Scottish Court of Session Decisions

Lord President—I think this is an interlocutor disposing of a dilatory defence, and not disposing of it in the way of dismissing the action; and therefore it falls under the 5th section of the Judicature Act. Notwithstanding that, it is of course competent for us to grant leave to appeal, but I must say I never saw a clearer case for refusing it.

Lord Curriehill—I am of the same opinion.

Lord Deas—This is a mere question of procedure, and the matter is not finally determined. It may or may not be a disadvantage to the defenders to have it determined in this way in the meantime; but while, no doubt, you must look to the result of the defender succeeding in his appeal, you must also look to the other result, that he may fail. I think it right to call attention to this too, that on another occasion, when there was some difference of opinion, the House of Lords held that the difference must be a substantial difference; and, even assuming there might be some difference here, it would require to be shown that the difference was substantial, and I do not think that would be an easy matter.

Lord Ardmillan—I think this is a case in which it is the obvious intention of the Act of Parliament to prevent appeals at this stage. This is purely a question of procedure. The plea might have been disposed of in three ways; it might have been at once sustained, and the action dismissed; or it might have been repelled; or it might have been repelled only as preliminary, reserving its effect to be considered along with the merits of the action, and that was the case here.