A recent Supreme Court decision in the case of NJDB v JEG  UKSC 21 looks set to overturn current pleading practice in the Sheriff Court. The case itself concerned an application for contact by a father, but the substantive decision, both in the Inner House and in the Supreme Court, simply determines a case, which while complex and unusual, turned on its own facts. The real interest lies in the robust comments from both courts about practice in these cases.
In the case it was argued that:
- The Sheriff had failed to address his mind to the appropriate legal framework, specifically section 11 of the Children (Scotland) Act 1995 and the case law providing guidance as to its application.
- The Sheriff's findings could not reasonably warrant the conclusion reached.
- The Sheriff had failed to act judicially, and that his decision should therefore not be allowed to stand. In support of this argument, counsel submitted that the Sheriff had made critical remarks about the appellant and the counsel who represented him, which were expressed in inappropriate language.
In handing down the judgment, Lord Reed, with whom Lord Hope, Lady Hale, Lord Clarke and Lord Wilson agreed, held as follows:
- That the Sheriff had considered whether it was in the child's best interests that an order for contact should be made and ruled that the Sheriff's failure to make any explicit reference to section 11 of the 1995 Act, or to authorities, was of "no consequence".
- That the Sheriff had a reasonable basis for his conclusion that contact would not be in the child's best interests.
- That the characters of the parties were relevant to determining whether the order sought would be in the best interests of the child and it was therefore appropriate for the Sheriff to make findings in that regard. Although a judge must be careful to strike the appropriate balance between plain speaking and appropriate restraint, the court added that it is only exceptionally that the language used by a judge can give rise to an issue of law which might vitiate his decision and in the present case, the judges could not detect an error of law in relation to this matter.
Before parting with the appeal, the Supreme Court considered it appropriate to comment on the duration of the proceedings and the costs incurred. The Court made the following points:
- First, it questioned whether traditional pleadings are the best means of identifying the issues in such cases. It noted that in the Report of the Scottish Civil Courts Review the introduction of an abbreviated form of pleadings, and of judicial control of any procedure for their adjustment or for the provision of further specification, was recommended.
- Secondly, it said further consideration might be given to the structure of a Sheriff's judgment proceeding on a proof. The judgment will most clearly address the central issue if it focuses directly upon the factors which are relevant to the court's exercise of its discretion. Findings on any relevant facts can be made clear within the ambit of a judgment focused primarily upon the central issue; as opposed to the judgment being divided into findings of fact and law, and a note in which the findings are explained, as currently prescribed.
- Thirdly, it encouraged the courts to make better use of their existing case management powers, so as to limit the extent of evidence to be presented.
- Finally, the court noted a lack of clarity as to the role of the curator ad litem in the proceedings, and pointed to a number of relevant recommendations made in the Report of the Scottish Civil Courts Review by Lord Gill.
This case sends a signal to the courts and solicitors to temper their litany with brevity, and that court pleadings do not need to be page after page of “he said, she said” arguments. Sheriffs and the courts generally, are expected to intervene to limit the quantity of evidence to be taken at proof, so as to reduce the duration of court hearings and the cost to parties.
The Supreme Court leaves in no doubt its support for the reforms proposed in the review by Lord Gill; support which is timely and significant given Lord Gill’s recent appointment as Lord President of the Court of Session and head of the Scottish Judiciary.