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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maund v Julia Arredamenti Spa & Anor [2001] ScotCS 228 (9 October 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/228.html Cite as: [2001] ScotCS 228

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[1] My interlocutor of 9 October 2001 dismissing this action on the motion roll has been reclaimed.

[2] The circumstances of this action are that the pursuer was injured in August 1993, allegedly due to a collapsing chair which the first defenders agree they sold on 16 December 1986 and which had been manufactured, plainly some time before that date, by the second defenders in Italy. The pursuer consulted solicitors, Messrs. Murray Beith and Murray W.S., and an action was raised against the first defender in October 1997. Service was allowed to be made on the second defender on 27 November 1997 but that service was not effected until some time in August 1998. The record closed on 7 October 1998. Thereafter no closed record was lodged and, so far as the process reveals, nothing appears to have happened until a motion was intimated on 17 September 2001 for dismissal on 3 October 2001. That process could not be found at the time of enrolment, unsurprisingly, and a motion was enrolled on 5 October seeking dismissal for failure to lodge the closed record and the second defenders enrolled a similar motion on 5 October 2001.

[3] The pursuer enrolled a motion on 8 October 2001 to dispense with the terms of Rule of Court 23 to allow closed records to be received late giving certain other reasons therefore.

[4] On the face of it, the pursuer had failed to comply with the relevant rules of Court.

[5] I was moved on behalf of the pursuer to use the dispensing power in Rule 2 and allow the records to be received late. I was provided with the explanations outlined in the motion enrolled and also with an explanation that the pursuer's solicitors had changed in about July 1998 and that there was difficulty in getting papers from one solicitor to another. It was stressed that the pursuer would suffer irremediable prejudice if the motion was not granted.

[6] Examination of the process in the course of the discussion on the motion roll showed that the name of M.G. Robson S.S.C., then a partner in Murray Beith and Murray, appeared on all the papers including the signature on the summons and the backing as such partner. He is, at the present time, the pursuer's solicitor and his name appears on the papers throughout. Indeed his name, not that of Murray Beith and Murray, appears on certain correspondence in connection with the matter which is in process.

[7] I could not have regard to that latter matter as having any relevance or as providing any excuse for the failure to lodge to closed record. I did not regard the discussion about the availability of an application for legal aid as being of any other assistance. I regarded it as inexcusable that no action whatsoever had been taken in this case by the pursuer, so far as procedure in Court was concerned, between 7 October 1998 and their opposing the defenders' motion on 3 October 2001.

[8] I regarded myself as not having been provided with any satisfactory or even reasonable explanation to excuse delay, let alone a delay of approximately four years from the date upon which closed records were due. I regarded this delay as taking the matter beyond any appropriate use of the dispensing power to deal with such a failure and accordingly dismissed the action.