Kirkwood v Glasgow District Council
| Jurisdiction | Scotland |
| Judgment Date | 08 March 1988 |
| Docket Number | No. 26. |
| Date | 08 March 1988 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Weir.
Practice—Review—Reduction as a mode of review—Reduction of sheriff court decree—Decree of absolvitor—Pursuer's agents withdrawing from acting for him—Failure to notify date of hearing to pursuer—Circumstances in which remedy of reduction refused.
Practice—Sheriff court—Sheriff not continuing case for intimation to pursuer of agents' withdrawal from acting for him—Whether reduction of subsequent decree of absolvitor appropriate.
An employee raised an action of damages against his employers in respect of injuries sustained by him while he had been acting in the course of his employment with them. On 4th December 1985 the pursuer's agents withdrew from acting for him and decree of absolvitor with expenses passed against him. The employee then raised an action of reduction of the sheriff court decree. It was averred that the pursuer had not been informed by his agents that the case would call in court on 4th December 1985 although at that date the sheriff was erroneously informed that the pursuer did in fact know that the case would call on that day. It was also averred that the sheriff had adopted a course contrary to normal practice in that he had not continued the case for intimation of the withdrawal to be made to the pursuer. The pursuer failed timeously to appeal against the sheriff's interlocutor.
Held (1) that the remedy of reduction was not available if the decree in question which was said to have been granted as a departure from normal procedure came about in circumstances which it was within the knowledge and control of the party to avoid; (2) that reduction was not competent where other means of review had been prescribed and the party had failed to take advantage of them; and, accordingly, (3) that, as the prescribed means of review was by way of timeous appeal and as there had been no explanation for a failure to use the prescribed means except by reference to omissions made by the pursuer's former agents, no relevant case for reduction had been made out; and actiondismissed.
Observed that where there had been acts and omissions on the part of a party's agents affecting procedure in court, the pursuer had to bear the responsibility for such acts and omissions; anddicta to the contrary of Lord Allanbridge in J. & C. Black (Haulage) Ltd. v. Alltransport International Group Ltd.SC 1980 S.C. 57 commented upon.
William Kirkwood raised an action against the City of Glasgow District Council the conclusion of which read:—"for production and reduction of a pretended decree of absolvitor...
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