Civil court: Cases for the connoisseur

Recent civil cases, including arrestment; vicarious liability; Crown liability; time bar; admissibility of evidence; affidavit evidence; legal confidentiality and privilege; dawn raids; QOCS

13th November 2023 | Charles Hennessy

Recall of arrestment

Apologies for starting with something really obscure, but this case about arrestments might interest those practising in debt recovery. In McKenzie v City of Edinburgh Council [2023] SC EDIN 21, Sheriff Corke granted the recall of an arrestment under s 73M(4)(b) of the Debtors (Scotland) Act 1987. The notice of objection was made under s 73M(1) on form 63F, as provided for in rule 69D of the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988 (SI 1988/2013) – how obscure is that?

The council had been granted a summary warrant for unpaid council tax and served an arrestment on the bank in which McKenzie had his account, for the sum of £527.59. He argued that all the money in the account had come from the DWP by way of universal credit and personal independence payment; these were alimentary funds which were not generally attachable by creditors. The council argued that once the funds had been paid into his bank account, they were not protected except for the statutory minimum (at the relevant time, £566.51). McKenzie originally appeared for himself, but ultimately there was a full argument with counsel appearing for all parties, including the bank. The sheriff was referred to a joint list of authorities comprising “39 items and 353 pages”. The council’s argument was based on a sheriff’s decision in a 2007 case, but it was eventually discovered that this had been overturned by the sheriff principal in an unreported appeal. The appeal decision was traced and followed in this case. The arrestment was recalled.

Vicarious liability

There have been a number of English cases in recent years in which the “two stage” test for imposing vicarious liability on parties for the actions of others has been developed. The court must address, first, whether there was
a relationship of employment or something akin to it between the wrongdoer and the party sued; and secondly, if so, whether there was a sufficiently close connection between the nature of the employment and the abusive acts such as to render it fair, just and reasonable to attribute vicarious liability to the defender.

The Inner House applied this in C and S v Shaw [2023] CSIH 36, where a caretaker employed by the second defenders in a sports centre had admittedly abused two boys and the sole issue was whether his employers were vicariously liable. The Lord Ordinary dismissed the claim after proof (see my commentary on the nature of the proof at Journal, September 2023, 32), and the pursuers reclaimed. The appeal failed comprehensively.

The full facts should be read and digested, but the court commented generally that the circumstances which present themselves in such cases are of such infinite variety that there can be no one test, nor one list of factors which will always be relevant. “It is clear to us that this is a case where the evidence justified the conclusion that the second stage of the test had not been met. The Lord Ordinary was fully entitled to conclude that the conduct was not so closely connected with authorised acts that it could fairly and properly be regarded as done in the course of the employment.”

Liability of the Crown and time bar

The vicarious liability of the Crown was considered at debate in X v Y [2023] CSOH 17, along with other interesting and novel issues. The pursuer, a lawyer, claimed damages for a series of assaults and a course of harassment alleged to have been carried out by the defender, a sheriff. The pursuer alleged four assaults between May and August 2018, which were argued to have been both individual delictual acts and, taken together, harassment under the Protection from Harassment Act 1997. Proceedings had been served on the Lord Advocate on 16 July 2021, and on the Advocate General for Scotland on 14 March 2022. Lord Clark heard a debate which dealt with three issues raised by the law officers: (1) Was the Crown vicariously liable for the actings of Y? (2) Were the claims (at least partially) time barred? (3) Was the Lord Advocate or the Advocate General the appropriate law officer to represent the Crown?

Lord Clark’s decision on all these points is complex and has to be read with care. This summary may not do it justice. First, for the purposes of relevancy, and in reliance on s 2(1) of the Crown Proceedings Act 1947, he concluded that the pursuer was not bound to fail in her contention that a member of the judiciary was a Crown servant for the purposes of that section. He then considered whether the circumstances surrounding the delictual acts complained of satisfied the test for vicarious liability for Y’s actions. He concluded that two of the acts did and two of them, one in July and one in August 2018, did not. They were not “closely connected” to Y’s employment.

Next, he looked at the question of time bar and concluded that, as individual delicts, claims based on the first two acts were time barred, but, since “The end of the alleged chain of harassment is the starting point for the time period for the purposes of time bar in relation to a harassment claim”, the later acts should be included in that chain, even though he had considered that the later acts did not give rise to vicarious liability. (I am still trying to get my head around that.)

Finally, the proceedings had originally averred that the Lord Advocate was the representative of the Scottish ministers. That was incorrect; they should have said the Lord Advocate was the representative of the Crown – even though she was not, and the Advocate General was. This stramash was resolved pragmatically. Lord Clark said that the real question was whether the Crown had been served within the appropriate period: “it would be overly harsh to take the case against the Advocate General as time barred when there had, if mistakenly, already been service on the Lord Advocate, albeit as representing the Scottish ministers. If the Advocate General is the appropriate law officer to be sued… it would be equitable in all of the circumstances to allow the case against the Advocate General to proceed, apart from in relation to the first two alleged acts relied upon in the common law delictual claim, which are time barred. The issue of time bar in relation to the course of harassment would be determined at proof”.

No, I am not sure that I follow this either, but if you read the whole judgment and concentrate really hard, it should all begin to make sense.

Admissibility of evidence

For the advocacy enthusiasts among us, it is always interesting to look at situations where questions about admissibility arise during proof and how the courts deal with them. Of course, every case, and each objection, depends on its own particular circumstances. Lujo Properties Ltd v Gruve Ltd [2023] SC GLA 3 was a commercial action before Sheriff Reid in Glasgow. The action concerned the termination of a commercial lease by written notice, the tenant claiming, among other things, that the landlord had acted oppressively. There were five witnesses. The evidence in chief of each was provided in signed witness statements, supplemented at proof by further examination in chief, cross-examination and re-examination. Detailed reference was made to written communications passing between the parties prior to the proof.

Putting it briefly, objection was taken to the admissibility of certain witness statements on two grounds relating to their form and content. These objections were repelled. Objections were taken to the evidence of two witnesses’ subjective understanding of the contentious email communications. These were sustained. Objection was taken to purported opinion evidence by two witnesses on the basis of their lack of independence and partiality to the pursuer and a failure to set up their expert qualifications. These were sustained. Objection was taken to the leading of evidence about communications between the parties which were said to have been subject to “without prejudice” privilege. This was partly sustained and partly repelled, and it is certainly worth looking closely at the detail on this point and Sheriff Reid’s discussion and analysis of the law on this particular matter, which you can find at paras 78-89 of his judgment. All of the relevant authorities are referred to there.

Affidavit evidence

A curious case in which the court wrestled with the status of affidavit evidence was Ferguson v Gregors [2023] SAC (Civ) 24, an action for interdict in relation to disputed property rights. The sheriff decided that there was a servitude in favour of the defenders and granted or refused various interdicts flowing from that decision. There was an appeal and a cross appeal; one of the grounds of appeal was that the sheriff had erred in taking into account the first defender’s evidence given by affidavit.

Prior to proof the sheriff had ordered affidavits to be lodged by any witness to be called by the parties. The first defender lodged two affidavits; however, for a variety of reasons she did not wish to attend court to give oral evidence. On the first day of the proof, a motion was made for her evidence to be taken on commission. The sheriff refused that motion and refused to grant leave to appeal. The first defender did not attend court. Neither affidavit was adopted by her. The sheriff noted the existence of the affidavits while the case was at avizandum and sought submissions on the use that might be made of them. It was conceded that the affidavits were admissible, but it was argued that no weight should be attached to them.

The SAC said that the pursuers had conceded that the affidavits were admissible and therefore they could be taken into account when considering the factual background to the case. The weight to be attached to them was a matter for the sheriff: “when the affidavit evidence is admitted, weight to be given to it should be considered with care; it is an exercise of judgment. But there is no rule of law that precludes the court from giving weight to such evidence, even if unsupported and unchallenged by cross examination. He did not, as was suggested, accept the affidavits without reservation. In considering the evidence as a whole, we conclude that there was ample material which would have allowed the sheriff to accept Mrs Gregors’ affidavits”.

The crucial point seems to have been that there was “no competing narrative” to what the affidavits said and no apparent foundation in any of the other material in the case for challenging their important terms. I can see reliance on affidavit evidence increasing in the years to come, but it can only be done safely where it relates to matters which are not disputed or indisputable. If that is so, I suggest that parties could, and even should, rely on admissions of fact in the pleadings, a notice to admit or a joint minute of admissions.

Legal confidentiality and privilege

In University of Dundee v Chakraborty [2023] CSIH 22, Lord Carloway discussed the scope of the privilege arising from legal confidentiality. The university had appointed an individual to investigate and report on the circumstances surrounding a complaint by a member of staff. The initial report was amended twice by their lawyers (!) and a fifth and final version was then issued, bearing the original date but with a footnote explaining that it had been amended and reissued some months later following independent legal advice.

An employment tribunal had ordered production of the initial report; the university refused and appealed this order to the Inner House. The grounds of appeal, put broadly, were that it would have been possible to deduce the legal advice given by its lawyers by comparing the initial and final reports. After reviewing all the relevant authorities on privilege, Lord Carloway neatly and comprehensively refused the appeal on the grounds that, by disclosing the existence of the initial report, the university had effectively waived any privilege attaching to the content of that advice.

Dawn raids

To be honest, civil procedure is never that dramatic, but one process that can be quite exciting is the “dawn raid”, AKA a recovery of documents under s 1(1) of the Administration of Justice (Scotland) Act 1972. There may be no balaclavas, night vision goggles or doors blown off their hinges, but the implementation of such orders can often be very tense and contentious.

The rules try to ensure scrupulous fairness to all concerned, but in Thorntons Investment Holdings v Matheson [2023] CSOH 63, Lord Sandison expressed grave concern that they were not being followed in practice. It is not possible to convey all the details and nuances of the case here, but it concerned a dispute between groups of financial advisers who had made business changes and had agreed the usual raft of restrictive covenants, anti-competition agreements and confidentiality clauses.

Allegations were made about breaches of the agreement and other matters, leading to an application under chapter 64 of the Court of Session rules for the recovery and preservation of certain documents. An order was granted and documents were obtained, but it seems to have been acknowledged that there had been significant irregularity in the process. Lord Sandison explained what the rules envisaged, and the whole judgment is a valuable guide to the proper use of these orders.

He said: “The events disclosed by this note indicate a serious and apparently widespread misunderstanding of the proper function of a ‘dawn raid’ authorised in terms of s 1 of the 1972 Act. The sole purpose of that process is to take documents or property in relation to which the court considers a question may relevantly arise in an action likely to be brought into the custody of the court without giving those in possession of such material an opportunity to conceal or destroy it. Nothing that is recovered by way of a ‘dawn raid’ is to be disclosed to or put into the possession of the petitioner in a s 1 application, or the petitioner’s agents, without the consent of the person from whom it was recovered or an order of the court. The court places considerable trust in petitioners, their agents, and its own commissioners, to respect that basic principle and all that flows from it. It appears that that trust may on occasion at least have been misplaced.”

QOCS update

I recently spoke about QOCS cases, and it was suggested to me that it would be helpful to practitioners to provide a list of the decisions of which I am aware up to the present date (31 October 2023). I have already commented on some of them in earlier articles; two of them have not yet been (and may never be) reported. I am aware that McLeese, one of the (as yet) unreported cases, has been appealed to the Sheriff Appeal Court, so hopefully an authoritative judgment on some aspects of QOCS will be available in the next few months.

The cases so far are: