"It is accepted that the matter before the Lord Ordinary was essentially one of discretion. However, the pursuer maintains that the Lord Ordinary left out of account certain factors, failed to give sufficient weight to other factors and reached a result which was unreasonable and unjudicial."

In elaboration of that contention, in ground 4, it is said that the Lord Ordinary failed to address the issue of respective prejudice to the parties in relation to the Minute of Amendment. In that connection it is contended that the pursuer may suffer significant loss that would be irrecoverable in the event of the amendment being refused. On the other hand, were it to be allowed, the only prejudice to the defenders would be that they would face an increase in the damages claimed and that the progress of the action would be delayed. It is contended that the Lord Ordinary did not take the matter of respective prejudice into account and his decision is criticised in certain other respects. The point is made, on behalf of the pursuer in the grounds of appeal, that any true prejudice to the defenders could be cured by an award of expenses against the pursuer. While it is recognised that the pursuer is an assisted person, it is pointed out that the defenders have, in very recent days, admitted liability. Accordingly, the defenders would be entitled to seek whatever expenses awarded in their favour that might arise from the discharge of the proof and any other expenses that might be involved in the amendment from any damages ultimately found due to the pursuer; the contention is made that such awards of expenses would redress any prejudice that the defenders might suffer.

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based on notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account ... An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

So far as the proper approach of the appellate court to an appeal relating to a proposed amendment is concerned we consider that it is to be found explained in Thomson v The Corporation of the City of Glasgow 1962 SC (HL) 36, in the words of Lord Reid at page 66. There he said:

"I do not intend to examine the grounds on which the Second Division exercised their discretion. I shall have to deal later with an argument that they were bound to allow this amendment, their only discretion being with regard to conditions to be attached to such allowance. But if they had a discretion, as in my opinion they had, this House would not overrule the discretion of a lower Court merely because we might think that we would have exercised it differently. I do not attempt to define the circumstances in which this House might take that course. We might do so if some irrelevant factor had been taken into account, or some important relevant factor left out of account, or if the decision was unreasonable, and we would no doubt do so if the decision could be said to be unjudicial."

Approaching the matter before us in that way, we have reached the conclusion that the Lord Ordinary's exercise of his discretion in this instance was flawed, in respect that he did not take into account an important relevant factor. That is the issue of the balancing of the prejudice to the parties in the event of the amendment being allowed, or refused, as the case might be. We have carefully considered the terms of the Lord Ordinary's Opinion, but we do not find consideration given to that important matter. The consequence of having reached that conclusion is that the matter of amendment is now at large for us and for the exercise of our discretion.