Preliminary Pleas II

Question 1

What are the less common preliminary pleas?

Answer 1

They do not deal with the merits of the case in the narrow sense but deal with collateral or antecedent issues which are capable of bringing a resolution without the need to look at the merits of the case:

1. Forum non conveniens
2. Lis Alibi Pendens
3. Arbitration
4. Res iudicata

Question 2

What is Forum non conveniens?

Answer 2

It is written either Forum non conveniens, or
The court being forum non conveniens, the action should be dismissed

This is a classic common law IPL plea. The scope for it arising has been limited by the effect of CJJA 1982.

The essence of the common law plea is whether there is some other tribunal in which the case may be tried more suitably for the interests of all parties in the ends of justice.

This is looking at the possibility or existence of another case on the same issue in a different jurisdicton and it does not depend on or where the action was first raised. If the plea is validly made it can be made in Scottish proceedings even though there are proceedings already underway in the foreign jurisdiction at the time the plea is taken. Equally, if the Scottish action starts first and there is subsequently an action on a matter raised in another court, unlike the situation where the CJJA applies, it doesn’t follow that the scottish court will be the one to continue to deal with the issue.

The idea where there are competing jurisdictions is to look at all the circumstances of the case and determine where the case ought to be tried in the manner most consistent with the interests of justice and interests of all the parties.

You get pleas of this in cross-border cases.

Still relevant Scotland-England and Scotland-nonEU cases

Question 3

What is lis alibi pendens?

Answer 3

This concerns competing proceedings in SCotland.
It is an application of the notion: first come first serve
If a pursuer raised an action against a defender in edinburgh sheriff court and the defender could justifiably say I am already pursuing this matter in an action against the same person in the aberdeen sheriff court then the edinburgh sheriff court would acknowledge the fact that the aberdeen court was seized first and the case in edinburgh would not go ahead.

This would be determined on the basis of the pleadings and production of copies of pleadings in the other action.

Form of plea: Lis alibi pendens
Litigation elsewhere in Scotland
First come, first served

Question 4

What is arbitration?

Answer 4

This is a contract between two or more people to the effect that if they have a dispute about something then the dispute will be resolved by an arbiter rather than the courts.

This arbitration is a dispute resolution mandated by operation of law rather than contract. There are statutory provisions in relation to agricultural holdings which say that if a dispute arises then it must be resolved by arbitration.

If you raise an action against somebody and they can point to an arbitration clause in the contract which governs the dispute or a statutory provision which applies the defender has the option to take a plea of arbitration in the court proceedings. He or she is basically saying that the sheriff ought not to deal with this dispute because by agreement or by operation or law it is to be resolved by an arbiter. If the plea is validly taken then the sheriff will accede to that, not by dismissal of the action but by sisting it, which means any further procedure in the action to allow arbitration to run its course. Incidentally, even if there is a binding arbitration clause you can still raise the action and apply for diligence on the dependence (inhibition or arrestmetn) and the submission of arbitration does not deny you the right to apply for this. Raise the action, ask for warrant to arrest, if granted you serve your arrestment and the defender will then lodge defences taking a plea of arbitration, the cause would be sisted but investment on the defences would hold good for the duration of the arbitration.

Defender does not have to insist on arbitration, he/she may have a right to do so but they can effectively waive that and the court can deal with dispute. This is a matter for the defender.

Example: “The parties’ contract providing for arbitration, the action should be sisted”
NB sist, not dismissal
Contract or statute
P can still seek interim and protective measures from the court
D is not bound to take the plea

Question 5

What is res iudicata?

Answer 5

The defender is saying that because this case has been litigated already to some kind of conclusion it is not appropriate that the pursuer starts again. Therefore a plea of res iudicata is entered. The slide mentions conditions to be fulfilled for this to be effective.

Form: “res iudicata”

Question 6

What are the rules of res iudicata?

Answer 6

The rules are:
1. There must have been a Prior decision of a competent court - the decision does not have to been a judicial opinion given after a contested proof or debate but must be a court order giving effect to an issue in the case, e.g. Court order pronounced giving effect to settlement of the action raised that would be a prior decision by a competent court.

2. Prior Decree must have been in foro - this means that a decree in absence will not give rise to a plea of res iudicata unless there was personal service of the summons or initial writ on the defender. So in a case involving some kind of postal service where no response from defender will never be a valid plea of res iuditcata. This is because if there was personal service it can be presumed that the defender did know about the case and therefore his/her failure to respond is a concession that the case was well founded.
3. Same subject matter -
4. Same media concludendi - this can give rise to difficult. It involves some kind of coincidence between the factual and legal ground of the cases. Suffice to say that if you were contemplating a plea of res iuditicata in any circumstances you have to compare the grounds for action and the factual basis for the original action which you are relying on as the basis of the plea on the one hand and the new action raised on the other. The parties must be identical or have the same interest. Reference to same interest covers situation where in original action A sued B and in second action A sues B’s executor because B has died in the meantime - this is regarded as an action between the same parties.
5. Special case: decree in rem - this provides a limited exception where parties are the same - this is one which has effect against the whole world. If the subject matter of the case is real rights and you have sued all defenders that had an interest at the time the action was raised then the decree you get as pursuer is decree in rem which effectively establishes a title e..g right of servitude or the like.

Or certain types of matrimonial or family proceedings can give rise to a decree in right of rem. e..g divorced in edinburgh sheriff court, the defender would be ex but granting of decree has legal effect everywhere governing pension, succession rights etc. An action which establishes your personal status is a decree in rem. If there was a divorce action and decree in rem was granted it would not be open later on for a child to raise an action for succession rights on the basis that there was still a valid marriage between the parents.

Defender int he later action would say res iudiciata because the divorce was lawfully ordered in the earlier proceedings. Even though it is not the same parties to the proceedings the first decree was a decree in rem.

Assuming that all of these conditions could otherwise be established there is one line of defence still open to the person from whom the plea is taken and that is:

6. Special case: res noviter - this is an answer to what would otherwise be a valid plea of res indicata. The person making the plea is essentially founding upon new factual material. It must be new factual material not known to the relevant party at the time of the original action and factual material which could not be discovered by means of reasonable diligence at the time. There is a broad parallel to the concept of fresh evidence in criminal cases. Must be able to give a reasonable explanation as to why the material wasn’t before the court and if it is simply that the material which could easily be discovered by reasonable diligence then reasonable explanation does not exist. Same idea here.