Scottish Court of Session Decisions

This is a reparation action in which the pursuer seeks damages for loss and injury allegedly sustained by him between about July 1991 and July 1992 when he was a recruit in the army. The case came before me for a procedure roll hearing on 20 June 1997 on the defenders' preliminary plea relating to time bar. My opinion was issued on 24 July 1998 and the interlocutor of that date was in the following terms:

At a subsequent diet of preliminary proof before another Lord Ordinary a dispute arose as to the extent and scope of that proof and the diet was eventually discharged without evidence being led. On 2 October 1998 the case again came before me on the defender's motion for correction of the said interlocutor of 24 July 1998 in terms of Rule of Court 4.15(6) by repelling the third plea-in-law for the pursuer and refusing to admit to probation the averments for the pursuer at page 27B to 30C of the closed record.

It is apparent from the opinion issued following the procedure roll hearing that the first issue which was examined was that raised in the pursuer's third plea-in-law namely whether the court should exercise the equitable power conferred by Section 17 of the Prescription and Limitation (Scotland) Act 1973. My conclusion on that aspect of the case appears at page 8 of the opinion:

The difficulty which has since arisen in this case derives from the fact that notwithstanding that clear statement of opinion on this matter the interlocutor per incuriam fails to give expression to that opinion and does not repel the pursuer's third plea-in-law and exclude from probation the averments in support thereof.

Mr Gale for the defender in moving the motion to amend the interlocutor submitted that what was sought was properly a correction and not an alteration of it. It was obvious that the interlocutor and the opinion did not co-incide and that the terms of the latter made it clear that the two matters on which enquiry by way of preliminary proof were considered appropriate were the applicability of Section 17(2)(a) and of Section 17(2)(b)(i). It was conceded that there had been a delay in bringing the matter to the court's attention but there was no clear rule which precludes correction on that basis alone. While delay was a factor to be taken into account, it was not determinative (Martinez v Grampian Health Board 1995 S.L.T. 1261). What had happened in the present case was that counsel for the defender had read the record and the opinion but had not studied the interlocutor and the position adopted on behalf of the pursuer at the preliminary proof came as a complete surprise to the defender's advisers. A motion to alter the terms of the interlocutor was intimated on the following day.

In opposing the motion on behalf of the pursuer Mrs Paton contended that the interlocutor was crucial in that it set the terms of the proof; the pursuer's advisers had checked the terms of the interlocutor but did not find any inconsistency between its terms and the content of the opinion. It was submitted firstly that it was not competent to alter the interlocutor in the manner suggested by the defender because the relevant Rule of Court does not confer an unfettered discretionary power but one which has to be applied in the context of general policy considerations. In particular, while an alteration in expression was competent, a correction or alteration in substance was not (Campbell v James Walker Insulation Limited 1988 S.L.T. 263). It was further submitted that the Court's decision in the case of Martinez related to the exercise of its discretion without expressing a view on the question of competence. Reference was also made to Walker v Walker (No. 2) 1990 S.L.T. 248 and Campbell v James Walker Insulation Limited 1988 S.L.T. 263).

Mrs Paton contended further that the motion to alter the interlocutor was in any event incompetent on the additional and separate ground that there was in fact no error, ambiguity or discrepancy in its term. On a proper construction of the opinion the pursuer was quite correct to reach the view that what was allowed was a preliminary proof without any restrictions. The matter could be tested by reference to the likely outcome of a reclaiming motion enrolled by the pursuer in respect of the decision that the averments in support of the Section 19 argument were irrelevant. In that event, the Inner House could well have expressed the view that, standing the terms of the interlocutor, the pursuer was in error to seek to reclaim.

It was submitted further that even if the defender's motion was held to be competent, I should exercise my discretion in the pursuer's favour by refusing the defender's motion on the grounds both of delay and prejudice. The interlocutor in question was signed on 27 July 1997 and someone somewhere within the pursuer's team of legal advisers should have looked at it and studied its terms. Productions were subsequently lodged on behalf of the defender which could only have been directed towards an argument based on Section 19A. The attitude adopted by defender's counsel at the preliminary proof, by which time seven months had elapsed, came as a shock to the pursuer's counsel. The pursuer would be prejudiced by the granting of the defender's motion in that preparations had been made and expenses incurred in anticipation of a preliminary proof directed to the whole time bar issue. Further, had the pursuer been aware of the exclusion of the Section 19 argument a reclaiming motion could have been enrolled if that had been considered appropriate but that was a right now lost to him. Since in the circumstances of this particular case the precise date of the expiry of the triennium remained uncertain, there was a realistic possibility that following the hearing of evidence the pursuer might be successful in persuading the Lord Ordinary hearing the proof to adopt a different view as to the exercise of the discretion available under Section 19. In the event of the defender's motion being granted the pursuer would be deprived of that opportunity.

So far as the question of competence is concerned, the rule as to the alteration of interlocutors is set out in the case of Campbell v James Walker Insulation Limited to which reference has been made and it is clear that while it is not competent for the court to alter the substance of an earlier interlocutor, alterations in expression may be made where there has been some clerical or technical error (per the Lord Justice Clerk at p.254 K-L). I consider that the situation which has arisen in the present case is on all fours with that which faced the Extra Division in the case of Martinez v Grampian Health Board where the court held that the wording of the interlocutor was erroneous in that it did not reflect its opinion. It is clear from the opinion in that case (p.1263 E-F) that the Extra Division would have had no hesitation in allowing the motion for alteration had it not been for the particular circumstance that an appeal to the House of Lords was already pending.

I am in no doubt that the opinion I formed on the Section 19A argument which was presented at the debate in this case is expressed unequivocally and in the clearest terms at page 8 of my opinion and that the clerical error which has led to the omission from the terms of the interlocutor of the repelling of the pursuer's third plea-in-law and the excluding from probation of the associated averments ought appropriately to be viewed as an error in expression. I observe in this connection that I was expressly invited by senior counsel for the pursuer to consider the Section 19A argument first as a potential shortcut which would obviate the necessity of dealing with the intricacies of precisely when the triennium commenced and when it expired. It follows that if I had upheld her submissions on the exercise of my discretion in terms of Section 19A it would have been unnecessary for me to reach a concluded view on the Section 17 submissions. My decision on the matter in dispute is thus clear not only from the express terms of page 8 of the opinion but by inference from what follows thereafter. Further, to hold that the error in this case was other than clerical would, in my view, be wholly unreasonable in the particular circumstances. In particular I reject as wholly untenable the submission on behalf of the pursuer that the opinion is construable in accordance with the interlocutor as it stands. I am in no doubt whatsoever that the interlocutor does not properly reflect my clear stated intention and that effect has not been given to my rejection of the argument advanced on behalf of the pursuer that I should apply the equitable provisions of Section 19A in his favour. It is a matter of regret on my part that the wording of the interlocutor fails to make explicit what I intended to convey namely that the pursuer's third plea in law be repelled and that the averments in support thereof be excluded from probation. It follows that in my view the wording of the interlocutor is erroneous and that the alteration sought does not on any view reflect any change of mind.

Having decided as I have done, that the motion for alteration is competent, the next question which arises is whether or not I should exercise my discretion in the defender's favour. In this regard, consideration requires to be given to the question of delay by the defender and in particular to the fact that it was only on the morning of the preliminary proof which was some seven months after the interlocutor that the matter came to light. Reference has been made to the explanation tendered on behalf of counsel for the defender and since I am not prepared to hold that the approach adopted by him was unreasonable, I consider that the delay is appropriately explicable on that basis. There then falls to be considered the question of any prejudice to the pursuer. In this connection I agree with counsel for the defender that since I reached the view that the averments in support of the Section 19A argument are wholly irrelevant, it follows they are not capable of being rendered relevant by the leading of evidence. Nor do I consider that the pursuer was prejudiced by any unnecessary preparations for a preliminary proof. In my view, the only possible prejudice to the pursuer is the loss of the opportunity to reclaim and I do not consider that my decision should turn on this point since in the particular and unusual circumstances which have arisen it seems to me that it may be that it would be regarded as equitable to allow the pursuer to reclaim the terms of the interlocutor as now amended even at this stage. For the foregoing reasons, I have decided that the situation is one in which I ought appropriately to exercise my discretion in favour of granting the defender's motion and I do so to the extent of allowing the alteration of the interlocutor in the manner sought.

Act: Mrs Paton, QC, C McNeill

Shepherd & Wedderburn, WS

Alt: Gale, QC

Robson McLean, WS

2 October 1998