Final extract of a decree does not render the court ‘functus’, judge rules

The centuries-old practice in Scots law of treating extracted decrees as final and bringing the court’s jurisdiction in a legal action to an end “has no basis in principle” and may be overturned by a “subsequent judicial act”, the Court of Session has ruled.
A judge held that the practice of treating final extract of decree as rendering the court “functus” was “only a matter of practice and not an established principle of Scots law”.
Decree in absence
Lord Brailsford issued the judgment in an action brought by James Carr and others, the family of the late Dorothy Carr, against R H Independent Healthcare Limited.
The court heard that Mrs Carr was resident in a care home operated by the defenders when she died in August 2009 and that the pursuers had signetted a summons in an action for damages arising from the circumstances of the deceased’s care against the company, shortly prior to he expires of the triennium in August 2012.
But despite the fact that solicitors acting for the pursuers had written to the defenders no defences were lodged and by interlocutor dated 21 September 2012 decree in absence was pronounced in the action (PD1564/12) against the defenders in the sum of £1.1 million.
In October 2012 the pursuers’ solicitors wrote to the defenders to advise them of the decree, following which the defenders signetted a summons seeking, inter alia, reduction of the decree granted in the action PD1564/12, suspension and interim interdict preventing enforcement.
Action for reduction
The pursuers’ agents advised the defender’s agents that they had instructions to defend the action of suspension (A485/12) and the cause was suspended pending determination of the pursuers’ legal aid application, which was ultimately refused, but by interlocutor dated 19 June 2013 in the action A485/12 the decree in absence dated 21 September 2012 in the action PD1564/12 was reduced.
Believing the action PD1564/12 to be sisted, the pursuers’ agents contacted the General Department of the Court of Session with a view to seeking recall of the sist and proceeding with the action PD1564/12, but were advised that this course was “procedurally impossible”, following which the issue was referred to the Administrative Judge who decided, with reference to McKay ‘Practice of the Court of Session’, that since a final extract had been issued in the action PD1564/12 that process was at an end and the court was functus
In light of these circumstances the pursuers progressed matters on the basis that there was no other option but to proceed with a new action and in April 2016 they raised fresh proceedings against the defenders (A133/16) on similar grounds to those in the 2012 action, to which the defenders lodged a time bar plea in response.
The parties were unable to reach common ground as to future procedure for action A133/16 as they remained at issue as regards the status of the action PD1564/12 - the pursuers’ position being that that action was current, while the defenders wished to argue that the action was not extant.
‘Pragmatic approach’
The matter came before the court and having heard submissions, the judge ruled in favour of the pursuers’ “pragmatic approach”. 
In a written opinion, Lord Brailsford said: “In my opinion these practical considerations are important in determining where substantial justice rests. I would however be further of the view that there would be difficulties in this pragmatic approach if there were clear and binding authority that a final extract is conclusive of an action and renders the court functus. In considering that issue I accept, as was advanced by counsel for the defenders, that the view of all the major textbook writers on the practice of the Court of Session is that a final extract of a decree is conclusive of a process. The language of the authors in each of these texts is similar and appears to be derived from the view expressed in the oldest by date of publication, McKay (supra).
“Despite this unanimity of view, no doubt expressing the prevalent view of procedure at the time each author wrote his work, being plainly to the effect that extracted decrees are conclusive, it is in my view noteworthy that none of the authors cite any binding authority to the effect they contend for, indeed only the chronologically earliest author, McKay, cites any authority for the proposition. On consideration of the authorities cited by McKay it is apparent that they do no more than assert that this is the applicable rule, no reasoned explanation is offered. It follows in my view, with respect, that the views of the textbook writers appear to state no more than, as already noted, was the prevailing practice at the time of publication.
“Equally, in what I accept was a full search of relevant authority, counsel for the defender cited a number of authorities vouching the proposition she advanced. Whilst it is correct that the authorities she cited were supportive of the proposition she made it is to be noted that, in my view, none of the cases explained the proposition in a way based upon recognised principle. The authorities relied upon appear to do more than reflect what seems to have been the practice prevalent, for whatever reason, at the time of the decision, an observation which may be regarded as unsurprising given that those were all works addressing the practice of the court.
“Having regard to these considerations it does appear to me that the long standing practice of treating extracted decrees as final and rendering the court functus in the process is itself no more than an example of a practice which has developed, no doubt for reasons of expediency and certainty, but one which has no basis in principle. It is to be noted in this regard that the only Institutional writer who deals with extracts, is Stair who treats them as no more than probative writs which ‘prove what was done by the judge’.”
He added: “Having regard to these considerations I have concluded that an extract cannot be regarded as anything more than a document evidencing that which a court has done or ordered. As a matter of principle there is nothing which can justify treating extract as bringing a process to an end. In a practical sense an extract proves or evidences a final decree but that situation can be overcome by a subsequent judicial act as in a reduction of the decree extracted. 
“This conclusion is, in my opinion, not only consistent with such authority as there is but is practically sensible for the reasons anticipated in the decisions founded upon by the pursuers. I accordingly conclude that in the circumstances of the present case action PD1564/12 remains extant. Procedurally it rests where it was immediately prior to the granting of the decree on 21 September 2012. It would be a matter for the pursuers to determine what procedure they took in seeking to revive this action.”
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