(1) As regards
the appellant's Minute of Amendment, it was concluded that there
was some doubt as to whether a motion
to have it received and answered within 7 days, which bore to have been
enrolled on 18 September 2008, had in fact been properly enrolled. Upon the assumption that the motion had been
enrolled, the court decided to refuse it for the reasons that, first, in it the
petitioner was attempting, at a very late stage in the proceedings, and, in
particular, after the decision of the Lord Ordinary, to expand materially her
case, introducing issues of fact and law which had not been raised before the
Lord Ordinary. In paragraphs 5, 6, 9 and
10 of the Minute the petitioner sought to delete references to Article 2 of the
European Convention on Human Rights and Fundamental Freedoms and to substitute
therefor references to the Convention as a whole, thus enabling reliance to be
placed on several other articles of the Convention, the legal and factual
implications of which had not been the subject of argument in the Outer House
and which had not been considered in the judgment of the Lord Ordinary. Second, no justification was advanced for the
making of such a motion at such a late stage in the proceedings. Indeed, in the course of argument,
surprisingly, senior counsel for the reclaimer expressed complete indifference
as to whether the proposed amendment was allowed or not.
(2) As regards
the grounds of appeal, the court, on 5 September 2008, pronounced
an interlocutor in the following
terms:
"The Lords having heard counsel for
the parties, at the By Order hearing in terms of Rule of Court 6.3; on the unopposed motion of counsel for the
petitioner and reclaimer allow amended grounds of appeal to be lodged, if so
advised, by 23 September 2008; further
as agreed by counsel, allow Notes of Argument to be lodged by 23 September
2008."
That interlocutor was pronounced, in
part because the court was concerned that the petitioner's original grounds of
appeal did not specify what particular remedy or remedies she contended the
court should grant. We construed that
interlocutor as meaning only that any proposed amendments to the existing
grounds of appeal were to be lodged by 23 September 2008.
We did not consider that it could be construed as conferring carte
blanche upon the petitioner to make at will any amendments that she thought fit
to the existing grounds of appeal, without reference to the court. If changes were to be made to the existing
grounds of appeal, in our opinion, that could only be done by the court
granting leave for their amendment in terms of Rule of Court 38.16(4). What was now being proposed in the "Amended
Grounds" were very extensive amendments to those grounds of appeal. The court considered that the proposed
amendments went far beyond any matters that could properly arise in the
reclaiming motion on the basis of the existing pleadings and the judgment of
the Lord Ordinary. We accepted that, at
the hearing on 5 September 2008, the court had expressed concern
regarding the limited remedy sought by the petitioner in the existing grounds
of appeal. For that reason, the court
was prepared to allow the proposed amendments to the existing grounds of appeal
set out in paragraph 1 of the proposed amendment, subject to the deletion of
the expression "Convention rights" in subparagraphs (3) and (4) of paragraph 1 and
the substitution in their place of the expression "Article 2 rights". The purpose of that restriction was to ensure
that the basis for the remedies sought did not go beyond matters arising out of
the pleadings as they stood and the judgment of the Lord Ordinary. As regards the remainder of the proposed
amendments to the grounds of appeal, the court was not prepared to allow them
to be given effect as they stood, because their subject-matter strayed into
areas not arising on the terms of the petition or the judgment of the Lord
Ordinary. Should the petitioner desire further
to expand the existing grounds of appeal within the confines of what is
comprised in the pleadings and the judgment of the Lord Ordinary, that would
require to be done in a fresh document.
(3) As regards
the petitioner's Note of Argument, the court concluded that it
would not be of assistance to it in
its present form, since its contents went far beyond the issues properly
arising in connection with the reclaiming motion on the basis of the pleadings in
the petition and the judgment of the Lord Ordinary. In these circumstances the court was not
prepared to have regard to it. The
petitioner and reclaimer's arguments, so far as they were related to matters
properly arising out of the pleadings and the judgment of the Lord Ordinary
could be deployed orally.