What to do when frustrating party litigants frustrate the court process

It can be extremely frustrating for clients and their representatives when one side of a dispute acts in a way that deliberately makes the litigation process longer and more costly. This can be a problem in cases which involve a party litigant – someone who does not use legal representation but chooses to make their own representations to court.

Here, we look at one recent case where a party litigant attempted to frustrate our client, a registered social landlord, in its attempts to reclaim an empty property.

Facts of the case

Our clients, a registered social landlord (RSL), sought repossession of a property due to increasing arrears of rent and non-occupation of the property by the tenant. Although it may have been possible to achieve return of the property through the abandonment procedure, we were aware that the same defender was challenging such procedure in relation to two other properties in Scotland. We acted for the same client in an action raised against them in Jedburgh Sheriff Court and we became aware of an almost identical case involving a different RSL in Inverness Sheriff Court. As a consequence, an action for eviction and payment in Tain Sheriff Court was raised.

Our clients were particularly keen to obtain recovery of the property as they suspected that it had been empty since the commencement of the tenancy in March 2017. The property was situated in a retirement complex and other elderly and vulnerable people were on the waiting list for a property.

Frustrating the court process

During both the defence of the wrongful abandonment claim and the action for eviction, the defender failed to appear or arrange for representation at any court hearings fixed. Prior to a case calling, he would write to the court to advise that he was unable to attend due to being “out of the country”, but did not provide any vouching in support of this, despite being ordered to do so by the sheriff. It was suspected that he was residing over 600 miles away, in the south of England, and had no intention of appearing at any court hearing in Scotland.

We obtained decree for eviction against the defender at the second calling of the case. An eviction was arranged; however the defender appealed to the Sheriff Appeal Court. The appeal, acting as a sist on diligence, meant that the eviction required to be placed on hold until it had been determined.

Again, the defender demonstrated a complete disregard for the court process by attempting to have the appeal hearing put off and by sending unpleasant emails to the Sheriff Principal via his clerk. Less than one hour before his appeal was due to call in the Sheriff Appeal Court, he sent what purported to be a medical certificate excusing his attendance, however it was unsigned, was not on headed paper and only briefly referred to the medical condition from which he was allegedly suffering. It was not “on soul and conscience” (a letter certified by a doctor that someone is too ill to attend court) and did not detail why the defender might be unable to attend court. In light of the above, the facts of the case and the lack of a proper legal basis outlined in the appeal, the Sheriff Principal refused the appeal, allowing immediate extract and dispensing with the requirement to serve a Charge for Removing prior to carrying out the eviction. Whilst this allowed us to move quickly in arranging the eviction, it was five months on from when we might ordinarily have expected to obtain decree.

Our clients were understandably relieved when the eviction finally took place and the – completely empty – property was recovered.

Treatment of medical certificates

Interesting parallels with our case in relation to the treatment of a medical certificate produced by a party litigant arose in another recent appeal case, Stewart McCallion –v- Apache North Sea Limited & Ors [2018] SAC (Civ) 1.

The reported decision outlined the approach that ought to be taken by the court when presented with a letter from a medical practitioner. Such a letter need not be on “soul and conscience”, but must be suitably specific regarding the condition itself and what makes the person unfit to attend court. The court should also place medical certificate in the wider context of the litigation, such as if it appears that one party is bound to succeed.

Comment

It can be extremely frustrating for clients and their representatives when a party litigant acts in such a manner as the litigation inevitably becomes more protracted and costly. Partly litigants are, rightly so, given a little more leeway when litigating, however, they do still require to act in accordance with the rules of court. Balance is required so that they are not permitted to frustrate the court process.

The recent treatment of medical evidence is encouraging and demonstrates that a party will only be excused from attendance when it is appropriate to do so and where it is fair to do so in the wider context of the litigation.

Agents should be vigilant when it appears that a party is attempting to draw out an action for no good reason and draw this to the court’s attention at the earliest possible opportunity.

If you’d like to find out more about how we could assist you in such circumstances, please get in touch with a member of our team.

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