Scottish Court of Session Decisions

Lord Adam—[ After expressing his concurrence with the Lord President as to the result of the pursuer's deposition]—It appears from the so-called “defender's proof” that all through the reference to oath, the pursuer was treated as though he had been called as a witness in an ordinary case. He was examined, cross-examined, and re-examined both by the parties and by the Court. Now, this is quite foreign to my recollection of the practice prevailing in a reference to oath in the Sheriff Court. It is true that for the purpose of clearing up the matter deponed to by the party under oath, his agent may request the judge to ask him certain questions, and the judge may at his discretion ask him such questions, but such licence cannot be extended in the manner in which it has been in the present case.

Lord Kinnear— [After expressing his concurrence with the Lord President as to the result of the pursuer's deposition] — I wish to add that I agree with Lord Adam as to the practice in an examination of a party on a reference to his oath. The deponent's counsel is not entitled to cross-examine him as if he were a witness in a proof prout de jure. He may suggest questions to the judge, who will put them to the deponent if he thinks it right to do so for the purpose of clearing up any matter which the deposition has left in obscurity. But that is all the discretion of the judge.

Lord M'Laren was absent.