Scottish Court of Session Decisions

[1] At the conclusion of the By Order hearing on 24 May 2000 I allowed to parties a proof before answer of their averments on record except in so far as disposed of by my interlocutor of 11 May (which repelled the defender's second and third pleas-in-law and by implication excluded from probation the averments in support of them). I granted leave to reclaim against both the interlocutor of 11 May and that of 24 May.

[2] I granted leave in respect of the interlocutor of 24 May because at the By Order hearing Mr Anderson, who then appeared for the defender, made the following matters plain - first, that the defender did not depart from the concession made by Mr Thomson on his behalf at the debate (and in effect reflected in the defender's pleadings in Answer 6, as adjusted) that he could not, subject to his arguments in support of his second and third pleas-in-law, resist a proof before answer being allowed if that were restricted to the esto case advanced by the pursuers in Article 5 and, second, that, in so far as concerned the primary case made by the pursuers in that Article, the defender's contention was not restricted to a pleading point but involved a fundamental attack on the relevancy of that primary case. In substance, the defender's contention was that no duty of care more exacting than that reflected in one or other of the formulations referred to in the pursuers' alternative case could as a matter of law be said to have been incumbent on the defender. Mr Anderson also indicated that the views expressed by me in my opinion of 11 May on that aspect had given rise to wide-ranging concerns, particularly as regards implications for professional indemnity policies.

[2] The matter disposed of by my interlocutor of 11 May also appeared to me to raise questions of some general importance; moreover, if the defender's contentions on this matter fall, contrary to my view, to be decided in his favour, that will dispose of the action as a whole.

[3] In these circumstances the matters raised by both the principal issues referred to in my Opinion appeared to me to merit a more authoritative ruling at this stage.