Take care with the crave

Since the last article Newman Shopfitters Ltd v M J Gleeson Group plc has been reported at 2003 SCLR 235, S v S at 2003 SCLR 261, Christison v Transocean Drilling Ltd at 2003 SCLR 303, Canmore Housing Association Ltd v Scott at 2003 SLT (Sh Ct) 68, Ali v Ali (No 3) at 2003 SLT 641, Beattie v Royal Bank of Scotland plc at 2003 SLT 564, Semple Clark plc v Clark at 2003 SLT 532, Yell.com v Internet Business Centres Ltd at 2003 SLT (Sh Ct) 80, and Armstrong v Brake Brothers (Frozen Foods) Ltd at 2003 SLT (Sh Ct) 56.

In Training for Profit (UK) Ltd v Rickman Tooze Independent Financial Advisors Ltd Edinburgh Sheriff Court 15th May 2003, Sheriff Principal Macphail allowed the appeal against the refusal of a reponing note. He indicated in his opinion that he would have granted the appeal on the question as to whether the Sheriff was wrong in refusing to repone the decree. However, Sheriff Principal Macphail ex proprio motu raised the issue of the competency of the decree. The crave sought payment of a specific sum ‘with interest thereon at four per centum above the base lending rate in effect at  that time and calculated on a daily basis (and compounded on the expiry of each three month from the due date) in respect of the period from a specified date until payment. Decree in absence was granted in those terms, the interest awarded at four per cent annually. Sheriff Principal Macphail indicated that the crave did not specify whether the interest rate was an annual, monthly, or daily rate. Other phrases such as ‘at that time’ and ‘from the due date’ were unclear. The interest provision in the crave had been lifted from the agreement without being changed into something meaningful – that begs the question as to whether the agreement on this point was sufficiently clear to be enforceable! Sheriff Principal Macphail had no difficulty in holding that reference to the ‘base lending rate’ meant the interest rate set by the Bank of England. However, as the decree was not sufficiently clear and precise, it was recalled as the decree was as a result incompetent.

Designation of a party

In Orkney Islands Council v S & J D Robertson & Co Ltd 2003 SLT 775 the Pursuers sought to amend the name of the Defender. The action had been raised in November 1999 against S & J D Robertson & Co Ltd. The true name of the company was S & J D Robertson Oils Ltd, the company having been previously called S & J D Robertson & Co Ltd until 1st November 1994. The amendment was allowed as in effect the same company was being sued, the amendment seeking to effect a change in form rather than substance.

Presence of witness during proof

In an appeal before the Inner House in Gerrard v R W Sives Ltd 2003 GWD 18-548, the issue was whether the managing director of the Defenders had been wrongfully excluded from the court whilst other witnesses were giving evidence. Their Lordships were unable to reach a decision in respect of the specific issue between the parties due to a dispute as to the circumstances whereby the director was absent. In the course of delivering their decision, their Lordships indicated by reference to section 3 of the Evidence (Scotland) Act 1840 that a judge had a discretionary power to allow a witness, who has been present whilst other evidence was given, to give evidence notwithstanding  objection was taken by the opponent. In those circumstances their Lordships were inclined to the view that the director should not have been automatically excluded when other witnesses were giving evidence.

Solicitor’s authority to settle

The extent of the authority of a solicitor to settle an action in the Sheriff Court was raised in Mowbray v Valentine 2003 GWD 20-596. A Joint Minute resolving the litigation had been executed on behalf of Mr Mowbray by his solicitor. In his appeal to the Inner House Mr Mowbray argued that the solicitor had no authority to settle on the terms disclosed in the Joint Minute. Lord Osborne in delivering the opinion of the Inner House stated that a solicitor has ostensible authority to settle litigation in the Sheriff Court regardless of the instructions of the client. The appeal was accordingly incompetent.   

Be careful with joint minutes

This may be old hat. However every so often instances arise when the terms of a Joint Minute do not set out what a party thought it did. The latest example is in the decision of Lord Brodie in Elder v R D Dunbreck & Son Ltd 2003 GWD 16-498. The parties agreed damages in a specified sum inclusive of interest. The Pursuer sought to argue that what was agreed was a specified sum inclusive of interest to the date of proof enabling Lord Brodie to award interest from the date of proof. Not so ruled Lord Brodie having regard to the terms of the  Joint Minute. A Joint Minute was a contract once executed excluding interference from the Court no matter what the Court thought was just. Drafters take care!

Expenses

In Snelling v Thomson Alarm and Communications System 2003 GWD 21-638 certification for a consulting actuary as an expert witness was sought. The actuary had prepared a report but the report had not been lodged in process. The actuary had not given evidence as the action had settled prior to proof. In the circumstances of the case, it was not obvious as to why an actuary was required, nor was it clear what investigation had been carried out. The information could have been ascertained from another source. In short, take a pause before deciding to employ an expert. The expense may not necessarily be recovered if success is ultimately achieved. I reported on Magee v Glasgow City Council now reported at 2003 SLT 777 in the May article. One matter which I did not specify was a ruling on the expenses occasioned by amendment procedure. At the time of the procedure no ruling was made as to the expenses of the amendment. A tender was subsequently accepted. The Pursuer was found entitled to the expenses. These included the expenses of the amendment, notwithstanding the Pursuer was the party amending. This decerniture with regard to expenses superseded any rule of court indicating that the amending party should be liable for the expenses of the amendment procedure unless it was just and equitable to do otherwise. The Court had not acted on the terms of the rule of court. Dare I suggest that this is a reason why expenses should be dealt with at the time. It may be tempting to simply have expenses reserved. Unfortunately such reservations of expenses can be overlooked when the action is resolved with costly results!

Who can frame written pleadings?

This question was addressed by Sheriff Richard Davidson in Bank of Scotland v Mitchell 2002 SLT (Sh Ct) 55. It also has arisen in an, as yet, unreported decision from Sheriff Brian Kearney in Ross & Liddell Ltd v Haggerty and Messrs J Campbell Glasgow Sheriff Court 23rd December 2002. In this case Messrs J Campbell, who were sheriff officers, framed summary cause and small claim summonses on behalf of creditors seeking payment of outstanding debts. The Pursuers had instructed them for that purpose. The sheriff officers did not directly charge a fee for the framing of the summonses. A minimal amount of work was involved in the preparing of the summonses, the necessary information being provided by floppy disc and computer print out. Twelve summonses were produced in a minute. However, they would not accept instructions to frame such summonses if they were not instructed to serve the summons and enforce any decree ultimately issued. Fees were charged for these procedures. In those circumstances Sheriff Kearney decided that the sheriff officers were expecting to receive indirectly a fee, gain, or reward in framing the summonses and accordingly breached section 32(2)(a) of the Solicitors (Scotland) Act 1980. Accordingly the action was incompetent. Another interesting point dealt with in the decision was whether the sheriff officers, who were a partnership, could represent the Pursuers. By reference to Macphail Sheriff Court Practice paragraph 1.32 which detailed that artificial entities such as companies and firms required to be represented by solicitors or counsel in proceedings, Sheriff Kearney concluded that if a firm could not act on its own behalf, it was somewhat perverse for such concerns to act as an authorised lay representative for another. He decided that reference to the word person in the definition of ‘authorised lay representative’ must mean a natural person, thus excluding the sheriff officers from representing the Pursuers in the instant case.

The usual caveat applies.