approach”, but that did not help the party in this case. 

I once suggested that sheriffs in simple procedure actions should be regarded as “dispute resolution officers” as much as judges. I do wonder if an interventionist sheriff applying the principles of simple procedure and taking into account the nature and complexity of the dispute, the parties involved, and the responsibility to encourage parties to settle their disputes by negotiation or alternative dispute resolution, might have found a way to address the merits of this particular action within the spirit of the principles, rather than dismiss it on what can be regarded as a technicality.

Expenses

There have been two decisions on expenses that are certainly worth looking at. Motherwell v Covea Insurance plc [2022] SAC (Civ) 17 (29 April 2022) was an ordinary personal injury action which settled by tender and acceptance for the sum of £3,500. The pursuer’s statement of valuation of claim pre-litigation had been £5,651. The sheriff found the defender liable in expenses to the date of tender but on the summary cause as opposed to the ordinary scale. The pursuer appealed, relying inter alia on a passage in Macphail (3rd edition) which suggested that in “marginal cases” the question of the appropriate scale should not be weighed in “too fine scales”. Appeals against decisions on expenses are discouraged, of course, and since the decision was a discretionary one, the pursuer was always going to have his work cut out in the appeal. He was not helped by the fact that by the time the appeal was heard, the fourth edition of Macphail had been published, and the relevant passage was in markedly different terms.

In McCallion v McCallion [2022] CSOH 36 (6 May 2022), a divorce action, the concluding interlocutor inter alia found the pursuer liable to the defender “in respect of 50% of the expenses of and occasioned by the preparation and conduct of the proof”. The auditor took the view that preparation for a proof can only truly commence after parties have finalised their pleadings, ingathered and lodged all their evidence, and attended to all incidental procedural matters required in advance of a proof. The court considered that the auditor had misdirected himself and referred the account back to him to reconsider.

Lord Menzies said: “Once a proof has been allowed, it is likely that many (or most) of the expenses will fall to be categorised as being of and occasioned by the preparation and conduct of the proof. It does not follow that all items of expenditure incurred after the allowance of a proof will necessarily fall to be so categorised – there may be charges which (as in this case) relate to late changes to the pleadings by way of minute of amendment which may not fall properly within this categorisation… It is necessary for the auditor to consider each individual charge, and decide whether the work charged for is properly to be categorised as relating to the pleadings, or is of and occasioned by preparation and conduct of the proof – and to justify that decision.”

Personal injury actions

It is well accepted that claims of damages for personal injury should only be dismissed at debate in rare and exceptional cases. One such case was A v B Ltd [2022] CSOH 34 (27 April 2022). The first defenders operated a residential care home. The second defenders, a local authority, placed a 16 year old resident in the home. The first defenders allowed the resident unsupervised leave, during which he raped and sexually assaulted a child. The leading Scottish authorities include Mitchell v Glasgow City Council 2009 SC (HL) 21 and Thomson v Scottish Ministers 2013 SC 628. Lord Ericht had little difficulty in dismissing the action on relevancy.

Clinical negligence actions are often challenged on relevancy too, especially when the pursuer is a party litigant. The advent of case management has introduced what might be regarded as an additional – or alternative – basis for having such actions dismissed, namely a failure to obey a case management order to produce a supportive expert report. In Chisholm v Grampian Health Board [2022] CSOH 39 (18 May 2022), the pursuer had originally had the benefit of lawyers, but was latterly unrepresented. The procedural history was complex. The pursuer did not produce an expert report relating to causation, though was aware that it was required. Her claim was dismissed at procedure roll as irrelevant and failing to give fair notice, in the absence of a report, of why the alleged negligence was said to have caused the pursuer loss. 

Relying on JD v Lothian Health Board 2018 SCLR 1, the court observed that in a clinical negligence case of this kind, expert evidence must be provided to support causation. Where the court is satisfied that a pursuer’s pleadings are not properly founded on expert evidence, the court has the power to dismiss the action. There is support for the view that the consequences of there being no expert report on causation may be determined at a by order hearing (rather than a debate). At a debate, the court does not normally look beyond the pleadings, but where the absence of an expert report is raised, there is no difficulty in the court dealing with the point. In this case, the debate encompassed both matters of relevancy and the issue of whether there was support in expert evidence for the pursuer’s case. As I read it, however, the action was dismissed on the grounds of relevancy.

In that connection, McGowan v Ayrshire & Arran Health Board [2021] SAC (Civ) 20 can be seen as a good example of a party litigant being able to pursue such a claim to a proof – and appeal – neither of which would appear to have had any realistic prospect of success.

Evidence

A recurrent theme in recent articles has been the changing nature of evidence being led in civil cases and the increasingly variable approach to the conduct of proofs. Some developments have been welcome and helpful, but others much less so.

For example, in T v W [2022] CSOH 44 (27 May 2022), Lord Summers observed: “Although witness statements were supplied it would not appear to me that this led to a more efficient use of court time. The witness statements were not used in substitution for evidence in chief. The witnesses were for the most part examined extensively about matters covered in the witness statements as well as other matters. In consequence the oral evidence represents the substance of the case. I have consulted the written statements where the oral evidence was unclear, but for the most part I have proceeded on the basis of the oral evidence.”

This brings me to Chief Constable v SAI [2022] SC ABE 11 (18 March 2022), in which the court was asked to make a risk of sexual harm order against an individual. The sheriff must be “satisfied” that there had been relevant conduct on at least two occasions. The sheriff narrated the evidence led in order to persuade him to make such an order: “Several witnesses gave evidence in person. All of them had previously sworn affidavits or, in the case of police officers, had prepared operational statements. Each witness adopted his or her affidavit or statement as their evidence in chief. 

“Only one of the four girls gave evidence in person… There was hearsay evidence given by the parents of one of [the] other girls and in the form of transcripts of joint investigative interviews of these other girls spoken to by other witnesses… The issue is that the evidence… in respect of these other girls was not the best evidence that could have been led… The reasons for that… were not explored in evidence… 

“Transcripts are a poor substitute for the visual and audio recordings of the interviews. It is impossible for me, or anyone, to form a judgment as to the credibility and reliability of a witness from the printed page. Had I been able to see and hear the actual interviews and the reactions, demeanour and body language of the girls and their verbal delivery as they spoke in those interviews I would have been able to assess their credibility and reliability… 

“On the whole matter, I am not satisfied that the applicant has proved any of the allegations against the respondent.”

Another example can be seen in the admittedly special circumstances of an international family dispute, in ZA and MN v B [2022] CSOH 38 (12 May 2022). Lady Carmichael described the proof in this way: “Five witnesses… gave evidence in person. Each of them had provided evidence in chief by way of affidavit, gave additional oral evidence in chief, and was cross examined. The remainder of the witnesses who gave oral evidence did so using WebEx… The proceedings were live streamed… Counsel who were in court were given time to communicate electronically with counsel and solicitors who were not, or adjournments when required. 

“There was no order that the reports of professional witnesses should constitute their evidence, or their evidence in chief. In the absence of specific agreement that a report should be treated as evidence, I disregarded reports from persons who did not give oral evidence.”

Summary decree

Finally, a good example of a successful motion for summary decree can be found in Promontoria (Chestnut) v Ballantyne Property Services [2022] CSIH 17 (18 February 2022), a commercial action where the defenders appealed against the grant of summary decree by the commercial judge. The court briefly set out the accepted approach to such motions: “Rule of Court 21.2 introduced the concept of a summary decree. This permits a pursuer to seek such a decree ‘on the ground that there is no defence to the action... disclosed in the defences’. The wide scope of the rule is circumscribed by Henderson v 3052775 Nova Scotia 2006 SC (HL) 85, which confines it to cases in which the defender is, after a hypothetical proof, ‘bound to fail’. On this approach, the highly implausible defence may well survive until proof.” 

In this case, the defence did not survive to proof and the court took into account the shortcomings in the defenders’ pleadings. “It is no doubt correct to say, as a generality, that a broad view should be taken to pleadings in a commercial action even if, as in this case, the pleading method used is expansive rather than abbreviated (cf Practice Note No 6 of 2004, Commercial Actions, paras 3(1) and 6(1)). It remains necessary for each party to give the other fair notice of the case to be advanced.”