Scottish Court of Session Decisions

Lord President—The question here raised is as to whether we should send this reclaiming note to the roll. The circumstances are these—There was a judgment, and one of the parties—the defender—intimated to the pursuer that he intended to reclaim. He carried out his intention by printing and boxing in the ordinary way, and his reclaiming note appeared in the Single Bills and was sent to the roll.

This is a reclaiming note by the pursuer, and it appeared in the Single Bills one day after the reclaiming note for the defender had been sent to the roll, and the defender now argues that this reclaiming note should not be sent to the roll, because, under the provisions of section 52 of the Court of Session Act the pursuer had really got all he wanted, viz., the possibility of attacking the interlocutor which had been pronounced by the Lord Ordinary, by the fact that the case had already been sent to the roll upon the defender's reclaiming note.

I do not think that this matter amounts to incompetency. Section 52 of the Court of Session Act does not say so. It simply says that the effect of a reclaiming note is, first of all, to submit to review all prior interlocutors—unlike the older practice in which you had to reclaim against each separate interlocutor which you disliked; and, secondly, it gives the other side the opportunity of calling in question each and every interlocutor; but it does not say that it makes a reclaiming note at the instance of the other side incompetent. Accordingly I think that this case ought to go to the roll.

I am, however, very far from saying that I think it is good practice that there should be a second reclaiming note for the purpose of doing no more than could be done on a reclaiming note taken by the other side, and it really comes to be an auditor's question and nothing else. It is quite evident that there are cases in which different results might be reached. For instance, if a party gets notice from the other side that he intends to lodge a reclaiming note and he himself at the same time wishes to reclaim, it is quite evident that he would not be in safety to trust to a simple intimation. He would be quite right to go on with his preparations so as be quite sure that the reclaiming days did not run out, because the other party might write to him and say “Now we have changed our minds,” and he might find that the reclaiming days had gone.

On the other hand, if a reclaiming note has not only been intimated but also printed and boxed and the case sent to the roll early in the reclaiming days, I think it would be quite out of the question that the other party should then and there sit down and pen another reclaiming note with the view of getting the expense of it in the event of success being with him. I think the matter can be fairly left to the Auditor, who in a case where there are double reclaiming notes will fairly judge whether there was any proper reason for lodging the second reclaiming note, and if there is not, will certainly disallow the expense of it, even although that party may be successful.

Lord Johnston—I quite agree with what your Lordship has said. The only point which I wish safeguarded is this, viz., I do not think that the mere written notice of one party that he is going to reclaim is a thing upon which the other party is bound to rely, because the party giving that notice may perfectly well change his mind, and if he does so just on the eve of the reclaiming days running out, then his opponent may find himself in the position of having an interlocutor against him against which it is too late for him to reclaim.

Lord Skerrington—I agree.

Lord Kinnear and Lord Mackenzie were sitting in the Extra Division.