Scottish Court of Session Decisions

[1] This is an action of reparation, in which the pursuer, Mrs. Laing, sues her employers, the Scottish Arts Council, for damages in respect of an injury sustained in an accident at work. By interlocutor of 19 January 1999, proof before answer was allowed; and the proof was appointed to proceed on 15 June 1999. On 1 June, a minute of tender was lodged on behalf of the defenders, tendering a principal sum of £4,000, together with the expenses of the action to the date of the tender. On 15 June, the proof commenced; and on the third day, a minute of acceptance of tender was lodged on behalf of the pursuer. The same day, 17 June 1999, the Lord Ordinary pronounced two interlocutors. By the first of these, he decerned against the defenders for payment of the principal sum of £4,000, and found the defenders liable to the pursuer in expenses of process to the date of tender, 1 June, remitting an account thereof to the Auditor of Court to tax. By the same interlocutor, he certified a named person as a skilled witness for the pursuer; and finally, on the motion of counsel for the defenders, certified another named person as a skilled witness for the defenders. By the second interlocutor of 17 June, he decerned against the defenders for payment to the pursuer of expenses found in the foregoing interlocutor, as the same should be taxed by the Auditor of Court. No motion was made in relation to expenses subsequent to the date of tender.

[2] 17 June 1999 was a Thursday. On the following Monday, 21 June 1999, a motion was enrolled on behalf of the defenders "to find the pursuer liable to the defenders in the expenses from the 2 June 1999." That motion was intimated to the pursuer, and was opposed.

[3] Thereafter, on 24 June the Lord Ordinary allowed the defender a period of 14 days to lodge written submissions in support of the motion. On 20 August, having considered the defenders' written submissions, he appointed parties to be heard thereon on 15 October. On 15 October, having heard counsel, he made avizandum. And on 16 November, he pronounced an interlocutor as follows:

On the interlocutor sheet, the first of the interlocutors dated 17 June 1999 has been altered by the insertion at the end of the interlocutor of the additional words specified in the interlocutor of 16 November. The second interlocutor of 17 June 1999 stands unaltered. But there has been added to the interlocutor sheet a further interlocutor, bearing the date 17 June 1999, in the terms set out in the interlocutor of 16 November and described there as a further consequential decree. This new interlocutor dated 17 June 1999 bears the signature of the Lord Ordinary.

[4] As we have noted, the motion which was enrolled sought an award of expenses, and did not seek any alteration to the interlocutors which had been pronounced on 17 June, or any new interlocutor bearing that earlier date. In a written Opinion of 16 November 1999, the Lord Ordinary says that although the motion was not expressed in terms as a motion to alter the interlocutor of 17 June, or to treat it as pro non scripto, the discussion covered these possibilities. While we were not referred in detail to the defenders' Written Submissions, we note that, putting the matter briefly, they cover the three possibilities of replacing the earlier interlocutors (treating them pro non scripto), leaving them standing but pronouncing a new order for the expenses sought; and "altering or correcting" the original interlocutors - the course adopted by the Lord Ordinary.

[5] The pursuer reclaims against the interlocutor of 16 November. In advancing the reclaiming motion, counsel for the pursuer accepted that the defenders' motion of 21 June came de recenti after the interlocutors of the previous Thursday. But he submitted that that was of no avail to the defenders in the circumstances: the motion as enrolled was incompetent, as was the course adopted by the Lord Ordinary in his interlocutor of 16 November.

[6] Counsel for the pursuer and reclaimer noted that the Lord Ordinary in his Opinion identified three separate issues. The first was whether, standing the interlocutor of 17 June, the Lord Ordinary was functus officio. Apart from such remaining power as there might be to alter or correct the interlocutors of 17 June, it was submitted that the Lord Ordinary had effectively, and rightly, held that he was functus officio, and therefore could not pronounce a new and additional interlocutor in terms of the defenders' motion. The second issue dealt with by the Lord Ordinary turned upon an argument that the pursuer had failed to comply with the procedural requirements of intimation, in relation to the minute of acceptance of tender. The Lord Ordinary had held, rightly, that there was no substance in this argument, the rules for intimation not being concerned with the conduct of proceedings in court in the course of a proof. The third issue identified by the Lord Ordinary was whether the interlocutor might be altered de recenti, or held pro non scripto, and re-written. He had however said that in his opinion, only the first issue need be considered, and it appears that the possibility of treating interlocutors pro non scripto was raised by the defenders only in connection with the rejected submission that there had been a failure in relation to intimation. The third issue thus relates to the question of de recenti alteration of interlocutors. It was submitted that the Lord Ordinary was in error upon this matter and that his interlocutor allowing such alteration should therefore be recalled.

[7] While the Lord Ordinary refers to earlier rules and decisions, he states that in his opinion the present question could be disposed of on the terms of the Rules of Court. Rule 4.15, which applies to interlocutors pronounced in the Outer House, provides inter alia as follows:

The Lord Ordinary says this:

His Lordship then turned to the reasons for exercising this discretion in favour of the defenders.

[8] The crucial question is whether the Lord Ordinary had power, in terms of Rule of Court 4.15(6), to pronounce the interlocutor of 16 November. That being so, it is convenient to consider that issue, before turning to others. In submitting that the Lord Ordinary had erred as to the function and scope of that rule, counsel for the pursuer referred us to the decision of the Second Division in Campbell v. James Walker Insulation Limited 1988 S.L.T. 263, and in particular the Opinion of the Lord Justice Clerk at page 264J-L. The relevant Rule of Court, at that time, was Rule 30(2), which provided that "The judge who signs an interlocutor may on cause shown correct or alter it at any time before extract..." After quoting the terms of this Rule, the Lord Justice Clerk said this:

His Lordship had added at page 265C-D that "there are good reasons why a Lord Ordinary should not be entitled to alter the substance of an interlocutor. Giving such a power to a Lord Ordinary would only lead to uncertainty. Once an interlocutor has been pronounced in the Outer House, the general rule must be that it stands unless and until it is recalled by the Inner House."

[9] Counsel for the pursuer submitted that there was no material difference between Rule 30(2) of the then Rules and Rule 4.15(6) of the current Rules. It appeared that unfortunately the Lord Ordinary had not been referred to Campbell v. James Walker Insulation Limited. What he had said as to the scope and meaning of the current Rule was wholly inconsistent with what had been decided in Campbell. There could be no doubt that the alteration effected by and in consequence of the interlocutor of 16 November was one of substance: the original interlocutors contained no errors, as the Lord Ordinary himself acknowledged, and correctly reflected what the Lord Ordinary had then been asked, and had then intended, to do. Not only was there no question of correction. The alteration which the Lord Ordinary had purported to make overturned the substantive position which would have obtained, in relation to expenses after the date of tender, but for the purported alteration. Counsel also referred to Cuthill v. Burns (1862) 24 D. 849, the Lord Justice Clerk at page 859. It was not suggested that the issue which there arose was similar to the issue in the present case. But the Lord Justice Clerk had said "The court have pronounced judgment. It is not too late to suggest any error in figures, or in expression, which may occur in the interlocutor to which we have adhered, but it is decidedly too late to suggest an alteration of that interlocutor in substance. If you think the interlocutor wrong, I am afraid your only remedy now is an appeal to the House of Lords. I do not see how we can touch it." It was submitted that this illustrated the essential difference between errors in expression, and errors in substance. The latter could only be resolved by appeal.

[10] On behalf of the defenders, it was acknowledged that in general practitioners appreciated that Rule 4.15(6) was concerned with errors of expression and the like. It was, however, submitted that there was authority justifying alteration of the substance of an interlocutor. Maclaren, Court of Session Practice, at page 296 treated Cuthill v. Burns as showing that it was too late for a Lord Ordinary's judgment to be corrected in substance where it had been reclaimed to the Inner House; but that perhaps suggested that it could have been corrected in substance by the Lord Ordinary. It was moreover apparent from the same passage in Maclaren that correction or alteration, apparently of either expression or substance, was competent with the consent of both parties. It could not, therefore, be said that it was actually ultra vires of a Lord Ordinary to correct the substance of an interlocutor. In Bruce v. Bruce 1945 S.C. 353, what was emphasised was the need for any application for alteration to be made de recenti. The scope of what could be done, if there was a de recenti application, had not been discussed; but the context was one of a suggested alteration of substance, and if that had been seen as incompetent in itself, one would have expected that to be said. In Kennedys v. Clyde Shipping Company Limited 1908 S.C. 895, the Lord President had said at page 896 that "when an interlocutor is signed and given out to the parties it must be noted by the profession that if anything is to be said about altering the form of it, it must be said at once. If this question as to the liability for expenses had been brought up at once I do not think the court would have allowed this interlocutor to remain in its present form. But it is far too late to raise the question now when the interlocutor has been allowed to stand, and the whole matter has been before the auditor." An alteration of substance had not therefore actually been allowed in that case. But it appeared that an alteration of substance would have been regarded as competent, if the matter had been raised de recenti. And in Burke v. Harvey 1916 2 S.L.T. 315, the Lord Ordinary, by an interlocutor of 18 November 1916, amended a prior interlocutor of 10 November, so that it authorised the decree which had been pronounced to go out and be extracted in the name of an agent-disburser. There had been argument as to whether the application was de recenti, but not apparently as to the competency of altering the substance of a prior interlocutor. Nonetheless, this was an example of an actual alteration, in a matter of substance.

[11] Against this background, counsel submitted that there was a general power to alter the substance of an interlocutor, upon de recenti application. The cases cited were not of course examples of judges construing Rule 4.15(6), or comparable predecessors of that Rule. But they raised the question of whether such rules were intended to take away what had apparently been a general power, upon de recenti application, to alter interlocutors even in matters of substance. If that had been the intention, one might have expected the change to be stated more clearly. And while the Lord Ordinary had relied upon the rule, as he construed it, it was submitted that there was still a common law power to alter interlocutors, upon de recenti application, even in matters of substance. The Lord Ordinary therefore had at common law the very power which he saw himself as having in terms of the Rule.

[12] As regards Campbell, counsel submitted that it could be distinguished. The Second Division had not been faced with any purported exercise of a power to alter the substance of an interlocutor. A vacation judge had withdrawn a previous allowance of proof before answer, and had instead allowed parties a preliminary proof on time-bar. But in doing so, he had not purported to exercise his powers under Rule 30(2), or indeed to alter the terms of the earlier interlocutor. What had been said by the Second Division should therefore be regarded as an obiter dictum, and it was open to this court to take a different view of the scope of the current Rule.

[13] In that respect, it was to be noted that the consent of parties was no longer required (as it apparently had been prior to the 1965 Rules) and there was no general reason for holding that a Lord Ordinary lacked the vires to alter a prior interlocutor even on a matter of substance. One should approach the matter in the manner adopted by the Lord Ordinary: there was no reason to give the words any narrower meaning than their natural meaning, and the provision that an interlocutor could be "altered" indicated no limit as to the type of changes that might be made.

[14] We are not persuaded that the submissions advanced on behalf of the defenders, in relation to the power of correction or alteration, are sound. We are satisfied that Rule 4.15(6) is intended to define the circumstances in which a Lord Ordinary may correct or alter a prior interlocutor, and that the former Rule 30(2) had this same purpose and function. We are not, therefore, able to hold that any wider power that may previously have existed remains available. We do not consider that the word "altered" in this context, as an alternative to "corrected", can properly have the unlimited scope contended for by counsel for the defenders, or indeed the scope attributed to it by the Lord Ordinary. Reading the provision as a whole, we are satisfied that, in lay terms, what is intended is a power to bring an interlocutor into line with the court's original intention. While this may be a matter of actual correction of error, it may also, in our opinion, be a matter of removing ambiguity, or of clarifying what the court intended to say, by putting matters somewhat differently. Even taking matters broadly, alteration in our opinion normally carries an implication of quite limited change; and we are satisfied that the limited changes which are envisaged in this context are changes which, like corrections, will not involve any departure from what the court was trying to do when it issued the interlocutor. In any event, we consider that the matter was resolved by the court's decision in Campbell v. James Walker Insulation Limited. We are unable to regard what the court said in that case as having been said obiter: while the Vacation Judge had not invoked Rule 30(2), the question was whether he had any power to do what he did, and that question depended upon the scope of that rule. In our opinion the Lord Ordinary was not entitled to take a different view; and Campbell is a case which we would feel obliged to follow, even if we had not reached the same conclusion ourselves.

[15] We would add one specific comment in relation to what the Lord Ordinary did. The power which he relied upon was a power to alter, rather than correct, his previous interlocutor. In part, that is what his interlocutor bears to do. But the latter part of the interlocutor of 16 November, and the insertion of an additional interlocutor, signed by the Lord Ordinary, and expressed as an interlocutor of 17 June, cannot in our opinion be seen as justified by Rule 4.15(6), upon any construction of that provision. The mechanism of inserting a new and additional interlocutor, to correct or alter a prior interlocutor, and bearing the date of that prior interlocutor is in our opinion inappropriate and undesirable. The same result could no doubt have been achieved by amendment of one or other or both of the interlocutors pronounced on 17 June. That would have been the appropriate mechanism if correction or alteration had been competent and justified.

[16] In these circumstances, the interlocutor of 16 November cannot stand. But even if the defenders could not obtain the order for expenses which they wanted, by means of an alteration to the earlier interlocutors, it was submitted to us, as it had been submitted to the Lord Ordinary, that decree for these expenses could still be granted by a new interlocutor to that effect. Putting the matter in one way, the question is whether, or within what limits, the Lord Ordinary was functus officio when he had pronounced the interlocutors of 17 June. Putting it in another way, the question is whether the interlocutors of 17 June had exhausted not only the merits of the case, but also the whole question of expenses.

[17] Questions have of course arisen as to what the court can still do after decerniture for expenses has been pronounced by the court. We were referred to Gilbert's Trustees v. Gilbert, 1988 S.L.T. 680 (in which it was held that a defender's motion for modification of expenses was incompetent after decerniture for payment of the expenses) and to UCB Bank plc v. Dundas & Wilson, C.S. 1990 S.C. 377 (in which it was held that allowance of an additional fee did not imply any alteration or recall of decerniture, and that it was not incompetent for the matter of an additional fee to be raised at a date after decerniture). In Mains v. Uniroyal Englebert Tyres (No. 2) 1995 S.C. 538, it was held that certification of witnesses as skilled witnesses did not imply any alteration or recall of decerniture, and related to matters consequential upon the award of expenses. It does not, however, appear to us that these specific cases, dealing with these specific matters, afford any direct assistance in relation to the questions in the present case.

[18] The case of Wilson v. Pilgrim Systems plc 1993 S.L.T. 1252 is more directly in point. In that case, as in this, there had been minutes of tender and acceptance, and a decree which included a finding of expenses in favour of the pursuer. There had been a substantial delay, and the case does not really deal with the question of what might be raised de recenti. But there, as here, it could not be said that the question of expenses had not been dealt with, or had been implicitly reserved: there, as here, questions of expenses had been dealt with, and no reservation of any particular questions as to expenses had been made. Counsel for the pursuer submitted that when one reached the stage of exhausting the merits, one had come to the time to deal with expenses unless they were reserved expressly. That was particularly clear in the context of a tender which was in full of the conclusions of a summons, and contained express provision in relation to expenses. It was submitted that the question of liability for expenses had been exhausted on 17 June, along with the merits of the action. The court was functus officio in these respects, although it was accepted that it could not be described as absolutely functus, since the powers under Rule of Court 4.15(6), and powers in relation to such matters as certification of witnesses and additional fees, remained. But in relation to the issues in the case, including those of expenses, the court could properly be described as functus officio. At all events, the question of expenses had been exhausted, and could not now be raised.

[19] On behalf of the defenders, counsel did not dispute the nature and effect of decerniture, as preventing a party from thereafter raising the issues covered by the decerniture. But the question was the scope of the decerniture: did it cover the expenses which the defenders now sought, and which the interlocutors of 17 June did not mention?

[20] Counsel for the defenders accepted that older authorities vouched a rule that once one reached the stage of exhausting the merits of a case, the question of expenses must also be exhausted, unless expressly reserved. We were referred to a number of authorities and textbooks, which are mentioned by the Lord Ordinary but which we need not consider in detail. The submission on behalf of the defenders was that this previous rule emerged from decisions which were based on the express provisions of section 17 of the Court of Session Act 1825 (the Judicature Act) and section 53 of the Court of Session Act 1868. But these provisions had been repealed by the Court of Session Act 1988. With the repeal of the statutory provisions, decisions or dicta derived from the rule lost their force. Since 1988, the position was simply that the court had a general power to award expenses; and while it had power under section 5 of the 1988 Act to regulate its procedure in this respect, it had not chosen to do so. In a case such as the present, the court had been asked, when disposing of the merits, to dispose of expenses prior to the date of the tender. These matters were exhausted by the decerniture. But the court had not been asked to deal with the expenses after the date of the tender, and its power to deal with these remained.

[21] Counsel for the defenders acknowledged that his submissions meant that where the court had pronounced a decerniture disposing of the merits, and had also granted a decree for certain expenses but, as here, said nothing as to other expenses, there would be no way of knowing, from the terms of these decrees, whether at some unknown time in the future a party might seek and obtain an award of the expenses which had not been mentioned. Nonetheless, the other party could bring the matter before the court, if necessary. And the simple fact was that the court had a power which had not been exhausted. Counsel also accepted that the "old" rule had been followed since 1988, in reported cases and no doubt in unreported cases. But there did not appear to have been any discussion as to the effect of the 1988 Act upon the statutes underlying the old rule. And it was now submitted that any such cases since 1988 had been wrongly decided.

[22] In Wilson's Trustees v. Wilson's Judicial Factor (1869) 7 M. 457 Lord President Inglis, at page 459, quoted the express statutory requirements and went on to say this:

It is true, as counsel for the defenders submitted, and as the Lord Ordinary acknowledges, that the other judges in Wilson's Trustees expressed a number of differing views. But it is to be noted that the Lord President sees the matter as settled by previous decisions, and not dependent merely upon the statutory provisions. And at the end of his Opinion, he emphasises that he does not question the ordinary procedure of reserving expenses, and that the general rule relates to final judgments in which nothing is said as to expenses.

[23] In our opinion, the old rule was not founded merely upon statutory provision, but upon a general principle that when the merits of the case were finally disposed of, expenses must be disposed of likewise, unless reserved. That being so, we are satisfied that the rule survived the 1988 repeals, and has rightly been followed. Reservation of the question can always be sought, and will readily be granted where that appears appropriate. The rule is in our opinion not merely well-established, but is important: exhaustion of the merits should in general bring the case to an end, and in the absence of express reservation, of expenses or of some particular issue as to expenses, it is in the interests of the parties and the court alike that this finality should be clear.

[24] The matter is not, however, merely one of rules and competency. It is also a question of interpreting the interlocutors in question, and the actions of counsel. In the context of the hitherto unquestioned rule, and normal practice, we are entirely satisfied that in dealing with expenses in the present case, the parties and the court must be seen as having intended expenses to be disposed of exhaustively. The Lord Ordinary says that it must have been anticipated by pursuer's counsel that a counter-motion would have been made. He says that defenders' counsel made a simple mistake. But at a proof where there is a minute of tender, the party leaving that minute open for acceptance must anticipate acceptance. And if, in the event of acceptance, counsel fails to seek expenses from the date of the tender, that is indeed a mistake on his part. The Lord Ordinary says that it would be unconscionable to permit the pursuer to take advantage of the error. We do not see matters in that way. It was the defenders who failed to act at the appropriate time. Their motion came too late. It should have been refused. The reclaiming motion is allowed.