Outer House refuses recall motion by personal injury defender who submitted late opposition to interim damages motion

A judge in the Outer House of the Court of Session has refused to recall an interlocutor relating to a motion for interim damages in a personal injury case after the defender’s legal team failed to intimate opposition to the motion in time.

Wojciech Kosno sought damages from Dean Robertson after his motorbike collided with the defender’s car at a junction in the south of Edinburgh in 2016. The defender pleaded sole fault on the part of the pursuer and contended that the sum sued for was excessive.

The case was heard by Lord Weir. The pursuer was represented by Fitzpatrick, advocate, and the defender by Love QC.

Genuine oversight

On 4 June 2021, the pursuer’s agents intimated a motion seeking interim damages of £80,000 to the defender’s agents. Opposition to this motion should have been intimated on behalf of the defender by 18 June, however no Form of Opposition was formally intimated to the pursuer’s agents due to an oversight. The pursuer’s motion was therefore enrolled before the court as if it was unopposed.

Having received the court’s interlocutor on 21 June 2021, the defender’s agents then sought relief from sanctions in relation to their oversight in intimating the opposition and requested that the motion be treated as opposed. The competency of this proposed course of action was questioned by the pursuer’s agents, and Lord Weir determined that he could not now treat the motion as opposed.

As a result of this, the defender enrolled a motion asking the court to exercise its discretion in favour of them in respect of their failure to formally intimate opposition to the pursuer’s motion, and to recall the interlocutor issued in June 2021. Counsel for the defender noted that this was not done to obtain “correction” of the original interlocutor, but to allow the court to excuse the failure to comply with the rules of court where justice in the circumstances demanded it.

It was submitted for the defender that what had occurred was a genuine oversight, and immediate steps had been taken to remedy the situation. The interlocutor was not a final judgment or decree of the court but rather an interim order which was capable of adjustment at the time when final decree was pronounced. It was both competent, and appropriate in the circumstances, for the court to excuse the failure to intimate opposition to the motion with a view to doing justice between the parties.

In opposition, counsel for the pursuer submitted that the reality of the situation was that the defender was seeking to have the June interlocutor held as pro non scripto. The power to do so was restricted to a very narrow category of situations, and the circumstances of the case did not fall into any of them. Further, even if the motion was competent, the court ought not to exercise its discretion in this case.


In his decision, Lord Weir said of interim damage awards generally: “Applications for interim payments of damages are regulated by the Rules of Court. Rule 43.11 provides not only for an order for the payment of interim damages. It also defines the circumstances in which a pursuer may return to court to seek an award (or further award). Rule 43.12 regulates the situation at the point of final decree, and confers a wide discretion on the court in giving effect to the final liability of the defender to the pursuer.”

He continued: “It is clear that an order for interim payment of damages may be reclaimed against, albeit with leave, within 14 days after the date of the interlocutor (Rule 38.2(6)). In the absence of an express power to do so within the Rules of Court, I do not consider that Rule 2.1 can be invoked as an alternative means to secure recall of the interlocutor of 21 June 2021, where an application for leave to reclaim that interlocutor would otherwise be competent.”

Explaining his reasoning on this point, Lord Weir noted: “I immediately recognise that Rule 2.1(2) provides for the court to pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply with the provision concerned had not occurred. However, it makes no sense to interpret that rule as an unlimited power.”

He went on to say: “The conclusion I have reached also seems to me to be consistent with the fact that the interlocutor of 21 June 2021 decerns against the defender for payment of a specific sum of money. Subject only to what is provided for in Rule 43.12 in relation to adjustment on final decree, that decerniture does indicate finality, at least as far as concerns the subject matter of the interlocutor, and militates against the notion that the court could entertain an application for recall of its own interlocutor. In short, there is no such power to do so and Rule 2.1 cannot properly be invoked, by a side-wind if you will, to create one.”

For these reasons, the motion was refused. However, in considering whether he would have exercised discretion if the motion was competent, Lord Weir indicated that he would have, saying: “Prompt steps were taken to address the consequences of the mistake of the solicitor. Those steps included correspondence with the court in which the form of opposition to the motion, which had been prepared but inadvertently not intimated, was exhibited. The error was a human one which I would have been prepared to excuse.”

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