Scottish Court of Session Decisions

Lord Justice-Clerk—When this reclaiming-note for James Goodwin & Company came before us the reclaimer indicated that on the pleadings as then existing they could have no case, and they asked that they might be allowed to amend the record. The statement which was made to us of that proposed amendment very plainly indicated that practically the whole of the record as it existed was to be set aside in so far as it raised a question between the parties—a new question altogether was to be set up by the amendment. That was so very strong a motion, and one which hitherto, as far as I know, has never been dealt with judicially in the Inner House—although I understand such a motion has been made in the Outer House, and made successfully—that we thought it desirable to take time to consider whether or not so sweeping an alteration of the pleadings in a case could be made consistently with the Court of Session Act of 1868; but after considering the statute, and in particular clause 29, which relates to this matter, I have come to be of opinion that such an amendment may be made. The clause is to the effect that “the Court or the Lord Ordinary may at any time amend any error or defect in the record or issues in any action or proceeding in the Court of Session, upon such terms as to expenses and otherwise as to the Court or Lord Ordinary shall seem proper; and all such amendments as may be necessary for the purpose of determining in the existing action or proceeding the real question in controversy between the parties shall be so made.” That appears to me to be a most general and comprehensive enactment, that where a case has been brought into Court, and where an alteration of the record is necessary for the purpose of enabling the real question between the parties to be decided in that action, such amendment shall be allowed upon conditions. And the comprehensiveness of the clause I think is brought into very sharp relief by the portion of the clause which follows, and which appears to me to be the only restriction which is put upon the broad power and duty of the Court to allow the record to be amended and put into such shape as shall really show the question between the parties—“It shall not be competent by amendment of the record of issues under the Act to subject to the adjudication of the Court any larger sum or any other fund or property than such as are specified in the summons or other original pleading unless all the parties interested shall consent to such amendment.” It seems to me that the Legislature carefully guarded against allowing the scope of the pleading to be enlarged, while on the other hand making it quite clear that the statement necessary to bring out what should really try the question between the parties was ordered to be allowed, because the words are not “may be so made,” but “shall be so made.” Therefore I have come to be of opinion that the reclaimers here must be allowed to make the amendment upon the record which they propose. The conditions of course are a totally different question, and in this case I do not think it would be doing justice to the opposite party to make any other condition than that the reclaimers must pay the whole previous expenses of the cause.

Lord Young—I quite understood that the defenders who make this motion offered to pay the whole expenses as the condition of the amendment being allowed, and if they had not, I should have been for allowing the amendment only upon that condition. The case is brought upon a question which is capable of being very briefly stated. The statute not only authorises but requires that any amendment shall be allowed which is in the opinion of the Court necessary in order to decide in the existing action the real question in controversy between the parties. Now, it appears from the statement made to us in support of the motion to allow an amendment, that the real question in controversy between the parties does not appear upon the record as it stands at all. Now, it is a question worthy of consideration whether the Legislature do not mean that if the Court shall think an amendment necessary in order to determine the real question in controversy between the parties as it is to be gathered from the imperfect and inaccurate record, it shall be allowed, but not a question which that record does not suggest at all. I am not disposed so to limit it. The case for a pursuer is simple enough. If he discovers that he has put his action upon a wrong ground, or if he discovers his true ground of action, which had only dawned upon him after the record was closed, his course is to abandon his action and bring another. But a defender cannot do that, where he discovers at a late stage that his only defence has not been stated at all, unless an amendment by which that only real defence may be put on the record shall be allowed. But is that the real question in controversy between the parties? I think it is notwithstanding that the defective, imperfect, or inaccurate record did not disclose or suggest it in any way. Upon the explanation made to the Court in support of the motion for amendment, the defence proposed to be put upon record raises the only question in controversy between the parties, or raises the real question in controversy between the parties, and I think the consideration of justice upon which the provision of the statute is founded require that that amendment shall be allowed. The statute not only permits it but requires it upon terms which shall sufficiently guard the interests of the other party. The only consideration which could be urged against it would be that it was made for the purpose of delay. I am not in this case inclined to listen to that. I do not think it is meant for the purpose of delay. It may be very rapidly tried, and the satisfying of the condition as to expenses shows that the motion is made in all seriousness. I concur with your Lordship that the amendment may be made, and that it ought to be made. I

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