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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 18
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A3255/01
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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________________
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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.
