Scottish Court of Session Decisions

[1] The second respondent, a party litigant, moved amendment of the record in terms of a Minute of Amendment in two parts extending to 54 pages. Mr Di Emidio, for the petitioner, opposed the minute.

[2] His opposition to the first part, extending to page 45 was, that it was largely repetition of material already on record and added nothing of substance. He acknowledged, however, that part of it sought to clarify the language used and the process numbers of other material referred to. The second respondent invited me to allow that part of the amendment to ensure that he was not restricted by the inadequacy of his pleadings from making the points he would seek to make at the Procedure Roll debate on 26 May. Mr Di Emidio indicated that he would not require to answer this part of the minute. I allowed amendment of the record in terms thereof. Mr Di Emidio undertook that the petitioner would reprint the record for the sake of convenience without prejudice to responsibility and indeed liability for the expenses thereof.

[3] In the second part of the Minute of Amendment the second respondent sought to introduce averments to the effect that three interlocutors pronounced by Lord Kingarth in this process on 1 December 1998 and 9 and 28 March 2000 should be reduced ope exceptionis. I agreed with Mr Di Emidio's submission that it was not open to me or the judge hearing any later stage of these proceedings to interfere with any of these interlocutors and that the averments were accordingly plainly irrelevant. The second respondent referred me to number of authorities demonstrating that there are circumstances in which a decree can be reduced ope exceptionis. However, none of these authorities related to reduction ope exceptionis of an earlier interlocutor in the same litigation. Since I could envisage no circumstances in which the second respondent would be entitled to reduction of these interlocutors in the course of this litigation, I saw no point in allowing amendment of the record in terms of the second part of the minute and accordingly refused that part of his motion.