Winning v Napier, Son & Company Ltd
| Jurisdiction | Scotland |
| Judgment Date | 07 December 1962 |
| Date | 07 December 1962 |
| Docket Number | No. 37. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Johnston
ProcessReclaimingReclaiming motion against decree by defaultDiscretion of Court in reponingWhether prior interlocutors brought under review by reponingPrior interlocutor appointing proof before answerRules of Court, 1948, Rule 273 (e).
Rule 273 (e) of the Rules of Court, 1948, provides, inter alia:" it shall be competent to reclaim, without leave, against a decree by default at any time before extract; No decree by default shall be recalled except upon such conditions as to expenses or otherwise as the Court may think proper."
A workman brought an action of damages against his former employers in respect of his having contracted pneumoconiosis. The defenders pleaded,inter alia, that the claim was wholly or partly barred by the long negative prescription. After a debate the Lord Ordinary repelled the defenders' pleas based on prescription and allowed a proof before answer. After the days for reclaiming against the Lord Ordinary's interlocutor had expired, there was published a decision of the English Court of Appeal which, in the view of the defenders' advisers, supported their argument on prescription. In consequence of that view and in an attempt to utilise what was thought to be a competent method of reopening the question of prescription, no appearance was made for the defenders at the proof and the Lord Ordinary granted decree by default against them for the sum sued for and found them liable in expenses. The defenders reclaimed and argued (1) that, under Rule 273 (e), reponing was a matter of right, not discretion, and, in any event, that they should be reponed, and (2) that, if they were reponed by their reclaiming motion being granted, that would automatically bring under review the prior interlocutor repelling their pleas based on prescription and allowing proof before answer.
Held (1) that the reclaiming motion was a matter for the Court's discretion and, in the circumstances of the case, should be allowed, upon a condition as to expenses; but (2) that, as a reclaiming motion against a decree by default was in substance a reponing note, the granting of the reclaiming motion could only restore the defenders to their position at the date of the proof and could not bring under review the prior interlocutor allowing proof before answer.
David Ramsay Winning, slinger, brought an action against Napier, Son & Company, Limited, his former employers. He sued for 4000 damages in respect of his disability from pneumoconiosis, which he alleged that he had contracted as a result of the employers' failure to fulfil certain statutory duties. The pursuer had been employed by the defenders from 1926 until 1943. The summons in the action was signeted on 5th October 1960.
The pleas-in-law for the defenders (as amended) were, inter alia, as follows:"(1) The action, being incompetent in respect that it is barred by the operation of the long negative prescription, should be dismissed. (2) Separatim. The pursuer being barred by the operation of the long negative prescription from claiming reparation for any damage which occurred prior to 5th October 1940 (being twenty years before the date of citation in this action), the action should be dismissed."
After a hearing in the Debate Roll on 21st June 1961, the Lord Ordinary (Johnston) on 29th September 1961, inter alia, repelled the first and second pleas-in-law for the defenders and allowed a proof before answer, which was fixed for 20th February 1962. The expenses of the Debate Roll discussion were reserved.
No appearance was made at the date of proof on 20th February 1962 by or on behalf of the defenders, and the Lord Ordinary accordingly decerned against the defenders by default for payment of 4000 in terms of the first conclusion of the summons and found them liable to the pursuer in expenses. The circumstances of the defenders' non-appearance at the diet of proof are referred to in the rubric, the argument for the defenders and the opinions of the Lord President and Lord Guthrie.
The defenders reclaimed, and the reclaiming motion was heard before the First Division (without Lord Sorn) on 6th December 1962.
At advising on 7th December 1962,
LORD PRESIDENT (Clyde).In this case the pursuer sues the defenders for 4000 of damages in respect of his having contracted pneumo-coniosis as a result, he alleges, of the defenders' failure to observe certain statutory duties regarding dust extraction in their works. He was employed by the defenders from 1926 until 1943. The action was brought on 5th October 1960. The defenders pleaded, inter alia, that the claim was barred or partly barred by prescription.
There was a Debate Roll discussion on 21st June 1961, and on 29th
September 1961 the Lord Ordinary repelled the defenders' pleas based upon prescription and allowed a proof before answer, the proof to proceed on 20th February 1962. On this latter date the Lord Ordinary, in respect of no appearance having been made at the proof by or on behalf of the defenders, by default decerned against them for the principal sum sued for, and found the defenders liable to the pursuer in expenses. The...To continue reading
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Eric Mcdermid V. D & E Mackay (contractors) Ltd
...to decrees by default as well as to decrees in absence. Nearly half a century after that, in Winning v Napier, Son & Company Limited 1963 SC 293, Lord President Clyde (at p.298) expressed the same view in these terms: "Although in form the present application is a reclaiming motion it is in......
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McCue v Scottish Daily Record & Sunday Mail Ltd (No.2)
...District CouncilSC 1983 SC (HL) 50 Thom v AndrewUNK (1888) 15 R 780 Watson v RussellUNK (1894) 21 R 433 Winning v Napier, Son & Co LtdSC 1963 SC 293 Young's Executors v PeeblesSC 1997 SC 309 Textbooks referred to: Mackay, Manual of Practice (1893), p 304 Mackay, Practice of the Court of Ses......
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Canmore Housing Association Ltd V. Sharmaine Scott
...the court that the decree should be recalled. (Morrison v Smith (1876) 4 R 9, per Lord Deas at page 11; Winning v Napier, Son & Co Ltd 1963 SC 293.) On the other hand, where decree by default has been pronounced against a defender, the appeal court is most reluctant, in any case in which pr......
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Andrew Battenberg And Others V. Firm Of Dunfallandy House And Others
...the Lord President (Inglis) at p 254; Hyslop v Flaherty 1933 SC 588 per the Lord Justice Clerk (Alness); Winning v Napier, Son & Co Ltd 1963 SC 293 per the Lord President (Clyde) at p 297; and the terms of Rule of Court 38.11(2). [13] In our opinion the submission advanced by Mr Upton is we......