Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 63

CA125/12

Lady Paton

OPINION OF THE COURT

delivered by LADY PATON

in the cause

AVIVA INSURANCE LIMITED

Pursuers and respondents;

against

THOMAS MANN

Defender and reclaimer:

Act:  Upton;  BLM Solicitors

Alt:  Party

8 July 2016

[1]        Although not necessarily a popular concept, the courts of law must run on the basis of procedure and procedural rules.  In every case, rules and procedure must apply.

[2]        In this case, there is an appeal by Mr Mann against an interlocutor issued by Lord Doherty dated 9 March 2016.  It is of significance that the interlocutor was in Mr Mann’s favour, in that he was found entitled to absolvitor in an action against him, with a finding of no expenses due to or by either party. 

[3]        Where a party has been successful (as the courts would regard Mr Mann as having been) it is only in very special or exceptional circumstances, and also where there is sufficient causal connection between the complaint being made and the decision being appealed against, that the person appealing will be permitted to reclaim against his own success.  In this context, the guidance given by the Inner House in Secretary of State for Work and Pensions v Robertson 2016 SLT 52 at paragraph 45 is of some assistance. 

[4]        I am not satisfied in this particular case that there is a sufficient causal connection between Mr Mann’s grounds of appeal and Lord Doherty’s decision of 9 March 2016.  The grounds of appeal do not disclose any procedural error or error of law relating to what happened on 9 March 2016.  Mr Mann frankly acknowledges that what he really seeks to do is to challenge Lord Tyre’s earlier decree of 8 January 2015.  Acting on advice given by the General Department, Mr Mann is aware that the enrolling of a reclaiming motion may have the effect of opening up earlier interlocutors.  He seeks to challenge Lord Tyre’s summary decree against him for the sum of £158,559.28.  As he submitted in court today, his position is that Lord Tyre’s decree is unsafe:  it should not be allowed to stand, and there is material available which would prove that it should not have been granted. 

[5]        It is not competent, in my view, for Mr Mann to seek to challenge that earlier interlocutor by reclaiming against Lord Doherty’s interlocutor on the basis of the grounds of appeal lodged in support of his reclaiming motion.  There is nothing in the grounds of appeal which suggests that anything done by Lord Doherty was erroneous or improper or contrary to procedure or contrary to the principles of natural justice, and there is no causal connection between his present grounds of appeal and Lord Doherty’s decision of 9 March 2016.  Furthermore it has been drawn to my attention by Mr Upton that the earlier interlocutor of January 2015 has been extracted.  That makes it a final matter, which cannot be ruled against even if the current reclaiming motion were to proceed (McLeod v Prestige Finance Ltd 2016 CSOH 69 at paragraph 9).  If it is Lord Tyre’s decree which is sought to be challenged, the only avenue available to Mr Mann is an action of reduction.

[6]        For all these reasons, I refuse the reclaiming motion as incompetent.