Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0613.html
Cite as: [1868] ScotLR 5_613, [1868] SLR 5_613

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SCOTTISH_SLR_Court_of_Session

Page: 613↓

Court of Session Inner House First Division.

Thursday, June 25. 1868.

5 SLR 613

Rayner

v.

Scott and Others.

Subject_1Jury Trial
Subject_2Delay to proceed to Trial
Subject_3A. S., 13th Feb. 1841, sect. 7.
Facts:

A motion to dismiss an action, in respect of failure timeously to proceed to trial, is properly made in the Inner-House. On the merits, motion refused, in respect that the delay was mainly attributable to the defenders.

Headnote:

In this case, issues were adjusted on 13th July 1861.

Judgment:

Shand, for the defenders, moved for absolvitor, in respect of the failure of the pursuer to proceed to trial within year and day.

Clark, for pursuer, suggested that the motion ought to have been made before the Lord Ordinary.

Shand cited Ferguson, 13th July 1861, 23 D. 1290.

The Lord President called attention to A. S., 13th Feb. 1841, sect. 7—“after the issue or issues are so engrossed, all motions shall be made in the Division to which such cause belongs.”

Lord Deas—The only doubt ever entertained was, whether the motion could be made before the Lord Ordinary.

On the motion—

Clark, for pursuer, contended that the delay was owing to the fault of the defenders. In July 1861 they had obtained, a commission for taking evidence in the East Indies. Correspondence then went on between the parties, with a view to a settlement, until 1864. In 1865 some procedure took place by way of adjusting interrogatories, and, under interlocutor of the Lord Ordinary, documents in the process were sent abroad. In 1866 and 1867 the defenders' agents assured the pursuer's agent that the commission was still going on. In March 1868 the pursuer had moved for circumduction, which motion was opposed by the defenders, and refused by the Lord Ordinary. The commission was not yet reported.

Shand replied that certified copies of the documents sent abroad were in process; that the defenders did not find it necessary to go on with their

Page: 614↓

proof; and that the pursuer ought to have gone to trial.

Lord President—This is a motion made under the most unfavourable circumstances I ever saw. There have been questions under this clause of the Act which have caused a good deal of trouble,— where there has been delay of a year and day on the one side, and no blame on the other, but some unintentional dilatoriness. In these cases, where the Court has seen that the pursuer had been led on to delay by the inactivity of his adversary, they have refused to apply the rule. But in this case it appears that the fault is as much that of the defenders as of the pursuer, if not more so, and it is out of the question for the defenders now to turn round and make this penal demand.

Lord Curriehill concurred.

Lord Deas—This delay is entirely attributable to the defenders. And this is just an example of what is constantly occurring. Issues were adjusted in this case seven years ago. It is said, Look at the delay of the Court of Session. But that is entirely due to the parties themselves. We have no power in the matter, and to-day half an hour or more of the time of the Court has been wasted in this discussion. It is very desirable that there should be some remedy for such cases.

Motion refused, with expenses.

Solicitors: Agents for Pursuer— Murdoch, Boyd, & Co., S.S.C.

Agents for Defenders— Hill, Reid, & Drummond, W.S.

1868

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