In Wojciech Kosno v Dean Robertson 2021 CSOH 79, Lord Weir in the Court of Session (High Court equivalent) refused to recall a decision awarding interim damages which had been granted when the defender failed to oppose the original application in time. He confirmed that the general discretion allowed by the rules did not provide the power to revoke or modify a decision of the court.
A mistake or oversight
On 4 June 2021, the pursuer's solicitor intimated a motion (application) for interim damages in the sum of £80,000. Opposition to the motion was required by 18 June (i.e., 14 days later). As a result of a mistake or oversight, no formal opposition was intimated by the defender's solicitor in time. In the absence of any formal opposition, the motion proceeded as unopposed and was granted by the court on 21 June.
Upon receiving the interlocutor, the defender's solicitor emailed the court seeking “relief from sanctions in relation to the oversight in intimating the opposition”. The defender's solicitor proposed, in allowing the opposition to be received late, that the court treat the motion for interim damages as opposed and disregard the interlocutor. The pursuer's solicitor questioned the competency of the proposals. Lord Weir considered the motion could no longer be marked as opposed and determined that it was for the defender to decide what further procedural steps should be taken in relation to the interlocutor of 21 June awarding the pursuer £80,000 in interim damages.
On 2 July, the defender enrolled a motion asking the court to exercise its discretion in favour of the defender in respect of their failure to timeously intimate opposition to the pursuer’s motion and to recall the interlocutor of 21 June.
The parties' submissions
At the hearing, the defender's counsel denied they were seeking either “correction” of the interlocutor or to have it held as pro non scripto (as if never written). It was submitted that Rule 2.1 of the Court of Session Rules provided the court with an overriding discretion to excuse a failure to comply with the requirements of the rules where justice in the circumstances demanded.
The defender's counsel submitted that the defender's solicitor's failure to lodge opposition had been a genuine oversight and, upon receiving the interlocutor, immediate steps had been taken to try to remedy the situation.
Further, there was no rule precluding the court from exercising its discretion in terms of Rule 2.1 and as the interlocutor was not a final judgment in the case, but rather an interim order, it was capable of adjustment under rule 43.12. It was submitted that in the circumstances, and with a view to doing justice between the parties, it was competent and appropriate to excuse the failure to intimate opposition to the motion.
The pursuer's counsel submitted that the dispensing power under Rule 2.1 could not competently be invoked in such a way as to permit recall of what was, in the Outer House, a final interlocutor - in the sense that it could only be reviewed by the Inner House (the appeal court). He argued that except where the rules permitted, the court had no power to recall, revoke or alter the substance of its own interlocutor.
Lord Weir concluded that Rule 2.1 of the Court of Session rules could not be invoked as an alternative means to secure recall of the interlocutor of 21 June when an application for leave to appeal against that interlocutor (i.e., to the Inner House) would otherwise be competent.
Lord Weir therefore held that the defender's motion was incompetent, and it was refused. This left in place the order for interim damages in the sum of £80,000.
Lord Weir's decision will be of considerable interest to solicitors in Scotland and their insurers. The outcome is not entirely surprising as it would undermine the appeal procedure provided for by the rules to allow a decision to be reviewed by a simple motion to the same court. However, this is a useful reminder that the court's general discretion cannot override all mistakes and that adopting a robust system for diarising and meeting court deadlines remains crucial risk management.
It remains to be seen whether the defender will be prejudiced by the award having been made, if, for instance, the value of the claim is properly below the level of interim damages; or if the award could reasonably have been avoided if opposed and whether the outcome of the overall claim might be adversely affected by it being paid over at this stage.