Civil court: Expenses – Scots lawyers only

My last roundup bemoaned the absence of any real progress in the development of new rules for ordinary actions but, since then, the Scottish Civil Justice Council has issued a targeted consultation on the proposed rules which will apply to proceedings in both the sheriff court and the Court of Session. The papers can be accessed via its website, and the deadline for responses is 10 October 2023.

The core of the proposals is the introduction of active case management by the judge. I doubt if that principle will be challenged by anyone, but one question which has always intrigued me, and to which I have never obtained a satisfactory answer, is how many defended ordinary actions are likely to require case management every year? Our court system must have the resources to administer the new regime. Our judges must have the time and the expertise to manage cases effectively. Does anyone know what that workload is likely to be, and what judicial time will be allocated to it?

Many of this month’s cases are about practice rather than court procedure. It so happens that most of them involve PI claims, but I have tried to steer away from analysis of the substantive law on negligence, which I will leave to others more expert than me. After six months of this year with only four reported decisions from ASSPIC, four emerged in July all at once. I am sorry to say that three of them are about expenses.

Supreme Court

When a Scottish case is decided in the Supreme Court, I think that is always worth a mention. In McCulloch v Forth Valley Health Board [2023] UKSC 26 the court refused an appeal against the rejection by the Lord Ordinary and the Inner House of the claim by a deceased’s family for damages arising out of his medical treatment. The argument centred on the nature and extent of any advice that should have been given to the deceased about possible treatment options. You can still watch the whole hearing and a 10 minute summary of the judgment given by one of the Justices on the truly excellent Supreme Court website.

Judicial expenses

When the Inner House rules on expenses in a case which, in its words, “involves a wider issue concerning solicitors from another jurisdiction conducting litigation in Scotland”, that combination is irresistible. In my article at Journal, November 2022, 40 I commented on the Outer House decision, and the subsequent appeal has led to the opinion in Kirkwood v Thelem Assurances [2023] CSIH 30, which probably had many law accountants reaching for their calculators and smelling salts very quickly.

The Inner House discussed the minutiae of the judicial account, but the real crux of the decision lay in a point which is fairly well established. That is explained simply by the court: “The fees for solicitors in relation to the Court of Session are regulated by Act of Sederunt… The reference to solicitors in this context is to those agents who are duly authorised to conduct litigation before the court... This generally means a solicitor who is qualified in Scotland… The rules regarding taxation of expenses… [provide] that: ‘Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed.’... When the rule refers to reasonable expenses for conducting the cause, it is to the conduct of the cause by a person who is entitled to do so; i.e. a Scottish agent.”

About half of the work involved, for which the full judicial account was around £250,000, was disallowed as having been carried out by the English solicitors who “conducted” the litigation, although Edinburgh solicitors had attended to the formal procedural work.

Jurisdiction and forum non conveniens

As anticipated, the group proceedings by the Kenyan tea pickers have spawned many contentious issues. The latest matter for procedural enthusiasts concerned the pleas of lack of jurisdiction and forum non conveniens.

In Campbell v James Finlay (Kenya) Ltd [2023] CSOH 45, there was a six day proof on these preliminary pleas and the pursuer was successful in having them both repelled. On jurisdiction generally, it was argued that a Kenyan statute and the terms of the employment contracts gave the Kenyan courts exclusive jurisdiction. The court heard expert evidence from Kenyan lawyers and rejected the argument. Of wider application was the debate on the plea of forum non conveniens.

Putting it very briefly, the court concluded that while Kenya would be the appropriate forum for disposal of the group members’ claims, that was not enough to decide the point. Lord Weir said: “I still require to consider whether there is cogent evidence of a material risk that the group members may not obtain justice if they are obliged to litigate their claims in Kenya… the combination of poverty and lack of representation justify [Kenyan counsel] Mr Nderitu’s conclusion that should the group proceedings be dismissed the group members would not be able to access the Kenyan courts and secure substantial justice for their claims… [There is] no suggestion that the Kenyan courts cannot come to a proper and considered decision on the group members’ claims. But that is not the issue. The issue is one of accessibility, and what I conceive to be the insuperable difficulties dictated by circumstances which face the group members in litigating their claims to a conclusion in court.”

Both pleas were repelled. Do I sense an appeal?

Evidence at proof

The attribution of vicarious liability in abuse cases depends very much on the precise background facts and circumstances which encompass the whole context in which the alleged conduct took place. Often, that can be a matter of admission, especially when there is a criminal conviction, but that may not be enough in some cases. In C and S v Shaw [2023] CSOH 11, it is interesting to note the way in which the evidence about these matters was presented. A caretaker employed by the second defender in a sports centre had admittedly abused two boys, and the issue was whether his employers were vicariously responsible.

The circumstances cannot be easily summarised. There was a proof on (vicarious) liability only, and the two pursuers and the perpetrator of the abuse were called as witnesses for the pursuers. The “foundation of the evidence in chief of both pursuers”, as it was described by the court, was the terms of their earlier statements to the police in connection with the criminal proceedings against the perpetrator. Both pursuers gave oral evidence, as did the first defender, who did not defend the action but admitted his criminal convictions. It does not appear that there was any significant cross-examination of any of the witnesses. Lord Brailsford concluded that, in the particular circumstances, there was no vicarious liability.

QOCS

In Love v NHS Fife Health Board [2023] SC EDIN 18 Sheriff Fife in ASSPIC was asked again to grant a motion by the defenders to disapply the QOCS provisions. The pursuer had claimed damages for alleged medical negligence in relation to the death of her mother in October 2018. The defenders agreed to extend the time bar applicable to the claim and in November 2022 solicitors were instructed to raise proceedings. A writ was eventually served on 12 December 2022. There was no motion to sist the action and the defenders lodged a motion seeking absolvitor on 12 January 2023. This was revised into a motion for summary decree; the pursuer’s solicitors withdrew from acting before the motion was heard. The pursuer was given opportunities to obtain fresh representation and apply for legal aid, but neither was forthcoming. It emerged that the pursuer had no title to sue, no supportive expert report on clinical negligence, no legal aid, and no prospect of success with any claim.

Sheriff Fife dismissed the action but refused the motions (1) to disapply the QOCS provisions in relation to the pursuer personally; and (2) to find the solicitors liable for expenses during their involvement in the action. He considered that the pursuer’s actings were unreasonable but not “manifestly or obviously unreasonable”. The pursuer was not a party litigant and the only substantive procedure had been the motion for absolvitor/summary decree. There had been no abuse of process. If the solicitors had continued in the action for a time with no, or substantially no, prospect of success, the circumstances might well have been exceptional and merited an adverse finding of expenses, but while the case was unusual it was not considered exceptional and QOCS applied.

For completeness, I should say that I have learned of a very recent decision – not yet published on the SCTS website – Manley v McLeese, Edinburgh Sheriff Court, 16 August 2023 – in which the sheriff granted a motion to disapply QOCS in an RTA case. More about this in due course.

Pre-action protocol

The Personal Injury Pre-Action Protocol was introduced to the Ordinary Cause Rules for PI actions in 2016. Among other things, the sheriff can modify expenses in a PI action on the basis of the parties’ conduct. The terms of the protocol are set out in OCR, appendix 4. It aims to assist parties in a PI case to “avoid the need for or mitigate the length and complexity of… [PI]... proceedings”. Its application was recently considered in McInnes v EUI [2023] SC EDIN 19 and Napier v AXA Insurance [2023] SC EDIN 20, both decisions of Sheriff Campbell in ASSPIC. I am afraid I find the finer details of these squabbles about what passed between lawyers pre- and post-litigation and who said what to whom and why, to be rather tedious – I suspect the court does too – and they rarely reflect well on our profession. In both cases the court modified the award of expenses to a successful pursuer. I doubt if any general principle can be taken from the decisions other than perhaps an encouragement to parties to “screw the nut” – a Glasgow term which failed to find its way into the protocol.

Pleadings

A perfect illustration of the difference between defences that simply and reasonably put a pursuer to a proof of their averments and those that are just obstructive delaying tactics – “Scottish litigation at its worst” – presents itself in the Sheriff Appeal Court case of Crerar Hotel Group v Oban Regent Management [2023] SAC (Civ) 22. The pursuers sought interdict against another hotel passing itself off as theirs. At debate the sheriff granted decree de plano on the grounds that the defences were lacking in candour, irrelevant and lacking in specification. The defenders appealed, the SAC overturned that decision and remitted the case to the sheriff to assign a proof.

There are a number of very useful observations in the judgment about pleading practice. For example, “a defence is not irrelevant by reason of lack of candour unless there is a prima facie case by the pursuer which requires specific averments in defence”. The court carried out a detailed analysis of the parties’ respective pleadings, and it is well worth reading the decision carefully to understand, among other things, the crucial distinction between denials of matters outwith a party’s knowledge and denials of matters which a party can reasonably be expected to know.

One matter worth highlighting is the observation about the inappropriate but not uncommon practice of adopting the terms of productions into pleadings. “Pleadings should not simply incorporate productions brevitatis causa. It is for the pleader to abstract and summarise the relevant parts of any productions and present them as building blocks of the case. The pleadings should not plead evidence, but rather the principles to be abstracted from that evidence (see Macphail, Sheriff Court Practice (4th ed), at para 9-16). The sheriff was invited to treat the terms of a newspaper article, incorporated brevitatis causa, as if they were pleadings, and thereby inadvertently embarked on the very ‘trial by pleading’ that Macphail (above) warns against.”

Dismissal at debate

Despite what appears to be a rapidly diminishing success rate, defenders continue to try and have PI actions dismissed at debate, but the reality seems to be that unless, on the most charitable reading of the pursuer’s averments possible, the action could not possibly succeed, a proof is always going to be fixed. I recall a very eminent and highly respected sheriff likening the test of relevancy to “not having a snowball’s chance in hell”, a vivid summary of what all the cases say about the test to be applied. It seems to me that the pleadings in chapter 43 cases in the RCS and chapter 36 cases in the OCR make it even more difficult to knock cases out without a hearing of evidence.

In Rose v WNL Investments [2023] CSOH 49, a chapter 43 case, the deceased was killed while working on the defender’s roof. The principal question was whether the defenders owed any duty of care to him. He appears to have been a self employed contractor who worked on various premises owned by the defenders throughout Scotland. As Lord Sandison rather delicately put it, “many of the admitted features of Mr Rose’s engagement are, to put it mildly, not inherently supportive of the suggestion that he should properly be regarded as having been the defender’s employee for the purposes of this action”. The court was referred to a total of about 30 authorities, but had little difficulty in concluding that it was not possible to say that the claim was “bound to fail” and allowed a proof.

For PI enthusiasts, the decision also includes observations about the relevance of pleading breaches of safety regulations in the light of s 69 of the Enterprise and Regulatory Reform Act 2013. I think the point has still to be authoritatively decided in Scotland.

Actio iniuriarum

For readers who have missed the Latin references of late, the case of McCallum v Morrison [2023] SAC (Civ) 23 may cheer you up. This was a claim against a dentist who had practices in Cumnock and Drongan. One of the grounds of action was a claim based on the actio iniuriarum, but, although it has been historically demonstrated that the Romans made it into Ayrshire in the first century, the court considered that this ancient remedy was not available in the circumstances.