Scottish Court of Session Decisions

Mrs Laing sued her employers, the Scottish Arts Council, for damages for injuries suffered in the course of her employment. The case came to proof on 15 June 1999. In the course of evidence for the Council, at the beginning of the third day of the proof, Mrs Laing's counsel lodged at the bar a minute of acceptance of a tender of £4,000. In accordance with normal practice the principal sum was tendered together with the expenses of the action to the date of the tender in full and final settlement of the action. The tender had been lodged on 1 June 1999. Mrs Laing's counsel moved for decree for the principal sum and for expenses in terms of the tender, together with certification of expert witnesses. The defenders' counsel moved for certification of one expert witness who had been engaged by them. These motions were granted without discussion. The defenders did not oppose the pursuer's motion for expenses. There was no independent motion for expenses against Mrs Laing from the date of the tender. On Monday 21 June, a motion was intimated by the Council's solicitors to Mrs Laing's solicitors for an order finding Mrs Laing liable to the Council in expenses from 2 June 1999. The motion was opposed as incompetent, the judge being functus officio. Although not expressed in terms as a motion to alter the interlocutor of 17 June, or to treat it pro non scripto, the discussion covered these possibilities.

I was informed that the acceptance of the tender was intimated to the defenders' counsel orally and informally immediately before the third day's evidence began. He was told simply that the pursuer was "taking the tender". There had been no prior intimation of the minute of acceptance, or of any intention to proceed in that way. The document was produced and tendered to the court without being shown to defenders' counsel.

The first issue between the parties was whether, standing the interlocutor of 17 June, I, as Lord Ordinary, was functus officio. For the pursuer it was argued that the position was well established by the authorities: Henderson v County Council of Peebles 1972 S.C. 195; UCB Bank plc v Wilson 1991 S.L.T. 90; Baird v GP Inveresk November, 1990, unreported; Davis v British Coal Corporation 1993 S.L.T. 697; Wilson v Pilgrim Systems plc 1993 S.L.T. 1252; and Mains v Uniroyal Englebert Tyres Ltd (No 2) 1995 S.C. 538. For the defenders it was argued that the authorities relied on by the pursuer were based on the application of statutory provisions which had been repealed. There was a general common law right to award expenses, unless qualified or removed by statute: McLaren on Expenses page 3. The decisions were based on section 17 of the Court of Session Act, 1825 (the Judicature Act) and section 53 of the Court of Session Act, 1868. The line of authority went back at least as far as Wilson's Trustees v Wilson's Judicial Factor 1869, 7 M 457, followed in Bannatine's Trustees v Cunninghame 1872, 10 M 317, Campbell v Campbell & Anr. 1934 S.L.T. 45, and Henderson. Reference was made, in addition, to Maxwell on Court of Session Practice, Thomson & Middleton, Court of Session Procedure; Dobbie v Duncanson 1872, 10 M 810 and McDonald v McEachran 1880, 7 R 574. The authorities showed that the rule was based on the provisions of the Acts. These were repealed by Schedule 2 part III to the Court of Session Act, 1988. Section 5 (h) of that Act left it to the court to regulate its own procedure in matters of expenses. There was now no relevant regulation. The general rule therefore applied, and any matter of expenses that had not previously been disposed of could be dealt with. The court was not functus until all matters between the parties had been decided.

The interlocutor of 17 June was intended to dispose of the whole subject matter of the cause so far as brought before the court. If the defenders' argument were correct there could not be an interlocutor disposing finally of the cause until all possible questions of expenses had been dealt with. There would be no trigger for the obligation in Rule 42.1.- (2)(a) to lodge accounts of expenses within the time limit there specified, for example, so long as one party or the other might raise a question of expenses which had not been disposed of by the Court. Indeed one party might postpone the conclusion of the action by delaying in enrolling for the disposal of an outstanding issue of expenses. Since parties may dispose of questions of expenses by agreement without the intervention of the court, the court might be unaware of any dispute on the issue. There is a natural disinclination to accept such a position. Since every outer house interlocutor is final in terms of section 18 of the Court of Session Act, 1988, there is no longer a problem in reclaiming an interlocutor, which does not deal with expenses: see Bannatine's Trs v Cunninghame for example. But in its absolute terms, the defenders' submission would prevent the final conclusion of a case being determined by reference to the interlocutor disposing of the merits. There is ample scope for express reservation of issues relating to expenses where that is intended. In other circumstances leaving cases in dependence indefinitely on the mere possibility of a motion for expenses would appear to be unacceptable as a matter of general principle. There must be a definable end to a litigation.

There is some substance in Mr Clarke's argument that most at least of the earlier authorities were based on statutes which have now been repealed. But the position is not uniform. In Wilson's Trustees v Wilson's Judicial Factor, there was considerable variety in the approaches adopted by the judges. Lord President Inglis quoted sections 17 and 21 of the Judicature Act and said:

He did not refer to the possibility of correction. Lord Deas said that the law was neither stronger nor weaker following the Act: page 460. But he considered that provided a matter was raised while the issue was still fresh in the court's mind there was no general incompetence in dealing with expenses after the disposal of the merits. Lord Ardmillan agreed with the Lord President, and referred to the general practice of the Outer House to what effect. Lord Kinloch emphasised the scope for de recenti correction, but otherwise held that finality followed from the terms of the Act. The majority therefore considered that on a sound construction of the Act, an interlocutor disposing of the merits without dealing with a possible question of expenses exhausted the competence of the Lord Ordinary. But Lord Deas and Lord Kinloch considered that the relevant interlocutor might be altered, in appropriate circumstances, de recenti. It appears to be clear, as a matter of simple analysis, that the Lord Ordinary cannot properly be described as functus officii in relation to a process so long as it is competent for him to entertain a motion for the correction or amendment of his last previous interlocutor. That apart, the ground of decision was that section 17 of the Act, in the Outer House, was determinative. The Lord President alone went further and stated that the same finality obtained prior to the Act.

The discussion in Clark v Loos 1855, 17 D 306, to which the Lord President referred, asserts the general rule without identifying the ground for it. Hamilton v Bennet 1832, 10 S 426 was a decision based on the Judicature Act. In addition, there, as explained by Lord Deas, the case had been disposed of in the Inner House before the question of expenses was raised before the Lord Ordinary. But the expressed ground of decision was that the Act rendered the proposal incompetent.

However, the generally understood rule has continued to be expressed in absolute terms. In Henderson, the Lord Ordinary stated, under reference to Thomson & Middleton, that an interlocutor disposing of the merits, but silent as to expenses, exhausted the case. Thomson & Middleton cited as authority Dobbie v Duncanson and McDonald v McEachan. In my view, McDonald v McEachan is not helpful in this context. In Dobbie, the petitioner, in the relevant process, did not ask for expenses to be dealt with when moving the prayer. It was held that the process was at an end. The Lord President, at page 816, referred to the practice of the court, which was "consistent with the enactments", as indicating what should be the practice in the Outer House. Section 17 of the 1825 Act had been cited. But the observations were general. The Court in UCB Bank plc v Wilson distinguished the general position in dealing with a motion for an additional fee. The Lord President observed that a decerniture and the decree it contains are not capable of alteration: page 93. A similar approach is found in Mains in the Inner House. In the Outer House there are consistent decisions in Baird v GP Inveresk November 1990, a decision of Lord Coulsfield, Davis v British Coal Corporation, and Wilson v Pilgrim Systems plc. For the defenders to succeed it would be necessary to hold that at least those decisions dated after 1988 were wrong, and that because they failed to reflect the underlying statutory basis of the former accepted rule, and the consequences of the repeal of the nineteenth century acts by the 1988 Act. If that argument is to succeed in the face of the consistent practice of the Outer House and the views expressed in the Inner House, it must be for the Inner House so to decide. Mr Clarke was clearly correct in arguing that so far as the earlier decisions were based on the Acts, they have been superseded by their repeal in 1988, without provision being made in the Rules of Court requiring expenses to be disposed of. That omission is difficult to understand. If the Judicature Act simply enacted consistent practice one might have expected provision to be made in the Rules regulating practice when the Act was repealed. But the weight of authority is against the defenders.

The second argument advanced was that the pursuer had failed to comply with the procedural requirements of intimation of the minute of acceptance of tender. Reference was made to Rule 1.3, which provides that the minute is a step in process; Rule 4.6, which requires intimation of lodging of a step in process, the delivery of a copy to other parties; and the requirement that the document should not be received into process until a certificate of intimation is endorsed on it. There is no substance in this argument, in my opinion. The rules for intimation are not concerned with the conduct of proceedings in court in the course of a proof. In accordance with immemorial practice a tender may be accepted in open court in the course of proceedings, provided the minute of acceptance is lodged before the tender is withdrawn.

The third issue is whether the interlocutor may be altered de recenti, or held pro non scripto, and re-written. In my opinion only the first issue need be considered. The current provision in the Rules of Court, Rule 4.15 -(1) (6), provides that an interlocutor pronounced by a Lord Ordinary may be "corrected or altered" at any time before extract. In the annotations in the Parliament House Book it is stated that this power may not be used to deal with a motion for expenses not timeously made. The authority cited is Campbell v Campbell & Anr. If correct, the proposition would exclude such a remedy in the present case. However, in my opinion the case is not authority for the proposition. The case was decided on 20 October 1933. At that time Rule C II 10 of the Codifying Act of Sederunt of 1913 provided:

That was the position when McLaren on Court of Session Practice was edited: page 1096. It reflected previous practice as exemplified by Walker v Flint 1863, 1 M. 417 at page 423. There had been a motion for expenses at the advising of the case. After argument it was decided that there should be no expenses due to or by either party. The interlocutor issued was silent as to expenses. A motion was enrolled for alteration of the interlocutor. Lord Justice Clerk Inglis said that the case was a very fitting case for alteration, but that it could be altered only of consent of parties. That consent was not available and alteration was refused. On 9 October 1934, new Rules of Court superseded almost entirely the older Court of Session Acts and the prior Acts of Sederunt. Chapter I Rule 34 of the 1934 Rules provided:

The requirement for a joint minute had disappeared, but consent remained an essential of the application of the rule

The rules of 1913 and those of 1934 are the antecedents of Rule 4.15 - (1) (6). But the contemporary rule was not the basis of the application before Lord Fleming in Campbell. His comments were related to the more general power, inherent in the court, for which the third party contended, to correct de recenti a mistake in an interlocutor. It was in that context that he said: "But here, as it seems to me, there was no mistake in the interlocutor, for the Court could not award expenses to a party who did not move for them." He was not dealing with a matter which fell within the Consolidating Act of Sederunt at all. There was no reference to the Act of Sederunt. Nor was there reference to agreement between parties, or the lack of it. There was no joint minute by parties' counsel. Lord Caplan discussed the scope of and authorities for the general power in McChesney v Harper 18 November 1992, unreported. He relied particularly on the observations of Lord Deas in Harvey v Lindsay 1875, 2 R 980. In relation to amendment, Lord Deas said:

Whatever the scope of that general power in current practice, it is a power different from that provided in the Rules of Court. It may be noted that opinion was not consistently to the same effect as Lord Fleming's. In Burke v Harvey 1916, 2 S.L.T. 315, when Rule 10 of the 1913 consolidation would clearly have been in mind, Lord Ormidale allowed an interlocutor to be amended to correct an error resulting from a mistake by a law agent in instructing counsel on a matter of expenses. His decision illustrates that the two bases of amendment co-existed, and that the general power might be used to correct just such an error as is said to have arisen in this case.

In my opinion, however, the present question can be disposed of on the terms of the Rules of Court. There is no reason to restrict the meaning given to the expression in the present Rules. "Correct" implies that the interlocutor contains or reflects an error. It may be necessary to distinguish situations in which the court has pronounced an interlocutor in error in some respect, however induced. Rankin v Kirkwood 1855, 18 D 31, to which Lord Kinloch referred in Wilson's Trustees, was a case of acknowledged error by the court. There is no error by the court where a party has failed to focus an issue for decision by an appropriate motion. But "alter" carries no such implication. It indicates a general power to change an interlocutor if the conditions are met, and the case is an appropriate one for the exercise of the Lord Ordinary's discretion.

In my opinion it is open to the court to alter an interlocutor before extract, at least de recenti. In view of the reservation of opinion on the de recenti rule in Martinez v Grampian Health Board 1995 S.C. 428, it would be inappropriate to comment more generally on that issue in this case. The circumstances here are such that the power should be exercised even on the most rigorous application of the de recenti rule. There is not the slightest doubt that the terms of the tender, and of the minute of acceptance, called for a counter-motion from the defenders for expenses from the date of the tender. The mechanism is set out in Wilson v Pilgrim Systems plc. and it must have been anticipated by pursuer's counsel that a counter-motion would have been made. Defenders' counsel, taken aback by the unexpected move on the part of the pursuer, made a simple mistake. It would be unconscionable to permit the pursuer to take advantage of the error when the matter has been brought before the court with all expedition possible.

In the circumstances, I shall amend the interlocutor of 17 June, by inserting a finding of liability by the pursuer to the defenders of expenses from the date of the tender.