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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fairbairn (AP) v Vayro [2000] ScotCS 134 (25 May 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/134.html Cite as: [2000] ScotCS 134

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[1] In this action, the pursuer seeks damages from the defender for alleged loss, injury and damage suffered by him in consequence of a road traffic accident, which is said to have occurred on or about 28 May 1996. It is averred that the pursuer was driving his Fiat Panda motor car, registration number F524 XLS in an easterly direction along Second Avenue, Clydebank. At the junction of Second Avenue with Kilbowie Road, traffic lights at the junction were green in favour of the pursuer's car. As he passed through the junction, a Peugeot 306 motor car, registration number M637 DDS driven by the defender, attempted to turn right to travel up Kilbowie Road in a northerly direction. The defender's car collided with the side of the pursuer's car. He thereby sustained the loss, injury and damage condescended upon. The pursuer also makes detailed averments concerning the alleged fault of the defender and the injuries which the pursuer sustained. These appear in Condescendences III and IV of the Closed Record. A similar action has been raised against the same defender by Mrs Irene Fairbairn, the wife of the pursuer in the present action, arising out of the same accident.

[2] The Record in the present action closed on 5 January 2000. On 24 February 2000, an interlocutor was pronounced in the following terms:

The action was sent to the Procedure Roll upon the basis of plea-in-law 1 for the defender, a general plea to the relevancy and specification of the pursuer's averments. On 7 March 2000 an interlocutor was pronounced allowing a Minute of Amendment for the defender to be received and allowing the pursuer, if so advised, to lodge answers thereto within 14 days of that date. No such answers were lodged. On 18 May 2000 a further interlocutor was pronounced, on the unopposed motion of the defender, allowing a further Minute of Amendment for the defender to be received and appointing the pursuer to lodge answers thereto, if so advised, within 14 days from that date. That 14 day period has yet to expire. It is necessary to record that the Note of Argument referred to in the interlocutor of 24 February 2000 was not lodged within the 28 day period specified in that interlocutor. It was in fact lodged on

23 May 2000. The procedure followed in the action at the instance of the pursuer's wife has followed a slightly different course. On 25 May 2000 an interlocutor was pronounced, which inter alia allowed issues for the trial of that cause by a civil jury.

[3] On 25 May 2000, there came before me two motions in the present action. On behalf of the defender there was a motion to allow the defender's Note of Argument No.15 of process to be received late. That motion was opposed on behalf of the pursuer. On behalf of the pursuer there was a motion (i) in respect that no Note of Argument has been lodged within 28 days of the interlocutor of 24 February 2000 as ordained, to withdraw the cause from the Procedure Roll and, thereafter, to allow issues for jury trial; and (ii) in respect that there is no defence to the action, or part of it, for interim damages in the sum of £2,000 sterling. That motion was marked as opposed on behalf of the defender. At the hearing of these motions it was indicated that there was no dispute regarding the matter of an award of interim damages in favour of the pursuer and accordingly I granted that part of the pursuer's motion. In supporting the other part of the pursuer's motion, counsel for the pursuer drew my attention to the terms of Rule of Court 22.4 and also to the terms of Practice Note No.4 of 1997. He said that it was plain that the requirement of that practise note that a Note of Argument should be lodged within 28 days of the interlocutor of 24 February 2000 had not been complied with. Accordingly he submitted that the defender was in breach of the provisions of the Rules of Court. He contended that the pursuer had a statutory right to a jury trial in the present action and that, in the circumstances which had occurred, the case should be withdrawn from the Procedure Roll and issues allowed. He recognised that that course would necessarily involve the Court requiring to repel plea- in-law 1 for the defender. Counsel for the pursuer submitted that the only way in which the defender could avoid the consequences of his own inaction in relation to the Note of Argument would be for him to seek an exercise by the Court of the powers conferred on it in Rule of Court 2.1(1), which gave the Court the power to relieve a party from the consequences of a failure to comply with a provision of the Rules of Court shown to be due to "mistake, oversight or such other excuseable cause". It was submitted that that power could be exercised only where justice demanded that course. In the circumstances of the present case, on the contrary, justice demanded that issues should be allowed. Counsel for the pursuer contended that the effect of the Rules of Court was that the defender in the present case would lose his right to have his preliminary plea considered at a Procedure Roll hearing, since there had been a failure to lodge a Note of Argument timeously and the Court should decline to exercise the dispensing power. During the course of the discussion, attention was drawn to the provisions of the Practice Note No. 3 of 1991. Counsel for the pursuer recognised that there appeared to be a conflict between its terms and the terms of the Practice Note No. 4 of 1997. I also drew attention to the provisions of Rule of Court 22.3(5), which contemplates a cause being sent to the Procedure Roll for consideration of the preliminary pleas of the parties. However, counsel for the pursuer contended that the provisions of Rule of Court 22.4 "circumscribed" the defender's right to a Procedure Roll debate. He argued that the present situation was akin to that contemplated in Rule of Court 37.1(2)(a) and (b), which provided for a pursuer, who had failed to lodge a proposed issue, being held to have departed from his right to jury trial.

[4] Counsel for the pursuer went on to invite me to consider the contents of the Note of Argument which had now been lodged on behalf of the defender. He submitted that the arguments outlined in it possessed no real merit. Before the Court exercised its discretion in the defender's favour, it should consider whether any useful purpose would be served by the case being discussed in the Procedure Roll. It was apparent from the Note of Argument that the defender sought to raise the issue of special cause for withholding the case from trial by jury, yet it had to be noted that there was no plea of special cause in the pleadings as they currently stood, although it was recognised that the defender sought to add such a plea to the pleadings in the Minute of Amendment, 14 of process, which had been received on 18 May 2000. So far as the second paragraph of the Note of Argument was concerned, it raised a matter which was unimportant and could be dealt with as between the solicitors for the parties. In short, the merits of the arguments set forth in the Note of Argument now tendered were not impressive. In conclusion, counsel for the pursuer made five points. Firstly, there was a statutory right to a jury trial, in the absence of special cause. Secondly, in the present case there had been a delay of about two months in the lodging of the Note of Argument, which was unacceptable, particularly in the context that a Procedure Roll diet had been allocated for the case in October 2000. Thirdly, it was clear that the points sought to be raised at the Procedure Roll possessed little merit. Fourthly, the Minute of Amendment, 14 of process, had to be considered. Fifthly, Mrs Fairbairn's case was now assuredly going to be heard in a civil jury trial. It was highly expedient that the present action should be similarly dealt with, if possible. In all of these circumstances, no discretion should be exercised in favour of the defender.

[5] Counsel for the defender invited me to refuse the pursuer's motion and to grant his own motion, allowing the Note of Argument to be received, although late. So far as the pursuer's motion was concerned, he submitted that the Court could not follow the course of action desiderated on behalf of the pursuer, since that would prevent the defender having his preliminary plea debated at a Procedure Roll. That would involve a serious impropriety. No authority had been put before the Court suggesting that that course could be taken, where there had been a failure on the part of a defender timeously to lodge a Note of Argument prior to a Procedure Roll. The situation in the Court of Session contrasted sharply with that in the Sheriff Court. In that connection, he drew attention to the provisions of Rule 22.1 of the Ordinary Cause Rules 1993. That Rule required a party intending to insist upon a preliminary plea to lodge in process within a specified time a note of the basis for the plea. The Rule went on to provide that, if a party failed to comply with that requirement, he should be deemed to be no longer insisting on the preliminary plea and the plea was to be repelled by the Sheriff at an appropriate hearing. There was no counterpart of that Rule in the Rules of the Court of Session. Indeed, the existence of the provisions of Rule of Court 37.1(2), which did provide for a party being held to have departed from his right to jury trial, indicated that a conclusion such as the pursuer sought to reach was not to be drawn in the absence of that kind of specific provision.

[6] Turning to deal with the reasons for the lateness of the Note of Argument, counsel for the defender said that different counsel had been involved in the case at an earlier stage. He had prepared a Note of Argument and the earlier Minute of Amendment, 13 of process and had advised that the Note of Argument which he had prepared should not be lodged until the Minute of Amendment, 13 of process, had been answered. No answers were ever lodged to that Minute of Amendment. Following these events, fresh counsel were brought into the case on behalf of the defender. In consequence, a new Minute of Amendment, 14 of process, was prepared and received on 18 May 2000. That Minute of Amendment sought to introduce averments concerning a pre-existing degeneration in the neck of the pursuer, which was a crucial issue in the case. The first paragraph of the Note of Argument was related to that material. The fact that there was an ongoing Minute of Amendment procedure, which inter alia sought to introduce a new preliminary plea, focused upon the matter of special cause, was itself a reason why the pursuer's motion should not be acceded to.

[7] In reply, counsel for the pursuer argued that it was premature to consider the contents of the Minute of Amendment, since no amendment had as yet been effected in terms of it. It might never be. The effect of a Minute of Amendment should be considered only when the amendment was actually effected.

[8] In the light of the foregoing arguments, I decided to refuse the first part of the pursuer's motion. In this action, the defender has tabled a preliminary plea, which constituted the basis upon which, on 24 February 2000 of consent, the case was sent to the Procedure Roll for the consideration of that plea. No such Procedure Roll hearing has yet been held, although I was informed that a diet for it had been set down in October of this year. Against that background and standing the normal procedure of this Court, it appears to me that it would be improper for the Court to deprive the defender of the right to have his preliminary plea ventilated before the Court, as contemplated in the pursuer's motion. In this connection, I rely on what is said generally concerning the purpose of a Procedure Roll in The Practice of the Court of Session, Maxwell, at pages 161-162 and also the provisions of Rule of Court 22.3(5), which contemplates the appointment of a cause to the Procedure Roll for consideration of preliminary pleas. In my opinion, it would be quite illegitimate for me to deprive the defender of the opportunity of having his preliminary plea debated in the ordinary way. In that connection, I observe that no authority of any kind was cited by counsel for the pursuer in support of the extraordinary course which he suggested should be followed in this case.

[9] In my judgement, there is nothing in Rule of Court 22.4 or in the Practice Note No.4 of 1997 which indicates that the course desiderated by the pursuer should be followed in a case such as this, where there has been a failure on the part of the party who tabled the preliminary plea, to lodge a Note of Argument timeously. In my opinion, the provisions of Rule of Court 22.4 and of the Practice Note No.4 of 1997 are intended to facilitate the efficient use of diets allocated for Procedure Roll discussions by the conveyance of information by one party to another party concerning the criticisms which the former intends to level at the pleadings of the latter. No doubt, a failure by a party to lodge a Note of Argument timeously, or at all, could have repercussions of one kind and another. In particular, I envisage that, at a diet of Procedure Roll discussion, a party who did not have the benefit of any Note of Argument from his opponent might well try to persuade the Court to discharge the diet so that the benefit of such a Note of Argument might be available at a further diet. Furthermore, questions of expenses in relation to a Procedure Roll diet might come to depend upon whether a Note of Argument had been lodged timeously, or at all. However, I do not understand the purposes of the provisions of Rule of Court 22.4 or of Practice Note No.4 of 1997 as extending beyond the matters to which I have just referred. I do not see how there can be implied into their provisions a power in the Court which could be used to deprive a party of the right to have a preliminary plea discussed at a Procedure Roll.

[10] I think it right to mention that, in the discussion before me, there emerged considerable confusion as to the relationship between the provisions of Rule of Court 22.4 and the Practice Notes No.3 of 1991 and No.4 of 1997. On the face of it, the provisions of Rule of Court 22.4 appear to me to be in conflict with the terms of the latter Practice Note. Rule of Court 22.4 provides:

Those provisions appear to me to confer a discretion upon the Court in relation to their subject matter. Turning to the terms of the Practice Note No.4 of 1997, it is provided:

It appears to me that this Practice Note purports to deprive the Court of the discretion conferred in Rule of Court 22.4. Whether that is in fact the intention of the authors of the Practice Note, I know not. However, it appears to me to be unfortunate that there should be confusion concerning this matter. If the policy of the Court is that Notes of Argument should be lodged in all cases, then it would respectfully appear to me that that ought to be made clear in the provisions of Rule of Court 22.4. A further source of confusion lies in the inconsistency between Practice Note No.3 of 1991 and Practice Note No.4 of 1997. It may be that the latter was intended to supersede the former. If that is correct, then it would appear that it would be desirable for the former Practice Note to be formally withdrawn.

[11] Turning to deal with the motion of the defender to allow his Note of Argument to be received late, I allowed this motion. It appeared to me that comprehensible and acceptable reasons had been advanced on behalf of the defender as to why the Note of Argument had not been lodged timeously. Furthermore it appeared to me that no prejudice would be suffered by the pursuer in consequence of the late lodging of the Note of Argument. The diet of Procedure Roll in this case has been fixed for a date in October of this year. That being so, the pursuer's advisers will have quite sufficient time in which to consider the contents of the Note of Argument.

[12] I should make clear that, in allowing the defender's Note of Argument to be received late, I am not exercising the dispensing power of the Court contained in Rule of Court 2.1. That Rule provides that "the Court may relieve a party from the consequences of a failure to comply with a provision in these Rules shown to be due to mistake, oversight or such other excusable cause ...". In my opinion, in the circumstances of the present case, there is no failure to comply with a provision of the Rules of Court on the part of the defender. It is true that the defender did not comply with the terms of the interlocutor of 24 February 2000, assuming that that interlocutor imposed an obligation upon the defender. However, the terms of that interlocutor, which do not follow these of Rule of Court 22.4, appear to me to involve ambiguity. The words used in it, so far as relevant here, were:

 The Court did not "ordain" the defender to lodge such a Note of Argument, as contemplated by the language of Rule of Court 22.4. Exactly what is meant by the word "appoint" in the context appears to me to be unclear. It may amount to no more than an invitation, or the expression of an expectation. In that connection, it appears to me unfortunate that the language used in Practice Note No.4 of 1997, in that regard, differs from that used in Rule of Court 22.4. The Practice Note refers to the fact that, in the circumstances described, the Court will "appoint" Notes of Argument to be lodged in terms of Rule of Court 22.4. In any event, whatever may be the position concerning these matters, in my view, there has been no failure on the part of the defender to comply with the provisions of any Rule of Court in this connection.