Scottish Court of Session Decisions

[1] In this case the defender has enrolled a motion seeking that the action be dismissed by reason of the fact that the Closed Record has not been lodged timeously in terms of Rule of Court 22.3(1). A counter motion has been enrolled by the pursuer invoking Rule 2.1 to the effect that the Record should be received late.

[2] The action is certainly an unusual one. The leading conclusion is for production and reduction of a pretended confirmation in favour of the defender dated 22 March 1993, the deceased having died two years earlier in 1991. The action, itself, was not raised until 1996 and, in the meantime, proceedings had been raised in England seeking reduction of the deceased's Will. These proceedings were also raised at the instance of the present pursuer and were unsuccessful. In these proceedings the present defender had been convened as a defendant but without any challenge to her title under the confirmation in question. In the foregoing circumstances Mr Francis, for the defender, posed the initial question of what interest the pursuer had to insist in the present action. To that question, there was, in my opinion, no very clear answer by Mr Artis, who appeared for the pursuer, although I understood that his instructions were to the effect that reduction of the confirmation might be a pre-requisite of a further action of reduction of the Will in England. However, that answer, such as it was, takes no account of the fact that there is in existence an eke to confirmation to which no reference is made in the pursuer's conclusion.

[3] The fact that the merits of the pursuer's claim are rather obscure is, of course, not a reason for giving effect to the defender's motion but I consider that it is, nonetheless, a relevant background consideration. Much more important are the salient facts that the Closed Record is now over 14 months late and that there was an earlier failure by the pursuer's agents to lodge the Open Record, which failure extended over a period of no less than 41/2 months. What is more, during the whole of the intervening period no adjustments whatsoever have been effected although Mr Artis frankly accepted that his client's pleadings were in need of clarification to say the least. Mr Artis submitted that the defender had suffered no substantial prejudice as a result of the oversight in question. However, I am of opinion that in an action of this sort it is indeed prejudicial for a defender to be subjected to such unnecessary and undue delay.

[4] In light of the foregoing it respectfully seems to me that this is an action in which little, if any, real attempt has been made to comply with the Rules of Court or to advance the proceedings in any meaningful way. In these very special circumstances I have decided to grant the defender's motion and dismiss the action.