Marsh v Baxendale
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1993 |
| Docket Number | No. 17. |
| Date | 12 November 1993 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
PracticeInterlocutorReclaiming motionLord Ordinary ordering caution as prerequisite for continuing action and refusing leave to reclaimWhether final interlocutorCaution not foundLord Ordinary subsequently pronouncing decree of absolvitorPursuer reclaiming that interlocutorWhether previous interlocutor open for reviewRules of Court 1965, rules 262(c) and 264(c), proviso (ii)1
A pursuer brought an action in the Court of Session seeking reduction of a sheriff court decree which had been intimated at the defender's instance and in which decree had been pronounced in the defender's favour. As a result of that decree passing, the pursuer was declared bankrupt. The trustee in bankruptcy refused to be sisted in the action in the Court of Session. The defender then sought an order for caution for expenses against the pursuer as a prerequisite for her continuing with the action. The Lord Ordinary (Lord Cameron of Lochbroom) ordered caution for 4,000. Leave to reclaim was refused. Caution was not found, prompting the defender to move for absolvitor. Vacation Judge (Lord Prosser) granted that motion. The pursuer then reclaimed against that interlocutor. The grounds of appeal showed that the pursuer sought recall of both the interlocutor assoilzing the defender and the interlocutor ordering caution. The defender moved that the reclaiming motion should be refused as being incompetent.
Held (1) that the interlocutor ordering caution had not been acquiesced in by the pursuer, for she had not acted upon it; but (2) that that interlocutor had required the leave of the Lord Ordinary for it to be reclaimed, which, in the exercise of his discretion, he had refused; (3) that such a refusal had the effect of making the interlocutor a final one against which the pursuer could not reclaim; and (4) that, having failed to find caution, the pursuer had no defence to the motion for absolvitor; and reclaiming motion refused.
Observed that for the pursuer to be allowed to reclaim against the previous interlocutor, by opening up the whole question in a reclaiming motion against a subsequent interlocutor, would not only be contrary to rule 264(c) of the Rules of Court 1965 but would also cause further expense to the defender in
whose interest the Lord Ordinary had ordered caution to be found and in circumstances where he thought it inappropriate for the defender to run the risk of delay and expense which were likely to be caused if that interlocutor were to be reclaimed against.
Anna Marsh brought an action in the Court of Session against John Peter Baxendale in which she sought production and reduction of a pretended decree pronounced by the sheriff of Tayside, Central and Fife at Cupar on 17th April 1991 in an action at the instance of the defender. The relevant facts of the cause appear sufficiently from the opinion of the court.
The cause called before the Lord Ordinary (Lord Cameron of Lochbroom) on the motion roll on 1st June 1993 on the defender's motion for the pursuer to find caution for expenses. Eo die, his Lordship refused the motion in hoc statu. The motion was renewed before the Lord Ordinary on 30th June 1993. Eo die, his Lordship granted the motion in the sum of 4,000 and refused leave to reclaim against his interlocutor.
The cause thereafter called before the Vacation Judge (Lord Prosser) on 18th August 1993 on the defender's motion for decree of absolvitor on the basis that caution had not been found. Eo die, his Lordship granted the motion.
The pursuer reclaimed.
The reclaiming motion called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Mayfield, for a hearing on single bills.
At advising, on 12th November 1993, the opinion of the court was delivered by the Lord President (Hope).
Opinion of the CourtThis case came before us on the...
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