EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Marnoch	[2010] CSIH 48 PD1342/07 OPINION OF LORD REED in the cause IAN McCALMAN RANKIN (A.P.) Pursuer and Reclaimer; against JOHN JACK trading as LOCHILL EQUESTRIAN CENTRE Defender and Respondent: _______

Act: Hajducki, Q.C.; Thompsons (for John Henderson & Sons, Solicitors, Dumfries)

Alt: Macpherson, Solicitor-Advocate; Simpson & Marwick, W.S.

2 June 2010

Introduction

[1] In this action of damages for personal injuries, the critical issue at the proof was whether the pursuer had properly applied the parking brake of the tractor which he was driving, when he stopped it on a slope and got out of it to close a gate. He was injured when the tractor ran down the slope and ran him over. His case was that the trailer being pulled by the tractor had been overloaded, and that in consequence the brake, even when properly applied, had been ineffective. On the critical issue, the pursuer's evidence that he had applied the brake properly was contradicted by the evidence of two witnesses who arrived at the scene of the accident soon after it had happened, and who found that the brake was not applied (it being common ground that, if the brake had been applied before the tractor ran down the slope, it would still have been applied when the tractor came to rest). The same two witnesses also gave evidence that the trailer had not been overloaded. The Lord Ordinary rejected the pursuer's evidence on the critical issue, partly because he considered the pursuer's account to be inherently implausible (in that the tractor had remained stationary on the slope for a time before running away), and partly because he had no good reason to reject the evidence of the two witnesses, the defender and a Mr McIlwraith.

[2] The pursuer also raised an issue at the proof as to whether the maintenance records of the tractor were genuine or had been concocted after the accident. The records had been produced by Mr McIlwraith, a local garage proprietor who carried out the maintenance of the tractor. There was not, ultimately, any argument that the accident was attributable to a lack of maintenance (as we have explained, the pursuer's case was that the trailer had been overloaded), but the genuineness of the records was put in issue by the pursuer as a means of attacking the credibility of Mr McIlwraith. The pursuer therefore led evidence from a witness, Mr Johnston, to the effect that the records were not genuine, and Mr McIlwraith gave contrary evidence. The Lord Ordinary accepted the evidence of Mr McIlwraith. The pursuer now seeks to lead additional evidence to support that given by Mr Johnston, in the hope that Mr McIlwraith's evidence that the records are genuine will now be disbelieved, and therefore (so runs the argument) this court will conclude that the Lord Ordinary erred when he rejected the pursuer's evidence that he had applied the brake.

The Lord Ordinary's decision

[3] The general nature of the evidence at the proof, and the Lord Ordinary's assessment of it, are apparent from paragraphs 30-40 of his Opinion:

"[30] There is much which is not in dispute. The pursuer was asked to transfer rubble and general debris from a shed to the farm dump using the elderly Massey Ferguson tractor and trailer. Its parking brake system was of a basic mechanical nature. There was no evidence that it was defective. The pursuer had to pass through a gate which required to be kept shut. When transporting the last load of the day he opened the gate, drove through it and stopped the tractor and trailer half on the verge on a slightly downhill slope. After he left the tractor to close the gate, the tractor and trailer began to move down the slope. In attempting to gain control of the vehicle the pursuer fell under the wheels of the tractor and trailer and suffered serious injuries.

[31] The pursuer's case is that the accident happened because the trailer was overloaded and thus the parking brake on the tractor was overcome. This was the fault of the defender who was responsible for the load in the trailer. The load was so excessive that it should have been obvious that the pursuer was being asked to undertake a risky journey. The defender's case is that the trailer was not overloaded and that the accident was caused by the pursuer's failure to apply the parking brake when he stopped the tractor on the verge.

[32] The general effect of the evidence was that the brakes would cope with anything but a clearly excessive load. It follows that if I am satisfied that the pursuer has proved that he applied the parking brake, then he has proved his case that the trailer was overloaded. There would be no other reasonable explanation for the accident. Thus the key issue is whether the pursuer has proved that he applied the parking brake before he left the vehicle to close the gate.

....

[34] ....The pursuer insisted that he had applied the brake fully and properly, and that for a short period the tractor was at rest. He said that he also turned the front wheels of the tractor to the right to face slightly up the verge, and he dropped the front bucket onto the ground. It is entirely to be expected that if the pursuer was concerned about the load then he would have applied the parking brake, but there is evidence from Mr Jack and Mr McIlwraith to the effect that there was nothing out of the ordinary about the load in the trailer.

[35] Had the pursuer's evidence been the only relevant evidence on the key facts I would have had no difficulty in accepting his account of events. However I have to take into account the other relevant evidence from witnesses who, although they were not present at the time of the accident, saw the tractor and trailer immediately before and immediately afterwards. Mr Jack and Mr McIlwraith both spoke to an absence of any concern as to the size of the load in the trailer, and also that when they looked at the tractor at the foot of the field they saw that the parking brake was not applied. It could not have sprung off during the tractor's journey down the field. Thus they concluded that it had not been applied by Mr Rankin when he went to close the gate. If that is correct, that explains the accident and exculpates the defender.

[36] A burden of proof is placed on the pursuer to make out his case on a balance of probabilities. If he fails to do that, his claim is unsuccessful. It follows from this, and from the above discussion, that in order to uphold the pursuer's case I must accept his evidence on the key facts as probably accurate, and reject the evidence of both Mr Jack and Mr McIlwraith. In particular, to uphold the pursuer's claim I must reject their evidence that the parking brake was not applied.

[37] It was submitted on behalf of the pursuer that he was a credible and reliable witness, while the defender and Mr McIlwraith were not. However there is little of real weight to support an attack on the evidence of Mr Jack and Mr McIlwraith on the key issues. No doubt they both have an interest in the matter at issue; Mr Jack is the defender and Mr McIlwraith is the person responsible for servicing his vehicles. Mr Jack did give his evidence in a somewhat bombastic and over-confident fashion, but that does not mean that he was deliberately untruthful.....There was an attempt to attack Mr McIlwraith's service records as concocted and fraudulent, but there was no evidence of sufficient weight to support this serious claim. I consider that Mr McIlwraith gave his evidence in a careful and measured way. He seemed to me to be someone who was doing his best to recount events as he remembered them, without any attempt to trim or gloss in favour of the defender. I found him credible and reliable. The differences in the evidence on details, such as who attended Mr Rankin and when, and whether Mr Jack and Mr McIlwraith went to the tractor together or separately, militates against a concocted story.

[38] As I said earlier, if the pursuer's evidence had stood alone I would have had no difficulty in accepting it. It follows that it is only the contradictory evidence, especially on the parking brake issue, which stands between him and success on the issue of liability. On that matter there is little room for Mr Jack and Mr McIlwraith being mistaken. If I reject their evidence it can only be on the basis that I do not believe them to be telling the truth. On the other hand Mr Rankin suffered a very serious accident which left him with substantial physical and psychological injuries. As explained later in this opinion, his injuries include post traumatic disorder. It is likely that he will have played and replayed the events over and over in his mind. It is entirely possible that during a trip that had no special significance for him at the time, he failed to apply the parking brake, yet he is now genuinely convinced that he did. It may have been his normal practice, and this was but a momentary aberration. Or perhaps at the time he thought that putting the wheels on the softer ground and turning them into the verge would suffice. No doubt the vehicle was stationary for a period, something which could be explained by this simple precaution.

[39] Clearly application of the foot brake was sufficient to stop the tractor and trailer. The parking brake does not operate independently of the foot brake, it is simply a mechanism to hold down the foot brakes in the on position, thus applying the drum brakes to the wheels. On the pursuer's account the brakes held for a period and then slipped allowing the tractor and trailer to travel to the bottom of the field. It is not easy to understand how this would come about. Mr Johnston suggested an explanation based upon the front bucket having been lowered and then, because of a problem with the hydraulic rams, lifting of its own accord thus leaving the tractor and trailer relying upon the brakes alone, which proved to be insufficient. This explanation, which always seemed highly speculative, was convincingly excluded by Mr Robinson. He pointed out that, as can be seen from the photographs, the hydraulic rams operating the bucket have a single acting piston. This means that any failure in hydraulic pressure could only lower the bucket under the operation of gravity, not lift it. I consider that a more likely explanation for what happened is that the pursuer, having applied the foot brake, but not the parking brake, took the tractor slightly off the track onto a more level though still sloping piece of ground with the wheels turned into the verge to the right. He then assumed that this was sufficient to hold the vehicle, which proved to the case (sic), but only for a short period.

[40] Unfortunately for the pursuer his evidence on the size of the load and the application of the parking brake is contradicted by other witnesses who were in a position to speak to these matters. I have no real basis on which to reject them on these points, thus I am left with an unresolved dispute or conflict in the evidence on the key issues. In this state of the evidence I am unable to hold that the pursuer has proved his case on a balance of probabilities".

[4] It appears from these passages in the Lord Ordinary's opinion that his decision was based essentially on two considerations. The first reflected the pursuer's evidence about events immediately before the accident, summarised by the Lord Ordinary at paragraph 6:

"After stopping the tractor on the verge, he waited some minutes for Mr Jack, although he immediately qualified this to perhaps no more than twenty seconds. He waited in the tractor".

If, as the pursuer said, the parking brake had been properly applied at that time, then the apparent implication was that it must have held the tractor and trailer stationary on the slope for that period of time, but then failed to continue to hold it. Given the explanation of the nature of the parking brake - essentially a mechanism for locking the foot brake in position - it was, the Lord Ordinary said in paragraph 39, "not easy to understand how this would come about". That observation reflected the evidence of Mr Robinson, the expert witness instructed on behalf of the defender. Asked if he could explain how, if the vehicle was stopped on the slope and held by the parking brake, the brakes would then be overcome by the weight being towed, he answered:

"No. I mean, effectively if you were able to brake that vehicle on the slope and park and apply the park brake such that when your foot was released the vehicle did not move off, then that would indicate that the park brake was sufficient to hold that load on that slope, so there's no reason for that vehicle to subsequently run away, other than in the event of mechanical failure or accidental release of brakes". (29 May 2008, pages 478-479).

There was however no suggestion of either mechanical failure of the brakes or of their accidental release. As the Lord Ordinary states at paragraph 39, an explanation was suggested by Mr Johnston, the expert witness instructed on behalf of the pursuer, but that explanation was "convincingly excluded" by Mr Robinson. The Lord Ordinary concluded that the more likely explanation was that the parking brake had not been properly applied, and that the tractor had remained stationary for a short period because of the position in which it had been stopped (paragraph 39). The existing grounds of appeal contend that the Lord Ordinary's reasoning in paragraph 39 is unsubstantiated by the evidence.

[5] Secondly, as the Lord Ordinary explained in paragraph 35, there was evidence from two witnesses, the defender and Mr McIlwraith, that they saw the tractor immediately after the accident and saw that the parking brake was not applied. The witnesses were challenged on behalf of the pursuer as to whether that evidence was correct, but it does not appear to have been any part of the pursuer's case that the brake might have been properly applied by himself but no longer be applied when the tractor came to rest after the accident: on the contrary, as counsel for the pursuer confirmed before us, the case was presented on the basis that if the brake was not applied when the tractor came to rest after the accident, it followed that it had not been applied before the accident. The Lord Ordinary accordingly concluded, as he stated in paragraph 36, that "in order to uphold the pursuer's case I must ....reject the evidence of both Mr Jack and Mr McIlwraith...that the parking brake was not applied". The Lord Ordinary's reasoning in those respects is not criticised in the grounds of appeal. As I have noted, the Lord Ordinary went on to conclude that he had no sufficient basis for deciding, on a balance of probabilities, that Mr Jack and Mr McIlwraith were being untruthful (paragraph 40). Mr McIlwraith was specifically found to be credible and reliable (paragraph 37).

The present application

[6] As I have mentioned, the pursuer has reclaimed against the Lord Ordinary's decision on grounds which relate to his assessment of the evidence. The pursuer has now sought leave under Rule of Court 38.16(4) to amend the grounds of appeal so as to add an additional ground in the following terms:

"Further and in any event certain new evidence has now come to light following the proof and the pursuer submits that said evidence is res noviter veniens ad notitiam and, being essential to the justice of the cause, should be taken into account as, if accepted, it would have a material effect upon the credibility and reliability of the witnesses Jack and McIlwraith and would demonstrate that the evidence of those witnesses could no longer be relied upon as being credible or reliable".

The pursuer also seeks an order for additional evidence to be heard from eight witnesses. In support of the application, the pursuer has lodged a minute setting out the relevant circumstances, to which answers have been lodged on behalf of the defender. Affidavits have also been lodged on behalf of both parties. The question before the court is whether it should grant the application and order additional proof.

The additional evidence

[7] The additional evidence is said in the minute to come from two witnesses, Mr Allen and Mr McQuarrie, each of whom has provided at least one affidavit. The gravamen of their evidence is that a roll bar was fitted to the tractor shortly after the accident.

[8] It is accepted in the minute that whether there was a roll bar fitted to the tractor "played no part whatsoever in....the accident". The additional evidence is said however to be significant because it "would have resulted in the witnesses Jack and McIlwraith being found not to be credible and reliable and thus the pursuer's case on liability being upheld". The bearing of the new evidence on the credibility of the witnesses is explained in the minute as follows:

"...the defender's expert report states that he [Mr Robinson]...was given a number of witness statements and correspondence. In Mr Jack's witness statement he is said to have stated (p.3) that after the accident McIlwraith drove tractor (sic) and trailer back to the farm and parked them and that an Environmental Health Department official arrived a week later and inspected both vehicles. McIlwraith is said to have stated (p.5) that 'following the accident no repairs or alterations were carried out on the tractor and trailer. He checked both vehicles and found them both to be in order. The vehicles were never taken out of service and are still in use'".

[9] Pausing at that point, Mr Jack's "witness statement", as it is described, was not put to him in evidence; nor was the account of it contained in Mr Robinson's report. Part of the section of Mr Robinson's report relating to the statement said to have been made by Mr McIlwraith was put to Mr McIlwraith in cross examination. He responded that what had been put to him was not correct (29 May 2008, pages 420 and 421). The statements themselves do not appear to have been produced, and there is no evidence that they were actually taken from the witnesses or, if so, when and by whom. Since the witnesses did not in their evidence accept the accuracy of any part of the statements, a demonstration that the statements are inaccurate will not cast any doubt on the credibility and reliability of the evidence given by the witnesses before the Lord Ordinary.

[10] The minute continues:

"In evidence Jack stated that after the accident the tractor went straight back to its job it was doing every day (Appx.1, 286B) and that no repairs were made after the accident (287C) and that McIlwraith was instructed to make sure everything was all right after the accident (321B) and McIlwraith gave evidence to the same effect. In any event there was no indication from Jack or McIlwraith that any modification had been carried out to any part of the tractor after the accident".

In the passage referred to at page 286, the defender was asked, "And have you been able to use the tractor since that accident?" He answered, "Oh, it's used every day. The tractor went back to ...straight back into its job it was doing every day. The tractor was doing its job every day". In the passage at page 287, he was asked, "And after the accident, were there any alterations made to the braking system of the tractor?" He answered in the negative. He was then asked, "Were there any repairs made?" He again answered in the negative. In its context, the latter question appears to have concerned repairs to the braking system. In the passage at page 321, the defender said that he had told Mr McIlwraith "just to make sure that everything was all right on the tractor after the accident which happened". The proposed additional evidence does not place any of that evidence in doubt. The absence of any indication by the witnesses that the tractor had been modified by fitting a roll bar appears to be of no significance in itself, even if a roll bar had in fact been fitted after the accident, since they were not asked about it and the presence or absence of a roll bar had no relevance to the accident.

[11] The minute continues:

"The defender produced certain copy vehicle service records which were prepared by McIlwraith and were said to relate to the tractor. These records, dated 27 July 2005, 30 August 2005 and 17 September 2005, form Nos. 6/7 to 6/9 of process. They were referred in evidence (sic) and were criticised by the pursuer's expert witness Mr Johnston (Appx.1, 167-9) as in effect being made up after the accident 'to demonstrate that the brakes were being maintained to the highest order'. McIlwraith stated (at 455) that these were true contemporaneous records and, given the fact that it was accepted that no work had been carried out on the tractor after the accident, the Lord Ordinary held 'there was no evidence of sufficient weight to substantiate this serious claim'.

There are two specific references in said records to roll bars namely in 6/7 of 27 July 2005 'two new bolts and nuts fitted to properly secure roll bar' and in 6/8 of 29 August 2005 'Roll bar securing bolts tight'.

It is submitted that if the new evidence of Allen and MacQuarrie is true and accepted as such by the court then no roll bar had been fitted to the tractor in July and August of 2005 and thus the records cannot be a true reflection of the work that had been carried out on those dates and, having been signed by McIlwraith and certified by him in evidence as being true and accurate, have been manufactured in an attempt to deliberately deceive the court and to defeat the claim of the pursuer. It is further submitted that the credibility and reliability of both Jack and McIlwraith would be adversely affected by said evidence and that the inevitable conclusion would be drawn that they could be no longer regarded as credible and reliable witnesses".

[12] In his evidence before the Lord Ordinary, the defender said that the records were prepared by Mr McIlwraith, and that he did not remember having seen them before giving evidence (28 May 2008, pages 271 and 322). Mr McIlwraith gave evidence that he had produced the records (29 May 2008, page 391). He spoke to the accuracy of entries in the records relating to the testing of the brakes. The entries relating to the roll bar were not mentioned. It was suggested to Mr McIlwraith in cross-examination that the records had been made up after the accident, but he denied that suggestion (29 May 2008, pages 453 and 455-456). If, however, there was no roll bar fitted to the tractor on 27 July or 20 August 2005, as the proposed additional evidence would suggest, then it would follow that the entries on those dates relating to the roll bar could not be genuine It would not follow that the records had been manufactured in an attempt to deceive the court and defeat the pursuer's claim: the motive for their preparation might relate to the risk that breaches of health and safety legislation might be detected by an inspector. That was indeed the tenor of the suggestion which was put to Mr McIlwraith in cross examination (29 May 2008, page 453). It would however follow that Mr McIlwraith had told a lie. The proposed additional evidence would not, so far as it goes, be inconsistent with any evidence given by the defender before the Lord Ordinary. It would not necessarily imply that he was aware that the records before the court were not genuine, let alone that he was personally responsible for the production of concocted evidence to the court.

[13] It is relevant to note that the ground of appeal relating to the additional evidence is, as we have mentioned, based on res noviter, and that the additional evidence is said to "have a material effect upon the credibility and reliability of the witnesses Jack and McIlwraith". This is not a case in which the pursuer is seeking to have the decision of the Lord Ordinary recalled or set aside on the ground of fraud. The pursuer is seeking to have additional proof allowed, and the Lord Ordinary's decision reversed, on the ground that fresh evidence has been discovered which affects the credibility of evidence which was material to the Lord Ordinary's decision to absolve the defender of liability. The pursuer's position is not perilled on the court's finding that the records were, to the knowledge of the defender, other than genuine, or on the court's finding that the defender had suborned Mr McIlwraith.

Evidence in rebuttal

[14] Affidavits relating to the roll bar have also been produced on behalf of the defender. The defender himself has provided an affidavit in which he states that the tractor was fitted with a roll bar when he bought it in about 1998. He had never taken the roll bar off the tractor.

[15] A further affidavit has been provided by Mrs Maxwell, the manager of a riding centre at the farm, who also gave evidence at the proof. She states that there had been a roll bar fixed to the tractor for as long as she could remember. It was definitely fixed to the tractor prior to the accident.

[16] An affidavit has also been provided by Mr McIlwraith. He states that the roll bar was fitted to the tractor when he started working at the farm in 2004. He does not recall ever having seen the tractor without the roll bar in place. There were references in the service records to the roll bar. He had required on two occasions to tighten the bolts on the lever plate which held the roll bar in place, as the bolts on the right hand side had become slack.

[17] A further affidavit has been provided by Mr John Marshall, who bought the tractor from the defender some time after the accident, but before about Easter 2006. He had driven the tractor before buying it. The first time he had driven the tractor had been about a year before buying it (and, it would appear to follow, prior to the accident). There had been a roll bar fitted to it when he drove it.

[18] Finally, an affidavit has been provided by Mr Anthony McGowan, who states that he worked on the farm for about four months during 2005 and drove the tractor. It had a roll bar fitted to it. He remembers driving the tractor with one hand on the steering wheel and the other on the roll bar.

Why the evidence was not adduced at the proof

[19] According to an affidavit which he has provided, the pursuer knew at the time of the proof, and had known for years beforehand, that a roll bar had been fitted to the tractor after the accident, before it was inspected by a health and safety official. He had not mentioned this at any time to his legal advisers.

[20] The accident occurred on 27 September 2005. According to the information provided to us by the pursuer's counsel, the maintenance records were provided to the pursuer's solicitors, John Henderson & Sons, in February 2006. The present proceedings were commenced in April 2006, in the Sheriff Court. The records were sent by Hendersons to Mr Johnston in May 2006. In June 2006 he carried out a detailed inspection of the tractor in the presence of the pursuer and Mr Gordon of Hendersons. In August 2006 he submitted his report to Hendersons. He did not raise any doubt as to the genuineness of the records. On 21 June 2007 the action was remitted to the Court of Session. Messrs Thompsons were then instructed as the pursuer's Edinburgh solicitors. Counsel were also instructed. After some further procedure, a diet of proof was fixed, to commence in May 2008. Although Hendersons had had the maintenance records since February 2006, and they were plainly relevant to the pursuer's case (which, as pled, included a case based on a lack of maintenance), they were not provided to Thompsons or to counsel. We were informed that the records were first seen by Thompsons when they were lodged by the defender's solicitors as productions, about two weeks prior to the proof. Mr Johnston was then asked to consider the genuineness of the records. He advised that he doubted their veracity. Following a discussion with senior counsel, a decision was taken to put in issue at the proof the genuineness of the records, on the basis of Mr Johnston's evidence.

[21] When the decision was taken that the genuineness of the records was to be put in issue, the view might have been taken that further investigation of that matter was desirable. The records in question covered the period from 27 July 2005 to 17 September 2005: the latter date being the day before the pursuer began working on the farm, and ten days prior to the accident. They contained entries relating to numerous parts of the tractor, including the wheels, brakes, clutch and roll bar, besides the checking of oil and water levels. The pursuer himself could have been asked whether what was recorded was consistent with his experience as a driver of the tractor; and, if he had been shown the records, he would presumably have said at once (if he is to be believed) that there had been no roll bar fitted when he worked on the farm. Efforts could have been made to trace other persons in a position to compare what was recorded with their experience of the tractor, such as other employees working on the farm during the relevant period (including Mr McGowan). Other lines of investigation could have been pursued: for example, checking whether payments made by the defender to Mr McIlwraith were consistent with the maintenance records; or investigating the computer system which had been used to produce the records, so as to determine, if possible, the dates when the records had been produced. Such investigations would have taken time. The pursuer would have had to apply for the discharge of the proof diet. If the application had been granted, the resolution of the pursuer's claim would have been delayed by a substantial period. There might also have been consequences in relation to the expenses occasioned by the discharge.

[22] In the event, no application was made for the discharge of the proof. Instead a decision was taken to challenge the genuineness of the records on the unsupported evidence of Mr Johnston to the effect that the records had in his opinion probably been concocted. Mr McIlwraith was cross-examined on that basis. On the basis of that evidence, counsel for the pursuer submitted (as the Lord Ordinary records at paragraph 24 of his opinion) that "on a balance of probabilities the service records were not genuine records". As we have previously noted, the Lord Ordinary considered that submission and rejected it.

[23] The circumstances giving rise to the present application are described by Mr Gordon in an affidavit. He states that on 16 January 2009 he spoke to the pursuer on the telephone. The pursuer said that he had received an anonymous telephone call on 23 December 2008. The caller, who refused to give his name, said that there were witnesses he knew of who could speak to work having been carried out on the tractor on the night of the accident, before it was inspected by any party. Mr Gordon investigated the matter and eventually traced Mr Allen and Mr McQuarrie. It has to be remembered, however, that the pursuer had known all along that a roll bar had been fitted to the tractor after the accident and before it was inspected, so in a sense the anonymous caller had told him little which he did not already know.

The ordering of additional proof

[24] Under Rule of Court 38.16(4), the court has a discretion to allow the amendment of a party's grounds of appeal, on cause shown. In the circumstances of the present case, the exercise of that discretion turns on whether it is appropriate for the court to order additional proof on the issue in respect of which the pursuer wishes to adduce additional evidence.

[25] Applications for additional proof on the ground of res noviter veniens ad notitiam, following proof in the Outer House, are rarely made, and even more rarely granted. There are strong reasons for this approach, which has a long pedigree. The principal reason, which applies to res noviter generally, is the importance of finality in litigation. This has long been recognised by the court as a compelling consideration, "it being the interest of mankind that pleas be not immortal, and that one be not the seed to propagate another, like Cadmus's teeth": Campbell v Farquhar (1704) II Fountainhall 214. The importance of finality, in the interests of legal certainty, is obvious. It is also important for other reasons. One was noted by Lord Loreburn LC, in relation to an application for a new trial on the ground of res noviter, in Brown v Dean [1910] AC 373 at page 374:

"My Lords, the chief effect of the argument which your Lordships have heard is to confirm in my mind the extreme value of the old doctrine 'Interest reipublicae ut sit finis litium', remembering as we should that people who have means at their command are easily able to exhaust the resources of a poor antagonist".

I would add that prolonged litigation can also be a cause of great anxiety as well as expense.

[26] As I have mentioned, applications to lead additional parole evidence in the course of a reclaiming motion are rarely made, and there are relatively few reported cases in which such an application has been considered in opinions delivered by the court. Most such cases have been of a consistorial nature; and the court's approach to such cases, in some of the older authorities, appears to have been influenced by specific aspects of cases of that nature, such as their effect upon status, and the quasi-criminal nature of divorce proceedings based on adultery, as they were then regarded (see e.g. Fleming v Corbet (1858) 21D 179 and Gray v Gray (1867) 5M 355; cf. Ross v Ross 1928 SC 600). There are however a small number of cases which provide guidance of a more general nature. The first is Longworth v Yelverton (1865) 3M 645, which was an action for declarator of marriage. Following a proof, a reclaiming motion, and an appeal to the House of Lords, the case returned to the Inner House for application of the judgment of the House of Lords. The pursuer then sought additional proof on the ground of res noviter: evidence had been discovered of an admission made by the defender, to his now deceased brother, that he had married the pursuer. The admission had been witnessed by a person, also now deceased, who had reported it to the person sought to be advanced as an additional witness. The court refused to allow additional proof. Lord President McNeill emphasised the importance of "conclusiveness in proof" (page 648). He noted (ibid) that the proposed additional evidence was "further evidence ...of a kind which was to a certain extent gone into in the original cause" (where a witness had been led for the purpose of proving another admission). The Lord President continued, at page 649:

"It may be that she [the pursuer] was not aware of the particular admission now alleged; but that appears to me to be nothing else than the discovery of an additional circumstance of evidence to support what has already been brought".

The Lord President was also critical of the cogency of the evidence, observing (ibid) that it was "not of the direct or strong kind desirable in such a case, or calculated to affect the judgment in the case". The stage in the proceedings at which the application was made was a further reason for refusing it. Finally, the Lord President rejected a suggested analogy with applications for a new trial on the ground of res noviter, stating (ibid):

"An argument was founded upon the practice in jury trials. I am not disposed to give any weight whatever to the argument founded on the practice in jury trials. In the first place, it depends altogether upon the statutory enactment 55 Geo.III [the Jury Trials (Scotland) Act 1815], which introduced and established that course of procedure. Then, again, it is a statutory provision which merely gives power to set aside verdicts. It is not a procedure to be adopted after judgment. Further still, the effect of allowing a new trial in such a case is not as here to add new evidence to what has already been taken. It is to begin the whole case over again in the matter of evidence, allowing the other party to get in any other matter which may affect that which is proposed to be led, and which may, without going into that part of the case at all, make a stronger case for the other party on the merits of the case otherwise. Now, that is not the proposal in this case. It would not be competent in this case to obliterate the whole proof and begin anew, which is the effect of setting aside a verdict, and allowing a new trial on the ground of res noviter. I hold that that practice is altogether apart from a case of this kind, and furnishes no precedent at all".

[27] The other opinions focused upon the same aspects of the case. Lord Curriehill considered the application to be incompetent because of the stage which the procedure had reached, but added (at page 651) that it could not have been granted in any event, since "all that is stated is, that additional evidence has been discovered for proving an allegation which has already been proponed and repelled". Lord Deas, like the Lord President, distinguished the position where res noviter is advanced after proof from the situation where there has been a jury trial, observing (at page 652) that "there is very great practical difficulty...in opening up the proof in part without going back upon the whole matter". He also emphasised (ibid) the length of the proceedings and the "ample opportunities" both parties had had to investigate their case. Like the Lord President, he was also critical of the cogency of the evidence in question, expressing the view (at page 653) that "what is proposed would require to be at least prima facie likely to have that effect [viz. to alter the conclusion reached by the House of Lords] before we could with propriety allow it at this stage of the proceedings". Lord Ardmillan rejected (at pages 653-654) the suggested analogy with motions for a new trial. He drew attention (at page 654) to a number of factors, including the long period which had elapsed since the cause commenced and the "great opportunities for investigation" which the pursuer had had, and emphasised the importance of finality.

[28] A similar approach was adopted in Walker v Walker (1870) 8 SLR 49, an action of divorce on the ground of adultery, in which the pursuer had succeeded before the Lord Ordinary on the basis that the existence of an adulterous relationship could be inferred from certain facts and circumstances. Before the Inner House, the pursuer sought to introduce, for the first time, evidence of specific acts of adultery which had come to light since the proof. The pursuer also sought to introduce evidence of additional facts and circumstances from which adultery could be inferred, again on the basis of res noviter. The first part of the application was allowed, Lord President Inglis observing (at page 50) that the evidence in question could not have been led under the record as it stood at the time of the proof, and Lord Deas adding (ibid) that "nothing could be more specific or more important" than the new averments, which, if proved, would substantiate the pursuer's case independently of the evidence already led. The court however refused the second part of the application, the Lord President observing (ibid):

"The facts here set forth might all have been proved under the original record, and just amount to additional facts and circumstances from which to infer adultery".

[29] I should also note the case of Forster v Forster (1869) 7M 797, (1872) 10M (HL) 68, which was another action of declarator of marriage. At the proof, the pursuer founded on a written declaration of marriage, said to be in the defender's handwriting and signed by both parties. The defender denied that the declaration and signature were in his handwriting, but was abroad at the time of the proof, and no evidence was led on his behalf. An application for leave to lead evidence in the course of a reclaiming motion was refused by the Inner House, without any opinion being delivered. An appeal against that decision was refused by the House of Lords. Lord Hatherley LC observed (at page 69) that it would be impossible, under the circumstances, to allow a person who chose to conduct his case in that manner to say that there had been a surprise, or that any hardship was imposed on him by his not having an opportunity of making out such a case as he might have been advised to make. Lord Colonsay also based his opinion (at pages 72-73) upon the absence of any element of surprise, or of any application before the Lord Ordinary to be allowed to produce further evidence.

[30] The case of Johnston v Johnston (1903) 5F 659 was another action of divorce on the ground of adultery where additional evidence of improper behaviour was sought to be introduced before the Inner House on the basis that it was res noviter. The application was allowed, Lord President Kinross stating (at page 662) that the new averments were "very vital to the case". Lord Kinnear observed (at pages 662-663):

"A pursuer must in general consider whether the case with which he is prepared is sufficient to go to trial, and, when he does so, the matter must in general be decided on the case as it stands. I think there is great difficulty in allowing a pursuer the privilege of amending his record by adding new statements after the Lord Ordinary has given his decision, if the result on the case as it originally stood is unfavourable to him. At all events, it is not, I think, disputed that a proof of such new facts should not be allowed unless it is clearly necessary for the ends of justice that newly discovered facts should be inquired into".

[31] The law relating to applications of this nature was also discussed in the case of Miller v Mac Fisheries 1922 SC 157, decided by a bench of five judges. The case concerned a motion for a new trial; and, as we have explained, such cases raise different issues, in some respects, from applications following a proof. Nevertheless, the opinion of Lord President Clyde contains observations relating to applications of the latter kind; and the opinions consider questions of general relevance to applications based on res noviter.

[32] The case was one where a newspaper report of a trial in which the pursuer had been unsuccessful prompted members of the public to come forward as witnesses corroborating her account of an accident. At the trial, her evidence had been corroborated only by that of a child, and had been contradicted by the defenders' employees. Her application for a new trial was refused. The Lord President introduced his consideration of the legal issues with some general observations about res noviter, at pages 160-161:

"Anything proponed to the Court by a party after the proper time has gone by, which the Court is asked to entertain on the ground that the party did not and could not know of it in time, is res noviter veniens ad notitiam. The allowance of res noviter is always more or less in the nature of an indulgence. Accordingly, it may present to the Court a delicate problem of discretion. But it is an indispensable condition of the allowance that the res noviter should be material to the justice of the cause; and it is inconceivable that it should be refused if it is seen to be such that to exclude it from the materials of judgment would prevent justice being done".

The Lord President continued by saying, at page 161:

"The grounds which justify, or fall short of justifying, the allowance of res noviter vary somewhat according to the circumstances in which the res noviter is proponed".

In that regard, the Lord President distinguished different procedural circumstances in which res noviter might be raised: actions of reduction of decrees of the Court of Session, applications for additional proof, and applications for a new trial. In relation to applications for additional proof, the Lord President said (ibid):

"Moreover, there is no doubt that the Court has power to open up a concluded proof either on a condescendence of res noviter, adding new and material facts to those on which the proof was originally allowed, or on a minute disclosing additional and material evidence, written or parole, which has emerged since the proof was closed and could not by reasonable diligence have been obtained before. If the nova res is matter of evidence only, it does not affect the pleadings as adjusted, and a minute disclosing what it is and how it is proposed to prove it takes the place of a formal condescendence; but it is res noviter veniens ad notitiam all the same, and the question of allowing or refusing it has to be determined in the light of the general doctrine applying to all kinds of res noviter. The power of the Court in this matter is as wide in its scope as it is delicate in its administration".

[33] On the facts of the case, the Lord President accepted (at page 162) that the fresh evidence had emerged since the trial and could not by reasonable diligence have been obtained before. The Lord President also accepted (at page 163) that the additional evidence was "undoubtedly relevant to the pursuer's case". It did not however do more than provide further corroboration of the pursuer's account: it "neither imports into the case any new feature, nor puts any new complexion upon it" (ibid). The Lord President continued (ibid):

"But can it in these circumstances be regarded as material to the justice of the cause? In deciding that question one must keep in mind the necessity of what Lord President McNeill in Longworth v Yelverton called the conclusiveness of proof. If the accidental turning up of an unexpected witness whose parole evidence promises only to afford additional corroboration of the evidence already given for one party, and to add somewhat to the contradiction of evidence already given for the other, is to be regarded as being of sufficient materiality to justify a new trial, there would be no end to the multiplication of trials in which a conflict of testimony occurs. The circumstances of this trial present no specialty; they are not tinged by any element of surprise, and the pursuer had every opportunity of collecting evidence. The pursuer's case was adequately and fairly presented to the jury in the evidence which was actually led. I do not think the testimony of the two additional witnesses was necessary to enable a just decision to be reached; and I think the case is one in which the granting of a new trial cannot be justified".

These observations appear to be equally relevant to an application for additional proof. In that context, however, the exercise of discretion would also have to take into account the implications of adding new evidence to the evidence taken at the proof (rather than starting afresh, as in the context of a jury trial), as Lord President McNeill indicated in the Longworth case. Other circumstances of the case, such as the various circumstances discussed in Longworth, might of course also be relevant to the exercise of discretion.

[34] The other opinions delivered in the Miller case are also of assistance. Lord Skerrington emphasised (at page 164) that the pursuer and her advisers had chosen to proceed to trial on the basis of the evidence that was then available to them:

"At the time when she raised her action...it was for the pursuer and her solicitor to consider whether it was better to delay bringing the action in the hope that they might in time be able to get into touch with some of these witnesses or to raise the action in the hope that the other evidence might prove sufficient without their testimony. After compelling the defenders to go to trial at the time and under the conditions most convenient to herself, the pursuer cannot reasonably or justly ask that the verdict shall be set aside, merely because the evidence upon which she relied proved insufficient to satisfy the jury, whereas it might have been sufficient if it had been corroborated by that of the witnesses whose names and addresses came to her knowledge after the trial".

The third member of the court to deliver an opinion in Miller was Lord Cullen, who began (at page 164) by emphasising the need for finality in litigation. He continued (ibid):

"Accordingly I think the power should not be exercised save in very exceptional cases, and where the new evidence not formerly available is in its nature such as materially to change the complexion of the case, and to lead to a reasonable presumption that there has been a miscarriage of justice and that the new evidence, had it been available at the trial, would have led to a different verdict".

Lord Cullen also drew together two strands of thought on which the other opinions had focused: that the pursuer and her advisers had decided to proceed on the basis of the available evidence, and that the new evidence was merely corroborative of evidence already given. He concluded, at page 165:

"This being so, I do not think we have here the class of case which falls to be regarded as an exception to the general rule that, where a party chooses to go to trial, he must stand or fall on the case he presents".

The remaining members of the court concurred without delivering opinions.

[35] We were also referred by counsel to the case of Maltman v Tarmac Civil Engineering Ltd 1967 SC 177, where a new trial was sought firstly on the basis that the verdict was contrary to the evidence, and secondly on the basis of res noviter "or for such cause as is essential to the justice of the case". The application succeeded on both grounds. The opinions, with the exception of that of Lord Guthrie, dealt primarily with the first ground. In relation to the second ground, the circumstances were truly exceptional. The pursuer claimed to have slipped on oil which had been spilled by an employee of the defenders at the locus of the accident. The pursuer's main witness gave evidence that he had spilled the oil there shortly before the accident, and that he had done so in the course of his employment with the defenders. Following the trial, the defenders discovered that the witness had not been in their employment at the time. It was accepted that the defenders had had no notice that the witness was to give evidence, and that there had been no lack of diligence on their part. The allowance of a new trial was contested solely on the basis that perjury by a witness was not a competent or relevant ground for allowing a new trial: an argument which the court rejected. The approach adopted in Miller v Mac Fisheries was followed. Lord Guthrie (at page 184) and Lord Migdale (at page 187) emphasised that each case must depend on its own particular circumstances.

[36] We were also referred to cases in which an application for additional proof was made following a proof in the Sheriff Court: again, a matter which is regulated by statute. This line of authority, which includes Taylor v Provan (1864) 2M 1226, Coul v Ayr County Council 1909 SC 422, Mitchell v Sellar 1915 SC 360, Gairdner v Macarthur 1915 SC 589, Cook v Crane 1922 SC 631, Davidson v Duncan 1981 SC 83 and Ralston v Secretary of State for Scotland 1991 SC 336, is of limited assistance in the present context. It is apparent from the older authorities that the court was more willing to order additional proof in respect of actions in the Sheriff Court than in the Court of Session. That appears to have been at one time on the basis that "there may be a want of mature advice in the inferior Court" (Taylor v Provan at page 1233 per Lord Neaves), and after 1868 on the basis that the court was exercising a statutory discretion in respect of Sheriff Court cases (see e.g. Gairdner v Macarthur at page 595 per Lord Salvesen). Even so, cases in which applications have been granted have been rare and based on exceptional circumstances. In the case of Coul, for example, the procedure had gone awry: the sheriff's decision turned mainly on a matter which had not been raised in the pleadings and on which no evidence had been led at the proof, but which had appeared for the first time in evidence taken on commission after the proof. In these circumstances, the court was willing to admit a document which had been discovered since the proof and which bore on the point in question. At the same time, Lord President Dunedin reaffirmed the strictness of the court's general approach, stating at page 424:

"Your Lordships could not countenance the idea that, after debate and after judgment has been given, a party who has discovered what is a weak point in his case should be able to come here and obtain leave to introduce new evidence to strengthen that weak point".

An application for additional proof was also granted in the case of Gairdner, where the court emphasised the width of its statutory discretion, and distinguished the situation where proof had been heard in the Court of Session. Lord Salvesen, in particular, observed at page 594 that the court had generally looked on applications for additional proof in such circumstances "with great disfavour", and added, at page 595:

"It is still competent for us to grant additional proof in a case originating in the Court of Session, but there is no express statutory sanction for it, and the circumstances in which such applications will be granted require to be exceptional".

[37] It is clear from these observations that the court does indeed possess a discretion to allow additional proof, in the context of a reclaiming motion, on the ground of res noviter veniens ad notitiam. The court exercises that discretion as it considers appropriate, in the interests of justice, in the circumstances of the particular case. One important aspect of the interests of justice is the need for finality in litigation and, in particular, what Lord President McNeill described in the case of Longworth as conclusiveness in proof. More generally, the court's consideration of the interests of justice will reflect the nature of court proceedings: the court will be concerned to ensure that each party has had a fair opportunity to investigate its case and to obtain relevant evidence.

[38] It follows from the foregoing that the court will not allow a party a second bite at the cherry where that party (or its legal advisers) failed to put forward at the proof evidence which was then available to it, or which would have been available to it if it had properly investigated its case. As Lord President Clyde observed in Miller v Mac Fisheries (at page 160), the basis of an appeal grounded on res noviter is "that the party did not and could not know of it in time".

[39] It is also apparent from the authorities that the court will not necessarily allow additional proof even where relevant evidence was not available at the proof and its non-availability was not due to a failure to investigate the case properly. Putting the matter very broadly, the court has to consider whether, in the circumstances of the particular case, the interests of justice require the general principle of finality in litigation to be overridden. That is essentially an intuitive judgment, and it would be misguided to attempt to derive rules from the decided cases which could then be applied by rote. The decided cases are nevertheless of assistance in illustrating how the court has reached a reasoned decision in particular circumstances. In the case of Longworth, in particular, Lord President McNeill gave as a reason for refusing the application the fact that the evidence in question was merely additional evidence in support of evidence which had already been brought; and Lord Curriehill considered it fatal that what was put forward was "additional evidence....for proving an allegation which has already been proponed and repelled". In the case of Walker, Lord President Inglis was unwilling to admit additional evidence where the pursuer had led evidence at the proof from which the fact which he sought to establish might be inferred, and the additional evidence was of further facts and circumstances from which the same inference might be drawn. In the case of Miller, Lord President Clyde was unwilling to grant a new trial where the additional evidence did not import into the case any new feature, or put any new complexion upon it, in the absence of any speciality in the circumstances of the trial. Lord Cullen similarly referred to a need for the additional evidence to change the complexion of the case; and he and Lord Skerrington also emphasised that the pursuer had decided to proceed to trial on the basis of the evidence then available.

[40] In considering whether to allow additional proof, the court will also consider the cogency of the proposed additional evidence, bearing in mind that it is sought to be admitted not for the purpose of persuading the court that a new trial should be allowed, but for the purpose of having the court consider the grounds of appeal in the light of the additional evidence. The cogency of the additional evidence has to be considered in that context. Authorities concerned with the allowance of a new trial, such as Bannerman v Scott (1846) 9D 163, are therefore not in point. In order to be material in the context of an appeal, the additional evidence must, in Lord President McNeill's words in Longworth, be "calculated to affect the judgment in the case"; or, as Lord Deas said in the same case, "at least prima facie likely to have that effect". In that context, particular difficulties may arise where it is sought to lead additional evidence in order to persuade the court to alter findings in fact which were based upon the Lord Ordinary's assessment of credibility or reliability. Issues of fairness may also arise: decisions taken by the defender at the proof as to whether to lead certain witnesses, or as to whether to ask certain questions, are for example likely to have been based on an assessment of the evidence led on behalf of the pursuer; and the admission of additional evidence for the pursuer at a later stage may, depending on the circumstances, prejudice the defender's position unfairly.

The present case

[41] The present case is not one where it is argued that there was a failure to investigate the case with reasonable diligence: the solicitor advocate for the defender did not advance any contention to that effect. As I have explained, however, that does not necessarily mean that additional proof should be allowed. In considering how the court should exercise its discretion in the present case, a number of aspects of the case appear to me to be of particular importance.

[42] First, the issue in relation to which the court is now being asked to hear additional evidence from thirteen witnesses (eight on behalf of the pursuer, and five on behalf of the defender), namely the genuineness of the maintenance records, is not the critical issue in the case. As I have explained, the critical issue is whether the accident was caused by the trailer being overloaded or by the pursuer's failure to apply the brake properly. The genuineness of the records is directly relevant only to the question whether Mr McIlwraith told a lie when he was asked about them in the course of his evidence; and that question is of significance only in so far as it bears upon the Lord Ordinary's acceptance of Mr McIlwraith's evidence that, when he saw the tractor after the accident, the brake was not applied. It does not of course follow, if Mr McIlwraith told a lie about the records, that he also lied about the other matter. His evidence in relation to that matter did not stand alone. It was supported, first, by the evidence of the defender. As I have explained, the proposed additional evidence, so far as it goes, is not inconsistent with any evidence given by the defender at the proof (although it is possible, if additional proof were allowed - particularly if the defender gave evidence - that his credibility would require to be reassessed). In addition, the Lord Ordinary considered, as I have explained, that the pursuer's evidence was inherently improbable: it was unlikely, if the brake was properly applied, that it would hold the tractor for a time and then fail to do so. The proposed additional evidence, although relevant to credibility, is therefore by no means conclusive.

[43] Secondly, as indicated above, this is not a case where the possibility that the maintenance records were not genuine only emerged after the proof. The pursuer's solicitors, counsel and expert witness had all considered this question prior to the proof. The additional evidence which is now sought to be led is evidence directed to precisely the same issue, providing support for the evidence already given by Mr Johnston. It is evidence of a kind which was always capable of being discovered, if the issue had been investigated more thoroughly. The pursuer wishes to tell the court that the roll bar was only fitted to the tractor after the accident; but he knew that all along, if anyone had asked him. Other witnesses have been traced who can speak to the appearance of the tractor prior to the accident; but witnesses of that kind were always capable of being traced, if the effort had been made.

[44] Thirdly, and perhaps most importantly, the pursuer (or his advisers, for whom he must in this context accept responsibility) decided to proceed with the proof on the basis that the genuineness of the records was to be challenged, and on the basis that that challenge was to be founded solely on the evidence of Mr Johnston. That evidence, if accepted, was sufficient to establish that the records were not genuine. The Lord Ordinary did not accept it, but preferred the contrary evidence of Mr McIlwraith. The pursuer thinks that, with the assistance of the additional witnesses, he may be more successful. It appears from his affidavit that Mr McIlwraith will give the same evidence again, but the pursuer hopes that the court will take a different view of his credibility from that taken previously by the Lord Ordinary.

[45] The present case thus resembles the cases of Longworth, Walker and Miller in being a case where the proposed evidence is additional evidence in support of evidence which has already been brought. It does not introduce a new feature, or put a new complexion on the case. Nor is this a case where any unfairness arose from the circumstances of the proof. Lastly, the case also resembles Miller in being one where the pursuer decided to proceed to proof, in relation to the issue in question, on the basis of the evidence then available. Even allowing for any latitude where allegations of deliberate deceit are concerned, this is a powerful consideration against a claim of res noviter.

[46] Considering the whole circumstances which I have discussed, I conclude that this is not a case in which the interests of justice require the general principle of finality in litigation to be overridden. I would accordingly refuse the application.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Marnoch	[2010] CSIH 48 PD1342/07 OPINION OF LORD HARDIE in the cause IAN McCALMAN RANKIN (A.P.) Pursuer and Reclaimer; against JOHN JACK trading as LOCHILL EQUESTRIAN CENTRE Defender and Respondent: _______

Act: Hajducki, Q.C.; Thompsons (for John Henderson & Sons, Solicitors, Dumfries)

Alt: Macpherson, Solicitor-Advocate; Simpson & Marwick, W.S.

2 June 2010

[47] The opinion of your Lordship in the chair comprehensively reviews the authorities and identifies relevant principles in the determination of applications such as in the present case. While each case depends upon its particular circumstances, it seems to me that there must be strong and cogent reasons in the interests of justice to overcome the general principle of finality in litigation. I agree with your Lordship that such reasons are absent in the present case and that this application should be refused.

[48] I would only add that I share the opinion expressed by Lord Deas in Longworth v Yelverton that there might be considerable practical difficulties in following the course advocated on behalf of the pursuer of reconsidering the discrete issue of the credibility of one, or possibly two, of the defender's witnesses. This is to be contrasted with a fresh hearing of the entire case where a new jury trial is allowed. That does not mean that I would deny a remedy to a party where, following decree being pronounced after proof, there is clear evidence of injustice. I would, however, wish to reserve my opinion whether such a remedy would necessarily include adducing additional evidence. Other remedies might be more appropriate depending upon the circumstances of the case, including where there are allegations akin to perjury.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Marnoch	[2010] CSIH 48 PD1342/07 OPINION OF LORD MARNOCH in the cause IAN McCALMAN RANKIN (A.P.) Pursuer and Reclaimer; against JOHN JACK trading as LOCHILL EQUESTRIAN CENTRE Defender and Respondent: _______

Act: Hajducki, Q.C.; Thompsons (for John Henderson & Sons, Solicitors, Dumfries)

Alt: Macpherson, Solicitor-Advocate; Simpson & Marwick, W.S.

2 June 2010

[49] I am much indebted to your Lordship in the Chair for having set out so fully and carefully the circumstances surrounding the present application. They are, indeed, singular and appear to give rise to a sharp issue of credibility on the question of whether, at the time of the accident, a roll bar was, or was not, fitted to the tractor in question. This, in turn, affects the genuineness or otherwise of the maintenance records which were produced at the proof.

[50] Since any form of deliberate deception in matters affecting judicial proceedings is strongly to be deprecated I, for my part, am not averse to entertaining res noviter applications on these grounds; cf. Maltman v Tarmac Civil Engineering Ltd 1967 S.C. 177, S.H. v K.H. 2006 S.C. 129. This assumes, of course, that all the other requirements of such applications, as these have been outlined by your Lordship, are made out. In the present case, however, I am myself influenced by two countervailing considerations, both of which have already been mentioned in the course of your Lordship's Opinion.

[51] First, the issue of credibility which has arisen does not go directly to the heart of the dispute on liability. Even if lies were told about the roll bar the motive could, as your Lordship has said, have been concerned with unrelated breaches of health and safety legislation.

[52] Second, and perhaps most importantly, the question of whether the maintenance records were genuine was raised and considered by the pursuer's advisers prior to the commencement of the proof. If that matter had been more fully explored, even, as it happens, with the pursuer himself, the questionable entries about the roll bar would immediately have been revealed. No doubt further enquiry might have entailed a motion for discharge of the diet of proof. But that did not happen. Instead, one can only assume that, despite the obvious gravity of the accusation, a deliberate decision was taken to put in issue the genuineness of the records on the unsupported opinion evidence of Mr Johnston. For myself, this cannot be other than an instance, such as that figured in Miller v Mac Fisheries 1922 S.C. 157, of a pursuer deciding to proceed to proof on the evidence then available.

[53] For these reasons I respectfully agree with your Lordship that this application must be refused.