Mitchell v Sellar
| Jurisdiction | Scotland |
| Judgment Date | 22 January 1915 |
| Docket Number | No. 46. |
| Date | 22 January 1915 |
| Court | Court of Session |
Lord President, Lord Johnston, Lord Skerrington.
Process—Appeal—Proof—Additional proof—Re-opening of proof after judgment pronounced—Examination of witnesses whom party could not be expected to have precognosced.
In an action of damages, at the instance of the co-owners of a fishing vessel against the owner of another vessel, in respect of a collision at sea, the Sheriff-substitute, after a proof, decerned against the defender on the ground that the collision was due to the fault of his vessel. While an appeal against this interlocutor was pending in the Court of Session, the defender's agents received a communication from one of the pursuers, who had been on the deck of his vessel at the time of the collision but who had not been examined as a witness, repudiating the action as brought without his sanction, and stating that he was the only person on deck who could see the whole of the collision, and that he had always maintained that it was solely due to the fault of his vessel.
Circumstances in which the Court opened up the proof and allowed the defender to tender as witnesses (1) this co-owner of the pursuers' vessel, and (2) the cook of that vessel (who was prepared to corroborate his evidence),—in respect that the defender could not be blamed for want of assiduity in preparing his case in failing to precognosce these two witnesses; and (3) an independent person who had witnessed the collision from the shore,—in respect that, as the proof was to be opened up, it would be in the interests of justice that that witness should be examined also.
John Mitchell, John Falconer, Alexander Stuart, William Falconer, and others, owners of the steam drifter ‘Kimberley,’ brought an action in the Sheriff Court at Aberdeen against Colin ReidSellar, owner of the steam drifter ‘Spartan,’ in which they claimed reparation for damages which the ‘Kimberley’ had sustained in collision with the ‘Spartan’ in the South Bay of Peterhead.
On 30th April 1914 the Sheriff-substitute (Laing), after a proof, decerned against the defender, on the ground that the collision was due to the faulty navigation of his vessel. An appeal against this interlocutor was boxed to the First Division on 1st June 1914.
On 22nd January 1915 the defender presented a note to the Court in which he moved that the proof might be opened up in order that he might tender as witnesses three persons who had not been examined at the proof. The...
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