Eurocopy Rentals Ltd v Tayside Health Board
| Jurisdiction | Scotland |
| Judgment Date | 06 June 1996 |
| Date | 06 June 1996 |
| Docket Number | No 43 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Practice—Appeal—Grounds of appeal—Ground of appeal directed to obiter holding of Lord Ordinary—Whether reclaimers entitled to amend grounds of appeal late—Whether cause shown for late amendment—Rules of the Court of Session 1994, r 38.16(4)
The pursuers sought declarator that they were entitled to terminate a contract between them and the defenders for the supply and servicing of photocopiers and, upon termination, to payment of damages. The cause came to debate before the Lord Ordinary on whether (a) in light of the fact that the pursuers had accepted a repudiation of the contract by the defenders when they refused to make quarterly payments for which the pursuers had rendered invoices, they were entitled to terminate the contract under its condition 10 a year later and claim a sum calculated in accordance with what that condition provided; and (b) whether condition 10(b) of the contract, which set out a formula according to which the sum due under that provision was to be calculated, was penal and unforceable. The Lord Ordinary held, on the first question, that the primary obligations on both parties had to be considered as haying come to an end as at the date of the acceptance by the pursuers of the defender repudiation so that, as a measure of payment outlined in condition 10(b) was available to the pursuers only where the contract was terminated under condition 10(a), they could not claim damages under condition 10(b) but had to claim damages at common law. The Lord Ordinary, however, went on to express the view that condition 10(b) was penal. The pursuers reclaimed. The ground of appeal was directed only to the question as to whether condition 10(b) was penal. At the hearing of the reclaiming motion, the pursuers sought leave to amend the grounds of appeal in order for them to argue that the Lord Ordinary had erred in his decision on the first question. The motion was opposed on the basis that it came very late and would necessitate the hearing of the reclaiming motion being adjourned to a later date in a case where a proof before answer had already been allowed, thereby causing further delay.
Held (I) that the purpose of the grounds of appeal was to give notice to the parties and to the court of the grounds on which the appeal or the reclaiming motion as the case may be was to be argued, and the purpose of the by order hearing under r 6.3(9) was to eliminate, so far as reasonably practicable, disruption to the court's timetable by late adjournments or inaccurate forecasting of the duration of a hearing on the summar roll; (2) that the by order hearing was a stage at which consideration should be given to the grounds on which the appeal or reclaiming motion was to be argued, so that the court could be told whether the appeal or reclaiming motion was to proceed and whether the dates which had been fixed for the hearing were required; and (3) that the fact that there remained an opportunity for the pursuers to recover damages at common law meant they were unlikely to suffer substantial prejudice as a result of any decision to refuse to allow the grounds of appeal to be amended; and motion refused.
Observed that it would be inappropriate to allow the reclaiming motion to be heard as it was not the function or practice of the court to deal with matters which had become academic because they were no longer of any practical importance to the case, albeit there might be exceptional cases where there was a wider public interest to be served and it was desirable that the court should give guidance on matters of practice or the interpretation of legislation which had given rise to difficulty, which was not...
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