 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Milne & Ors v. Caledon Shipbuilding & Engineering Co. Ltd [2003] Scotcs 260 (09 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/260.html Cite as: [2003] Scotcs 260 |
||
[New search] [Help]
|
OUTER HOUSE, COURT OF SESSION |
|
|
A3718/01
|
OPINION OF LADY COSGROVE in the cause (FIRST) MAY MILNE or FRASER; (SECOND) DEREK FRASER; (THIRD) SHEILA SIMNETT; and (FOURTH) WILLIAM SIMNETT Pursuers; against (FIRST) CALEDON SHIPBUILDING & ENGINEERING COMPANY LIMITED; (SECOND) SCOTTISH AND SOUTHERN ENERGY PLC Defenders:
________________ |
Pursuers: Wilson; Thompsons
First Defenders: Frew, Solicitor Advocate; Biggart Baillie
Second Defenders: Lindsay; Dundas & Wilson, C.S.
19 August 2003
[1] This case called before me in chambers during vacation. The unopposed motion on behalf of the pursuers was for relief from the consequences of the failure to comply with the provisions of Rule of Court 13.13(6). I regret that in the circumstances I took no detailed note of the proceedings and my best recollection at this stage (some five weeks later) of the information provided in support of the motion is as follows. The summons had been lodged timeously for calling and a calling date was fixed. However, a defect was noticed in, I think, one of the executions of citation, and the summons was returned to the pursuers' agents. Thereafter the particular assistant employed by the pursuers' agents who was dealing with the matter left the agents' employment without attending to remedying the defect and returning the summons to Court. It then lay unnoticed in the agents' office and the period of a year and a day prescribed by the rule elapsed without the summons calling. [2] I was satisfied that it was competent to exercise the dispensing power under Rule 2.1 to grant relief from the consequences of the failure to comply with Rule 13.13(6) (see, for example, McDonald v Kwok 1999 S.L.T. 593). I therefore had to consider whether the failure was excusable, and whether I should exercise my discretion to grant the relief sought. [3] I was satisfied that the pursuers themselves in this asbestosis claim were entirely blameless in this matter. I was also prepared to accept that the failure to comply with the rule arose from a genuine oversight on the part of the agents. Having regard to the length of time that had by then elapsed, I had some difficulty in viewing the cause as excusable, but in the event, decided with some considerable hesitation to grant this unopposed motion. I regret I am unable to provide any further assistance in this matter.