Scottish Court of Session Decisions

In this action, the pursuer seeks payment of certain sums which he says are due to him as the landlord of subjects which he had leased to the defender. The defender has a counterclaim. After a debate on 7 November 1997, the sheriff issued an interlocutor on 21 November, excluding substantial parts of the defender's averments from probation and granting the pursuer absolvitor from the counterclaim. Pleas-in-law to this effect were sustained, and in addition four of the defender's pleas were repelled. By the same interlocutor the sheriff allowed the pursuer to lodge a minute of amendment within 14 days, and the defender, if so advised, to lodge answers within 14 days thereafter.

The defender has appealed, on two stated grounds. No argument was required as to the first ground: it is accepted that if the sheriff was to dispose of the counterclaim after debate, this should have been by dismissal rather than absolvitor. But on the basis of the second ground of appeal, counsel for the defender and appellant submitted that the sheriff had made a fundamental departure from proper procedure, and that in the circumstances the whole interlocutor should be recalled, apart from that part which dealt with the lodging of a minute of amendment and answers. On behalf of the pursuer and respondent, it was accepted that the sheriff should not, at that stage, have excluded any of the defender's averments from probation. It was, however, submitted that the disposal of the counterclaim could stand, with the substitution of dismissal for absolvitor. We are not persuaded that this would be appropriate, and we are satisfied that the appropriate course is to allow the appeal to the extent sought by counsel for the defender and appellant.

The situation which has arisen is very unsatisfactory. At the debate, the solicitor for the defender advanced certain criticisms of the pursuer's pleadings, and after an adjournment the solicitor for the pursuer accepted that these criticisms were well made. (On that basis, only a very small part of the pursuer's claim would have remained). The sheriff in her note says that the pursuer's solicitor "asked for leave to amend, which I granted." She goes on to say that "Nonetheless, he wished to address me on his own preliminary plea which had no bearing upon the amendment he was to make." She acceded to this request. While the pursuer's preliminary plea might be read as relating only to the relevancy of the defences in the principal action, it appears to have been treated at the debate as providing a basis for a consideration of the relevancy not only of those defences, but also of the counterclaim. The sheriff proceeded to hear argument, and subsequently to issue the interlocutor of 21 November.

While the sheriff says that "leave to amend" was granted, the solicitor for the pursuer apparently sought no amendment at the time, it being envisaged that some amendment would be made subsequently, after procedure by minute and answers. Moreover, it seems to have been the intention of the pursuer's solicitor that the minute of amendment would not merely delete those parts of his averments which he conceded to be irrelevant, but would include new material, recasting one aspect of the case to make it relevant.

As matters stood, therefore, while the sheriff and the parties' agents may have had a broad impression of what the pursuer's averments would amount to in their "re-cast" form, the re-cast case was not in fact available, and it remained doubtful what the minute of amendment might in fact contain. It also remained doubtful what any answers to the minute might contain. While we can understand the wish to progress matters at the existing diet, rather than put matters off to a future occasion, it was in our opinion wholly inappropriate to embark upon argument as to the relevancy of defences which were geared to the case as originally pled, and quite improper to proceed to exclude some of the averments made in those defences, and dispose of pleas which related to them. Until the state of the pursuer's pleadings, as amended, was known, no question as to the relevancy of the defences arose, and no disposal of such a question could properly be achieved.

Counsel for the pursuer effectively accepted that this was the position. But he submitted that nonetheless it had been legitimate for the sheriff to dispose of the counterclaim, although this should have been done by dismissal rather than absolvitor. The counterclaim was essentially a separate issue, and its relevancy could be determined regardless of what might be happening by way of amendment in relation to the principal action. We do not doubt that there may be cases in which there is thus a complete separation between a principal action and a counterclaim. But that is not the position here. In the counterclaim, both parties refer to their pleadings in the principal action, holding averments to be repeated in the counterclaim brevitatis causa. And having regard to the averments made in the principal action, and the possibility that they might be significantly altered by any minute of amendment and answers, it was in our opinion wholly inappropriate and premature to dispose of any issues as to the relevancy of the counterclaim before the pleadings in the principal action had been altered and finalised, as if the matters were not interconnected.

It is deeply regrettable that matters have gone so badly off the rails, and that two years and more after the interlocutor in question there is no alternative to restoring the position as it was immediately after the pursuer's solicitor had conceded the irrelevancy of most of his averments, and had sought an opportunity to amend. But we must make it clear that there can be no question of dealing with any issues as to the relevancy until the minute of amendment and any answers are available, and amendment of the pleadings in terms thereof has, or has not, been allowed.