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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SA AGAINST PA [2020] ScotCS CSIH_24 (15 May 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_24.html
Cite as: [2020] ScotCS CSIH_24, 2020 GWD 34-439, [2020] CSIH 24
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Menzies
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
2020 CSIH 24
A44/19
delivered ex tempore by LORD MALCOLM
in the cause
by
SA
Appellant
against
PA
Respondent
Appellant: Shand QC; Kelly; Allan McDougall
Respondent: Grahame QC; Edward; Drummond Miller LLP
10 March 2020
[1] This is a reclaiming motion against the decision of the Lord Ordinary made in terms
of the rules then in force, namely Rule of Court 42A.4(1), to send the action to a proof before
answer rather than, as proposed by the defender, appoint a debate on various issues raised
in his pre-by order roll statement.
[2] As explained in the relevant practice note, chapter 42A gives the Lord Ordinary wide
powers to manage an action in a manner which will facilitate its efficient determination.
That was the task before the Lord Ordinary. For this purpose to be achieved, decisions of
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2
this kind must be afforded a high degree of respect and deference by this court. If, as
submitted on behalf of the defender, a decision to send a case to a proof before answer had
to be overturned simply because the Inner House thought that an arguable issue had been
raised which could justify a debate, the overall purpose of chapter 42A would be
significantly undermined. It would also, as the discussion at the hearing clearly
demonstrated, involve this court in the merits of the proposed debate; and this with a view
to deciding whether to require the Lord Ordinary to conduct and determine a debate,
something which is self-evidently inappropriate.
[3] Reference was made to Sheriff Principal Kerr’s decision in Cyma Petroleum (UK) Ltd v
Total Logistics Concepts Ltd 2004 SLT (Sh Ct) 112. It was based on the particular terms of the
then procedural rule in force in the sheriff court. In so far as it was suggested that decisions
of this kind are made on questions of law rather than matters of procedure, we respectfully
disagree. In our view, this court should interfere with a case management decision of this
kind sparingly, and certainly only if it is clear that it was an erroneous decision in the sense
that it was not open to a reasonable Lord Ordinary.
[4] The Lord Ordinary has explained his reasoning in his note. We are unable to
identify any good ground for interfering with his decision and ordering a debate on any of
the issues proposed by the defender. The Lord Ordinary was fully entitled to reserve
answering the questions in law until after evidence had been led. This will often be the
preferable or, at any rate, a justifiable course of action. For the Lord Ordinary this would be
all the more so since he understood that he had been told that a debate could not remove the
need for some kind of proof in due course. The defender has not lost the opportunity to
present the substantive points. They can be argued after the evidence has been led.
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[5] Much of the discussion concerned the relevancy of the common law case of fault and,
in particular, a need for the pursuer to offer to prove conduct which was reasonably
foreseeably likely to cause a psychiatric disorder and which did, in fact, have that outcome.
We are satisfied that the pursuer’s averments in this regard are sufficient for a proof before
answer, especially bearing in mind the court’s powers to take steps to focus and explicate
the issues to be explored at the proof.
[6] The result is that the court is not prepared to accept the invitation to address the
various debate points raised by the defender. These will be a matter for the Lord Ordinary
after the proof if and in so far as they are maintained at that time. For the avoidance of
doubt we note that the above observations are made in the context of rules that were
superseded on 1 March 2020, but they appear to be apposite to the replacement provisions
and, in particular, new Rule 42A.3(4).
[7] For these reasons the reclaiming motion is refused.