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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly & Ors v. Morrison & Macdonald (Paisley) Ltd, [2003] ScotCS 261 (10 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/261.html Cite as: [2003] ScotCS 261 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Osborne Lord Cameron of Lochbroom
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OPINION OF THE COURT delivered by LORD MARNOCH in RECLAIMING MOTION by ELLEN SUSAN KELLY OR GALLACHER AND OTHERS Pursuer and Reclaimer; against MORRISON & MACDONALD (PAISLEY) LIMITED Defenders;
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Act: T. Marshall, Solicitor Advocate; Thompsons
Alt: No appearance for the Defenders
10 October 2003
[1] This is a reclaiming motion against an interlocutor of the Temporary Judge refusing a motion for summary decree in a situation where a putative settlement of certain illiquid claims for damages was negotiated between agents and then apparently broke down due to alleged lack of authority from the defenders as principals. [2] In refusing the motion the Temporary Judge stated that matters had proceeded "far beyond" the stage where such a motion was appropriate but it is clear to us that all he meant by that observation was that the circumstances which had arisen were simply of no relevance to the enrolling, let alone the granting, of such a motion. We entirely agree with that sentiment. In particular, the mere existence of an extra-judicial negotiated settlement says absolutely nothing whatever as to the existence of a "defence to the action" within the meaning of Rule of Court 21.2. [3] The cases of Watson-Towers Ltd v McPhail 1986 SLT 617 and Daks Simpson Group Plc v Kuiper 1994 SLT 689, which were referred to in argument, are immediately distinguishable in that the actions in question were actions for payment of sums of money either specified in the summons or in respect of which count and reckoning was sought. In both cases it was held that at least part of the amounts claimed had in substance been admitted as due by the defenders. Similarly, the case of Struthers v British Alcan Rolled Products Ltd 1995 SLT 142 was one in which it was possible to infer from a report emanating from the defenders that, contrary to a bare denial in the pleadings, the prima facie cause of the accident was in fact known, this carrying with it a further inference of negligence on the part of the defenders. Proof in that case was accordingly restricted to proof on quantum. These, however, are wholly different situations from that obtaining in the present case where the abortive settlement concerned claims for damages which were wholly illiquid and where, on the pleadings, it was, and remains, possible for the action to continue to the proof before answer agreed between the parties as appropriate as long ago as December 2001. [4] In our opinion there is no substance in this reclaiming motion which is accordingly refused.
