Prospect Healthcare v Kier Build
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Judgment Date | 17 November 2017 |
| Docket Number | No 9 |
| Court | Court of Session (Inner House) |
| Date | 17 November 2017 |
[2017] CSIH 70
First Division
Lord Doherty
Albert Bartlett & Sons (Airdrie) Ltd v Gilchrist and Lynn Ltd [2010] CSIH 33; 2010 GWD 21–407
Cattan (LE) Ltd v A Michaelides & Co Ltd [1958] 1 WLR 717; [1958] 2 All ER 125; [1958] 1 Lloyd's Rep 479
Clark v Greater Glasgow Health Board [2017] CSIH 17; 2017 SC 297; 2017 GWD 7–96
John Muir Trust v Scottish Ministers [2016] CSIH 61; 2017 SC 207; 2016 GWD 24–453
Jongejan v Jongejan 1993 SLT 595
McCue v Scottish Daily Record and Sunday Mail Ltd (No 1) 1988 SC 811; 1998 SLT 983; 1998 SCLR 742
Watson v Russell sub nom Cowans v Morison(1894) 21 R 433; 1 SLT 478
Process — Review — Reclaiming motion — Award of expenses made following lodging of minute of abandonment — Action subsequently dismissed following payment of expenses — Whether competent to bring under review interlocutor awarding expenses in reclaiming motion against final decree dismissing action — Act of Sederunt (Rules of the Court of Session 1994)1994 (SI 1994/1443 (S 69)), r 38.6
Process — Review — Reclaiming motion — Dismissal of proceedings against third parties sought by the defenders following lodging of minute of abandonment by the pursuers — Defender found liable in expenses to the third parties on the defenders’ motion — Whether competent to reclaim against interlocutor pronounced on the reclaimers’ own motion
Prospect Healthcare (Hairmyres) ltd brought an action under the Commercial Cause Rules in the Court of Session. They sought damages from Kier Build Ltd in respect of breach of contract. The defenders sought relief from the third parties, Carillion Construction Ltd. The pursuers lodged a minute of abandonment. The cause came before the commercial judge (Lord Doherty), on 15 June 2016, who allowed the action and third-party proceedings to be dismissed on the condition that the pursuers pay the full judicial expenses of the defenders and the defenders pay the full judicial expenses of the third parties. On 14 July 2017 the commercial judge dismissed the action and third-party proceedings following payment of the expenses. The defenders reclaimed.
Rule 38.6(1) of sch 2 to the Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)) provides, inter alia, “a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary”.
The pursuers raised a commercial action seeking damages for breach of contract. The defenders sought relief from the third parties. Shortly before proof, the pursuers lodged a minute of abandonment and enrolled a motion seeking dismissal of the action on the basis of paying the full judicial expenses of the defenders. That motion was not opposed. The third parties enrolled a motion seeking dismissal of the action against it and an award of expenses against the defenders. The defenders opposed the third parties’ motion, and enrolled a motion seeking payment of a sum equivalent to the third parties’ expenses from the pursuers.
On 15 June 2016, the commercial judge: (1) allowed the pursuers to seek dismissal of the action on the condition that full judicial expenses were paid to the defenders; (2) refused the defenders’ motion for the pursuers to pay to the defenders the third parties’ expenses; and (3) on the defenders’ motion allowed the defenders to abandon the action against the third parties and to seek dismissal on the condition that the defenders pay the third parties’ full judicial expenses. The commercial judge refused the defenders leave to reclaim.
On 14 July 2017 the action and third-party proceedings were dismissed following payment of the accounts of expenses. The defenders reclaimed and sought review of the interlocutor of 15 June 2016. The pursuers and third parties lodged notes of objection to the competency of the reclaiming motion.
Held that: (1) the intention of RCS 38.6(1) was to allow the court to do complete justice, but the scope for review of prior interlocutors was limited (para 23); (2) it was not competent to seek to challenge an interlocutor that had no connection with the merits of the interlocutor which was the subject of the reclaiming motion, accordingly the relationship between the prior interlocutor and the final judgment was an important consideration (para 23); (3) there was a link between the interlocutor awarding expenses and the final interlocutor dismissing the action following payment of those expenses, as the earlier interlocutor was a precursor to the final interlocutor (para 24); (4) the award of expenses in favour of the third parties against the defenders was made on the defenders’ motion and therefore it was not competent for the defenders to seek to review it (para 25); and pursuers’ note of objection repelled and third parties’ note of objection sustained.
Jongejan v Jongejan 1993 SLT 595, McCue v Scottish Daily Record and Sunday Mail Ltd (No 1)1998 SC 811, John Muir Trust v Scottish Ministers2017 SC 207 and Clark v Greater Glasgow Health Board2017 SC 297followed.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Malcolm, for a hearing on the single bills, on 24 October 2017.
At advising, on 17 November 2017, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This is an objection to the competency of a reclaiming motion which is designed to review not the interlocutor reclaimed against but an earlier interlocutor. The latter refused a motion by the defenders to find, inter alia, the pursuers liable for the expenses which the defenders were required to pay to the third parties. The motion therefore concerns the scope of RCS 38.6(1) (Act of Sederunt (Rules of the Court of Session) 1994) 1994 (SI 1994/443 (S 69))), which submits all interlocutors, previous to that reclaimed, to review. This in turn requires an analysis of the Full Bench decision in McCue v Scottish Daily Record and Sunday Mail (No 1) and dicta in two more recent determinations (John Muir Trust v Scottish Ministers; Clark v...
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