Scottish Court of Session Decisions

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Cite as: [2018] ScotCS CSIH_1, [2018] CSIH 1

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lady Paton

Lord Drummond Young

[2018] CSIH 1

A391/17

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the cause

(FIRST) THE FIRM OF BARRY AND SUSAN PEART; (SECOND) BARRY PEART and

(THIRD) SUSAN PEART

Pursuers and Respondents

against

PROMONTORIA (HENRICO) LIMITED

Defender and Reclaimer

Pursuers and Respondents: G Reid; MBM Commercial LLP

Defender and Reclaimer: Ower; Addleshaw Goddard LLP

21 December 2017

[1] The summons in this case was signetted on 24 November 2017. At the same time, the

respondents enrolled a motion for interim interdicts. A caveat having been lodged, the

Keeper informed the reclaimer of the date and time for the hearing in terms of RCS 23.9, and

the reclaimer took the opportunity to be represented and to oppose the motion. On

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28 November 2017 the Lord Ordinary pronounced an interlocutor granting the interdicts

sought and made an award of expenses against the reclaimer, with decerniture.

[3] The summons has not been served, and has thus not been lodged for calling.

[4] RCS 38.2(4) provides that certain interlocutors may be reclaimed against, without

leave, within 14 days after the date of the interlocutor. An interlocutor granting, refusing,

recalling, or refusing to recall, interim interdict or interim liberation is one such

(RCS 38.2(5)(e)).

[5] On 12 December, within the reclaiming period the reclaimer enrolled a motion for

review of the Lord Ordinary’s interlocutor, and for urgent disposal. On 14 December the

respondents lodged a Note of Objection to the competency of the reclaiming motion. The

procedural judge before whom the case was to call referred the matter to a bench of three

judges (RCS 38.12(7)) for disposal of the objection.

[6] Section 28 of the Court of Session Act 1988 provides:

“Any party to a cause initiated in the Outer House either by a summons or a petition

who is dissatisfied with an interlocutor pronounced by the Lord Ordinary may,

except as otherwise prescribed, reclaim against that interlocutor within such period

after the interlocutor is pronounced, and in such manner, as may be prescribed.”

“Party” is not defined in the statute. The RCS provide for both the period and manner of

reclaiming, and also provide a definition of “party” in RCS 1.3 which states:

“(1) In these Rules, unless the context otherwise requires-

"party" means a person who has entered appearance in an action or lodged a writ in

the process of a cause (other than a minuter seeking leave to be sisted to a cause); and

"parties" shall be construed accordingly;

"writ" means summons, petition, note, application, appeal, minute, defences,

answers, counter-claim, issue or counter-issue, as the case may be.”

[7] Echoing section 28, RCS 38.1 provides:

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“(1) This Chapter applies subject to any other provision in these Rules or any

enactment.

(2) Any party to a cause who is dissatisfied with an interlocutor pronounced

by—

(a) the Lord Ordinary;

(b) the Lord Ordinary in Exchequer Causes; or

and who seeks to submit that interlocutor to review by the Inner House shall do so

by reclaiming within the reclaiming days in accordance with the provisions of this

Chapter.”

[8] The nub of the respondents’ argument was that, for the purposes of reclaiming, the

reclaimer was not a “party to a cause” in terms of this rule, when read with RCS 1.3, as they

had neither entered appearance nor lodged a specified writ. The respondents’ argument

was supplemented by reference to Scottish Ministers v Mirza 2015 SC 334 where the

Lord Ordinary held that a company, cited as respondent in a petition, was not a party since

it had neither entered appearance nor lodged answers.

[9] We were unable to accept the respondents’ submissions, which in our view fail to

take account of two important qualifications. The first is that the definition in RCS 1.3 is

prefaced by the words “unless the context otherwise requires”. The second is that RCS 38.1

makes it clear that chapter 38 applies “subject to any other provision in these Rules or any

enactment”. The simple answer to the respondents’ submission is that RCS 1.3 cannot apply

to a cause at any stage before the summons has been lodged for calling, since its terms are

incapable of being met until after that point. In other words, the fact that the summons had

not called means that the context requires “party” to mean something other than the

definition in RCS 1.3.

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[10] The case of Scottish Ministers v Mirza deals with an entirely different situation. The

summons had been served, and had called. One of the respondents had lodged answers; the

other had not. They had not entered appearance. After a hearing, at which those

respondents were not represented, the Lord Ordinary made the order sought, one for

recovery of property. Only after all this had occurred did they seek to enter the process in

order to reclaim: unsurprisingly, it was held incompetent for them to do so.

[11] In any event, the purpose of allowing a person to lodge a caveat is to ensure that they

are advised of any application to which the caveat relates, and given an opportunity to be

heard in opposition thereto. For this purpose a person to whom intimation of a motion

requires to be made under the Rules, or by the court, is a “party” (RCS 23.1). This is part of

the background against which RCS 1.3 must be read to determine whether the “context

otherwise requires” party to be give some different meaning.

[12] The respondents’ argument would be productive of absurdity and injustice. It

would mean that a person adversely affected by an interim order made prior to calling,

which might have severe and immediate financial consequences, quite apart from the

question of expenses, would have no way of challenging that order, other than on a change

of circumstances when they would be entitled to enrol a motion for recall. An unscrupulous

pursuer could avoid or delay serving the summons or lodging it for calling, thus actively

preventing the defender from having a remedy against the effect of the order. Even

allowing for the probability of Protestation by the defender, the process could easily be

delayed by several months.

[13] It is impossible to countenance such a consequence. As was observed in Semple

Cochrane PLC v Hughes 2001 SLT 1121, (Lord Carloway), para 10:

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“The rules of court are devised to regulate litigation and, in that regard, to assist both

the parties and the court in arriving at a just conclusion in accordance with the law as

expeditiously as is reasonable in all the circumstances.”

[14] We accordingly repelled the Note of Objection and ordered that the reclaiming

motion should proceed, granting the application for urgent disposal.