Scottish Court of Session Decisions

The Administration of Justice and Appeals Act 1808 (48 Geo. III, c. 151), sec. 16, enacts:—“If the reclaiming or representing days against an interlocutor of a Lord Ordinary shall from mistake or inadvertency have expired, it shall be competent, with the leave of the Lord Ordinary, to submit the said interlocutor by petition to the review of the Division to which the said Lord Ordinary belongs; but declaring always that in the event of such petition being presented, the petitioners shall be subjected in the payment of the expenses previously incurred in the process by the other party.”

In this action the Lord Ordinary ( Kyllachy) on 8th June 1904 pronounced decree in terms of the conclusions of the summons.

The defenders presented a reclaiming note to the Second Division, but inadvertently appended to the reclaiming note a copy of the closed record in a previous action between the same parties, instead of the record in the present action. Copies of the wrong record were also lodged and boxed.

The circumstances under which the wrong record was attached to the reclaiming note were as follows:—The defenders instructed their printers to print the reclaiming note and append the closed record, which they would obtain from the pursuers' printers, who, according to the ordinary practice, had printed the boxing copies of the closed record at the time the record was closed, and had meantime retained them to await a reclaiming note, if any, by either party. At the same time the defenders' agents wrote the agents of the pursuers requesting them to instruct their printers to hand boxing copies of the record to the defenders' printers, which they agreed to do. The defenders' printers applied to the pursuers' printers for the boxing copies accordingly, and received from them what purported to be the closed record in the action. The reclaiming note was thereupon printed and boxed and lodged on June 21, 1904, with copies of the said record so supplied appended thereto. It was not again seen by the defenders or their agents until the case was called in the Short Roll of the Second Division on November 4, 1904, when it was discovered that the record which had been boxed to their Lordships was not the closed record in the present action.

On 15th November 1904 the Second Division refused the reclaiming note as incompetent, in terms of section 18 of the Judicature Act 1825, in respect that the defenders had failed to box along with the reclaiming note copies of the record in the action.

The defenders thereafter presented a minute to the Lord Ordinary in terms of section 16 of the Act 48 Geo. III, c. 151, setting forth the facts above stated, and craving leave to reclaim.

In support of their application for leave to reclaim the minuters cited the following authorities— Mills v. Hamilton, June 6, 1829, 7 S. 716; Magistrates of Leith v. Lennon, November 23, 1875, 3 R. 152, 13 S.L.R. 84; Steedman v. Steedman, March 19, 1887, 14 R. 682, 24 S.L.R. 476; Watt's Trustees v. More, January 16, 1890, 17 R. 318, 27 S.L.R. 259.

The pursuers argued that leave to reclaim should be refused, in respect that the re claiming days had not expired from “mistake or inadvertency” in the sense of section 16 of the Act of 1808, and that it was incompetent for the Lord Ordinary to grant leave to reclaim after the Inner House had written upon a reclaiming note and pronounced a final interlocutor.

On 24th November the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“The Lord Ordinary having considered the minute … and heard counsel, grants leave to reclaim as craved.”

Opinion.—“I think that the theory of the statutory enactment must be held to be that a reclaiming note not printed within the reclaiming days or otherwise irregular is no reclaiming note at all. In the same way if such reclaiming note has on presentment been refused as incompetent, that refusal simply ascertains that there has been novalid reclaiming note. I take it therefore that the position is the same as if a reclaiming note had not been presented, or, being presented, had been put aside as a nullity. In other words, Mr Macphail is in the position of having hitherto presented no reclaiming note against my judgment. Therefore having in view the opinions expressed in the case of Steedman, and apparently endorsed in the case of Watt, I see no reason why I should not allow Mr Macphail's client to present a new reclaiming note, leaving it to the Division to deal with it as it thinks fit.”

[On 29th November 1904 the defenders presented a second reclaiming note to the Second Division against the Lord Ordinary's interlocutor of 8th June 1904. On 8th December defenders' counsel appeared in the Single Bills, and moved that the case should be sent to the roll. Pursuers' counsel opposed the motion on the ground that the reclaiming note was incompetent, the reclaiming days having expired, and that not “from mistake or inadvertency.” In deference, however, to a suggestion from the Bench that in the circumstances the objection should not be pressed, the objection was withdrawn, and the Court pronounced this interlocutor—“Appoint the case to be put to the roll on condition of the reclaimers paying the expenses up to this date.”]