Civil Procedure

Snowie v Stirling Council and The Ramblers Association – Stirling Sheriff Court, 11 July 2008

Wed, 27 Aug 2008 16:53:00 GMT

This decision concerned the issue of expenses following the Sheriff’s decision on 23 April 2008 (see Casecheck summary). The First Defenders sought the expenses of the action against the Pursuers on an agent/client basis, rather than a party/party basis, arguing that the conduct of the litigation was such that expenses should not be restricted to the judicial scale. They put forward a number of arguments in support of this motion. It was submitted that the Defenders had tried to resolve matters from an early stage and had continued to negotiate even during the Proof. The First Pursuer’s evidence suggested that he had been intransigent. The general conduct of the litigation had been unreasonable and indicated an attitude of “gamesmanship” on the Pursuers' part. The Pursuers had taken steps, possibly to frustrate the litigation, and this had interrupted the progress of the action. Reference was made to the decision in McKie v Scottish Ministers 2006 SC528 in which Lord Hodge laid down 5 propositions in relation to assessing whether expenses should be awarded on a higher scale. The First Defenders’ argument was adopted on behalf of the Second Defenders. The Pursuers’ primary submission was that the Court should find no expenses due to or by either party. If the Pursuers were found liable for the expenses, they should only be found liable for the expenses of the First Defenders and on a party/party scale. The fact that a party came into Court vigorously asserting his position and called a witness on his behalf whose evidence was not ultimately accepted did not make the proceedings unreasonable. The Pursuers disputed that their conduct had been in any way unreasonable. They argued that there should not be an award of expenses in favour of the Second Defenders on the basis that, where the interests of parties sit together and are not distinguishable, there should be no duplication of the award of expenses. The Sheriff determined that there should be an award of expenses in favour of the both Defenders. They had succeeded in establishing their position under The Land Reform (Sc) Act 2003. As regards the nature of the award, the Sheriff accepted the test as laid down by Lord Hodge in the McKie case. He considered a number of authorities and suggested that the test to be applied with a very high one. In the present case, the Pursuers had no option but to raise proceedings if they wanted to challenge the First Defenders' Notice and their conduct was not such as to lead to an award of expenses against them on anything other than a party/party basis.

Spence v Chap Construction Limited – Aberdeen Sheriff Court, 25 February 2008

Wed, 20 Aug 2008 18:39:00 GMT

The Pursuer sought damages for losses sustained as a result of the Defenders’ alleged failure to clear pathways of snow and ice. The Pursuer sought to amend the Record. The Defenders opposed the amendments insofar as they attempted to introduce new matters at a late stage in the procedure. The Minute of Amendment contained averments about a previous accident and the Sheriff decided that the Defenders’ objection to that amendment was well founded. It was absurd to expect the Defenders’ agents to make enquiries 7 years after the incident. No explanation had been provided for the late introduction if this information and the averment itself was wholly lacking in specification. The Pursuer also sought to argue that the Defenders’ system was flawed and to introduce a new factual element about the existence of compacted snow under new snow. Until the Minute of Amendment was lodged, there had been no criticism of the Defenders’ system. The Sheriff deleted the relevant averments from the Minute of Amendment. There would be very considerable prejudice to the Defenders if new lines of factual enquiry were opened up at that stage. Further averments in the Minute of Amendment sought to introduce a new statutory case and to reformulate the common law case. The case as originally plead was based on the Defenders’ failure to take reasonable care. The proposed amendment averred that the Defenders had not done what was “reasonably practicable”. The Sheriff considered that the introduction of the statutory case would place a different and additional onus on the Defenders but the issue for the Court was whether the addition of the statutory case radically altered the Pursuer’s case. He considered that it did not. Although the Defenders might have to amend their defences and carry out further enquiries in light of the statutory case and the Sheriff was conscious that there had been very considerable delay in the case already, he was not persuaded that further delay in bringing the matter to a conclusion was sufficiently grave to override the desirability of having the cases for both parties set out accurately. The amendment was allowed subject to certain deletions.

Mitchell v Hass Tek Services Limited – Dumfries Sheriff Court, 25 April 2008

Wed, 20 Aug 2008 18:32:00 GMT

Following the discharge of a Proof, the parties agreed that the Defenders should meet the expenses of the discharged Diet. The Pursuer’s Account of Expenses was taxed by the Auditor and the Defenders lodged a lengthy Note of Objections seeking substantial abatements of the expenses. Among other points, they argued that the Pursuer was only entitled to expenses necessitated by the discharge of the Proof and not items that could properly be regarded as for the general furtherance of his case. They also argued that much of the work carried out in preparation for the Proof, and the outlays incurred, were not lost by the discharge, but could be used again in any subsequent Proof. The relevant interlocutor included the words “finds the Defenders liable in the expenses of today’s discharged Diet”. The Sheriff decided that, in these circumstances, the Auditor’s determination that preparation properly began when the Diet of Proof was allowed and his decision to allow preparatory work performed after the fixing of the Proof could not be said to be unreasonable. The Sheriff cautioned that parties should exercise great care regarding the terms of any agreement about liability for expenses when a Proof is discharged. He suggested that it might be better to find the party responsible for the discharge liable for any expense occasioned by attendance at the discharged Diet and to reserve any question of the expense of preparation for the Proof. The Sheriff sustained the Note of Objections in part. As regards Counsels' fees, time had been charged for 2½ days. The Proof had been set down for 5 days and, as is customary, Counsel had charged for half of that time, although only one day had been occupied in the discharge of the Proof. On the following day, Counsel had been engaged in settlement discussions in relation to the action and the Sheriff decided that this was not work which formed part of the expenses of the discharged Proof. He allowed for 11/2 days of Counsels’ time. The daily rates charged by both Junior and Senior Counsel were questioned. The Auditor has simply accepted these figures without further enquiry. He did not appear to have had any material to allow him to assess whether the fees were reasonable. The Sheriff thought that that was not a reasonable exercise of discretion. The fees claimed by Counsel seemed high. It was noted that there is no table of fees for Counsel in actions in the Sheriff Court and the Sheriff expressed the view that this was not in the public interest as litigants had no indication as to the level of a significant element of the expense they might bear if unsuccessful. He questioned whether there was any other publicly available material that could be used as a guide. He considered the table of fees prescribed for solicitors as a useful starting point and abated both Junior and Senior Counsel’s fees

McAvoy and others v Scottish Ministers – Edinburgh Sheriff Court, 27 June 2008

Wed, 23 Jul 2008 19:52:00 GMT

This decision related to whether the author of a number of reports, Dr Kevin Irvine, should be certified as a skilled witness. The issue arose in several personal injury actions in which damages were sought because of prison conditions and the effect of those conditions on prisoners (often referred to as “slopping out” cases). Dr Irvine had produced two styles of report and the vast bulk of each report was broadly similar. Dr. Irvine described himself as a 'medico-legal consultant' and his reports purported to be psychological medical reports, although he conceded that he had no formal qualifications in psychiatry. There was separate information in relation to each Pursuer's medical history. Dr Irvine had not clinically examined any of the Pursuers. The reports referred to the fact that the prisoners had found the process of slopping out “humiliating”, “embarrassing” and “degrading”. The Sheriff pointed out that these words appeared several times in the various reports, although he did not expect them to be in every prisoner’s vocabulary. The words did, however, feature in Lord Bonomy’s Judgement in Napier v The Scottish Ministers 2004 SLT 555. A significant part of each report contained factual information in relation to slopping out and summaries of various expert opinions presented to the Court in Napier, as well as the opinion of Lord Bonomy. In each case Dr Irvine concluded that the subject of the report had experienced psychological symptoms because of the conditions in prison. The Pursuers referred to a number of decisions in which the question of certification had been considered, although none of these supported the proposition that a witness should be certified as an expert for a discipline in which he had no formal qualifications. The Pursuers argued that Dr Irvine was a particularly suitable skilled witness in this case because he had experience and knowledge of the conditions that existed in Barlinnie Prison. He had been a medical officer dealing with the prisoners. The Sheriff concluded that Dr Irvine was qualified as a medical General Practitioner and that his field of expertise was general practice. Psychiatry and Psychology were separate and distinct disciplines with separate and distinct qualifications which he did not possess. He had made no clinical assessment of any of the Pursuers and gave no medical conclusions in support of any of the their claims. As Dr Irvine had carried out no medical or clinical examinations in support of his reports and he lacked the requisite expertise and skill to entitle him to report or give expert evidence in the field of psychology, the Sheriff refused to certify him as a skilled witness.

MELANIE ANDERSON v JONATHAN FORBES AND OTHERS [2008] CSOH 89

Thu, 26 Jun 2008 09:58:00 GMT

Procedure Roll - Action for personal injuries resulting from a fire in a tenement block. Rubbish in the communal area of the tenement had been set on fire. Pursuers suffered personal injuries as a result of jumping from the building. Disputed whether all or any of the defenders liable. The defenders moved for dismissal of the action or exclusion of certain averments from probation. Discussed: 1) whether first and fourth defender sufficiently linked to the property, 2) whether relevant case averring occupation and control by the first to tenth defenders had been pled, 3) whether reasonable foreseeability of the risk of fire had been relevantly pled and 4) whether a relevant case against the eleventh defenders had been plead. Case put out By Order for the pursuer to amend. Expenses reserved.

(FIRST) RANALD DURNESS MACKAY, (SECOND) MRS MOYRA AGNES ISABELLA MACKAY and (THIRD) MRS SHEENA MACKAY v JAMES M EDMOND [2008] CSOH 92

Thu, 26 Jun 2008 09:51:00 GMT

Debate. Payment of damages sought as a result of defender's alleged negligence in carrying out duties as accountant and tax advisor. Debate on the defender's pleas-in-law which were, broadly, (1) the pursuer’s averments were lacking in specification as the sums concluded for did not include allowance for benefits which had accrued to the pursuer from postponement of paying of tax, (2) the pursuer’s averments were irrelevant as the sums concluded for did not meet conclusions, and (3) amendment created a fresh case and had prescribed. Whether lack of fair notice. Whether the pursuer’s right to amend prescribed due to nature of amendment creating fresh case. Pleas-in-law repelled. Proof before Answer allowed.

ANM GROUP LIMITED v GILCOMSTON NORTH LIMITED and OTHERS [2008] CSOH 90

Thu, 26 Jun 2008 09:15:00 GMT

Action for damages based on contract and delict. Pursuers owned agricultural centre and auction mart. They became aware of serious roofing failures and brought an action against the defenders for failures in contract and delict. Prescription and Limitation (Scotland) Act 1973 section 11. Debate on whether pursuers’ right had prescribed. Whether knowledge of roofing problem went beyond summarising, as a mere possibility, that the roof problems might be attributable to a culpable third party. Whether third defenders liable for failures to respond to pursuers’ requests for expert investigations or failing that, their failure to advise the pursuers to seek expert advice. Proof before Answer allowed.

LIGHTWAYS (CONTRACTORS) LIMITED v NORTH AYRSHIRE COUNCIL [2008] CSOH 91

Thu, 26 Jun 2008 09:03:00 GMT

European Directive 2004/18/EC - Motion for interim order to suspend implementation of decision of the defenders’ executive committee to accept tender for lighting maintenance contract. In terms of the regulation, the pursuer was an economic operator and the defender was the contracting authority. The pursuer applied under Regulation 32(4) for reasons why the pursuer was unsuccessful in their tender. The pursuer claimed the defender failed to comply with 2001 Regulations as follows: 1)failure to treat the tenders equally during the tendering process, 2) failure to comply with the requirements as to the criteria used to award the contract, 3) in scoring exercise there had been failure to carry out an equal and transparent assessment of the tenders, 4) failure to comply with the provisions of Regulation 32 with respect to providing information at the debriefing meetings. If order applied, existing contract would require to be continued at an additional £23,360 per month more than the new contract. Order refused. Expenses reserved.

Application by EF and GF – Sheriff Court, 11 January 2008

Wed, 30 Apr 2008 18:46:00 GMT

Adults with Incapacity (Scotland) Act 2000 - Appointment of welfare and financial guardians - difficulty in obtaining Bond of Caution
An application was made by EF and GF to be the appointed both welfare and financial guardians of their uncle. In terms of the 2000 Act, the Sheriff had to fix caution for the value of the adult’s estate. This mandatory requirement could only be dispensed with if the guardians were unable to find caution, but were otherwise suitable to be appointed. Sheriff Baird had already published an opinion (Scottish Courts website – 28 December 2007 – application by RL) which dealt with the problems experienced by those applying to be appointed as guardians in obtaining a Bond of Caution. He has expressed the view that the attitude of insurers was subverting the intention of Parliament. The applicants in the present case had encountered the same difficulty in obtaining caution. The only two insurers who cover this area had declined to provide a Bond of Caution. As a result the Sheriff had to waive the requirement for caution and this left a significant estate uninsured. The Sheriff stated again that this issue needs to be addressed.

Application by the Authority Reporter under Section 65 of the Children’s’ (Scotland) Act 1995 in the case of MU (appealed by RU) – Edinburgh Sheriff Court – 11 March 2008

Wed, 30 Apr 2008 18:03:00 GMT

Appeal - Children's Hearing - Alleged breach of right to a fair hearing - Article 6(1) of the European Convention on Human Rights

The Authority Reporter had presented an application to find whether grounds for referral of a child (MU) to a Children’s Hearing had been established. Following a Proof in relation to the application, MU’s father appealed to the Sheriff Principal arguing that his a right to a fair hearing under Article 6(1) of the European Convention on Human Rights had been breached at the Proof. After his Motion for a continuation of the Proof had been opposed, the Appellant had left the court and the Sheriff had heard evidence from the child’s mother and a social worker. The case was then adjourned and the Appellant returned to court. When the Proof resumed the Sheriff indicated that she had heard evidence in his absence and, on the basis of that evidence, intended to hold the grounds of referral as established. The Appellant was not given the opportunity to give evidence and this was the basis of his complaint that his right to a fair hearing had been breached. Several authorities were considered, from which the Sheriff Principal extracted a number of principles as to how the provisions of Article 6 should be applied. He reached the conclusion that the appellant’s right to be heard had been infringed and remitted the case for a re-hearing.

Clydesdale Bank plc v Stuart Wright – Inverness Sheriff Court, 2 February 2008

Wed, 05 Mar 2008 12:07:00 GMT

Summary Cause - Action for payment – Application to sist– whether action should be sisted pending outcome of case in the English High Court.

In a Summary Cause action the Pursuers sought recovery of advance on a Current Account from the Defender. The Defender lodged Defences and a Counterclaim for recovery of bank charges. The Pursuers decided not to insist on their claim, so the only remaining issue was the Defender’s claim for recovery of bank charges. The Pursuers sought to have the cause sisted pending the decision in the OFT test case before the High Court in London. The background to the claims was set out in the Sheriff’s earlier decision in Coleman v Clydesdale Bank and Thomson v Clydesdale Bank (see Casecheck report 6th September 2007) The OFT test case had proceeded before the Commercial Division of the High Court and the Court’s decision was expected within 12 weeks. The Pursuers submitted that there were five reasons why the action should be sisted. These were very similar to the arguments presented in the Coleman case. The Sheriff discussed each ground in turn. Having had an opportunity to consider some of the final pleadings in the OFT action, the Sheriff agreed that the issues in that case were identical to the issues raised in the present case. The Sheriff expressed the view that it was wrong to state that the relevant law was identical in Scotland and England, however. There was no guarantee that the decisions and reasoning of the English Courts would be applied in Scotland, simply because the original statement on the law was the same. The question which the Sheriff had to consider was whether the Pursuers had satisfied him that it was appropriate to sist the action because another Court was considering the same issues. Scottish Judges had a responsibility to uphold the integrity of the system of Scots Law separate from other legal systems. The Court should be slow to make any decision which would, even in a small way, undermine the system of Scots law. That said, substantial progress had been made in the OFT case and the outcome was likely to be known in less than three months. It seemed to the Sheriff that the balance of competing factors had shifted significantly since Coleman. There was a utilitarian value in granting a sist at that stage. He reserved his opinion, however, on whether it would be appropriate for the action to remain sisted after the OFT Judgement had been issued if the Banks decided to lodge an Appeal against that Judgement.

Application in respect of RA – Glasgow Sheriff Court, 17 January 2008

Wed, 30 Jan 2008 20:26:00 GMT

Application for Appointment of Guardian – Adults with Incapacity (Scotland) Act 2000- Replacement of original Guardian - Expenses - Awarded against Solicitors personally

In May 2006 an application was made under the Adults with Incapacity (Scotland) Act 2000 to appoint a son as Guardian in respect of the welfare and property and financial affairs of his mother("the adult").The application contained no averments about the suitability of the proposed applicant and the writ had to be returned to the instructing solicitors on two occasions. An averment was eventually added that the applicant was “of good character”. About a year later, the same solicitors presented another application to appoint the adult’s daughter (the original applicant's sister) as welfare and financial guardian. That application contained an averment that there were no orders or appointments in terms of the Act in respect of the adult, which was incorrect. It transpired that the original applicant had been refused a Bond of Caution after he disclosed to insurers that he had been convicted of embezzlement in the past.The solicitors who submitted both applications were aware of this, although at no time while the original application was under consideration was this information disclosed to the Sheriff, nor was he told when the second application was presented. The Sheriff was only advised of the position at the end of December 2007, at which stage he fixed a hearing. He indicated that there were two ways in which the matter might be resolved. Section 63 of the Act allowed him, on an application, to appoint a substitute guardian if the original Guardian became unable to act. In addition, in terms of Section 71(1)(a) on an application by a person claiming an interest in the adult’s property, the Sheriff could replace an existing Guardian by a nominated individual. The daughter’s application had not been dismissed-it had only dropped from the Roll - which meant that the Sheriff was able to revive that application and he used his powers under the Act to dispense with the need for further intimation of that application. He made an Order replacing the originally appointed Guardian in respect of financial matters by his sister. For obvious reasons, the Sheriff made an Order that the expenses of this additional procedure should be borne personally by the solicitors involved.

James Duff v David Strang [2008] HCJAC4

Thu, 24 Jan 2008 14:47:00 GMT

Appeal - This stated case arose out of an action of lawburrows raised by the pursuer and appellant. The defender and respondent is David Strang, who was until recently Chief Constable of Dumfries and Galloway Police. On the date which had been set down for proof in the action, the sheriff entertained and upheld submissions that the action was incompetent and irrelevant. The appellant appealed to this court by stated case. When the case called, the court appointed it to a full hearing, and directed that at that hearing the court should be addressed on (1) the competency of the mode of appeal, and (2) the merits of the decision in the lower court. The court now heard submissions on these matters

McGibbon v Graham McAllister [2008] CSOH NUMBER4

Thu, 17 Jan 2008 13:23:00 GMT

Procedural Hearing - Practice and Procedure – title to sue/Proof before Answer sought. Liability admitted by defender. Pursuer was individual claiming damages under Section 1(4) of Damages (Scotland) Act 1976 on the grounds that he was a “de facto stepfather” of deceased. Submitted that he had acted and was accepted by the deceased as father. Submitted by pursuer that no other person had a title to sue. The Court considered the provisions of the Act pre and post 4 May 2006. Act made provision for such a relationship but only applying to deaths which occurred after 4 May 2006. Question of title to sue. Lord Brodie felt that a de facto relationship may well fall within these provisions. Proof before Answer allowed to make further enquiries into true relationship of the pursuer to deceased.

Onyvax Limited v. Endpoint Research (UK) Limited [2007] CSOH 211

Thu, 10 Jan 2008 17:33:00 GMT

Motion - for an interim order under section 47(2) of the Court of Session Act 1988. The pursuers were seeking delivery of a Trial Master File and the now declined to co-operate, and instead asserted a common law lien on account of the pursuers' non-payment of work invoices. The parties were in agreement that the proper approach to an application for an interim order under section 47(2) was that affirmed by an Extra Division in Scottish Power Generation Ltd v British Energy Generation (UK) Ltd 2002 S.C. 517. The parties were, however, in dispute as to whether these requirements for an interim order had been made out in the present case. This was then considered by Lord Elmslie.

Link Housing Association Limited v. PBL Construction Limited +The Gray Aitken Partnership Limited+Gemmell Hammond and Partners +J.R. Queenan Partnership Limited + Hugh Brown [2007] CSOH 206

Thu, 10 Jan 2008 17:30:00 GMT

Minute of Amendment - This matter related to a development of flats which involved the various defenders in their construction. A growing list of faults and problems emerged and were so great that the flats had to be demolished. There were a number of issues in relation to the designation of the pursuers (who were, in essence, the developer of the flats) and they lodged a Minute of Amendment seeking inter alia to substitute for the pursuers, a different designation. The amendment was received and answered by various interested defenders. The Lord Ordinary then allowed the Record to be amended in terms. There was a reclaiming motion and the amendment was refused for two reasons. The first was that the error was one of substance going as to the identity of the person suing and a different person could not be substituted. The second reason for refusal related to expiry of time limits. The pursuers then lodged another Minute of Amendment, similar in nature, which was opposed by certain of the defenders on the basis that the matter is already decided and Lord McEwan was bound by the decision of the First Division on this same point. The Minute of Amendment was considered here.

Degremont Societe Anonyme + Amec Capital Projects Limited v. Caledonian Environmental Sciences PLC [2007] CSOH 203

Thu, 10 Jan 2008 17:27:00 GMT

Commission and diligence - The pursuers and the defender were parties to a contract and in broad terms, the pursuers were the contractors and the defender were the employer. At this time, the action came before Lord Brodie on the motions for commission and diligence in terms of the parties' respective specifications of documents. It was agreed that commission and diligence should be granted in respect of the defender's specification, as amended. It was also agreed that commission and diligence should be granted in terms of calls 1 to 5 of the pursuers' specification. Calls 6 to 9 in the pursuers' specification, however, were controversial. The defender’s argued that the pursuer’s were not, however, entitled to commission and diligence to recover documents instructing the defender's claim at the Open Record stage.

Peter Mair v Mohammed Arshad – Cupar Sheriff Court, 23 October 2007

Sun, 25 Nov 2007 15:42:00 GMT

Diet of Debate - Relevancy and Specification - Action for Payment - Housing Grants, Construction & Regeneration Act 1996, sections 104 and 110 and Part II of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998

The Pursuer raised an action for payment in respect of works carried out on the Defender’s construction project. The parties had entered into a written contract. They were agreed that the contract was a fixed-price contract to supply labour to carry out works and that it was a construction contract within the meaning of Section 104 of the Housing Grants, Construction & Regeneration Act 1996. A Diet of Debate took place in relation to the Defender’s preliminary plea. The Defender argued that the Pursuer’s averments were insufficient to give him fair notice, as the relevant invoices did not adequately specify the work done. He also argued that the Pursuer’s pleadings were irrelevant as the claim for payment made by the Pursuer did not conform to the requirements of the 1996 Act, read together with Part II of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998. On that basis, payment was not due and the action should be dismissed. The Pursuer’s position was that the terms of Part II of the Scheme had not been incorporated into the contract because, in terms of Section 110(1) of the Act, those terms only applied when the contract itself did not provide an adequate mechanism for determining what payments became due under the contract and when. The Sheriff was of the view that the Pursuer’s pleadings were sufficiently specific to enable the matter to proceed to Proof. Although it was true that further specification could be given, the question was whether this was necessary to give fair notice of the claim made against the Defender. In this case, the Defender was not entitled to demand further specification, particularly as he had simply answered the Pursuer’s claim with a bald averment that the work had not been finished. The Defender’s second argument depended crucially on establishing that the relevant terms of the Scheme had been incorporated into the contract. That in turn depended on whether the contract agreed between the parties satisfied Section 110(1) of the Act. Although the parties agreed that the contract established a mechanism for determining what payments became due under the contract and when, the dispute between them came down to whether that contractual mechanism was “adequate”. In the Sheriff’’s view, this was a question of fact, not law and, on that basis, he could not determine at that stage whether the contract between the parties did incorporate the terms implied by the Scheme. That could only be done after Proof and, on that basis, he allowed a Proof before Answer.

David & Lesley Horban v Torith Limited – Dundee Sheriff Court, 6 November 2007

Sun, 25 Nov 2007 14:33:00 GMT

Diet of Debate - Relevancy and Specification of Pleadings - Existence of Contract between Parties

The Defenders were main contractors on a housing development. The Pursuers bought a plot of land there and the Defenders built a house on it. The Pursuers entered into missives with the landowners, D Ltd, and corresponded with the Defenders regarding the specification of the house, the price and extras to be included. An NHBC Certificate was issued, naming the Defenders as the builders. After the Pursuers moved into the property, significant problems arose in relation to the ceramic tile floor throughout the house and the under floor central heating. The Pursuers raised an action for damages against the Defenders based on breach of contract, specifically the implied term to exhibit the skill and care reasonably expected of competent building contractors of ordinary competence and the express term that the subjects would be suitably constructed conform to NHBC standards. The Pursuers also claimed they had suffered loss through the Defenders’ negligence. The Defenders sought decree of dismissal. They maintained that the Pursuers’ pleadings did not contain averments sufficient to set up any contractual or delictual relationship between the parties. Although the missives formed a contract between D Ltd and the Pursuers, they did not create a contract between the Pursuers and the Defenders. The Sheriff held that it could not be said that the Pursuers had not made out a case that they had a contract with the Defenders. There were missives, but they did not specify that a house would be built, nor who would build it. The Defenders had assumed D Ltd’s obligations in terms of the missives with regard to NHBC documentation and fully accepted those obligations. The Defenders argued that the averments in relation to the NHBC documentation were not sufficient as they did not give them fair notice of the ways in which their efforts to remedy the defects in the property had fallen below NHBC standards. The Sheriff took the view that the Pursuers’ averments in that regard did not form a separate case, but were designed to reinforce their principal position that there was a contract with the Defenders. Only after evidence had been heard could be established whether the Defenders were in breach of any of the terms of any contract proved to exist. The Pursuers’ case based on delict was a different matter entirely however. The Sheriff was not satisfied that the Pursuers had made out a relevant delictual case. The damage they claimed to have suffered was one of pure economic loss. The tiles had been supplied, fitted and were cracked in places and the replacements offered were a different shade. The under floor heating was inadequate in one room. There was the cost of repair, but no consequential damage, nor any question of damage to the property of others. There was no suggestion that the value of the Pursuers’ property had been diminished in any way. The defects were in the items themselves, rather than in loss to another person or other property. The Sheriff was not satisfied that the doctrine set out in Junior Books v Veitchi Co Ltd 1982 SLT 492 was applicable in this case, not least because the Pursuers were seeking to set up a direct contractual relationship between the parties. He allowed a proof before answer but refused to admit the averments in relation to the Pursuers’ delictual claim to probation.

Hadden Construction Limited v Midway Services Limited - Edinburgh Sheriff Court, 17 October 2007

Thu, 15 Nov 2007 21:12:00 GMT

Appeal - Sheriff's Decision on Expenses - Petition for Order Winding up Company - Insolvency Act 1986, ss 122(1)(f) and 124(1)
The Petitioners/Respondents had brought a petition for an order to wind up the Appellants, founding on Section 122(1)(f) of the Insolvency Act 1986 in particular. Section 124(1) of that Act allows, among others, creditors, including contingent creditors, of a company to apply for the winding up of that company. The Respondents had brought the petition on the basis that they were due sums under a contract for the construction of a housing development, although no architect's payment certificate had been issued in respect of the sums, as required under the contract. They had relied on the terms of a letter from Appellants’ solicitors as confirmation that the Appellants were insolvent. After the petition had been raised, accounts had beenproduced, which demonstrated that the Appellants were not balalnce sheet insolvent. The Sheriff had agreed to dismiss the Petition but had found the Appellants liable to the Respondents in expenses. The appeal was directed only against the Sheriff’s award of expenses. Essentially, the Appellants contended that the Sheriff had erred in law in holding that the Respondents were contingent creditors of the Respondents for the purposes of Section 124 of the 1986 Act and had erred in holding that there was a “clear and unambiguous” representation of insolvency in the letter from the Appellants’ solicitors. It was an established principle that an appellate court would not alter a decision on the question of expenses on the basis of a point which had not been argued at first instance. As a petition for liquidation is not an appropriate means of resolving a substantial dispute as to whether a debt is owed or not, the Sheriff Principal indicated that the arguments before the Sheriff should have focused on the nature of the dispute between the parties about the sums allegedly due. Although it could not be said that this essential issue had not been "embraced" before the Sheriff, the limited scope of that discussion left the Sheriff Principal reluctant to intervene. He also held that, in the particular circumstances of this case, it could not be said that the Sheriff had exercised her discretion unreasonably in arriving at the conclusion that the Respondents had been justified in bringing the petition for l.iquidation.

The Accountant in Bankruptcy v Peter Butler – Kilmarnock Sheriff Court, 12th January 2007

Thu, 01 Nov 2007 13:18:00 GMT

Appeal - Action of Declarator - Petition for Sequestration of non entity - OCR 5.7(1)

The Defender/Appellant had carried on business under the trading name "HB Engineering" ("HB"). Proceedings had been raised against HB for recovery of debts and a decree had been obtained. A Petition for the sequestration of HB had been raised and sequestration had been awarded. The Pursuer/Respondent had been appointed as Interim Trustee. He then raised an action seeking a number of declarators designed to cure difficulties which he had encountered in ingathering and dealing with the estate of the Appellant. The Respondent maintained that the Appellant had been sequestrated on the basis that he was the true debtor in respect of the decree on which the sequestration was based and he and HB were one and the same. At first instance the Appellant had argued that the action should be dismissed. Following a debate, the Sheriff had declined to dismiss the action and had allowed a Proof. The Appellant appealed against the Sheriff’s decision. He accepted that the decree against HB would have formed a proper basis for a sequestration Petition against himself, but maintained that such a Petition should have run "in the name of the Peter Butler, trading as HB". He argued that, as HB was an entity which did not exist on its own separately from the Appellant, who was not mentioned in the sequestration Petition, and as it was not possible to sequestrate a non-entity, the order sequestrating HB was invalid. Although raising an action for recovery of debts using a trade or descriptive name was permitted by Ordinary Cause Rule 5.7(1) and diligence could then be carried out on the basis of that decree, it was not permissible to use the decree to apply for sequestration of the non-existent entity. Only a person could be sequestrated. In any case, sequestration was not "diligence" within the meaning of OCR 5.7(1). The Sheriff Principal agreed that a non-existent entity could not be sequestrated and, thus, a Petition for sequestration of such an entity was a nullity. A nullity could not be cured by an action of declarator and, on that basis, the Sheriff Principal allowed the appeal and dismissed the action.

Aaron Hamish Thomson v Bank of Scotland - Inverness Sheriff Court, 17 October 2007

Thu, 25 Oct 2007 12:41:00 GMT

Small Claim - Commission and Diligence for Recovery of Documents - Fishing Diligence

In a small claim action for recovery of bank charges, the Pursuer lodged an incidental application for Commission and Diligence for the recovery of a number of documents, which were sought in an attempt to establish that the Bank’s charges amounted to a penalty. At a Hearing in relation to the incidental application, the Pursuer did not insist on a number of the calls in the Specification. The Application was granted in relation to one of the calls and refused in relation to the remaining calls. The Defenders criticised those calls on the basis that they were so lacking in relevancy and specification as to be regarded as a fishing diligence and also that the burden which would be placed on the Defenders in having to trace the documents called for would be completely disproportionate to the value of the claim. The Sheriff was quite satisfied that the disputed calls were an attempt at fishing diligence. The Sheriff raised the issue of where the burden of proof lay in determining whether the Bank’s charges amounted to a penalty and how that burden might be discharged.

Secretary of State for Work & Pensions, Child Support Agency v Walter Dykes Runciman - Selkirk Sheriff Court, 30th August 2007

Thu, 25 Oct 2007 08:05:00 GMT

Appeal - Reasonableness of Sheriff's Decision - Disqualification from holding or obtaining driving licence -The Child Support Act 1991, Section 39A The Appellant had been disqualified from holding or obtaining a driving licence for a period of 9 months following an application on behalf of the Secretary of State for Work & Pensions under Section 39A of the Child Support Act 1991, Section 39A , which was introduced by the Child Support Pensions & Social Security Act 2000 . That provision enables the Secretary of State to apply to a court for either a warrant committing a person to prison, or an order for disqualification from holding a driving licence, if that person has failed to make payments for child support maintenance. The Appellant, a party litigant, argued that he would face a number of difficulties in carrying out his work as a partner in a family farm business without a driving licence. He also argued that it was absurd that he be banned from driving for failing to pay child maintenance when he had a clean driving licence, especially as the amount in dispute between the parties was relatively small. The Sheriff Principal refused the appeal. The Sheriff had concluded that the Appellant was wilfully refusing to make payment. While disqualification from driving would cause the Appellant considerable inconvenience, it was clear that he did not "need" a driving licence to earn his living. That was the statutory test which had been properly applied by the Sheriff.

The Chief Constable, Tayside Police v Robert Lesley Basterfield - Perth Sheriff Court 3/09/07

Thu, 18 Oct 2007 11:56:00 GMT

Summary Application - Sexual Offences Protection Order - Sexual Offences Act 2003, Section 105(1)

In a Summary Application, the Pursuer sought a Sexual Offences Protection Order against the Defender in terms of Section 105(1) of the Sexual Offences Act 2003. Having heard evidence from a number of witnesses, the Sheriff decided that the granting of such an Order was necessary to protect members of the public from suffering serious sexual harm as a result of the actions of the Defender. He held that the granting of this Order did not contravene the Pursuer’s human rights. An Order was granted prohibiting the Defender from accosting any lone female for a period of 5 years from the date of the Sheriff’s decision. The Pursuer had sought a much wider Order for a period of 10 years, but the Sheriff considered most of the provisions in the proposed Order to be unnecessary. The Decision contains a useful analysis of Section 105 of the 2003 Act. A copy of the written submissions provided by Counsel for both parties is also attached to the Sheriff’s note.

Paul Taylor v Linda Elizabeth Cameron or Taylor

Sun, 23 Sep 2007 21:00:00 GMT

Undefended Divorce Action - Motion to allow appeal to be marked late

The Appellant enrolled a motion to relieve her of the consequences of Ordinary Cause Rule 31.1, which sets a time limit of 14 days for the lodging of an appeal, and to allow her to mark an appeal late in relation to a Decree of Divorce. The Decree was pronounced on 10th August 2007 and the Appellant maintained that she did not become aware of the proceedings until 28th August, 2007. The appeal was refused. There was clear authority to the effect that the Court’s dispensing power could not be used to waive the time limit for an appeal after the Decree had been extracted (Alloa Brewery Co ltd v Parker 1991 SCLR 70), unless it could be established that the Decree had not been competently granted and validly extracted. That had not been established in the present case and, on that basis, Alloa could not be distinguished. Sheriff Principal Bowen also considered an unreported case - Mahmood v Mahmood (29th June, 2007) in which Sheriff Principal R A Dunlop QC had heard an appeal against an undefended Decree of Divorce. He had held that, as Rule 8.1 of the Ordinary Cause Rules, which allows reponing, excludes family actions from its application, the only form of appeal against a Decree of Divorce was that provided for in s27 of the Sheriff Courts (Scotland) Act 1907. That appeal was against the merits of the Sheriff’s decision and could only proceed on recognised grounds.

Jason Coleman v Clydesdale Bank and Aaron Thomson v Bank of Scotland

Thu, 06 Sep 2007 22:00:00 GMT

Summary Cause/Small Claim - application to sist

The Pursuers in a summary cause and a small claim action were seeking recovery of bank charges which their banks, the respective Defenders, had deducted from their current accounts. The Pursuers argued that the charges were a penalty and, on that basis, unenforceable. They also contended that the charges were contrary to the Unfair Terms in Consumer Contracts Regulations 1999. The Defenders made applications to sist both cases at their first callings. The Pursuers opposed the applications. There had been a large number of claims against banks for recovery of charges and the Office of Fair Trading (OFT) had started an inquiry in April 2007. That inquiry was still underway. The OFT had also raised a test case in the Commercial Division of the High Court in London and a hearing in that case was due to start in January 2008. The purpose of that action was to establish the legal basis of the claims. The Defenders argued that the present actions should be sisted for a number of reasons, including the fact that there would be a considerable overlap between the present cases and the OFT action. The Defenders contended that the decision in the OFT action was likely to be of considerable assistance to other Courts. Sheriff Pyle refused the applications to sist. The decision of the High Court would not be binding on the Scottish Courts and, in the Sheriff's view, it would be unsatisfactory to force a Pursuer to delay proceedings in order to wait for such a decision. Although not addressed on the point, Sheriff Pyle expressed the view that a sist would not have been in breach of Article 6 of the European Convention on Human Rights, which entitles a litigant to a hearing within a reasonable time.

K v S

Thu, 06 Sep 2007 15:20:00 GMT

Action for Declarator of Nullity of Marriage - Jurisdiction of Sheriff Court

An undefended action for declarator of nullity of marriage was dismissed. An issue arose in relation to jurisdiction. The Sheriff noted that Section 4 of the Family Law (Scotland) Act 2006 purports to extend the jurisdiction of the Sheriff Court to include declarators of nullity of marriage by amending section 5(1) of the Sheriff Courts (Scotland) Act 1907. Before that, the Court of Session had exclusive jurisdiction in relation to both declarators of marriage and declarators of nullity of marriage. The Domicile & Matrimonial Proceedings Act 1973 deals with the jurisdiction of the Court of Session in relation to such actions (Section 7(3A)) and the jurisdiction of the Sheriff Court in relation to a number of family proceedings (Section 8). Section 8 makes no direct reference to nullity of marriage and does not appear to have been amended by the 2006 Act. There appeared to be some uncertainty over the jurisdiction of the Sheriff Court in relation to declarators for nullity of marriage, particularly where the defender was not domiciled in the jurisdiction of the court, as was the case in the present action.

Angelika Cawdor v Cawdor Castle (Tourism) Limited [2007] CSOH 134

Tue, 31 Jul 2007 00:00:00 GMT

Procedure Roll

The Advocate General for Scotland v. Dennis Henry Montgomery [2007] CSOH 120

Fri, 13 Jul 2007 00:00:00 GMT

Motion for expenses by the defenders

Guy Darrell Minshull v. The Advocate General [2007] CSOH 124

Tue, 10 Jul 2007 00:00:00 GMT

Reparation - Minute of Amendment

Her Majesty’s Advocate v. G.F. [2007] HCJ04

Fri, 11 May 2007 00:00:00 GMT

Refusal of Judge at First Instance to Continue Preliminary Hearing

DTA Chartered Architects v. Clydeview Development Limited

Thu, 03 May 2007 00:00:00 GMT

Appeal to Sheriff Principal

McGarvey Construction Limited v. Robert Thomson Shanks [2007] CSOH 77

Fri, 27 Apr 2007 00:00:00 GMT

Procedure Roll - Fraudulent Representation

First People Solutions Group Limited for Interdict and Interdict Ad Interim v. Karen Jack and Orion Engineering Services Limited [2007] CSOH 80

Fri, 27 Apr 2007 00:00:00 GMT

Interdict - Restrictive Covenant

Helen Barclay v. Lanarkshire Health Board [2007] CSIH 21

Fri, 23 Mar 2007 00:00:00 GMT

Appeal from Sheriff Court

Timothy Desmond Montgomery v. Cameron Greig & Others [2007] CSOH 63

Fri, 23 Mar 2007 00:00:00 GMT

Action of Accounting - Debate

Link Housing Association Limited v PBL Construction Limited and Others [2006] CSIH 4

Wed, 10 Jan 2007 00:00:00 GMT

Reclaiming Motion

Angelika Ilona and Others v The Right Honourable Colin Robert Vaughan 2007] CSIH 3

Wed, 10 Jan 2007 00:00:00 GMT

Reclaiming Motion –

Renewable Energy Systems Ltd v The Moray Council [2007] CSIH 2

Thu, 04 Jan 2007 00:00:00 GMT

By Order – Opposed motion for expenses:

Stuart McGowan v W &JR Watson Ltd [2006] CSIH 62

Thu, 28 Dec 2006 00:00:00 GMT

Reclaiming motion

Paula Ferns v Scottish Homes

Wed, 20 Dec 2006 00:00:00 GMT

Appeal

Robert Bain v.m Andrew Robert Bain Others [2006] CSOH198

Mon, 18 Dec 2006 00:00:00 GMT

By Order - Motion for Summary Decree

Beriston Limited v. Dumbarton Motor Boat and Sailing Club Others [2006] CSOH 190

Fri, 15 Dec 2006 00:00:00 GMT

Debate - Interdict

Fresh Catch Limited v. CGU Insurance plc [2006] CSOH 179

Thu, 23 Nov 2006 00:00:00 GMT

Additional Fee

Barry Tamburrini v. Advocate General

Wed, 01 Nov 2006 00:00:00 GMT

Preliminary Proof - Prescription

Royal Scottish Assurance plc v. Scottish Equitable plc [2006] CSIH 47

Wed, 11 Oct 2006 00:00:00 GMT

Reclaiming Motion

Royal Scottish Assurance plc v. Scottish Equitable plc [2006] CSIH 47

Wed, 11 Oct 2006 00:00:00 GMT

Reclaiming Motion

Linda Jordan v. Quarriers & Joseph Richard Nicholson [2006] CSOH 155

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Linda Jordan v. Quarriers & Joseph Richard Nicholson [2006] CSOH 155

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Melfort Pier Holidays Limited v. The Melfort Club and Others [2006] CSOH 1 NUMBER30

Thu, 24 Aug 2006 21:00:00 GMT

Interdict

East Ayrshire Council v. Alan Robertson & Deborah Robertson

Fri, 28 Jul 2006 00:00:00 GMT

Appeal to Sheriff Principal Against Extracted Inte

James Morris (AP) v. Fife Council [2006] CSOH 117

Fri, 28 Jul 2006 00:00:00 GMT

Reparation - Minute of Amendment

Maureen McGill v. Thomas McGill and Margaret McGill

Fri, 07 Jul 2006 00:00:00 GMT

Appeal to Sheriff Principal - Refusal to allow a D

M.P. v. Sister Zoe O'Neill & Others [2006] CSOH 93

Fri, 16 Jun 2006 00:00:00 GMT

Preliminary Proof - Timebar

Tods Murray WS v Arakin Limited [2006] CSOH 64

Fri, 28 Apr 2006 00:00:00 GMT

Action for Payment

Unity Trust Bank PLC V. (First) Martin Frost & (SECOND) Linda Stuart Anderson or Frost [2006] CSIH 14

Wed, 01 Mar 2006 00:00:00 GMT

Reclaiming Motion Following Debate on Procedure Ro

Mark Easdon v A Clarke Company (Smithwick) Limited [2006] CSOH 12

Wed, 25 Jan 2006 00:00:00 GMT

Personal Injury- Motion for issues - Proof or Jury

Dale McFarlane v Barry Thain James Campbell, The Motor Insurers Bureau [2006] CSIH 3

Tue, 24 Jan 2006 00:00:00 GMT

Civil Reparation

Graeme Carling v W.P Bruce Limited [2006] CSOH 7

Fri, 20 Jan 2006 00:00:00 GMT

Personal Injury - Competency of Application for In

Ian Stuart (as Guardian to William Finlayson) v Scottish Rig Repairers & MacGregor Services Limited

Fri, 13 Jan 2006 00:00:00 GMT

Motion for late lodging of expenses and accounts

Brackencroft Limited v. Silvers Marine Limited

Fri, 06 Jan 2006 00:00:00 GMT

Expenses:

Donald Brown v Nithsdale District Licensing Board

Thu, 22 Dec 2005 00:00:00 GMT

Licensing (Scotland) Act 1976 - S.39 Appeal & fail

Ashley Bell, George Wimpey UK Limited v East Renfrewshire Council, Carvill (Scotland) Limited [2006] CSOH 009

Fri, 09 Dec 2005 00:00:00 GMT

Application to the Court of Session under section

Royal Insurance (UK) Limited v. Amec Construction Scotland Limited and Others

Fri, 25 Nov 2005 00:00:00 GMT

Procedure Roll Debate:

Ewos Limited v. Bruce Martin Mainland + Hugh Craigie Mainland

Tue, 22 Nov 2005 00:00:00 GMT

Expenses:

James McDonald v. Stirling Council

Fri, 18 Nov 2005 00:00:00 GMT

Appeal Against Decree of Dismissal:

Angelika Ilona The Dowager Countess of Cawdor + St Cross Trustees Limited + Angelika Ilona The Dowager Countess of Cawdor v. The Right Honourable Colin Robert Vaughan Seventh Earl of Cawdor + Steve Rochford

Tue, 15 Nov 2005 00:00:00 GMT

Procedure Roll:

Barrie Tonner + Maria Wynee or Tonner v. Reiach and Hall

Fri, 05 Aug 2005 00:00:00 GMT

Recall of Sist:

Narden Services Limited v. Inverness Retail and Business Park Limited + Jaymarke Developments Limited + Alan Baxter Wilson + Paul Doherty + James Shaw

Tue, 17 May 2005 00:00:00 GMT

Recovery of Documents/Procedure:

Helen Macleand Mackintosh or Petrie and Others v. North Mile Co-Operative Limited

Thu, 24 Mar 2005 00:00:00 GMT

Expenses/Additional Fee:

Colin Scott and Others v. Justin Vieregge

Tue, 22 Mar 2005 00:00:00 GMT

Fatal Road Accident/Damages/Issues

Stuart Andrew McPhee v. W.J.M. Wilson Q.P.M. Chief Constable fo Central Scotland Police

Fri, 18 Mar 2005 00:00:00 GMT

Vicarious Liability: