Scottish Court of Session Decisions

Lord President— It seems to me that the only point for us to determine, in the first place, is the competency of this proceeding. As to the question of expediency, we shall be glad to hear parties afterwards, if it turns out that there is a difficulty in the case. As to the competency I have no doubt. The practice may have been for all that time to hold first one meeting and then another. But unless that be indispensable under the Act, it is impossible for us to hold that the course now adopted by the Lord Ordinary is incompetent; and if it be not incompetent, we must hear parties on this report. The clause contemplates this, that when the pursuer has lodged the issue he proposes, or the pursuer and defender respectively have lodged the issues they propose, there is to be a meeting with the Lord Ordinary at chamber, for adjusting the issue or issues; and when that takes place, it is contemplated, first, that the issues may then be adjusted; but if they are not adjusted, the course of the Lord Ordinary is alternative, either he may appoint a second meeting or he may report. If he appoint a second meeting, another attempt is to be made at that meeting to adjust the issues, but if that fail the Lord Ordinary is to report. But that a report is as competent at the first meeting as at the second is quite plain.

Lord Curriehill took the same view. As to the practice of which the defender spoke, no doubt in all those cases the Lord Ordinary has seen cause to appoint a second meeting. Here he had not seen cause to do so, but had reported the case at once.

Lord Ardmillan also held that there was no incompetency in the present procedure. His recollection of the Outer-House procedure certainly was that, in the very great majority of cases, the first meeting was rather for the purpose of allowing each party to hear what the other party and the Lord Ordinary had to say than for settling the issue. But on the question of competency there was no doubt.

Lord Deas declined.

After hearing the pursuer on the issue proposed by them, the Court mere of opinion that the issue would require further consideration before final adjustment, and the case was adjourned till next week. It was held that the case was now in the Inner House without any further report by the Lord Ordinary.