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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bremner v. Martin (t/a George Martin Engineering) [2006] ScotCS CSOH_18 (03 February 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_18.html
Cite as: [2006] CSOH 18, [2006] ScotCS CSOH_18

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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 18

 

A3255/01

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACPHAIL

 

in the cause

 

ALAN BREMNER

 

Pursuer;

 

against

 

(FIRST) GEORGE MARTIN t/a GEORGE MARTIN ENGINEERING and

(SECOND) SCOTTISH AND SOUTHERN ENERGY PLC

 

Defenders:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

 

Pursuer: Allardice; Thompsons

First Defender: No appearance

Second Defenders: Dunlop; Dundas & Wilson C.S.

 

3 February 2006

 

[1] On 25 January 2006 I refused a motion by the pursuer to allow a minute of amendment to be received. I was invited to give my reasons in writing and I now do so.

[2] The terms of the minute are identical to those of a minute which I refused to allow to be received on 11 November 2005. The second defenders argued that on that account the motion was incompetent. The pursuer argued that the motion was competent since there had been a material change of circumstances in that the diet of proof fixed for 29 November 2005 and the three ensuing days had been discharged on 25 November 2005, and the proof was now set down for 11 July 2006. I refused the motion on the ground that it was incompetent.

[3] The pursuer sues the defenders for damages for personal injuries which he avers he sustained on 21 June 2000 when he fell from a transformer pole in the course of his employment with the second defenders. In the minute of amendment considered on 11 November 2005 ("the first minute") he sought to introduce new averments of fact, new statutory grounds of liability, new information about the nature extent and consequences of his injuries and a new general plea to the relevancy of the defences. After hearing counsel I pronounced an interlocutor in these terms:

"The Lord Ordinary, having heard counsel on the opposed motion of the pursuer, refuses to allow the minute of amendment to be received and marked no. 25 of process."

[4] The minute of amendment considered on 25 January 2006 ("the second minute") was in exactly the same terms as the first minute. Counsel for the second defenders submitted that amendment in these terms had been refused by the interlocutor of 11 November 2005 which was now final in the Outer House (Court of Session Act 1988, section 18). The present motion was not a motion for the correction of that interlocutor: reference was made to Campbell v James Walker Insulation Ltd 1988 SLT 263 and Laing v Scottish Arts Council 2000 SC 493. Where the Rules of the Court of Session allowed the effect of an earlier interlocutor to be altered on a change of circumstances, they said so: see rules 21.2(5), 43.11(6). In any event there had been no material change of circumstances here. It remained the case that the pursuer was seeking to add new averments and alter the basis of his case after the expiry of the limitation period; and, in his new statutory grounds of liability, to impose an onus of proof on the second defenders.

[5] Counsel for the pursuer argued that the cases on the correction of interlocutors had no bearing: there had been nothing wrong with the previous interlocutor, and the pursuer did not seek to challenge it. The Rules allowed a minute of amendment to be received at any stage. The present motion was competent.

[6] In my opinion the motion is incompetent. The interlocutor of 11 November 2005 refused to allow a minute in the very same terms as the second minute to be received. In other words, the question whether the record might be amended in these terms was then decided against the pursuer. That interlocutor is final in the Outer House because section 18 of the Court of Session Act 1988 provides:

"18. Every interlocutor of the Lord Ordinary shall be final in the Outer House, subject however to the review of the Inner House in accordance with this Act."

If I were now to allow the second minute to be received, I would in effect be recalling the interlocutor of 11 November 2005 and superseding it with a new interlocutor which said the opposite. Section 18, however, requires that the interlocutor of 11 November 2005 must remain undisturbed in the Outer House. Section 18 is in accordance with principle, as appears from the dicta of Lord Justice Clerk Ross in Campbell. His Lordship said at page 264:

"In my opinion, the general principle is that the substance of an interlocutor cannot be altered once the interlocutor has been signed and issued. The only exceptions to that general principle are that it has always been recognised that errors of expression may be corrected (Cuthill v Burns (1862) 24 D 849 at page 859), and that an interlocutor may be altered or corrected of consent."

At page 265 his Lordship observed:

"I would only add that there are good reasons why a Lord Ordinary should not be entitled to alter the substance of an interlocutor. Giving such power to a Lord Ordinary would only lead to uncertainty. Once an interlocutor has been pronounced in the Outer House, the general rule must be that it stands unless and until it is recalled by the Inner House."

I therefore consider that it is clear from both statute and authority that a Lord Ordinary has no general power to alter the substance of an interlocutor on a material change of circumstances. Where it is considered that a power to vary the effect of an interlocutor is required, such a power is expressly conferred, as in rules 21.2(5) and 43.11(6). There is no such provision in Chapter 24, the chapter of the Rules concerned with the amendment of pleadings.

[7] I accordingly refused the motion. I would only add that on 11 November 2005 I refused the motion made on that date not only because it was made very shortly before the diet of proof and thus could not have been adequately answered by the second defenders in the time available, but also because, whatever the date of the proof, the second defenders would have been gravely prejudiced by being required to investigate, some five and a half years after the accident, all the new matters averred in the minute.

 

 

 

 

 


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