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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Justice Clerk
Lord Macfadyen
Lord Clarke
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[2006] CSIH 11
PD1199/05
OPINION OF THE COURT
delivered by the LORD
JUSTICE CLERK
in the
RECLAIMING MOTION
by
VETCO GRAY UK LIMITED
Defender and Reclaimer;
against
GAVIN SLESSOR
Pursuer and Respondent;
and
VETCO GRAY CONTROLS
LIMITED
Third Party and
Respondent:
_______
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For the Defender: R A Smith QC,
Gardiner; Simpson
and Marwick WS
For the Pursuer: Milligan; Anderson Strathern
For the Third Party: Murphy QC; HBM Sayers
7 February 2006
Introduction
[1] This
is an action of damages for personal injuries sustained by the pursuer on 13 May 2003 in the course of his
employment with the defender at their premises in Aberdeen. The pursuer sues the defender at common law
and under certain regulations that governed the work on which he was
engaged.
[2] The
defender pleads inter alia sole fault
and contributory negligence against the pursuer and has convened the third
party on the allegation that the third party was responsible directly and
vicariously for the accident, and was responsible in particular for a breach of
the same regulations. On this basis the
defender seeks to establish sole fault against the third party, failing which
it seeks an apportionment of liability between them.
[3] The
third party adopts the pursuer's case against the defender and the defender's
case against the pursuer on the respective hypotheses of fact on which those
cases proceed, and seeks an apportionment of liability with the defender in the
event that it should be held to any extent to blame. In addition, it pleads that it is
contractually indemnified by the defender in respect of the accident. We shall refer to this as "the indemnity
dispute."
[4] The
pursuer does not plead a case against the third party.
The Lord Ordinary's interlocutor
[5] On
13 December 2005 the Lord
Ordinary heard the parties on motions for the pursuer for summary decree
against the defender and for the allowance of issues on the question of the
quantum of damages.
[6] Counsel
for the defender opposed the motions on the basis that the third party's
reliance on the contractual indemnity was of doubtful relevancy; that the issue
between the defender and the third party would raise difficult questions of
fact and law, including a question as to the English law of contract, and that
for these reasons the case was unsuitable for jury trial. Counsel for the third party opposed the
motion for issues on the general ground that there should first be a debate on
the contractual question. Counsel for
the pursuer said that he had no interest in the indemnity dispute and would be
content if the court allowed issues at that stage and appointed a separate
enquiry into the indemnity dispute. He
agreed that it was appropriate for the indemnity dispute to be decided first,
since otherwise both the defender and the third party would have to appear at
the jury trial. If that dispute were
resolved first, the defence at the jury trial would be conducted by either the
defender or the third party alone.
[7] According
to the Lord Ordinary's Note, counsel for the defender accepted that there was
no special cause to prevent the pursuer's case from going to jury trial,
provided that the indemnity dispute was resolved in advance. That would normally be settled by a debate,
but in this case the facts surrounding the contract were not agreed. The Lord Ordinary suggested that that
difficulty could be resolved by the allowance of proof before answer.
[8] In
the result, counsel agreed that there should first be a proof before answer on
the indemnity dispute and that issues should be allowed at that stage in relation
to the pursuer's case against the defender.
On that understanding, counsel for the pursuer did not insist in his
motion for summary decree. The Lord
Ordinary pronounced an interlocutor to that effect.
The reclaiming motion
[9] The defender now
reclaims against the interlocutor in order to argue for the first time that the
effect of third party notice procedure in this case is to deprive the pursuer
of his right to jury trial. This change
of front has been occasioned by the decision of this court in McFarlane v Thain (24 June 2006, unrepd).
The Rules of Court
[10] Rule 26.7
deals with the procedure to be followed after answers are lodged by the third
party. Rule 26.7(3) and (4) are as
follows:
"(3) Where a proof or jury trial is necessary
between parties to the action, the court may allow the action so far as
directed against the third party to proceed to proof or jury trial, as the case
may be, before, at the same time as or after, the action between the pursuer
and the defender as the court thinks fit.
(4) Where a third party challenges the case
pled by the pursuer, he may appear at the proof or jury trial of the pursuer's
case and lead evidence as if he were a defender; and such evidence, so far as
competent and relevant, shall be evidence for or against the pursuer or for or
against the defender, as the case may be, and shall be available to all parties
in the action."
The predecessor of Rule 26.7(3) was Rule 85 of the 1965
Rules. Rule 85(e) provided as follows:
"(e) Where enquiry by way of proof or jury
trial is necessary between the
parties
to the action, or any of them, the Court may allow the case so far as directed
against the third party to proceed to proof, or jury trial, along with the
action between the pursuer and the defender, or separately therefrom, or may
deal with the matter otherwise as in its discretion it thinks fit. In any case in which the merits of the
pursuer's case are challenged by a third party, such third party shall be entitled
to appear at the proof or trial of the pursuer's case, and to take part in the
cause and lead evidence therein as if he were a defender; and such evidence, so far as competent
and relevant, shall be evidence for or against the pursuer, or for or against
the defender, and shall be available to all the parties in the cause."
Submissions
[11] Counsel for the defender submitted that the reclaiming motion
was competent since the interlocutor had not been pronounced of consent. The defender's concurrence in the course
agreed upon by counsel amounted only to a concession on a point of law that
could be withdrawn on appeal (Marshall v
William Sharp & Sons 1991 SLT
114, Lord Justice Clerk Ross at pp 119L-120A).
Even if the defender were to be held to have consented to the
interlocutor, that was not an absolute bar to its
raising the point (McCue v Scottish Daily Record and Sunday Mail Ltd,
1998 SC 811). By reason of the convening
of the third party to the process, the action ceased to be an enumerated cause
(Court of Session Act 1988, s. 11(a); McFarlane v Thain,
supra, at para [21]). The third party notice superseded the
pursuer's statutory right to jury trial.
That view had been taken in cases under the broadly similar wording of
the former Rule 85(e) (eg Winchester v
Ramsay, 1966 SC 41; Cookney v Laverty, 1967 SLT 89; Bruce v John Toole & Son, 1969 SLT 61; Rodgers v Crow & Sons, 1971 SC 155; Algeo v Melville Dundas and Whitson, 1973 SLT (N) 90). Part of the indemnity dispute involved
questions of fact relating to the accident.
An amendment of the pleadings that might link the two disputes more
closely. While the former Rule 85(e)
would have permitted the allowance of jury trial on the pursuer's case and a
proof before answer on the indemnity dispute, Rule 26.7(3) appeared to prevent
it.
[12] Counsel for the pursuer submitted that the defender had in
substance consented to the interlocutor of the Lord Ordinary and therefore
could not reclaim against it (McLaren v
Ferrier (1865) 3 M 833; Watson v Russell (1894) 21 R. 433; Whyte v
Whyte (1895) 23 R. 320; Paterson
v Kidd's Trs (1896) 23 R.
737; Ferguson's
Tr v Reid 1931 SC 714). Even if the reclaiming motion was competent,
there was no reason why the court should interfere with the interlocutor. It provided an expeditious means of resolving
the two disputes. In any event, the allowance
of issues should stand since counsel for the defender had conceded before the
Lord Ordinary that there was no special cause for withholding the case from
jury trial.
[13] Counsel for
the third party said that he was content that there should be a proof before
answer on the indemnity dispute before any enquiry in the pursuer's claim; but
he submitted that the allowance of issues was premature. Although the third party had acquiesced in
that course before the Lord Ordinary, he now submitted that the question as to
the mode of enquiry into the pursuer's claim should await the outcome of the
proof before answer. The proof before
answer raised factual questions that might give rise to special cause for the
withholding of the pursuer's claim from jury trial (Court of Session Act 1988,
s 9(b)). Since the third party adopted
both the pursuer's case against the defender and the defender's case against
the pursuer, and pled sole fault against the pursuer, there might be special
cause even if the third party failed on the indemnity dispute. The third party did not submit that the
pursuer's action ceased to be an enumerated cause by reason only of the third
party notice procedure. Rule 26.7(3)
allowed the pursuer's claim to go to jury trial even if the indemnity issue
went to proof before answer. The words
"as the case may be" in Rule 26.7(3) did not require that both forms of enquiry
should be the same.
Conclusions
Competency
of the reclaiming motion
[14] In our opinion, the reclaiming motion is competent. Counsel for the pursuer has not cited any
authority for the proposition that mere acquiescence in the terms of an
interlocutor debars a party from reclaiming against it. The line of authority on which he relies
establishes that that result follows only where the interlocutor appealed
against is expressly pronounced "of consent"
(cf Paterson v Kidd's Trs, supra, Lord President Robertson at p
738). In our opinion, there is no reason
why the defender should be prevented from reclaiming against the interlocutor
in order to take the point that it failed to take before the Lord Ordinary. This case is akin to Marshall v William Sharp & Sons (1991 SLT
114). We adopt the approach taken by
Lord Justice Clerk Ross in that case (at pp 119K-120A) in relation to a
concession made in the court below. In
our opinion, a failure to take a point of law in the court below is to be
treated in the same way.
Modes of
enquiry
[15] The parties agree that it is competent for an enquiry in a case
of this nature to be divided into two stages.
We cannot see why the two stages should not be conducted by different
modes of enquiry. The wording of Rule
26.7(3) does not, in our opinion, exclude that course. The difference in the wording from that used
in the former Rule 85(e) is immaterial.
We can see no reason why Rule 26.7(3) should have effected the change
for which counsel for the defender has contended.
[16] In this case the pursuer has not directed a conclusion against
the third party. From the pursuer's
standpoint, therefore, there is a complete disjunction of his claim against the
defender and the indemnity dispute between the defender and the third
party. We do not consider that the
pursuer's action against the defender has ceased to be an enumerated cause
merely because the defender has chosen to litigate the related indemnity
dispute in the same process. The
decision in McFarlane v Thain (supra) does not support the defender's submission
to the contrary. That case is distinguishable
since the Motor Insurers' Bureau was not a third party but had entered the
process as a minuter, and since the second defender, who sought issues, seemed
to contemplate, wrongly in the view of the court, that the issue of the Motor
Insurers' Bureau indemnity should also be determined by the jury. In that case Lord Johnston in giving the
opinion of the court said that the action was a "hybrid" action going beyond
the issue of personal injuries and was therefore not an enumerated cause (cf
para [21]). In our view, the word hybrid
was a fair description in the circumstances of that case.
[17] The true principle in our view is that in every case in which
there is third party notice procedure, the pursuer's statutory right to jury
trial is subject to the discretion of the court to decide the mode or modes of
enquiry (cf Algeo v Melville Dundas &
Whitson, supra). In this case the obvious solution is to
appoint separate enquiries. In our view,
the logical first stage is to have a proof before answer on the indemnity
dispute. That will enable an apparently
unrelated contractual dispute to be resolved without necessarily prejudicing
the pursuer's right to a jury trial on his claim.
[18] Since counsel for the pursuer has conceded that in this case the
third party would be entitled fully to participate in a jury trial of the
pursuer's claim against the defender, we shall say no more on that point.
Allowance
of issues at this stage
[19] The final question is whether it was premature for the parties
to agree before the Lord Ordinary that, after proof before answer on the
indemnity point, there should be a jury trial on the pursuer's claim.
[20] In our opinion, it would be best if the court were to decide the
question of issues in light of the outcome of the proof before answer. It may well be that the questions decided in
that enquiry will have no bearing on the suitability of the pursuer's claim for
jury trial; but it would be wrong for us to assume that at this stage.
Disposal
[21] We shall therefore allow the reclaiming motion and recall the
interlocutor of the Lord Ordinary. Of
new, we shall allow proof before answer on the question between the defender
and the third party, as defined in the interlocutor reclaimed against; and we
shall sist the cause so far as it relates to the pursuer's claim against the
defender.
