Professional briefing - The Journal Online
Professional briefing - The Journal Online
Professional briefing - The Journal Online
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<strong>Professional</strong> <strong>briefing</strong> Civil court<br />
Party<br />
confidential<br />
An action of damages not subject to time bar, and the principles<br />
that apply when a party seeks to keep their address confidential,<br />
are among the more unusual matters considered by Sheriff<br />
Lindsay Foulis in this month’s civil court roundup<br />
Citation<br />
In Chief Constable, Northern<br />
Constabulary v A 2010 GWD 19-373<br />
an interim sexual offences prevention<br />
order and the summary application<br />
in terms of which the interim order<br />
was granted were delivered to the<br />
defender by police officers. <strong>The</strong>re was<br />
no authority for such service. Sheriff<br />
Principal Young determined that the<br />
purported citation was irregular.<br />
Citation required to be by post or<br />
officer of the court. Police officers<br />
were not officers of court. Regular<br />
citation required not only delivery of<br />
a copy of the writ upon a party but<br />
also the delivery of various forms.<br />
<strong>The</strong> order was granted in absence<br />
and the defender appealed. <strong>The</strong><br />
issue then was whether the defender<br />
appearing at the appeal cured the<br />
defect. <strong>The</strong> sheriff principal, after<br />
considering authority, concluded that<br />
the critical question was what is<br />
meant by “appear” and “appearance”<br />
in rule 2.17(1) of the summary<br />
applications rules, and the<br />
corresponding provisions for ordinary<br />
cause, summary cause and small<br />
claims. He did not consider that the<br />
taking of an appeal prevented arguing<br />
irregularity of citation. Appearance by<br />
a defender meant the lodging by him<br />
of a notice of intention to defend,<br />
or in the context of a summary<br />
application, appearing or being<br />
represented at the initial hearing.<br />
He was however inclined to the<br />
view that lodging an application for a<br />
time to pay direction could constitute<br />
appearance. <strong>The</strong> object of all citation<br />
was to bring to the knowledge of the<br />
defender the proceedings which were<br />
impending against him in order that<br />
he might have time and opportunity<br />
to take the necessary steps to protect<br />
his interests. If the defender took the<br />
opportunity to take one of the steps<br />
which the citation was designed to<br />
afford him, he ought not thereafter<br />
to be entitled to plead an irregularity<br />
in the citation.<br />
Delay<br />
In Rennie v Lothian Health Board [2010]<br />
CSOH 61; 2010 GWD 17-328 an<br />
action had been raised for damages for<br />
medical negligence arising from the<br />
birth of a child in 1980. <strong>The</strong> action<br />
was raised in 2006. <strong>The</strong> child was<br />
and would always be incapax. <strong>The</strong><br />
defenders took a plea of mora and also<br />
sought that the action be struck at on<br />
the basis of unreasonable delay. In<br />
considering the plea of mora Lady<br />
Clark acknowledged that account<br />
<strong>The</strong> sheriff principal did not<br />
consider that the taking of an<br />
appeal prevented arguing<br />
irregularity of citation<br />
www.lawscotjobs.co.uk<br />
could be taken of events both before<br />
and after the action was raised. She<br />
further observed from authority that<br />
mere lapse of time will not found an<br />
effective plea of mora. <strong>The</strong> remedy<br />
provided by the law for delay lay in the<br />
various prescriptions and limitations.<br />
However, if in addition to the lapse of<br />
time, there have been actings or<br />
conduct fitted to mislead, or to alter<br />
the position of the other party to their<br />
detriment, the plea of mora may be<br />
sustained. But for such a plea to receive<br />
effect, her Ladyship considered that<br />
there must have been excessive or<br />
unreasonable delay in asserting a<br />
known right, coupled with a material<br />
alteration of circumstances, to the<br />
detriment of the other party. It did not<br />
arise in the present litigation. If such a<br />
plea was upheld, decree of absolvitor<br />
was the appropriate disposal.<br />
Turning to the Tonner v Reiach and<br />
Hall point, focus required to be<br />
applied to the period since the raising<br />
of the action. Her Ladyship<br />
considered that the issues involved<br />
were complex. <strong>The</strong> pursuer, a curator<br />
bonis appointed in 2001, required to<br />
explore and advance the claim, with<br />
the inevitable restrictions and delays<br />
involved with legal aid. <strong>The</strong>re was<br />
substantial adjustment by both<br />
parties. <strong>The</strong>re were at least five<br />
consultations with five different<br />
experts on behalf of the pursuer. This<br />
was not unusual and often in the<br />
course of this work the case was<br />
clarified and developed. It had<br />
resulted in the averments of fault<br />
Continued overleaf ><br />
Don’t miss<br />
these<br />
essential<br />
<strong>briefing</strong>s<br />
Civil Court:<br />
Round-up<br />
39<br />
Licensing: More<br />
Gill troubles<br />
42<br />
Environment:<br />
Listed Buildings<br />
43<br />
Insolvency:<br />
Wrongful trading<br />
44<br />
Family: Child<br />
support<br />
45<br />
Charities: Private<br />
bills<br />
46<br />
Discipline Tribunal<br />
47<br />
Websites: Trust<br />
management<br />
48<br />
Book review:<br />
Adult Protection<br />
49<br />
July 2010 the<strong>Journal</strong> / 39