Civil court: Broad sweep of the sheriff court

The range of cases decided in the sheriff courts lately is a reminder of just how wide their jurisdiction is. Recent examples include an appeal about a debt arrangement scheme, divorces with residence and financial issues, applications under the Adults with Incapacity Act and the Housing (Scotland) Act, a claim under the Equality Act, personal injury claims, a multiplepoinding, and a claim involving allegations of fraud, facility and circumvention. Although individual cases may not call for much comment here, the variety strikes me as quite noteworthy in itself.

You may also note that Latin phrases feature in a few of the cases. What will happen to them when we all have to express ourselves in simple English? “Quis scit?” – as they used to say in the bar common room at Glasgow Sheriff Court.

Proofs, 2022 style

In Gacek v Gacek [2022] SC ABE 22 (18 August 2022), the court heard a preliminary proof to determine the relevant date in terms of s 10(3) of the Family Law (Scotland) Act 1985. It is interesting to note how evidence was heard. The proof was conducted virtually via WebEx. The evidence consisted of affidavit evidence from the parties and sworn translated statements from the pursuer’s sister and niece. Each adopted their affidavits or statements as their evidence in chief. Additional oral evidence was led from all four, some through an interpreter. No shorthand writer had been booked; the sheriff instructed the recording of evidence using the WebEx functionality. Connection and sound difficulties were encountered for part of the proof; the sheriff requested that the recording covering that period be sent to him before he prepared his judgment. In addition, the parties were ordained to draft written submissions, exchange them, revise them if appropriate, and then lodge them with the court.

Clubs: title to sue

Anyone involved in an action for or against a club and/or its members will be interested in the decision in Club Los Claveles v First National Trust Co [2022] CSIH 35 (18 August 2022), taken in conjunction with an earlier decision in the case, reported at 2020 SC 504. Guidance is also available in Macphail, para 4.122.

The action ran in the name of the club and “three members of the committee… as representing the club and as individuals”. The background is complex, but one issue before the court was whether, in terms of the club’s constitution, there was a validly constituted committee with appropriate authority to do certain things. The defenders challenged the pursuers’ title to sue. The Inner House rejected their argument, Lord Doherty dissenting.

All the relevant cases are cited in the opinions given, which merit detailed reading. It was noted that the situation in sheriff court actions is slightly different from the Court of Session. On the particular point raised, pragmatism seems to have won through in the end, the Lord President endorsing the approach that “when tackling problems which arise with rules and resolutions [of an unincorporated association], general concepts of reasonableness, fairness and common sense [should] be given more than their usual weight... In other words, allowances should be made for some play in the joints”.

Ex turpi causa non oritur actio

A Latin maxim always adds a bit of gravitas, I think, and in DD v NHS Fife Health Board [2022] SAC (Civ) 27 (20 September 2022), the SAC revisited one of the classics. The pursuer sought damages for allegedly negligent medical treatment affecting his mental health, claiming that, as a consequence, he had committed certain crimes to which he had pled guilty. Proof before answer was allowed by the sheriff, who deleted the averments about criminal behaviour, agreeing with the defender’s submission that the pursuer could not recover damages arising from his criminal conduct, in accordance with the maxim. The SAC upheld the decision.

It is interesting to note the SAC’s justification: “It seems to us that the major public policy issues referred to... before the sheriff are relevant. That involves inconsistency between judgments of the criminal courts and the civil courts. As has been pointed out in a number of the authorities, the criminal in such a case as this becomes a pursuer. Having pled guilty before a criminal court, the pursuer now seeks to recover damages from another party for conduct for which he has accepted responsibility before a criminal court. It involves opening up matters which have already been decided. That does result in an undermining of confidence in the law.”

Expenses: reasonable conduct

In Kirkwood v Thelem Assurances [2022] CSOH 53 (10 August 2022), Lord Menzies had to consider a note of objections to the auditor’s ruling on a judicial account of expenses. His decision will have caused more than a ripple of interest among claimants’ lawyers on both sides of the border. The pursuer, a Scottish resident, was knocked down by a French motorist in France and suffered apparently quite serious injuries. She raised an action in the Court of Session. She instructed an English firm (“IM”) to conduct the litigation; they used a Scottish firm (“B”) to attend to procedural matters. The action settled and the defenders were found liable in expenses on a party/party basis. B lodged an account in the sum of £260,629.11, comprising their own fees of £8,671.57 plus VAT of £1,734.29, and outlays of £250,223.35, of which all but £46 related to IM’s account, prepared on the English equivalent of the agent and client basis. The auditor determined that, in terms of RCS, rule 42.10, it was not reasonable for conducting the cause in a proper manner to instruct foreign solicitors. He taxed B’s account in the total sum of £136,783.20, disallowing IM’s charges.

Lord Menzies upheld this decision. “In the exercise of [the auditor’s] wide discretion, he took the view on the preliminary point of objection that the charges of English solicitors did not meet the test in rule of court 42.10(1), which was the relevant test for the purposes of this action. The rule provides that: ‘Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed.’”

He approved the auditor’s observations that it was not immediately apparent that it was reasonable for conducting the cause in a proper manner that the pursuer instruct English solicitors. She was entitled to, but it did not follow that the expense should fall on the defenders. The auditor was “not persuaded that there was anything gained in respect of the specialism of the English agents that was not readily available with a number of Scottish based agents”.

Pleadings

The second report of the SCJC on the new civil procedure rules makes certain recommendations about the form and structure of written pleadings, and outlaws “traditional pleadings” for civil cases. I suggest however that the real problem is “not very good” pleadings, and these exist whether they are in a traditional language and form or not. While nitpicking about semantics, style and format of pleadings is to be discouraged, experienced practitioners appreciate that there are real advantages to the court, and all parties, in requiring parties to set out their respective positions intelligibly in writing.

A few recent cases might help to underline this point. First, although the English system is much less formal than ours (more “modern” if you like), that does not mean they have no pleadings problems. See, for example the recent case of HXA v Surrey County Council [2022] EWCA Civ 1196, in which the Court of Appeal felt bound to record “that the task facing this court, and I am sure the courts below, has been hindered by the manner in which both claims have been pleaded”. See the full decision for details of the inadequacies of the particulars of claim.

Similarly, in commercial actions in Scotland where the parties are required to focus their dispute pre-litigation and encouraged to plead in a “modern” way during the litigation itself, that is no guarantee of clarity and concision. In CSG Commercial v AJ Capital Partners [2022] CSOH 60 (30 August 2022), the pursuers claimed certain sums from the defenders for fees and expenses allegedly arising out of arrangements for acquiring commercial properties in Scotland. Aspects of the claim were described by Lord Braid as “nebulous”, and he commented: “The fundamental problem with the pursuer’s case is not that its pleadings are brief but that it invokes a number of different, and in some respects contradictory, legal principles without nailing its colours to any particular mast… These criticisms are not tempered by the fact that the action is a commercial action. If anything they are exacerbated, in that by the time a commercial action reaches debate, the court is entitled to expect that the issues will have been properly focused and analysed, and can be readily understood, or at least gleaned, from the pleadings.”

While struggling to identify the legal basis of any claim, he did not dismiss the action entirely, but observed: “beneath the muddy waters of its present pleadings there may be lurking the basis of a legally sound case based upon contract”. I think he showed remarkable restraint in permitting the pursuers to have another go at clearing those muddy waters.

Another commercial action where parties and court conducted a microscopic search of the pleadings to try and identify a coherent case can be seen in the debate in SSE Energy Supply v Stag Hotel [2022] CSOH 54 (10 August 2022). The pursuers sought payment for electricity supplied. The defenders contended that the meter on the premises did not function properly, was not properly calibrated, and gave grossly excessive readings. They made no averment about what was actually wrong with the meter. The pursuers contended that the defences were irrelevant and lacking in specification.

There was discussion of another Latin maxim, omnia praesumuntur rite et solemniter acta esse (i.e. a presumption that everything has been done validly and in accordance with the necessary formalities – a principle which has been applied to circumstances including the normal functioning of mechanical instruments, devices and tools), and what effect that might have on the interpretation of the pleadings. Lord Clark rejected the argument that the pleaded defence was irrelevant (but only just), and made it clear that positive evidence that the defenders could lead about any defect in the meter would be severely restricted by the pleadings.

On a separate point, in the course of the debate, the defender referred to affidavits by two of their witnesses as being pertinent to the issue of specification. Lord Clark said: “While in commercial actions there can be circumstances in which sufficient specification is given in an affidavit or witness statement, the broad principle of the need for fair notice in the pleadings remains in place.” Hopefully, those circumstances will be few and far between, lest anyone is encouraged to think that phrases plucked out of a meandering witness statement or affidavit might be allowed to fill in the gaps.

Personal injury pleadings

Personal injury actions are worth considering in this same context because, of course, their rules reflect a less traditional culture and include a more “modern” form of pleadings. In Fenwick v Dundas [2022] CSOH 62 (7 September 2022) the pursuers were window cleaners who fell and suffered serious injuries when they were working at a block of flats of which the three defenders were proprietors. In broad terms it was suggested that there was some defect in the outside fabric of the building. They raised an action under chapter 43. RCS, rule 43.2 requires the pursuers to annex to the summons a brief statement containing averments relating only to “those facts necessary to establish the claim”. The defenders debated the pursuers’ pleadings and made very detailed submissions arguing for dismissal. Lord Menzies agreed that there were “several gaps” in the pursuers’ pleadings, but the change of culture in the PI rules meant that the many issues raised “can only be properly resolved after the evidence has been led”.

While the PI approach enables a pursuer to get to proof more easily, it may not necessarily benefit them overall. Lord Menzies observed that the “gaps… may cause difficulties for the pursuers at proof”. Furthermore, the pursuers’ case based on res ipsa loquitur was excluded from probation: “Where there are possible explanations for an accident which do not infer negligence on the part of defenders, I do not consider that the pursuer can rely on the maxim.” He also excluded other averments about the history and condition of similar neighbouring flats, which he felt might add to the length of the proof and cause unnecessary additional expense including the need to instruct experts, with no clear explanation of why it might have any bearing on the issues relating to the pursuers’ accident. So perhaps the defenders did ultimately achieve something from their traditional debate on these pleadings.

Clinical negligence

SD v Grampian Health Board [2022] CSOH 63 (7 September 2022) was a very sad and difficult action for clinical negligence in which the pursuer was unsuccessful. There were allegations of negligence against midwives, doctors and an obstetric registrar. The claim arose from the birth of the pursuer’s son with cerebral palsy in 2008. The proof took place 14 years later. It was observed by Lady Wise that none of the witnesses had any direct recollection of events, which is hardly surprising. The proof was conducted over five weeks, clearly with considerable skill and sensitivity on both sides. In the 87 page judgment, the complex evidence of fact and opinion was meticulously analysed and assessed. All of the legal professionals must be commended for the way in which the case was dealt with, but I cannot help thinking that there must be another – and better – way to try and resolve these types of claim.

Interim damages

In Murphy v Dumbia (UK) t/a Highland Meats [2022] CSOH 65 (9 September 2022), the pursuer had already received a voluntary interim payment of £40,000 and interim damages of £10,000 in April 2022, but in September 2022 moved for a further interim award of £30,000 in terms of RCS, rule 43.11. Lord Lake was satisfied that such an award, taken with the earlier payments, would not exceed a reasonable proportion of what the pursuer would ultimately be likely to recover, but refused the motion on the basis that rule 43.11(6) only permits a subsequent motion where there has been a “change of circumstances”. The intention of the rule was to require a change that was “material and directly relevant to the key issues”, which was not the case here.

Proving the tenor

I will finish with one for the geeks. Section 38(2)(h) of the Courts Reform (Scotland) Act 2014 gave the sheriff court jurisdiction in actions for proving the tenor of a document. Carswell v Skelton [2022] SAC (Civ) 28 (28 September 2022) was an appeal which, inter alia, raised this issue (among other procedural factors which it is not necessary to go into). During the appeal it was noted that each party had misunderstood, for different reasons, the effect of an action of proving the tenor. The court explained the correct position, adding some guidance about how such actions should be framed. “A crave seeking to prove the tenor should so far as possible reproduce in its entirety the document to be proved, avoiding any lack of clarity in the decree or extract. Begbie v Fell (1822) 1 S 391 remains authority for the proposition that the terms of the deed should be incorporated in the crave; the decree and subsequent extract, which takes the place of the deed, will require to be a stand-alone document which in gremio narrates the tenor of the deed: RW v AW [2022] SC GLW 2; Macphail (4th ed), para 20-22.”