Civil court: Pointers to the future

Before reviewing some recent judgments, I want to mention two developments in the civil litigation world of considerable significance to practitioners.

First, on 20 July 2022, the sheriffs principal (all of them) issued Guidance for Court Users: Proceedings in the Sheriff Courts, its purpose being “to achieve a consistency of approach across the sheriff courts wherever possible”. By all accounts, sheriff court practices and procedures during the pandemic and its aftermath have varied significantly, and while the guidance acknowledges that existing local guidance must still be considered, this attempt to restore order and a degree of certainty to our civil justice system should be welcomed by confused practitioners – not to mention sheriffs. The main provisions are that parties will be expected to address the court on the mode of hearing for proofs of all kinds, but the default position for proofs and “other substantive hearings” is that they will be conducted in person. On the other hand, “All procedural business and debates will be conducted by electronic means unless otherwise directed by the court.”

Secondly, the Scottish Civil Justice Council has published The New Civil Procedure Rules – Second Report, a 40 page document outlining a model for ordinary procedure which would apply in both the Court of Session and the sheriff court. The SCJC is going to be drafting a new set of rules and will then be consulting “end users” (that means you, I suppose). Case management and the modernisation of processes are the main features, and the report should be read fully and carefully by anyone interested in how we may be litigating in the years to come.

Preliminary proof

A case that says much about how we litigate now (and gives cause for thought about how we might in future) is Tollerton v Highland Fuels Ltd [2022] SC ABE 12 (1 April 2022), a commercial action in Aberdeen Sheriff Court. The pursuers had oil delivered to their domestic tank one day in November 2019; the next day, the tank was found to be leaking. They made a claim under their own insurance policy, and the insurers of the oil suppliers were eventually roped in on the basis that the condition of the tank was such that it should not have been filled. Lawyers, loss adjusters, claims handlers, contractors and specialist subcontractors all became involved, in the way they are nowadays.

An action was raised in March 2021, and about eight months later the defenders instructed a forensic engineer. They requested an opportunity for him to inspect the tank, but it had been removed from its location and scrapped. The court heard a preliminary proof on the sole question of whether the pursuers would be entitled to lead evidence of the condition of the oil tank at the date of delivery. Sheriff Mann held that the best evidence of the condition of the tank on the day of delivery was the tank itself, that such evidence had been lost due to the fault of the pursuers (per their insurers), and that the defenders were prejudiced by its absence. Any secondary evidence of its condition would be inadmissible at a proof.

Apart from an interesting analysis of the best evidence rule, the case raises a number of procedural points of interest. First, this being a commercial action, the court was involved in managing the procedure whereby a preliminary proof was thought to be appropriate. It seems that at one of the case management conferences the defenders had intimated that they would be objecting to any secondary evidence of the condition of the tank, and “given the critical importance” of the issue of its condition, the preliminary proof had been assigned.

Secondly, the proposed proof was initially to take place by way of affidavit evidence only. Thirdly, after determining that the affidavit evidence was not really in dispute, the sheriff proposed to the parties that a joint minute of admissions should be lodged, agreeing all the facts, and this was duly done. Fourthly, after considering two sets of written submissions and further oral submissions from the parties the sheriff pronounced an ex tempore judgment. He was subsequently asked to issue a written decision, which runs to 18 pages and includes a detailed analysis of the facts and the law on best evidence.

I cannot remember any other case where the sole question of the admissibility of evidence was the subject of a preliminary proof. One would usually expect such a question to emerge during any proof at large and to be debated at that point rather than treated as a distinct and preliminary matter. I am curious as to whether this decision was considered by the parties to be conclusive of the merits of this action as a whole.

Another example of a preliminary proof was C & L Mair v Mike Dewis Farm Systems [2022] CSOH 47 (1 July 2022). The preliminary issue was prescription, although it was agreed that the preliminary proof was not going to resolve the case conclusively, regardless of how it went. There would have been justification for simply having a proof at large – in fact a proof before answer on the merits had already been assigned. The defenders had installed a slurry tank for the pursuers in 2012. In 2016 there was a ground slippage which significantly damaged the tank. The pursuers alleged the defenders had been negligent in 2012 and this was denied. There were material disputes on causation and other facts, not to mention the legal arguments on prescription. Putting it simply, if the start date for prescription was 2012, the action might be time barred. If it was 2016 then it definitely was not.

Again, this was a commercial action and there had obviously been prior discussion among the parties and the court as to the appropriate procedure to follow, notwithstanding that a proof, unrestricted in any way, had already been assigned. It is worth noting the justification for having a preliminary proof on prescription in this case: it was “agreed that the relevancy of the defender’s averments about prescription could usefully be discussed at debate. It was common ground that if those averments were held to be irrelevant, the court could dispose of the defender’s… plea at this stage, allowing parties… to focus exclusively on the merits of the action at proof, with some saving in time. That advantage was tempered to some extent by the fact that it was also common ground that if the defender’s averments were held to be relevant, the issue of whether the pursuer’s claim had in fact prescribed would require to be held over until the proof, for inquiry into the pursuer’s averments that prescription had not in fact operated” (per ss 11(3) and 6(4) of the 1973 Act).

Pleadings

The Sheriff Appeal Court issued another judgment bearing on the principles and practice of good written pleadings in Parks of Hamilton (Townhead Garage) v Deas [2022] SAC (Civ) 18 (13 April 2022). As the court put it rather bluntly, “The present case is a straightforward, simple consumer claim made complicated by the manner of pleading.” It is unnecessary to dwell here on the exotic background to the case, which concerned claims by the purchaser of a Bentley car which was alleged to be unfit to tow a caravan, nor on the detailed averments under consideration. Both parties had instructed experts who had prepared reports which were lodged. The defenders (appellants) sought to have the action dismissed at debate and argued, among other things, that there was a lack of specification in the pursuer’s pleadings. The sheriff rejected the criticisms of the pleadings and allowed a proof before answer. The defenders appealed unsuccessfully.

Three main points can be taken from Sheriff Principal Anwar’s judgment. First, on the question of fair notice, “The appellant can be taken to readily understand that which it has chosen to investigate, that upon which it has sought the opinion of an expert and that which it has chosen to aver in its answers. Viewed from that perspective, it cannot legitimately be said that the respondent has failed to aver her case with sufficient clarity and precision to allow the appellant to understand the case made against it.”

Secondly, a supplementary argument was that, as the expert report for the respondent had not been referred to or incorporated into the pleadings, it could not be referred to at the debate. The appellant relied on the opinions of the court in Gordon v Davidson (1864) 2 M 758 and the well known and oft cited – though not often properly understood – case of Eadie Cairns v Programmed Maintenance Painting 1987 SLT 777, which feels increasingly like a relic from a bygone age. Distinguishing Eadie Cairns, the court said: “In the present case both parties had lodged expert reports, and made reference to these without objection, at the diet of debate… [The sheriff] has examined the terms of the respondent’s expert reports to assess the question of whether the appellant’s assertion of material prejudice was well founded. She was entitled to do so.”

Finally, the appellants criticised the terms of one of the pleas in law (the term “clutching at straws” springs to mind). The court said: “As a general rule, a plea in law should be a distinct legal proposition applicable to the facts averred. A plea in law requires to be read together with the facts averred. In the present case, while the plea in law could be better expressed, it cannot legitimately be said that it fails to give fair notice of the respondent’s case in law.”

Appeals

A further reminder of the difficulties of appealing against findings in fact can be found in Hastings v Finsbury Orthopaedics [2022] UKSC 19 (29 June 2022) – the metal hip replacement case. The Supreme Court provides a clear and succinct confirmation of what the Lord President had said earlier in the case: “In order to reverse a determination of fact, the appellate court must be satisfied that the Lord Ordinary erred in law, made a finding without any basis in the evidence or demonstrably misunderstood, or failed to consider, relevant evidence. Otherwise, it can only interfere with the findings of fact if it concluded that the Lord Ordinary was plainly wrong, in the sense of his decision not being capable of being reasonably explained or justified. None of these requirements is satisfied in the present case and, accordingly, it is not open to this court to interfere with the Lord Ordinary’s findings.”

That is a formidable hurdle to overcome. It has been said often enough recently, and it remains to be seen whether future appeals (at all levels) properly take this into account.

Uplift in fees

There are few things more likely to stir up the interest of court practitioners than a decision on expenses, but I suspect that any decision on an uplift of fees might just do it. In McFarlane v McGregor [2022] SC GLW 18 (10 June 2022), Sheriff Cubie had to consider an opposed motion for an uplift of 100% in fees, with the opponent suggesting little or no uplift would be appropriate. This was an action of count reckoning and payment, described by the opponent as “run of the mill”, although I think most practitioners might find those terms mutually exclusive.

The legislation which permits the court to allow a percentage increase in the standard fees “to cover the responsibility undertaken by the solicitor in the conduct of the cause” is the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 (SI 1993/3080). There are seven separate factors which can be taken into account, and the pursuers argued that five of them applied. The motion was opposed in relation to each factor. After reviewing all the circumstances in detail the sheriff allowed a 70% uplift, without ascribing any particular value to any specific factor or factors. The decision is, of course, a discretionary one, and it is trite to say that such motions depend entirely on the facts and circumstances of each individual case. One point to note was the sheriff’s view that, where counsel had been involved for the duration of the action, no uplift should be considered in respect of the “legal skill” factor.

Group proceedings

I should briefly mention the tea pickers case, Campbell v James Finlay (Kenya) [2022] CSIH 29 (27 May 2022), which is the most prominent of the new actions of this type. The Lord Ordinary had granted permission for such proceedings to be raised – an essential requirement in the legislation – and the defenders challenged that decision on the basis that the claims of the employees were not “the same as, or similar or related to, each other” as provided in the Act. The Inner House had no difficulty in finding that he had been correct to grant permission. It is not difficult to foresee further procedural and substantive challenges to these claims in the future.

Ex tempore judgment

Earlier articles have raised the issue of ex tempore judgments, and M v M [2022] SAC (Civ) 19 (30 June 2022) should hopefully provide clear and authoritative guidance to the bench and the bar on the limitations in their use. As the court explained, the rule (OCR, rule 12.3) about ex tempore judgments was designed to ease the burden on sheriffs and to provide parties with a swift determination by not requiring a written note following a proof in every case. Ex tempore decisions pronounced in relation to simple disputes need only address the central contentious issues. If a note is requested under rule 12.3(3), however, it must take the form of an adequately explained decision, complete with findings in fact, findings in law and the reasons for the decision.

This was a contentious family action. The sheriff heard evidence from eight witnesses including the parties and an expert witness. In addition, several affidavits were lodged by both parties. The proof lasted five days. It is fairly obvious that this could not be characterised as a simple dispute. Although the sheriff’s approach was motivated by a desire to give the parties a quick decision, he failed to understand what was required of him according to the rules. The Sheriff Appeal Court judgment contains a helpful explanation of how the rules should be applied in circumstances where such a judgment is appropriate – and where a subsequent request for a written note is made. There is also a very useful section on the adequacy of judicial reasoning which cites the leading authorities on that topic, and the case is well worth reading, copying and keeping for future use.