Fair Notice in Long-Running Harassment Claims and Late-Produced Credibility Documents in Civil Proofs

1. Introduction

The pursuer (X) sued the defender (Y), her former spouse, for damages alleging a prolonged course of conduct amounting to harassment contrary to section 8 of the Protection from Harassment Act 1997. The alleged conduct included physical, sexual and emotional abuse spanning from the commencement of the 1997 Act (16 June 1997) until 2019. The action was served in December 2020.

After proof, the Lord Ordinary found that Y had engaged in a course of conduct involving physical assaults (September 1997 to August 2018) and other abusive behaviour designed to hurt or humiliate X and exert control. Given the nature of the allegations and the existence of a non-harassment order, a curator ad litem was appointed to conduct X’s cross-examination.

Y appealed, primarily arguing (i) lack of fair notice and improper reliance on evidence (notably medical records), (ii) improper findings not supported by pleadings or evidence, (iii) wrongful refusal to admit a letter sought to challenge credibility, (iv) misinterpretation of a police incident summary, (v) erroneous acceptance of an August 2018 assault (with limitation implications), and (vi) Article 6 ECHR unfairness given the timing of the curator ad litem’s appointment.

2. Summary of the Judgment

• The Inner House refused the reclaiming motion and adhered to the Lord Ordinary’s interlocutor.
• The court held the Lord Ordinary was entitled to rely on a GP record entry (17 September 1997) as part of the evidential picture supporting a long-running course of abusive conduct, despite the absence of a specific averment of an assault on that exact date.
• The court rejected “lack of record” complaints about incidents in Gloucestershire (2017) and Mexico (2008/2009), finding no unfair surprise and that the Lord Ordinary’s credibility assessments were properly open to him.
• On a letter dated 9 March 2008, the court clarified that such a document, used merely to test credibility, is not subject to the normal pre-proof lodging regime; however, refusal to allow its use caused no material prejudice on the facts.
• The court upheld the Lord Ordinary’s treatment of a Police Scotland incident summary (2 September 2006) as supportive of X’s account and rejected the challenge to the finding of an August 2018 assault.
• Article 6 ECHR added nothing to the common law fairness analysis on pleadings; and the timing of the curator ad litem’s appointment did not render proceedings unfair.
• The court made an important practice observation: where curators ad litem are appointed, it is desirable that interlocutors specify which party is liable in the first instance for the curator’s fees to avoid delay/uncertainty.

3. Analysis

3.1 Precedents Cited and Their Role

(a) Appellate restraint on findings of fact and credibility

• Thomson v Corporation of Glasgow 1962 SC (HL) 36: the classical foundation for appellate deference to trial judges on fact-finding.
• McGraddie v McGraddie [2013] UKSC 58; 2014 SC (UKSC) 12: reaffirmed that appellate courts should not interfere absent a clear demonstration that the judge “went plainly wrong”, particularly on credibility and reliability.
• CD v ND [2025] CSIH 12; 2025 SC 333: recent Inner House authority reiterating the narrow scope for overturning findings based on oral testimony.

These authorities framed the court’s approach: many of Y’s grounds were, in substance, invitations to re-try credibility and reliability issues. The Inner House refused to do so where the Lord Ordinary’s conclusions were reasonably open to him on the evidence.

(b) Fair notice and specification in Chapter 43-type personal injury pleadings

• McGowan v W & JR Watson [2006] CSIH 62; 2007 SC 272: even where elaborate pleading is unnecessary, a party must give fair notice of the case to be met.
• Richards v Pharmacia Ltd, c/o Pfizer Ltd [2018] CSIH 31 2018 SLT 492: what constitutes fair notice depends on the nature of the case and what the defender is likely to know; the impermissible outcome is “trial by ambush”.

Applying these, the court treated the case’s nature—an alleged long course of domestic abuse within a marriage—as critical. Expecting forensic date-and-time pleading of each incident over decades was unrealistic; what mattered was whether Y could understand the case and meet it.

(c) Course of conduct under the 1997 Act: focus on the pattern, not each incident in isolation

• Marinello v City of Edinburgh Council [2011] CSIH 33; 2011 SC 736: in harassment claims, the court assesses whether the course of conduct amounts to harassment; individual incidents are evaluated as components of the whole.

Marinello underpinned the Inner House’s acceptance that evidence like the 17 September 1997 GP entry could be relevant and probative even if not mirrored by a specific averment of a discrete assault on that date, provided it cohered with the pled course of conduct and did not unfairly surprise the defender.

(d) Article 6 ECHR and common law fairness

• Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531, citing Kanda v Government of Malaya [1962] AC 322: the core proposition that a party must know the case against him and have a fair opportunity to meet it.

The Inner House accepted the principle but held it did not materially change the analysis: Y did not argue for a higher Article 6 threshold than the common law “fair notice/fair opportunity” requirements already applied.

(e) Late productions used solely to test credibility

• Paterson & Sons (Camp Coffee) v Kit Coffee Co Ltd (1908) 16 SLT 180
• Robertson v Anderson 2014 SLT 709

These authorities established a key procedural point: the strict rules on lodging productions for proof do not apply to a document used merely to test a witness’s credibility (as opposed to proving a party’s averments). The Inner House therefore held Y was, in principle, entitled to produce the letter when he did.

However, the court then performed a separate fairness inquiry: whether the refusal to allow use of the letter in cross-examination caused material prejudice. On the facts, it did not—largely because the letter was “double-edged” and not obviously destructive of X’s credibility, and because the dynamics of abusive relationships can include ambivalence and attempts at reconciliation.

(f) Vulnerable witnesses and court-appointed cross-examination

• PW (AP) v KM [2024] CSOH 85: noted as a model for appointing a curator ad litem to conduct cross-examination in civil proceedings where special measures are required.

The Inner House endorsed the approach in principle and rejected the Article 6 “equality of arms” challenge on the facts where Y could not identify concrete unfairness arising from the timing of appointment.

(g) Corroboration reference and HMA v Taylor

• HMA v Taylor 2019 JC 71: criminal-law corroboration doctrine (single complainer mutual corroboration) referenced by the Lord Ordinary.

The Inner House treated the corroboration discussion as non-fatal: civil proof does not require corroboration, but the availability of supporting evidence may still strengthen a factual conclusion. The court contextualised the Lord Ordinary’s reference as an observation about available support, not a mistaken legal requirement.

3.2 Legal Reasoning (Issue-by-Issue)

(1) GP record entry (17 September 1997): admissibility, use, and fair notice

A GP record entry recorded that X had been “assaulted last night” with bruising and other symptoms. The parties’ joint minute agreed the medical records were admissible without calling their authors. Although the entry did not identify the perpetrator and X did not give oral evidence about that date, the court held:

• it fell within the pled period of abuse and was consistent with the London phase of the relationship;
• it was part of the evidential matrix supporting the course-of-conduct case;
• Y was given an opportunity to comment on it in evidence;
• there was no unfair surprise, particularly as the record was in a production lodged by Y.

The court’s reasoning is significant for long-running domestic abuse/harassment civil claims: fair notice does not invariably demand pleading each dated incident that may later be supported by contemporaneous records, provided the overall case and period are clearly pled and the defender can meet it.

(2) Gloucestershire (2017): partial proof and credibility

Although X had averred multiple assaults over a week, she gave evidence of a single assault (grabbing her throat). The Inner House rejected the proposition that failure to prove all averments prevents proof of some. The Lord Ordinary had evaluated internal consistency and consistency with other assaults and gave reasons for accepting that evidence; appellate intervention was not justified.

(3) Mexico trip: (a) fair notice on “agreement to look after children”, (b) control/anxiety inference

X’s pleadings alleged that Y, knowing X was in Mexico, removed much of the family home’s contents and caused her distress and breakdown. Her affidavit supplied further detail, including that Y had agreed to look after the children with the help of an au pair and then left them in the au pair’s care.

The Inner House found no lack of notice: Y plainly understood the episode, and his evidence (“it wasn’t prescriptive, it was understood”) showed he could engage with the allegation. The Lord Ordinary was entitled to treat the incident as part of a pattern capable of causing anxiety and exerting control.

(4) The 9 March 2008 letter: correct legal principle, but no material prejudice

The Inner House corrected the procedural point: Y did not need prior permission to introduce a document used solely to challenge credibility (per Paterson and Robertson). Nonetheless, it held the refusal caused no unfairness because the letter was not plainly destructive of X’s credibility and in places supported her account. The court also relied on judicial knowledge about the complexities of abusive relationships (including ambivalence and difficulties leaving).

Practically, this part of the decision highlights two steps:

• Step 1: identify whether a document is a proof production or a credibility-testing document (different procedural regime);
• Step 2: even if a document could be used, assess whether exclusion caused material prejudice (the operative fairness question on appeal).

(5) Police incident summary (2 September 2006): supportive evidence and trial judge evaluation

The police summary recorded that police were contacted after X “reported she had been assaulted”, but on arrival “no complaints of assault” were forthcoming and no injuries were apparent. The Lord Ordinary treated the report, plus contemporaneous photographs and witness accounts, as supportive of X. The Inner House held that was a permissible evaluation: Y’s complaint was disagreement, not legal error.

(6) August 2018 assault, limitation implications, and “corroboration” language

Y argued that an email from X to police in September 2019 stating the last assault was in late 2017 undermined the August 2018 finding (and thus the action’s timeliness). The Inner House held the Lord Ordinary had directly addressed this inconsistency and provided reasons for accepting X’s August 2018 account, including her mental state and context at the time of the 2019 email, and supporting witness evidence.

On “corroboration”, the court held there was no misunderstanding of civil evidential requirements: corroboration is not required, but supportive evidence remains relevant to fact-finding.

(7) Article 6 ECHR and curator ad litem timing

Two Article 6 complaints were made:

• Pleadings/fair notice: Article 6 added nothing beyond common law fairness, and the underlying notice complaints failed.
• Curator appointment timing: the curator was appointed 18 days before proof; Y could not identify concrete prejudice, and the curator indicated readiness. The Inner House found no unfairness.

The court also looked forward to legislative reforms: once pending amendments to the Vulnerable Witnesses (Scotland) Act 2004 (via the Children (Scotland) 2020 and the Victims, Witnesses, and Justice Reform (Scotland) Act 2025) come into force, the court will have explicit powers (and presumptions) around special measures in civil damages actions involving alleged domestic/sexual abuse—reducing the need for curators ad litem in this context.

3.3 Impact

• Harassment/delict claims arising from domestic abuse: The decision confirms a flexible, realistic approach to fair notice where a pursuer pleads a long-running course of abusive conduct. Contemporaneous records may be relied upon even if not mapped to specifically averred dates, provided the defender is not unfairly surprised and can meet the case.
• Appellate practice: Reinforces the high threshold for overturning credibility-based findings after proof (the “plainly wrong” standard).
• Civil procedure on productions: Clarifies (and reasserts) that credibility-testing documents are not constrained by the same lodging timetable as substantive productions; but exclusion will only justify appellate intervention where it causes material unfairness.
• Vulnerable witness measures in civil cases: Endorses curator-led cross-examination as compatible with fairness on appropriate facts, and flags a shift once statutory reforms are commenced.
• Practice point on curator fees: Signals best practice: appointing interlocutors should specify who pays the curator in the first instance, to prevent delay and uncertainty.

4. Complex Concepts Simplified

• Reclaiming motion: An appeal to the Inner House from a decision of a Lord Ordinary in the Outer House.
• Course of conduct (1997 Act): Repeated behaviour on at least two occasions; the court assesses whether the overall pattern amounts to harassment, not just whether each individual incident, viewed alone, does.
• Fair notice: Pleadings must tell the other side, in substance, what case they must meet—so they are not taken by surprise at proof.
• Curator ad litem (here): A court-appointed lawyer tasked with a specific role (in this case, conducting cross-examination) to protect a vulnerable witness while preserving fairness to the other party.
• Special measures: Steps (such as screens or live link, and limitations on who may cross-examine) to help vulnerable witnesses give best evidence.
• Corroboration: In Scots criminal law, key facts generally require two independent sources of evidence. In civil cases, corroboration is not required, but independent supporting material can still strengthen a factual conclusion.
• Credibility-testing document vs proof production: A document used only to challenge a witness’s credibility may be introduced at proof without the usual pre-lodging rules that apply to documents relied upon to prove the facts averred on record.

5. Conclusion

In [2026] CSIH 28, the Inner House upheld a first-instance finding of a long-running course of harassment within a marriage and, in doing so, reinforced (i) appellate restraint on credibility-based fact-finding, (ii) a pragmatic approach to fair notice in course-of-conduct domestic abuse litigation, and (iii) the procedural distinction between proof productions and documents used solely to test credibility. The court also confirmed that curator-led cross-examination can be Article 6 compatible where no concrete prejudice is shown, while signalling imminent statutory developments that will formalise special measures in civil damages actions involving alleged domestic or sexual abuse.