Scottish Court of Session Decisions

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Cite as: [1890] ScotLR 28_171, [1890] SLR 28_171

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SCOTTISH_SLR_Court_of_Session

Page: 171↓

Court of Session Inner House First Division.

Tuesday, December 9. 1890.

[ Lord Kincairney, Ordinary.

28 SLR 171

Morgan, Gellibrand, & Company

v.

Dundee Gem Line Steam-Shipping Company and Others.

Subject_1Process
Subject_2Amendment of Record
Subject_3Expenses.
Facts:

Amendments of record, especially if they involve a change of the ground of action, will as a rule only be allowed in the Inner House on payment of expenses from the date of closing the record.

Headnote:

This was an action by Morgan, Gellibrand, & Company against the Dundee Gem Line Steam Shipping Company Limited, and David Martin & Company, for payment of the loss alleged to have been incurred by the pursuers through delay in the delivery of two cargoes of flax to them.

The pursuers averred that they were the onerous indorsees of bills of lading of the two cargoes of flax which had been shipped at Riga for Dundee on board of vessels belonging to the defenders the Gem Line Company. They averred against Martin & Company that they were creditors of the Riga merchants who had shipped the cargoes, and that they had by false representations induced these merchants to send the cargo to Dundee in order that they might secure and realise it, and so obtain payment of the debts due to them, and that they had, by arresting the cargo on its arrival ad fundandam jurisdictionem, and afterwards on the dependence of an action against the Riga merchants, obstructed its delivery to the pursuers.

It was not averred that the Gem Line Company were cognisant of the false representations alleged to have been made by the other defenders.

The Lord Ordinary ( Kincairney) on 15th July 1890 allowed the pursuers a proof of their averments as against Martin & Company, but assoilzied the Gem Line Company.

The pursuers reclaimed.

At the hearing they asked to be allowed to amend their record by adding to and making more specific their averments against the Gem Line Company, which the Lord Ordinary had not thought sufficiently specific. In the amendment proposed the pursuers averred that the Gem Line Company were parties to the fraud which the other defenders were alleged to have committed.

At advising—

Judgment:

Lord President—I do not think there can be any doubt that the condition of allowing the amendment must be that the reclaimers shall pay the expenses since the date of the close of the record. This is one of a considerable class of cases in which we are called upon to allow such amendments in the case of records which have been closed without proper consideration. It appears to me that sufficient attention is not paid to the state of the record even in this Court. We have had occasion very lately to see what scant attention is paid in the inferior courts at that stage of the process, and I think that if we are to apply the rule to which we have given effect in the cases to which I have referred— Campbell v. Prestongrange Coal Company, December 2, 1890, and Macdonald v. Clyde Shipping Company, December 6, 1890, both in the First Division, in the case of records made up in the inferior courts— multo majis are we bound to apply it to records made up in this Court?

There is another consideration in the present case which leads to the same result. The action has now been converted into an action based upon the ground of

Page: 172↓

fraud, which it was not before the amendment was made. This amounts of course to a very serious charge, and I do not think that amendments of so serious a character ought to be allowed except upon the condition of payment of expenses from the date of the closing of the record.

Lord Adam concurred.

Lord M'Laren—I am glad that your Lordship has called attention to the necessity for greater care on the part of counsel and agents at that stage of a process which consists in the closing of the record. I am aware that very little time is allowed by the statute for consideration of the pleadings prior to the closing of the record, but an application may always be made to the Lord Ordinary, and a reasonable postponement will always be granted. I rather think there may be too great a desire to minimise expense at the earlier stages of a process, and that this perhaps may account for what takes place.

Lord Kinnear concurred.

The Court, on condition of the pursuers paying the defenders' expenses since the closing of the record, allowed the amendment to be made, and appointed the amended record to be printed and boxed quam primum: Allowed an account of the expenses as found due to be given in, and remitted the same to the Auditor to tax and report.

Counsel:

Counsel for the Pursuers— D.-F. Balfour— Guthrie. Agents— Henderson & Clark, W.S.

Counsel for the Defenders — Graham Murray— C. S. Dickson. Agent— J. Smith Clark, S.S.C.
1890