Parties I Flashcards
What is the effect of limited capacity?
Any natural person can sue or be sued unless they are subject to some form of legal disability. This lack of capacity may be partial or total.
Who has limited capacity?
- Enemy Aliens -
A foreign national may sued or be sued in Scots courts unless there is a declared state of war then an enemy alien cannot bring an action, such proceedings must be sisted during hostilities.
It is competent to sue an enemy alien during hostilities but there are obvious concerns of enforcement.
These only apply to hostilities amounting to declared war. - Foreign states, heads of state and diplomats -
these all have immunity from civil and criminal hostilities. In the UK the position is now codified in State immunity Act 1978 and 1964 Diplomatic Act. - ADULTS WITH INCAPACITY –
The Adults with Incapacity (Scotland) Act 2000 - adult natural persons have presumed to have full capacity but if someone has impaired capacity may need to make a declaration under this act. If the sheriff is satisfied that the person lacks capacity in the respect then a guardian is appointed and proceedings run in the name of the guardian. - CHILDREN –
The Age of Legal Capacity (Scotland) Act 1991. A child is a person under the age of 16. A parent of a child has a responsibility and right to act as a child’s representative. A child who has a general understand has legal capacity to sue or defend any legal proceedings, a child 12 or over is deemed to have this understanding. A child who lacks this has no capacity. Any action should be brought in the name of the capacity representative of the child.
What is the requirement of title and interest?
Pursuer must have title AND interest to sue at the date of raising the action
What does title mean?
Means the legal relationship between the pursuer and the subject matter of the action
What does interest mean?
Real interest in the outcome and the outcome must have some practical meaning
It is not the function of the court to determine not live disputes or academic disputes.
Axa Insurance v Lord Advocate 2012 SC (UKSC) 122
Public law & private law - less clear cut in public cases who has title to sue. In this respect the observations of lord reid in this case
How can several pursuers sue?
For this to be competent there needs to be identical grounds of action for all pursuers
And there is no prejudice to the defender e.g. In an action of damages by a surviving spouse, children coming out of a fatal accident. This also sues a variety of capacity, surviving spouse will have a personal claim for loss of society and loss of support, and the surviving spouse may have a claim on behalf of the deceased’s estate. If minor children, the surviving spouse will sue on their behalf.
Each pursuer is named separately is sued separately and each has a separate crave for damages. If a person is sueing in several capacities there will be separate craves for each claim.
What happens when there is more than one defender in a case?
Joint and several liability ‑ each defender is liable for the whole amount to the pursuer but inter se the defenders are liable pro rata. One example would be a person injured while a passenger in a car involved in another collision might sue both driving of car travelling in and driving of car which collided. Or in construction contract where there is a chain of sub-contractors. If a pursuer convenes several defenders and succeeds only against some there may be liability against pursuer against defenders against whom the pursuer was unsuccessful
Not competent where there are separate causes of action in relation to the two or more defenders - the effect of this would be to create separate liabilities in each defender. If the grounds are related e.g. Joint and several then it is competent to sue two or more defenders in the one action.
There may be different grounds of action against different defenders.
Joint obligants pro rata ‑ all parties must be called - e.g. Shareholders in an enterprise, all obligants must be called.
Joint delinquents – can sue any one of them and need only be successful against one. Approprtionmetn of liability is a matter for the defenders.
What should you consider when acting for a defender?
If acting for one defender you may wish to consider whether there are grounds for seeking contributions from co-defenders under Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, Section 3 (1) and 3 (2).
A defender may seek a contribution from a party already in the action as a defender. Alternativley it may be necessary for a defender to bring in a third party.
A third party is someone the defender says is liable to make a contribution.
Contribution among two defenders
Defender (s) may seek to go after other persons for contribution
Farstad Supply AS v Enviroco 2010 SC (UKSC) 87
reviewed the law of joint defenders. The law about contributions among joint wrongdoings was reviewed in this case. W here the question of apportionment of liability amongst joint defenders arises the court will first decide the question of liability and then the question of apportionment.
Who is the Crown?
The Crown is Not the monarch personally
The discussion is about the department of state and requires consideration of devolution scheme under Scotland Acts
Crown Suits (Scotland) Act 1857
Who acts for the Crown in devolved and reserved matters?
Devolved matters – Lord Advocate represents the Crown
Reserved matters – Advocate General represents the Crown
(The central idea of the devolution scheme is that competence is devolved unless it is reserved so must ask if it is reserved first.)
Can Sheriff Court actions be remitted to the Court of Session?
Sheriff Court action may be remitted to the Court of Session (Section 44 of the Crown Proceedings Act 1947) although this is rare.
Davidson v Scottish Ministers 2006 SC (HL) 4
Interdict or orders for specific performance Section 21(1) of the 1947 Act may be granted against the Crown, this supersedes s21(1) of Crown proceedings Act.
What actions must be intimated to the Lord Advocate?
These actions must be intimated in public interest: actions under
- The Presumption of Death (Scotland) Act 1977
- Breach of interdict.
- Devolution Issues – intimation to Lord Advocate and Advocate General
