Scottish Court of Session Decisions

Beattie v. Royal Bank Scotland Plc [2003] ScotCS 75 (11 March 2003)

OUTER HOUSE, COURT OF SESSION
A4545/01	OPINION OF LORD REED in the cause JOHN BEATTIE Pursuer; against THE ROYAL BANK OF SCOTLAND PLC Defenders:   ________________

 

 

Pursuer: P.G. Davies; Drummond Miller, W.S.

Defenders: Dewar, Q.C.; McGrigor Donald

11 March 2003

1. During 2001 the pursuer began proceedings for damages against the defenders. The summons called on 27 September 2001, and defences were lodged on 4 October 2001. The defences raised only one substantial issue, namely the pursuer's title to sue: it was averred that any right of action had been assigned by the pursuer to a third party. In the light of the defences, the pursuer obtained a retrocession from the third party, and began fresh proceedings in March 2002.
2. On receipt of the summons in the second action, the defenders' agents wrote to the pursuer's agents, noting that the first action remained in dependence, and asking:

"What is your positions? If it is your intention to abandon the first action, then we would expect our expenses in that matter".

In reply, the pursuer's agents wrote:

"We do propose to abandon the first action. We would point out that the pursuer is in receipt of legal aid in respect of the first action, with a nil contribution. If your clients are to insist on their expenses we would seek a finding of expenses against our client as an assisted person, and would thereafter seek modification of his liability to nil."

The defenders' agents responded that it was not open to the court to modify expenses when a pursuer abandoned his action, referring to authorities in support of that proposition. They concluded:

"We confirm that if the pursuer wishes to abandon the prior action, the defenders will seek full judicial expenses ...".

3. The next step in this correspondence was a letter from the pursuer's agents dated 14 June 2002:

"We now have instructions to abandon the first action, conceding the expenses of same to the defenders, and seeking decree of dismissal. Before decree of dismissal can be granted, we understand that in terms of the Rules of Court your clients' expenses must be paid. Accordingly, please let us have your judicial account for consideration."

Following a reminder dated 24 July 2002, the defenders' agents responded by letter dated 8 August 2002:

"We refer to your letter dated 24 July and now enclose a copy of our Account of Expenses for your consideration."

The account was in the sum of £554.70 plus VAT. That sum was calculated as the total of the amount specified in the Table of Fees for all work (apart from precognitions) from the commencement of a defended action until the lodgment of an open record, together with the amounts specified for accounts, including framing and lodging the account, attending taxation, uplifting the account and noting taxations. [4] By letter dated 12 August 2002 the pursuer's agents acknowledged receipt of the account and stated that they had sent it to their local correspondents for payment. On 24 September 2002 the pursuer's agents wrote again:

"Given that your clients only appear to have gone to the lengths of lodging defences and that your account consisted of less than half a page, we do consider your fees to be excessive. We are prepared to offer the sum of £400 plus VAT in full and final settlement of your account, and we can advise that we are in fact in funds for this amount should you wish to see an early settlement of your account."

The defenders' agents responded by letter dated 25 September 2002:

"We refer to your letter dated 24 September 2002 and advise that your offer of £400 plus VAT to settle the judicial account is acceptable to our clients."

The pursuer's agents sent their cheque the following day:

"We enclose our cheque in the sum of £470 in full and final settlement of your client's judicial account. Please acknowledge receipt and we will then proceed to abandon the first action."

4. On 30 September the pursuer's agents intimated a minute of abandonment and a motion for dismissal of the first action. The defenders' agents responded the following day:

"We advise that we will oppose your motion for decree of dismissal. We would however consent to a motion seeking a decree of absolvitor .... We would refer you to rule 29.1(1)(b) and 29.2. A decree of dismissal can only be obtained if the expenses are paid after the report of taxation by the Auditor. Where expenses are agreed without taxation, any right to ask for dismissal in terms of the Rules of Court is abandoned. We would refer you to the case of VP Packaging Ltd v ADF Partnership [2002 S.L.T. 1224]".

The pursuer's agents responded by intimating a motion to allow a minute of abandonment to be received, to have the pursuer found liable to the defenders in the expenses of process as taxed, and to have the defenders ordained to lodge their account for taxation. The defenders' agents replied:

"We will oppose your motion .... The expenses of the matter have already been agreed and paid and therefore a taxation is pointless. The ratio decidendi of Lord Wheatley in VP Packaging Ltd v The ADF Partnership is that where expenses are agreed without taxation, any right to ask for dismissal in terms of the Rules of Court is abandoned."

5. Eventually the pursuer's agents lodged two minutes of abandonment and enrolled three motions. The first minute (after the correction of a clerical error) stated that the pursuer abandoned the action under rule of court 29.1(1)(b) and sought decree of dismissal. The second minute stated that the pursuer abandoned the action at common law and sought decree of dismissal subject to such conditions in respect of expenses as the court should determine. The motions were in the following terms:

(1) to allow the [second] minute of Abandonment to be received ... and in respect that the pursuer has paid to the defenders the full judicial expenses of the process as agreed between the parties, to allow the pursuer to abandon the cause at common law, to dismiss the action and to find no expenses due to or by either party; or alternatively

(2) to allow the [first] minute of abandonment to be received ... and in respect that the pursuer has paid to the defenders the full expenses of process as agreed between the parties, to allow the pursuer to abandon the cause in terms of rule of court 29.1(1)(b), and to dismiss the action; or alternatively

(3) to allow the [first] minute of abandonment to be received ....to find the pursuer liable to the defenders in the expenses of process as taxed ... and to ordain the defenders to lodge their judicial account for taxation within 28 days, and to remit that account to the Auditor of Court to tax and to report.

6. Addressing me in support of the first motion, counsel for the pursuer submitted that a pursuer was entitled to abandon an action at common law. Where that was done before the record had closed, the pursuer was entitled to decree of dismissal. The issue of expenses was at large for the court. Counsel referred in this connection to MacLaren, Court of Session Practice, pages 443 to 445; Maxwell, The Practice of the Court of Session, page 251; and (in relation to the corresponding practice of the Sheriff Court) McPhail, Sheriff Court Practice (2^nd edition), paragraphs 14.16 to 14.18. The present action should therefore be dismissed. Since the pursuer had already paid the defenders' expenses up to the point at which the first minute of abandonment had been intimated, and any subsequent expenses had been incurred as the result of the defenders' unwillingness to accept that the pursuer was entitled to decree of dismissal, the court should find no expenses due to or by either party (with the exception of the expenses of the motion, which should be awarded to the pursuer).
7. In reply, counsel for the defenders submitted that abandonment at common law was no longer competent. Rule of court 29.1 was a complete code governing abandonment. The position was correctly stated in the annotation to the rule, published in the Parliament House Book (at paragraph 29.1.1.):

"R.29.1(1)(a) replaces the common law and r.29.1(1)(b) and (2) replaces R.C.S. 1965. r.91A and the former statutory rules."

Rule 29.1 preserved the right to abandon which had formerly existed at common law, but laid down a procedure which had to be followed if a decree of dismissal was to be obtained: if that procedure was not followed, then decree of absolvitor had to be pronounced.

8. Counsel further submitted that, even under the common law, abandonment did not result in decree of dismissal. The law had been correctly stated by Lord President Emslie in Esso Petroleum Co Ltd v Hall Russell & Co Ltd, 1988 S.L.T. 33 at page 39:

"There are three methods of abandonment available to a pursuer. The first is to abandon absolutely against a defender at any time at common law. The second and third methods are now to be found in rule of court 91A [his Lordship quoted the terms of rule 91A and continued:]

Both of these methods involve abandonment under reservation, and have dismissal of the action primarily in view."

It was apparent from his Lordship's subsequent observations that, by abandonment "absolutely", he meant abandonment resulting in a decree of absolvitor. Counsel acknowledged that MacLaren, Court of Session Practice, stated at page 443:

"Abandonment, if thus judicially carried out [scil. 'previous to the closing of the record, at common law under conditions imposed by the Court; or, if the record is closed ... in terms of statute'], entitles a pursuer to obtain an interlocutor of dismissal, and such an interlocutor leaves it open to him to bring a new action."

The authority cited for that proposition (Stewart v Greenock Harbour Trustees (1868) 6 M 954 per Lord Deas at page 958) was however concerned solely with the effect of a decree of dismissal, and not with abandonment. MacLaren further stated, at page 444:

"Where a pending action is abandoned by the pursuer previous to the closing of the record, the pursuer is entitled to obtain a decree of dismissal, or one of absolvitor reserving his right to bring a new action, upon conditions laid down by the court."

The authority cited for the proposition (Caledonian Iron and Foundry Co v Clyne (1831) 10 S.133) did not however support it.

9. Under the comprehensive code introduced by rule of court 29.1, dismissal could in any event be obtained only by following the procedure laid down in rule 29.1(2). In that regard, counsel relied upon the Opinion of the Lord Ordinary (Lord Wheatley) in VP Packaging Ltd v The ADF Partnership, at page 1226:

"[A] pursuer who agrees to settle expenses without reference to the Auditor of Court must be presumed to have abandoned any right to ask for dismissal in terms of the rules."

When, in the present case, the pursuer's agents had requested the defenders' judicial account of expenses (in the letter dated 14 June 2002), they had departed from the procedure laid down in rule 29.1(2), and thus had departed from what they required to do in order to obtain a decree of dismissal. Their letter of 24 September 2002, offering the sum of £400, had offered the defenders less than their full expenses. Throughout the correspondence, the pursuer's agents had paid no regard to rule 29.1. There had been no indication, after the letter of 14 June 2002, that the pursuer still intended to seek decree of dismissal. The correspondence disclosed a complete departure from any intention to seek dismissal.

10. In the event that the court was unwilling to grant the first motion, counsel for the pursuer submitted that the second motion should be granted. The pursuer had in substance complied with rule 29.1(2). The essence of the rule was that full judicial expenses should be paid to the defenders. That had been done. The parties had been able to agree on the amount of expenses which should be paid, without the need to activate the procedure for taxation. If any difficulty arose from the parties having departed from the procedure envisaged by rule 29.1(2), the court should exercise its dispensing power under rule 2.1. The parties' ability to agree on the amount of expenses which should be paid constituted "excusable cause" for failing to proceed to taxation. The dispensing power could appropriately be used to facilitate the amicable resolution of disputes, rather than parties being compelled to undertake unnecessary procedure and to incur unnecessary expense. In the present case, the expense of taxation would have been disproportionate to the amount of expenses involved. In current practice, taxation was relatively infrequent, as parties were generally able to reach agreement on expenses.
11. Counsel acknowledged that the Opinion in VP Packaging Ltd v The ADF Partnership did not support his submissions. In addition to the passage already quoted, a subsequent passage (at page 1226) had excluded the use of the dispensing power where a pursuer had agreed to settle expenses rather than insisting on taxation:

"Nor do I think that there is any room in the present circumstances for exercising a dispensing power to allow the pursuers to escape from the consequences of their failure to consider properly the requirements of the rule. The terms of RCS, rule 2.1 make it clear that such dispensing powers are only available when a party has failed to comply with a provision in the rules caused by a mistake, oversight or other excusable cause. Here what the pursuers did, in agreeing expenses, was plainly considered and deliberate."

Counsel submitted that the decision in VP Packaging had been correct on the facts of the case, but that the dicta quoted, both in relation to rule 29.1(2) and in relation to rule 2.1, were incorrect. The case was one in which the pursuers had failed to pay the defenders' expenses timeously: on any view, they had failed to comply with rule 29.1(2). It had also been a case which concerned abandonment after the record had closed. What the Lord Ordinary had said about the effect of an agreement on expenses should be regarded as obiter dictum. It placed a premium on contentiousness, contrary to the general tendency of the court to encourage agreement. Lord Wheatley's approach to the use of the dispensing power had also been unduly narrow. In reply, counsel for the defenders founded on the Opinion in VP Packaging.

12. Finally, counsel for the pursuer submitted that, if the court were unwilling to grant either the first or the second motion, it should grant the third motion. Counsel for the defenders however submitted that since the pursuer had already settled and paid the defenders' expenses, a taxation would be inappropriate.
13. Counsel did not address the court on the common law as it stood prior to the introduction of abandonment under statute in 1825. It may nevertheless be useful to take that as a starting point, as it enables the significance of the cases cited by MacLaren to be understood.
14. Prior to 1825 there does not appear to have been an established practice of formally abandoning actions. A pursuer who decided at an early stage in proceedings that he was no longer interested in proceeding with his action might simply neglect to call it or to enrol for debate before the Lord Ordinary, in which event the defender could obtain protestation. The form of decree granted in such a case was the same as in a case where the libel was found to be irrelevant, namely absolvitor from the instance. This form of absolvitor did not prevent the pursuer from raising a fresh action (see e.g. Stair, Institutions of the Law of Scotland, IV.46. 2-4). If a pursuer became aware that his case required to proceed upon a different factual or legal basis, however, there was ample scope for the alteration of his pleadings. In these circumstances, there would appear to have been no practical requirement for a formal procedure of "abandonment", as understood in modern practice: in other words, a step in process taken by the pursuer in order to bring his action to an end, particularly with a view to raising fresh proceedings.
15. That situation was ended by the introduction of the modern form of procedure and pleadings by the Court of Session Act 1825, commonly known as the Judicature Act. That Act was based upon the recommendations contained in the Report of the Commissioners for inquiring into the Forms of Process in the Courts of Law in Scotland, published in 1824. The fundamental problem which the Commissioners identified in the existing practice was the "opportunity of stating new averments in point of fact, and new pleas in point of law, down to the very last stage of the cause" (Report, page 5). The Commissioners recommended that this problem should be addressed by introducing a system under which, after a limited period for adjustment of the summons and defences, the parties' respective positions would be finalised in a "record" which was "closed". Several of the persons consulted by the Commissioners proposed that, if such a system were to be introduced, then as a corollary a means should also be introduced whereby a pursuer could, after the record had closed, terminate his action in order to bring fresh proceedings. The Commissioners accordingly recommended (at page 7):

"That when the record shall have been thus completed and closed by the Lord Ordinary's signature, the revised condescendence and answers shall thenceforward be held as the final record, foreclosing the parties as to averments in point of fact; and that (with the exception to be immediately stated) no amendment of the libel shall be allowed, after the revised condescendences and answers shall have been authenticated by the Judge, reserving to the party, if otherwise competent, to abandon the cause, on paying costs, and to bring a new action."

16. That recommendation was implemented by section 10 of the Judicature Act, which provided inter alia:

"... and the Record so made up and authenticated shall be held as foreclosing the Parties from the Statement of any new Averments in point of Fact; and no Amendment of the Libel or new Ground of Defences will be allowed after the Record shall have been thus completed, under the Exception hereafter to be mentioned; the Pursuer having it in his Power notwithstanding to abandon the Cause on paying full Expences or Costs to the Defender, and to bring a new Action if otherwise competent ...".

17. The background to section 10, and its purpose, were summarised by Lord Neaves in Hay v Morton (1862) 24 D. 1054 at page 1059:

"I think the statutory right to abandon was allowed as a modification of the rigorous rule introduced by the Judicature Act as to the finality of statements on records. Under the old system parties, after having made their statements in the Outer House, were in the practice of making new averments in the Inner House which changed the nature of the action. And to put an end to that abuse the enactment was made excluding further statements after the record was closed. It was to soften the rigour of that rule that a pursuer, who, after closing the record, found that he had stated his case badly, was allowed to abandon his action, reserving his right to raise a new one. In this way the statutory provision had no application except to the case of a closed record".

18. The enactment of section 10 was followed by a number of reported cases in which its implications were considered, and by a provision in the consolidating Act of Sederunt of 1828 (section 115) to resolve a difficulty which had emerged from one of those cases. In some of the early cases the court accepted that it was possible for a pursuer to abandon his action under the common law. The first of these cases concerned the early stage in proceedings, when it would have been possible for the defender to obtain protestation (McGregor v McGregor (1828) 6 S. 475; also Laidlaw v Smith (1834) 12 S.538). The first reported case to have concerned the abandonment of a defended action prior to the closing of the record appears to have been the case cited by MacLaren, namely Caledonian Iron and Foundry Co v Clyne, which was decided in 1831. In that case, the pursuers commenced the proceedings while a decree in their favour in an earlier action was under appeal. Before the record had closed in the second action, the defender succeeded in his appeal in the first action; and the implication was that he was bound to succeed also in the second action. In these circumstances, the pursuers lodged a minute consenting to absolvitor being pronounced, and reserving their right to bring a new action. The defender however objected to this reservation, and maintained that the pursuers could only abandon the action on payment of expenses in accordance with the Judicature Act. The Lord Ordinary, Lord Medwyn, reported the matter to the Inner House, expressing the opinion that the case was not governed by the Judicature Act, and that the Act "has left the effect of such a step as this to the ordinary rules by which expenses are awarded on the dismissal of a process." The Inner House agreed that the question was not affected by the Judicature Act. The significance of the case is apparent, against the background described above, since it established the competency of a pursuer's abandoning an action under the common law prior to the closing of the record and obtaining a decree which preserved his right to bring a new action.
19. When an action was abandoned under the common law, the matter of expenses was also dealt with under the common law, and was therefore at the discretion of the court. In relation to abandonment prior to the closing of the record, MacLaren states (at page 444):

"There is no hard-and-fast rule with regard to expenses. Full expenses are sometimes awarded against the pursuer, but an award of expenses is not imperative. Expenses are sometimes modified."

The authorities cited by MacLaren support these propositions. In practice, the court might make the payment of expenses a condition of its giving effect to the minute of abandonment (as in Nicolson v Nicolson, 1902, 10 S.L.T. 464); and such a condition was described as "normal" in Singer v Gray Tool Co (Europe) Ltd, 1984 S.L.T. 149 (at page 150 per Lord President Emslie). It was not however obligatory, in distinction to the position when an action was abandoned under statute.

20. In the passage quoted earlier from the Lord Ordinary's note in Caledonian Iron and Foundry Co v Clyne, the term "dismissal" was used. Traditionally, the only form of decerniture where a defender was successful had been absolvitor (Stair, ibid), but absolvitor could be pronounced in a form which reserved the right to bring fresh proceedings. Following the Judicature Act, the term "dismissal" came to be regarded as the appropriate word to use in an interlocutor when the defender prevailed without any final determination of the merits of the case (Shirreff v Brodie (1836) 14 S. 825; cf. Shand, The Practice of the Court of Session (1848), pp. 344-345nn).
21. Against that background, I can begin by considering the submission that, at common law, abandonment prior to the closing of the record did not result in decree of dismissal. I reject that submission . There was for a time some uncertainty as to whether abandonment prior to the closing of the record was competent at common law (an uncertainty which appears still to have existed when Mackay's Manual of Practice in the Court of Session was published in 1893, although it was there stated that "[t]he doubt ... does not appear well founded": page 284). Its competency was however accepted in Caledonian Iron and Foundry Co v Clyne (and other reported cases, some of which I have mentioned). It was also accepted in that and other cases that the appropriate form of decree in such circumstances was one which reserved the pursuer's right to bring fresh proceedings; and, over time, the term of art for such a decree came to be "dismissal". The authorities cited by MacLaren in my opinion vouch what is said about abandonment prior to the closing of the record at page 444 of his Court of Session Practice.
22. In order to understand the observations of Lord President Emslie in Esso Petroleum, and to address the submission as to the effect of rule 29.1 on the common law, it is necessary first to complete the history of the legislation concerning abandonment.
23. The statutory right of abandonment under the Judicature Act was extended by section 39 of the Court of Session Act 1868:

"Any Action may, with leave of the Judge, be abandoned on the Conditions contained in the Tenth Section of the [Judicature Act], in the course of Trial at any Time before the Judge has commenced to charge the Jury, or, where there is no Jury, at any Time before the Judge has made Avizandum with the Evidence: Provided that such Abandonment shall not be competent without the Leave of the Judge, who shall be of opinion that it is just and proper in the Circumstances: Provided further, that in granting such Leave the Judge shall specify the Time within which the Expenses shall be paid to the Defender; and if the Expenses shall not be paid within such Time the Defender shall be entitled to be assoilzied from the Conclusions of the Action, with Expenses".

24. The nineteenth century provisions which I have mentioned remained in force until relatively recent times. In 1984 they found their way into the Rules of Court, in the form of a new rule 91A which was inserted by the Act of Sederunt (Rules of Court Amendment No. 2) (Miscellaneous) 1984 (S.I. 1984 No. 472):

"91A Abandonment

(1) In any action the pursuer may, at any time before the proof or trial has begun, abandon the action on paying full expenses to the defender; and may, if otherwise competent, bring a new action.

(2) In any action the pursuer may, at any time after the proof or trial has begun and before avizandum is made or the charge begun, move the Lord Ordinary for leave to abandon the action; and the Lord Ordinary may on being satisfied that it is just and proper in the circumstances to do so, grant leave subject to payment of the defender's expenses within such time as he may specify; and in the event of those expenses not being paid within that time, the defender shall be entitled to be assoilzied from the conclusions of the action with expenses."

Rule 91A(2) incorporated the substance of section 39 of the 1868 Act into the Rules of Court. The effect of rule 91A(1) is less clear. Following the introduction of rule 91A, section 10 of the Judicature Act was repealed (Act of Sederunt (Rules of Court Amendment No. 8) (Miscellaneous) 1986, S.I. 1986 No. 1937).

25. Rule 91A was itself revoked by schedule 5 to the Act of Sederunt (Rules of the Court of Session 1994) 1994 (S.I. 1994 No. 1443); and schedule 4 repealed section 39 of the 1868 Act. A new rule 29.1 was made, in the following terms:

"(1) A pursuer may abandon an action by lodging a minute of abandonment in process and -

(a) consenting to decree of absolvitor; or

(b) seeking decree of dismissal.

(2) The court shall not grant decree of dismissal under paragraph (1)(b) unless -

(a) full judicial expenses have been paid to the defender, and to any third party against whom he has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and

(b) where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.

(3) If the pursuer fails to pay the expenses referred to in sub-paragraph(a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses."

Rule 29.1(2)(a) has subsequently been amended so as to substitute "the pursuer" for "he" (S.S.I. 2001 No. 305).

26. Rule 29.1(1)(a) is concerned with cases where abandonment is made without reservation of the right to bring a new action. Such cases were formerly regulated entirely by the common law, as described by MacLaren at page 443, and in Maxwell, The Practice of the Court of Session, at page 251. Rule 29.1(1)(b), read together with rule 29.1(2)(a), repeats the substance of the previous rule 91A(1), and provides a more detailed procedure for such cases. Rule 29.1(2)(b) deals with the particular category of case previously covered by rule  91A(2).
27. In his submissions, counsel for the defenders founded on the annotations to rule 29.1 in the Parliament House Book. It should be said at the outset that those annotations, although a valuable commentary, do not form part of the Rules of Court and cannot be regarded as authoritative. The annotations to rule 29.1 state:

"Abandonment at common law meant the pursuer was prepared to release the defender for all time without reservation, the defender could obtain decree of absolvitor and the court had discretion only in relation to expenses; whereas abandonment under statute (s.10 of the C.S.A. 1825 as extended by s.39 of the C.S.A 1868 and substituted by R.C.S 1965, r.91A) was under reservation (of his right to raise a fresh action) involving payment of expenses with a view to obtaining dismissal: see Esso Petroleum Co Ltd v Hall Russell & Co Ltd per Lord President Emslie ... R.29.1(1)(a) replaces the common law and r.29.1(b) and (2) replaces R.C.S. 1965, r.91A and the former statutory rules."

As explained by MacLaren and Maxwell (amongst others), however, abandonment at common law could be under reservation, prior to the closing of the record; and in such a case the court would normally grant decree of dismissal.

28. The view expressed in the annotations may be based upon an understanding that the former rule 91A(1) operated to the exclusion of abandonment under reservation at common law; and that the common law had therefore been abrogated. In the present case, counsel for the defenders submitted that rule 29.1(1)(b) and (2) had had that effect.
29. As I have mentioned, some observations about rule 91A were made by Lord President Emslie in the course of his Opinion in Esso Petroleum Co Ltd v Hall Russell & Co Ltd. In that case, during the hearing of a reclaiming motion following a hearing on Procedure Roll, the pursuers lodged a minute of abandonment in terms of which they abandoned the action, so far as laid against certain of the defenders, at common law. Since the record had closed, the pursuers consented to the grant to those defenders of decree of absolvitor. Other defenders opposed that motion and argued that the court had a discretion whether to allow the pursuers to abandon their action. That argument was rejected. It was in that context that his Lordship made the observation quoted earlier. The implication of that observation, at first sight, would appear to be that rule 91A(1) was exclusive of abandonment under reservation at common law. The observation must be treated with respect; but it is also necessary to remember that it was obiter dictum (since no issue arose as to abandonment under reservation prior to the closing of the record), and that it was made without the court being addressed on, or requiring to consider, a number of issues which are relevant to the interpretation of rule 91A(1), and also to the interpretation of rule 29.1(1)(b) and (2). I shall discuss these issues in relation to rule 29.1, since that is the provision currently in force; but they would apply equally, mutatis mutandis, to the former rule 91A.
30. The terms in which rule 29.1 is expressed draw no distinction between the different stages of an action (except that rule 29.1(2)(b), like section 39 of the 1868 Act, applies only where abandonment is made in a proof or trial). The rule therefore appears to be applicable prior to, as well as subsequent to, the closing of the record. It might be argued that the effectiveness of the rule would be jeopardised, in relation to cases where the record had not closed, unless it operated to the exclusion of abandonment under reservation at common law: for pursuers might be reluctant to avail themselves of rule 29.1(1)(b) prior to the closing of the record if they had the alternative of abandoning the action at common law and obtaining decree of dismissal. Such reluctance could be anticipated because abandonment under rule 29.1(1)(b) would automatically be conditional upon the prior payment of the defender's expenses in full, whereas under the common law the court would have a discretion whether to award expenses in full or at all, and whether to require the payment of expenses as a condition of giving effect to the minute of abandonment.
31. There are however a number of other considerations which might point away from that interpretation. The first of these arises from the point just mentioned: that rule 29.1, like section 10 of the Judicature Act, makes dismissal automatically conditional upon the prior payment of the defender's expenses; whereas, when an action was abandoned at common law, the award of expenses was at the discretion of the court, and there was no requirement that they must necessarily be paid before dismissal could be obtained. If rule 29.1(1)(b) replaced the common law, it would therefore result in a significant change in the law.
32. Secondly, if rule 29.1 had been intended to repeal the common law right of abandonment (either under reservation, or generally), that could readily have been provided in express terms. Rule 29.1(1) might have abolished in terms any right of abandonment under the common law, or it might have been expressed in such a way as to achieve the same result.
33. Thirdly, if rule 29.1 were interpreted as replacing the common law as to abandonment prior to the closing of the record, that would have an anomalous consequence. If the pursuer were to fail to lodge an open record, the defender could apply for dismissal (under rule 22.1(2)); if he failed to lodge a closed record, the defender could apply for dismissal (under rule 22.3(1)); if he failed to be represented at a hearing on Procedure Roll, the Lord Ordinary could dismiss the action (under rule 20.1(3) and rule 28.1(1)); and if, following a hearing on Procedure Roll, the Lord Ordinary were to sustain the defender's preliminary plea, he would dismiss the action. In each of these situations, the expenses of the action would be a matter within the discretion of the court; and there would be no requirement that the pursuer must have paid the expenses before decree of dismissal could be granted. It appears unlikely that rule 29.1 was intended to discourage pursuers from abandoning fruitless proceedings, and to encourage them instead to invite dismissal by failing to comply with procedural requirements; yet that would appear to be the effect of interpreting rule 29.1 as excluding common law abandonment under reservation and imposing in its place an automatic requirement that expenses must be paid as a condition precedent to obtaining decree of dismissal upon abandonment. In the present case, for example, the pursuer responded to the plea taken in the defences, as to his title to sue, by commencing fresh proceedings and seeking to abandon the present action, having obtained a retrocession of the right of action in the meantime. According to the defenders' submission, he could not competently abandon the action at common law under reservation, but must first pay the defender's expenses in accordance with rule 29.1(2) if he wished to obtain decree of dismissal. If that submission were well-founded, however, the pursuer might find it more attractive to let the defender take him to Procedure Roll, at which point he could simply fail to appear, or concede that he had no title to sue: in either event, he would obtain decree of dismissal without having to pay expenses as a condition precedent. I find it difficult to imagine that that can have been the intended result of rule 29.1. It would in my opinion be surprising if rule 29.1 had the effect of preventing a pursuer from taking the initiative to bring a hopeless action to an end prior to the closing of the record unless he either paid the defenders expenses first, or sought absolvitor rather than dismissal.
34. Fourthly, to interpret rule 29.1 as superseding the common law would conflict with the presumption of statutory interpretation against changes in the common law. As stated in Maxwell on the Interpretation of Statutes (12^th edition), at page 116:

"It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question."

That presumption applies to procedural matters as strongly as it applies to matters of substantive law (op. cit, page 117). For the reasons I have explained, to interpret rule 29.1 as having abolished abandonment under reservation at common law would effect a significant change in existing (and longstanding) law. That change was not expressly stated; nor does it follow by necessary implication. Rule 29.1 could be interpreted, consistently with the presumption, as extending the statutory right which already existed after the closing of the record (by virtue of section 10 of the Judicature Act) so that it would exist also at the earlier stages of proceedings, thereby adding to (rather than abolishing) the possibility of abandonment under reservation at common law.

35. Weighing these various considerations, I am not persuaded that the change in the longstanding law and practice contended for by counsel for the defenders has been effected by rule 29.1 (or by the former rule 91A). I conclude that abandonment under reservation remains competent under the common law. It is therefore open to me to grant the pursuer's first motion.
36. That is sufficient to determine the present matter. In deference to the arguments presented, however, I should also consider the pursuer's second motion, on the hypothesis that abandonment leading to a decree of dismissal is only competent under rule 29.1.
37. At first sight, it might be thought that there could be no objection to the parties agreeing the amount of expenses, and thus dispensing with taxation under rule 29.1(2)(a). For the parties to be able to agree expenses, rather than bearing the additional expense of an unnecessary taxation, is plainly sensible; and it would be surprising if the law prevented them from doing so without the pursuer's forfeiting his right to dismissal. Counsel for the defenders was however correct in his submission that that was held to be the effect of rule 29.1(2)(a) in VP Packaging v the ADF Partnership. It is therefore necessary to examine the reasoning of the decision.
38. In VP Packaging, the pursuers abandoned the proceedings in question after the closing of the record, and sought decree of dismissal. The court pronounced an interlocutor finding the pursuers liable in expenses and remitting an account of expenses to the Auditor of Court to tax and to report. In terms of rule 29.1(2)(b), the pursuers required to pay the expenses within 28 days of intimation of the Auditor's report on the taxation. In the event, the parties agreed the expenses, and the diet of taxation therefore did not proceed. The pursuers however failed to pay the expenses. Eleven weeks after the expenses had been agreed, the defenders obtained decree for the agreed sum. The pursuers continued to fail to pay the expenses for a further 24 weeks, at which point the expenses were finally paid.
39. In these circumstances, the defenders sought decree of absolvitor under rule 29.1(3), on the basis that the pursuers had failed to pay the expenses within 28 days of the date of the decree for the agreed sum. The defenders' primary argument, in other words, was that the agreement of expenses did not prevent the pursuers from obtaining decree of dismissal under rule 29.1(2)(a), or the defenders from obtaining decree of absolvitor under rule 29.1(3) in the event of a failure to make timeous payment. As recorded by Lord Wheatley (at page 1225), counsel submitted:

"The key issue was simply to determine a mechanism to fix the expenses; once that had been done - by whatever means - the defenders [sic] had 28 days to settle the expenses in terms of the rules, otherwise they lost their entitlement to seek dismissal."

If absolvitor could not be granted in terms of the rules, the defenders sought absolvitor at common law. In response, the pursuers argued that rule 29.1 did not cover a situation where the parties agreed on expenses and did not go to taxation; and that the action should therefore be dismissed. As a secondary position, counsel for the pursuers asked that the court should exercise its dispensing power under rule 2.1 and allow the action to be dismissed.

40. It was in these circumstances, and in the light of these submissions, that Lord Wheatley considered first the question whether the pursuers could obtain decree of dismissal. In relation to rule 29.1(2)(a), his Lordship said (at page 1226):

"It is correct that rule 29 makes no provision for the situation where parties have agreed on the expenses of the case as opposed to having those expenses taxed by the Auditor of Court. So much must be obvious to those who have to work with these rules. The only conclusion that can be drawn from this is that a pursuer who agrees to settle expenses without reference to the Auditor of Court must be presumed to have abandoned any right to ask for dismissal in terms of the rules."

For the same reason, his Lordship concluded that the defenders could not seek decree of absolvitor under rule 29.1(3); but he concluded that decree of absolvitor could be granted at common law. As I have mentioned, his Lordship rejected the contention that the court might relieve the parties from the consequences of their failure to comply with rule 29.1 under rule 2.1.2, on the basis that that power was not available where what was done was "considered and deliberate".

41. I do not, with respect, agree with the view that, if parties reach agreement on expenses instead of having them taxed, the pursuer must be presumed to have abandoned any right to seek decree of dismissal. Whether a party has abandoned a right appears to me to depend upon the factual circumstances of the particular case, rather than upon a legal presumption (cf. Armia Ltd v Daejan Developments Ltd, 1979 S.C. (H.L.) 56 at page 72 per Lord Keith of Kinkel). Rule 29.1 does however bear to make the granting of decree of dismissal under paragraph (1)(b) conditional upon compliance with the procedure, including taxation, envisaged by paragraph (2)(a). At the same time, counsel for the defenders in VP Packaging appears to me to have been correct in his submission that paragraph (2)(a) is merely designed to provide a mechanism for fixing the amount of expenses to be paid, and the time within which it must be paid; and that, for those purposes, the agreement of expenses might be regarded as equivalent to the intimation of the Auditor's report on taxation.
42. Rule 29.1 was drafted, and must be applied, in the context of the discretion which the court possesses to excuse non-compliance with the Rules of Court when the interests of justice so require. That discretion finds expression in rule 2.1, paragraph (1)of which provides:

"The court may relieve a party from the consequences of a failure to comply with a provision in these Rules shown to be due to mistake, oversight or such other excusable cause on such conditions, if any, as the court thinks fit."

That provision might be contrasted with the rule which it replaced (paragraph (4) of the preamble to the 1965 Act of Sederunt), in terms of which the failure to comply had to be due to "mistake, oversight or other cause, not being wilful non-observance of the same". The fact that a failure to comply may have been considered and deliberate, in particular, does not in my opinion entail that the dispensing power cannot competently be invoked: the issue, where the failure was not due to mistake or oversight, is whether it was due to some "other excusable cause"; and deliberate failures, although they may usually be inexcusable, are not in my opinion necessarily so.

43. Where parties are able to agree an account of expenses rather than requiring it to undergo taxation as envisaged by rule 29.1(2)(a), their failure to comply with that provision is in my opinion due to an excusable cause, namely the avoidance of unnecessary proceedings and consequent expense.
44. For these reasons, if it had been necessary for me to have determined the pursuer's second motion, I would have dispensed with the requirements of rule 29.1(2)(a) insofar as they include the taxation of the defenders' account of expenses, and would have granted the motion.
45. In the foregoing circumstances the case will be put out By Order, so that an appropriate interlocutor can be pronounced in the light of this Opinion, dismissing the action and dealing with the expenses incurred in dealing with the present issue.