Scottish Court of Session Decisions

By lease dated 31 July and 20 August 1990 and registered in the Books of Council and Session on 29 October 1991, the Scottish Development Agency granted to Elan International Limited ("Elan") a lease of industrial subjects ("the premises") at Uddingston. Elan had taken entry to the premises under missives some years earlier. In 1993 the pursuers purchased the premises from Scottish Enterprise, the statutory successor to the Scottish Development Agency, the pursuers' title being subsequently registered in the Land Register.

By guarantee dated 15 July 1987 the defenders guaranteed -

In the present action the pursuers also found on another guarantee executed but undated, expressed in similar but not identical terms and granted by the defenders in respect of the premises. In or about March 1994 Elan went into liquidation. The pursuers aver that since then Elan has failed to meet any of the obligations incumbent on it in terms of the lease. The pursuers seek payment from the defenders under the guarantees of various financial obligations (including an obligation in damages) owed to them by Elan in respect of the premises. The pursuers further aver:-

Early in 1995 the pursuers raised an action in the Court of Session seeking payment from the defenders of various sums said to be owed by Elan under or by virtue of the lease. They relied in that action on the guarantee dated 15 July 1987, no reference being made to the undated guarantee. In that action they averred:-

In October 1995 that action was transferred of consent to the Commercial Roll. In November of that year the parties were heard at debate. On 21 December 1995 Lord Penrose pronounced an interlocutor in the following terms:-

The issue at the debate, as identified by Lord Penrose, was "whether Waydale are entitled as singular successors of the Agency to enforce the guarantee against D.H.L.". He recorded the defenders' contention as being that "the guarantee was not assignable and in any event that the pursuers had not pled any relevant case that there had been an assignation of the benefit of the guarantee to Waydale". The first of those contentions proceeded on an argument that the obligation in the guarantee was owed to the Scottish Development Agency personally and was not assignable. Having discussed the various submissions by counsel in respect of that contention, his Lordship concluded:-

Having noted that it was clear that that consent was never sought and having expressed the opinion that no reason had been adduced for excluding delectus personae in the case of a corporate landlord in a case such as that under discussion where the other indications favoured a construction which pointed to delectus, his Lordship stated:-

The defenders' first plea-in-law was a general plea to the relevancy and specification of the pursuers' averments.

Lord Penrose then discussed the defenders' second contention, namely, that if the guarantee were assignable, it was not in any event assigned in the circumstances of the case. He noted that the pursuers did not suggest that there was any assignation in terms of the benefit of the guarantee independently of the disposition of the land. Having discussed the submissions on that branch of the case his Lordship stated:-

He concluded his Opinion as follows:-

The pursuers enrolled a motion for review of the interlocutor of 21 December 1995. Parties were appointed to lodge grounds of appeal. The grounds lodged by the pursuers put in issue the Lord Ordinary's conclusions on each of the contentions advanced by the defenders before him. While the case was pending in the Inner House the pursuers obtained from Scottish Enterprise the assignation dated 16 April 1996 which they subsequently intimated to the defenders. The pursuers lodged a Minute of Amendment in which they made averments in respect of the assignation by then obtained and intimated. The defenders in their Answers to that Minute challenged the competency of the pursuers relying for their title and interest on an assignation obtained after the commencement of the action. Although the pleadings were amended in terms of the Minute of Amendment and Answers, the pursuers, unsurprisingly, took the view that that challenge was unanswerable. They also, it seems, took the view that the prospects of persuading the Inner House that the Lord Ordinary had erred in holding that the conveyance of the heritage carried the benefit of the guarantee were not sufficiently good to justify proceeding with the reclaiming motion. A Minute of Abandonment for the pursuers was prepared and lodged. In the event, however, a motion was enrolled on behalf of the pursuers to dismiss their motion for review, no reference being made in the motion to the Minute of Abandonment. That motion was granted unopposed. Thereafter the pursuers raised the present action. The defenders' first plea-in-law in this action is in the following terms "res iudicata". Parties were heard at debate on that plea.

Sir Crispin Agnew for the defenders submitted that the defenders' first plea-in-law should be sustained and that decree of absolvitor should be pronounced. In support of that form of disposal he referred to McPhee v Heatherwick 1977 SLT (Sh. Ct.) 46. The principal issue between the parties, he explained, was whether, when a prior action had been disposed of by dismissal, it was or was not always open to a pursuer to raise a new action. In his submission a plea of res iudicata in defence to the new action might in some circumstances be sustained notwithstanding that dismissal had been the form of disposal of the prior action. In circumstances where the prior action had been disposed of in foro and where the parties and the media concludendi in both actions were the same, the true question raised by the plea of res iudicata was what was litigated and what was decided in the prior action and not the form of disposal of that action. Where in the prior action the merits of the case had been considered in detail and the action dismissed as irrelevant on a substantive legal issue (as distinct from on the ground of want of appropriate specification), a plea of res iudicata would lie in subsequent proceedings where the other criteria for that plea were satisfied. If that were not so, then the court would be obliged to entertain a claim for the same remedy presented on the same legal and the same factual basis (averred or admitted) in an action between the same parties as had already been entertained and determined, perhaps at the highest level of appeal, in an earlier action. That would be inconsistent with the public policy considerations referred to in Maclaren - Court of Session Practice at p. 396 at the opening of the author's discussion of res iudicata. In so far as the author stated later on the same page that a decree of dismissal would not found a plea of res iudicata, his proposition went too far if it were to be taken as excluding that plea where there had been a proper judicial determination of the subject in question. Other textbooks to the same effect likewise stated the matter too broadly. Modern cases made no mention of a distinction between dismissal and absolvitor as the form of disposal of the earlier action but simply addressed the question of what had been litigated and what decided (Edinburgh & District Water Trustees v Clippens Oil Co Ltd (1899) 1 F. 899, especially per Lord Kinnear at p. 909 and Grahame v Secretary of State for Scotland 1953 SC 368, especially per Lord President Cooper at p. 387). Reference was also made to Esso Petroleum Co v Law 1955 SC 33 and Margrie Holdings Ltd v The City of Edinburgh District Council 1994 SC 1. This approach, it was argued, was consistent with earlier authority. In Gillespie v Russel (1859) 3 Macq. 757, although decree of absolvitor had been pronounced in the earlier action, the Court looked at the substance of what had been decided and rejected the plea of res iudicata in the later action. Reference was also made to Earl of Perth v Lady Willoughby de Eresby's Trs. (1875) 2 R. 538, to Glasgow and So-Western Railway Co v Boyd & Forrest 1918 SC (HL) 14, especially per Lord Shaw of Dunfermline at p. 32 and to Stewart v Greenock Harbour Trustees etc. (1868) 6 Macph. 954. The observation of Lord Watson recorded in Menzies v Menzies (1893) 20 R. (HL) 108 at pp. 110-1 was consistent with res iudicata being properly founded where there had been dismissal of an action upon relevancy but after examination and determination of its substantive legal merits. Reference was also made to Cunningham v Skinner (1902) 4 F. 1124, Malcolm Muir Ltd v Jamieson 1947 SC 314, Wallace v Baird (19

In the present circumstances, the argument continued, the parties in both actions were the same and the conclusions and grounds of action were essentially the same. Although the pursuers now founded additionally, it appeared, on a second guarantee and there were minor textual differences between the two documents, there was no difference in substance. Although in respect of assignation the pursuers in the earlier action had founded only on the conveyance of the heritage and in the present action founded additionally on deeds of assignation granted since the Lord Ordinary's disposal, the issue of assignation only arose after the issue of assignability had been determined. The latter issue (which was a substantive issue of law turning on interpretation of the guarantee) had been examined at debate in the earlier action and had been determined by the Lord Ordinary against the pursuers who had not pursued their reclaiming motion against that determination. Decree of dismissal had been pronounced in foro. In these circumstances the critical issue litigated and decided had been the assignability of the guarantee. That issue had been determined on its merits against the pursuers. Albeit the form of disposal had been by decree of dismissal, the plea of res iudicata could and should be sustained.

Sir Crispin made two subsidiary submissions which arose only if the Court were against him on his principal submission. The first was that, the prior action having been transferred of consent to the Commercial Roll and determined after debate on that Roll, it was not open to the pursuers to found on the circumstance that the form of decree was one of dismissal rather than of absolvitor. The situation was analogous to the pronouncement of decree of dismissal in a prior arbitration. Reference was made to Farrans v Roxburgh County Council 1969 SLT 35. The second submission was that the Court had in any event a discretion to prevent a multiplicity of proceedings. Reference was made to the general principle underlining the plea of res iudicata as formulated in Maclaren - Court of Session Practice at p. 396, to Mackay - Manual of Practice p. 312 and to Bruce v Duncan, 26 November 1793, Humes's Decisions 596. On these alternative submissions decree of absolvitor should be pronounced in the present action.

The Dean of Faculty for the pursuers submitted that the defenders' first plea-in-law should be repelled and the present action allowed to proceed. The plea was altogether excluded by the fact that the previous disposal had been by decree of dismissal. In any event, the requirements for res iudicata (which were strict) were not satisfied in this case. In approaching the issues, the Dean submitted that, if the Court were in any doubt on the matter, it should resolve that doubt in the pursuers' favour; unless the defenders were able to make out their contention of res iudicata clearly and instantly, the present action should be allowed to proceed. Further, it was submitted, this was not a case of the pursuers raising a second action with a view to reopening issues which had already been determined. What fell to be decided at the debate in the previous action was whether the pursuers had a locus to enforce the guarantee founded on. That issue had been remitted for discussion on the defenders' general plea inviting dismissal. There were two branches to the argument on locus, namely assignability and whether there had been an effective assignation. The Lord Ordinary had reached a view on both of those and had dismissed the action on grounds of relevancy. He had not been invited to express a view nor had he expressed a view on any other aspects of the case. The pursuers had recognised the force of the Lord Ordinary's view that the conveyance of the heritage was not apt to effect assignation and had taken steps to obtain a deed of assignation. There was, however, no point in their taking the assignability issue further if they would fail on the matter of effective assignation. Once their attempts to introduce the deed of assignation had been unanswerably met by a plea by the defenders that it could not be founded on in an action raised prior to its grant, the pursuers recognised that the only sensible course was to abandon that action with a view to raising fresh proceedings. A Minute of Abandonment had been prepared and lodged. The Court officials had persuaded the pursuers' agents that the appropriate mode of taking the action out of court was that which was in the event adopted.

The Dean submitted that it was a well settled rule that disposal of an earlier case by dismissal could not found a plea of res iudicata. The whole point of a decree of dismissal was to facilitate the raising of a new action without the pursuer having to face the spectre of a plea of res iudicata. There was a real and practical advantage in having a simple and uncomplicated rule by which decree of absolvitor constituted a final disposal and decree of dismissal allowed the pursuer to return with fresh proceedings. Otherwise it would be necessary for the Court in the later action to make a subjective assessment of what the Court in the earlier action had had in mind in respect of the effect of its decree. It was competent for a defender to seek disposal by absolvitor on a plea to the relevancy (Lees - Notes on Interlocutors (2nd ed) at p. 25 and the cases there referred to). If a defender chose to seek disposal by dismissal, he could not complain if fresh proceedings were instituted against him. The major text-books consistently stated that a decree of dismissal did not found a plea of res iudicata. Reference was made to Maclaren - Court of Session Practice p. 396 and p. 1093, Mackay - Manual of Practice, p. 312, Lees- Notes on Interlocutors (2nd ed), p.24; Dobie - Sheriff Court Practice p. 168, Walkers on Evidence p. 46, Maxwell - Court of Session Practice, p. 618, Green's Encyclopaedia, Vol. 12 para 1192 and the Stair Encyclopaedia, Vol. 17, para 1102. The annotations in the Parliament House Book at C137 and C161 were to the same effect.

The decided cases, so ran the argument, broadly supported the settled rule described in the textbooks. Lord Watson's phrase "without any inquiry into the merits" in his observation recorded in Menzies v Menzies was descriptive of the word "relevancy" which preceded it; it did not import an additional requirement. The views of Lord President Inglis and of Lord Deas in Stewart v Greenock Harbour Trustees etc. were clearly to the effect that dismissal did not exclude a pursuer from bringing a new action. Lord President Inglis in Duke of Sutherland v Reed (1890) 18 R. 252 at p, 257 was to the same effect. The present situation (in which the prior action had been disposed of on the basis of lack of title and interest) was analogous. The suggestion by Lord Young in Cunningham v Skinner that one should look at the ground of the prior judgment and why it was pronounced was not consistent with the views of the majority of the Court (Lord Justice Clerk Macdonald and Lord Traynor) who held that a prior decree of dismissal did not found a plea of res iudicata. A similar division of view (Lord Young again being in a minority on this issue) was to be found in Wallace v Baird. In Govan Old Victualling Society Ltd v Wagstaff (1906) 14 SLT 716 Lord President Dunedin (with whom Lords McLaren, Kinnear and Pearson agreed) had, following Lord Watson in Menzies v Menzies, rejected the proposition that the dismissal of an action upon relevancy could found a proper plea of res iudicata. The distinction between dismissal and absolvitor was confirmed in the Opinion of the Court delivered by Lord President Clyde in Paterson v Paterson 1958 SC 141. Gillespie v Russel illustrated the antipathy of the Court to excluding a pursuer by reason of earlier proceedings from vindicating his legal rights. The observation by Lord Shaw of Dunfermline in Glasgow & So-Western Railway Co v Boyd & Forrest at p. 32 was entirely obiter, had been made without hearing argument and without the citation of authority and had not been concurred in by the other members of the appellate committee; weight should not be attached to it. Although one case had been discovered (Johnston v Standard Property Investment Co Ltd and Others (1909) 1 SLT 23) in which Lord President Dunedin (Lords Kinnear and Pearson concurring) had treated a prior action disposed of by dismissal as founding a plea of res iudicata, there was no indication in the report that that view had been reached after argument on the point or after citation of authority. It was inconsistent with the decision reached by the same Division a few years earlier in Govan Old Victualling Society v Wagstaff; Johnston had not been cited in any subsequent textbook or decision.

As to the defenders' subsidiary arguments, the Dean submitted first that Farrans v Roxburgh County Council had been decided on the specialities of arbitration proceedings; a case proceeding as a commercial action in the Court of Session remained judicial proceedings and the rule applicable to prior judicial disposals applied. Secondly, a plea of res iudicata fell to be disposed of not by the exercise of a discretion but by the application of a rule. The passage in Mackay - Manual of Practice was concerned with the oppressive institution of new actions where a prior action on different grounds had concluded with a decree of absolvitor; it had no relevance to a new action raised following a decree of dismissal.

The Dean further submitted that, if contrary to his principal submission, a plea of res iudicata could be founded on a prior decree of dismissal, such a plea was not made out in the present case. The three essential factors for such a plea had been described as settled in Mitchell's Trustees v Aspin 1971 SLT 29, per Lord President Clyde at p. 33. The third such factor was that there must be identity of subject-matter. There was no such identity in the present situation, there being five points of difference. (1) In the prior action there had been a tacit assumption that the guarantee was conceived in favour of the Scottish Development Agency alone; that proposition was disputed by the pursuers in the present action. (2) In the prior action the pursuers did not found on any formal assignation; now they did. (3) The pursuers in the prior action sued upon a single guarantee; now they relied on two guarantees. (4) In the prior action the issue of delectus personae (discussed in the context of assignability) had not been considered separately in relation to each of the obligations sought to be enforced; now such separate consideration was contended for. (5) In the prior action the pursuers had sought recovery under the guarantee solely of sums owed by Elan as debts under the lease; in the present action they also sought recovery under the guarantees of monies due by Elan as damages for breach of the lease.

Resolution of the principal issue between the parties calls for an examination of the rules of Scottish practice as laid down or illustrated in the authorities. The starting point is Gillespie v Russel. The prior action there referred to (itself the second litigation between the same parties) had been directed to reducing an instrument of lease on the ground that the proprietrix had been induced to grant it by fraudulent misrepresentations on the part of the prospective lessee. The case had been disposed of in the Court of Session without inquiry into the facts. The Lord Ordinary had pronounced an interlocutor which read: "...Finds that the Pursuers have not averred facts relevant and sufficient to support the conclusions of the libel and assoilzies the Defenders from the conclusions of the action and decerns". On a reclaiming note the First Division had pronounced an interlocutor which read:-

The second and third pleas-in-law for the defenders were respectively a general plea to the relevancy and sufficiency of the averments made and a particular plea to the relevancy of the allegations of fact to show fraud - see (1856) 18 D. 677. In the later action the plea of res iudicata advanced by the defenders was rejected both in the Court of Session and in the House of Lords. In the House of Lords much turned on the form in which the interlocutors in the prior action had been expressed, regard also being had to the pleas-in-law which had been sustained in that action. The disposals of the prior action both in the Inner and in the Outer House were construed as determining only that the action did not contain proper averments and allegations and thus as not excluding another action which might contain averments and allegations which were proper. The disposal of the prior action was accordingly construed as a disposal on the ground of want of sufficiency of averment rather than on some substantive ground of fact or of law. The case illustrates that a decree which includes the word "assoilzie" need not in all circumstances found a successful plea of res iudicata in subsequent proceedings.

According to the report of Menzies v Menzies, Lord Watson, on the defenders abandoning on appeal their plea of res iudicata, cited Gillespie v Russel and said: "The dismissal of an action upon relevancy, without any inquiry into the merits, can never be res iudicata". That statement having been made in the context of the citation of Gillespie v Russel, I am unable to accept the Dean's submission that Lord Watson's words "without any inquiry into the merits" are simply explanatory of any dismissal upon relevancy. The statement, in my view, is to be understood as expressing the view that a disposal without any consideration (whether in fact or in law) of the substantive merits of the claim cannot found res iudicata. It leaves open the possibility that the Court might after inquiry into the merits dismiss an action on the ground of relevancy; it also leaves open the effect of such a decree in relation to res iudicata. The earlier case of Menzies v Menzies (reported at ((1890) 17 R. 881)), which had in the later action been the basis for the plea of res iudicata which was subsequently abandoned, was also disposed of on the ground of lack of sufficiency of averment (in that case to instruct undue influence) rather than on a substantive issue of law. Lord Watson's observation is accordingly, in my view, not on a sound analysis authority for the proposition that a decree of dismissal can never found a plea of res iudicata.

The disposal by the First Division in Johnston v Standard Property Investment Co Ltd & Others, which the Dean with his usual candour brought to my attention, illustrates that in some circumstances disposal of an action by dismissal will found a plea of res iudicata. Although the prior action to which Lord President Dunedin refers at p. 28 of the report is not itself reported, that prior action was "dismissed upon the merits of the question". As appears from pp. 24-5, that prior action concerned an attempt by the proprietor of subjects which had earlier been part of a larger area of ground to recover a proportional share of the cumulo feu duty. That attempt was resisted on the basis that the defender had acquired his subjects in reliance on an advertisement and disposition which had provided that no part of the cumulo feu duty should be borne by the defenders' subjects. The defender's contention was sustained by the Lord Ordinary (Lord Dundas) and, although a reclaiming note was marked, his decision was acquiesced in. The Lord Ordinary's disposal was by sustaining the defender's plea that the pursuer had no title to sue. Why that plea was sustained is not wholly clear from Lord President Dunedin's narrative in the reported case; but what is, in my view, clear and important is that Lord Dundas disposed of the prior case (by dismissal) after examination of the substantive merits of the dispute concerning the burden of feu duty. It was in these circumstances that the First Division in the later case held that that disposal, albeit by dismissal, constituted res iudicata. The Lord President observed (at p. 28):-

The proper conclusion to be drawn from that decision is, in my view, that a decree of dismissal in a prior action may found a subsequent plea of res iudicata in circumstances where that decree has followed upon a consideration and determination by the Court in the prior action of the substantive merits of the dispute.

In Govan Old Victualling Society Ltd v Wagstaff the prior action on which the plea of res iudicata was founded was "dismissed with the pursuers' acquiescence" (per Lord President Dunedin at p. 718). The action was accordingly in substance abandoned by the pursuers. It is hardly surprising that a disposal by dismissal in such circumstances was held not effectively to found the plea. Although the Lord President, under reference to Lord Watson's observations in Menzies v Menzies, expressed the view that it was "impossible... to conceive how the dismissal of an action upon relevancy could found a proper plea of res iudicata", the action there under discussion had not involved a determination in any sense of the merits of the case.

It has been said that the word "dismiss" is used when it is open to a party to bring another action and the word "assoilzie" where it is not so open (Stewart v Greenock Harbour Trustees etc, per Lord Deas at p. 958). Lord Deas, however, recognised that the form of expression "assoilzie from the action as laid" had been held to leave it open to bring another action - an implicit reference to the disposal in Gillespie v Russel. Although Lord Deas disagreed with a view of the Lord Ordinary (Lord Ormidale) that "the practice was exceedingly various on the use of the expressions absolvitor and dismissal" (p. 957), none of the other judges of the First Division expressed such general disapproval. Lord President Inglis, with whom Lords Curriehill and Ardmillan concurred, founded on the particular circumstances of dismissal which in that case proceeded on a minute of non-insistence. The views of Lord Deas were followed by Lord Traynor in Cunningham v Skinner at p. 1131. Lord Justice Clerk Macdonald appears to have been of the same opinion, though Lord Young differed, the latter (at p. 1130) observing "I think you are entitled always to look to the ground of the judgment and why it was pronounced". The views of Lord Deas were approved by the First Division in Paterson v Paterson (in the context of undefended consistorial proceedings). On the other hand, Lord Shaw of Dunfermline in Glasgow & So-Western Railway Co v Boyd & Forrest at p. 32 clearly contemplated that a good plea of res iudicata might in some circumstances be founded on a decree of dismissal. An implication to the same effect may reasonably be drawn from the treatment by the First Division in Margrie Holdings Ltd v City of Edinburgh District Council (at p.6) of the Outer House decision in the prior action (where decree of dismissal was pronounced). In many of the cases where observations have been made there has been no citation or a limited citation of authority. In none has there been any attempt to reconcile the conflicting judicial observations.

In the foregoing state of the decided cases I am not persuaded that it is a clear and settled rule that in all circumstances disposal by dismissal leaves open the bringing of another action in identical terms. The burden of authority is, in my view, to the effect that, where such disposal has been made without inquiry into and determination of the merits, the bringing of such an action is clearly open but, where in defended proceedings there has been such inquiry and determination (as of a substantive issue of law), another such action is, or at least may be, excluded. The form of disposal is a material consideration as it may when read with the pleadings be indicative that there has or has not been a proper judicial determination of the subject in question (the first circumstance identified in Maclaren - Court of Session Practice at p. 396); but it is not itself determinative. It is true, as the Dean pointed out, that there are some examples in the books of the Court taking the view that, a case being fundamentally irrelevant, decree of absolvitor should be pronounced. Feeney v Dechmont Colliery Co (1896) 4 SLT 210 (referred to in Lees- Notes on Interlocutors at p.25) is an example. No modern case was, however, drawn to my attention in which that course was adopted. It does not appear readily to accord with pleading and practice in the latter half of this century. Where in modern circumstances a competent court after hearing argument determines that an action is fundamentally irrelevant and disposes of it by dismissal, it is, in my view, consistent with the public and private considerations referred to in Maclaren - Court of Session Practice at p. 396 that such disposal, notwithstanding its form, should be capable, at least in some circumstances, of founding a valid plea of res iudicata. I am not persuaded that this qualification on the more absolute propositions stated in some of the textbooks will lead to material uncertainty.

In these circumstances I am not prepared to reject the defenders' plea of res iudicata simply on the ground that the decree pronounced by Lord Penrose in the prior action was one of dismissal.

I next consider the question whether, if the plea of res iudicata can, notwithstanding the prior decree, be entertained, it is in the circumstances of this case made out. In the prior action, although the plea sustained was a general plea to the relevancy and specification of the pursuers' averments, the substantive issue discussed was the pursuers' title to sue. Such title depended, as the argument was presented, on (1) the assignability of the claim and (2) the assignation of it. The arguments were discussed and disposed of in that order, although they might equally have been dealt with in the reverse order. Had that been done, the Lord Ordinary's operative ground of disposal would have been on the basis that, there being no assignation in fact (the conveyance itself not having had that effect), the pursuers had no title to sue. The pursuers now aver that subsequent to the raising of the prior action they have acquired such a title by deeds of assignation. That gives rise, in my view, to a distinct matter of substance which was not and could not have been effectively considered in the prior action. Although the issue of assignability still remains the same, the issue litigated and the issue decided in the prior action (in substance and effect the composite issue of title to sue) cannot, in my view, be said to be identical with that issue as raised in the present action. The third factor identified in Mitchell's Trustees v Aspin, per Lord President Clyde at p.33 is accordingly not satisfied. Having regard to the requirement that it is the essence and reality of the matter which is to be addressed (Grahame v Secretary of State for Scotland, per Lord President Cooper at p. 387), I doubt whether the other factors relied on by the Dean are individually or collectively themselves sufficient to constitute new matters of material distinction; they appear largely to bear on additional arguments rather than on a different substantive matter. It is, however, sufficient for the purposes of the present disposal that the assignations raise a distinct substantive matter.

No argument was addressed to me specifically on whether, if a decree of dismissal which dealt with the merits could found a plea of res iudicata, the disposal of the prior action between the present parties had or had not so dealt. I content myself with the observation that, having regard to the range of issues raised in the prior action (including issues about whether the tenant had failed in its contractual obligations) and the form of disposal in the Inner House (the reclaiming motion having been in the circumstances dismissed rather than refused), it may be open to argument whether or not the merits of the prior action were inquired into and disposed of in a way intended to precluded the bringing of fresh proceedings.

The subsidiary submissions advanced by Sir Crispin are each, in my view, unsound. As to the first of these, transfer of the action to the Commercial Roll, whether of consent or otherwise, does not give to the action the characteristics of a submission to arbitration. It remains a judicial process, albeit subject in some respects to special rules. A decree of dismissal pronounced after debate in a commercial action is not analogous to a decree arbitral. As to the second submission, the passage in Mackay on Practice at p. 312 is concerned with a residual power in the Court to control the oppressive use of litigations which would not otherwise be excluded on the recognised criteria of res iudicata. In my view, the pursuers in this action, having previously failed by reason of lack of title to sue, are not acting oppressively when, having secured ex facie appropriate deeds of assignation, they bring a second action on the basis of a new title.

In all the circumstances I shall repel the defenders' first plea-in-law and put the case out By Order for discussion of further procedure.