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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 112
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OPINION OF LORD CLARKE
in the cause
LINK HOUSING
ASSOCIATION LIMITED
Pursuer;
against
PBL CONSTRUCTION
LIMITED & OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Johnston QC; Burness
LLP
Fourth Defenders McNeill QC; Brodies
LLP
Fifth Defenders: Erroch; Drummond Miller
LLP
8 August 2008
[1] The
summons in this action was signetted on 8
July 2002. In it the
pursuers initially sought payment of ฃ750,000 with interest, initially, from
five defenders, jointly and severally.
The action relates to a contract for the construction of thirty flatted dwellinghouses
at Ferguslie Park,
Paisley. The
defenders were sued for various alleged breaches of contract, breaches of
collateral warranty and "appointments".
[2] On
31 March 2006 the Lord Ordinary, Lord Wheatley, allowed the Closed Record in
the action to be opened up and amended in terms of a minute of amendment by the
pursuers and answers for each of the first, second, fourth and fifth
defenders. The third defenders had, in
terms of an earlier interlocutor, been assoilzied from the conclusions of the
summons. The effect of the amendment was
inter alia to delete in the instance
of the summons the words "Link Housing Association Limited" and to substitute
therefore the words "Link Group Limited".
The second, fourth and fifth defenders reclaimed against that
interlocutor. By an interlocutor of the 10th January 2007 the
First Division allowed the reclaiming motion, at the instance of the second
defenders, recalled the Lord Ordinary's interlocutor, refused to allow the
amendment in terms of the minute of amendment and answers, and remitted to the
Lord Ordinary to proceed as accords. The
decision of the First Division is now reported as the Grey Aitken Partnership Limited v Link Housing Association Limited 2007 SC294. The pursuers were suing the second defenders
as the design team engaged in respect of the construction project. The second defenders had entered into a
collateral warranty with Gap Housing Association. It provided, inter alia, that no action or proceedings arising from any breach
of it should be commenced against the second defenders after the expiry of five
years from the date of practical completion in terms of the construction
contract. That date was 10 July 1997.
[3] The
whole property and assets of the Gap Housing Association had been transferred,
in October 2000, to Link Housing Association Limited. On 7
September 2001 that association, which is a body constituted under
the Industrial and Provident Societies Act 1965, changed its name to "Link
Group Limited". On 29 November 2001 a company named Link Housing
Association Limited was registered under the Companies Acts. As previously noted, the effect of the minute
of amendment, which was considered by the First Division was, inter alia, to amend the instance by
deleting "Link Housing Association Limited" and substituting there "Link Group
Limited". In addressing the reclaiming
motion, in the name of the second defenders, the Lord President, who gave the
principal judgement described, at page 299 para 11 of his opinion, the power of
the court to allow the amendment as being "widely expressed". His Lordship, however, continued as follows:
"It is, however,
well settled that there are restraints upon the exercise of that power. In Pompa's
TRS v Edinburgh Magistrates Lord
Justice Clerk Cooper said (page 125):
'Further, our
reports contain many decisions showing that the Court will not in general allow
a pursuer by amendment to substitute the right defender for the wrong defender,
or to cure a radical incompetence in this action, or to change the basis of his
case if he seeks to make such amendments only after the expiry of a time limit
which would have prevented him at that stage from raising proceedings afresh.'
Lord President Hamilton then
continued
"The same
restraint applied where an additional or substitute of pursuer is sought to be
introduced (McLean v British
Railways Board; Arif v Levy & Macrae). There has been some debate as to whether that
restraint arises by reason of the incompetence of such amendment or by reason
of the impropriety of introducing a new party after expiry of the limitation
period (Hynd v West Fife Co-Op Limited; O'Hare's
EXRS v Western Heritable Investment
Co.). Before us counsel proceeded on
the assumption that the latter basis was correct. This was the 'better view' suggested by Lord
President Emslie in Hynd and I am content to adopt it."
His Lordship then proceeded to seek
to analyse how the need for the proposed amendment had arisen, in the present
case, and reached the conclusion that it arose from an error by those
responsible for framing the summons, in the first place, and that that error
was a matter of substance going to the identity of the person suing. The Lord President then stated, at page 300,
para 13, of his opinion
"If that
analysis is correct, then the proposal to change the name of the pursuers
involves the substitution of a different person for the original pursuers (both
being in existence at the time the action was raised) and is struck at by the
line of authority referred to. It was
not submitted that that line of authority should be overruled. Subject to the discussion which immediately
follows, the second defenders' submission is, in my view, well founded and
effect should be given to it."
The fourth and fifth defenders,
unlike the second defenders, were not party to any contractual or other
limitation in their favour. The fourth
defenders sought to have the minute of amendment refused on the basis of the
provisions of section 6 of the Prescription and Limitation (Scotland Act 1973). The fifth defenders for their part sought to
resist the introduction of the amendment on the basis of its lateness and its
extent." The submissions made on behalf
of the fourth and fifth defenders did not find favour with the First
Division. The Lord President, in his
judgment, recognised that it would be open to the pursuers to bring a fresh minute
of amendment proposing a change of name which would affect those defenders (see
at page 300 para 15).
[4] The
pursuers, in the event, took up the Lord President's suggestion. They lodged a fresh minute of amendment in
December 2007. It is number 49 of process. A motion to allow the minute of amendment to
be received was opposed by the second and fourth defenders. The motion was heard by Lord McEwan. It should be noted that the pursuers had not
abandoned their action against the second defenders at that stage. In the course of discussion before Lord
McEwan, however, senior counsel for the pursuers said that the pursuers would
renounce probation against the second defenders and would not oppose a decree
of absolvitor with expenses being granted to these defenders. The Lord Ordinary refused the motion. In doing so he observed, at para 10 of his
opinion, of 21 December 2007,
(unreported) that the minute of amendment was "substantially the same as the
old one". In that state of affairs his
Lordship continued
"I am bound by
the decision of the Inner House on the point and I will refuse to allow the
amendment to be received. I regard what
the pursuers are again trying to do is not only unarguable but, this time, also
unstateable. I rely on and adopt the
reasons given by the Lord President. The
matter now does not admit of argument."
His Lordship went further and
opined at para 11 as follows:
"I also think it
would be quite wrong to release the second defenders on a renunciation of proof
against only them. That would not be
fair as against the fourth defenders who claim to have the same unanswerable
point against the pursuers. In any case
if I release the second defenders in this way the fourth defenders will simply
bring them back in and seek relief. That
would cause further delays."
His Lordship having refused to
allow the amendment to be received ordered a preliminary proof "on the existing
record limited to the question on whether these pursuers have any right under
any of the GAP contract".
[5] There
matters rested, procedurally, until 8
July 2008 when the pursuers enrolled a motion to allow them to
lodge a minute of amendment, number 52 of process, and to appoint the remaining
defenders to lodge answers thereto. Eo die, the pursuers lodged another
motion in the following terms:
"For and on
behalf of the pursuer and in respect of the minute of abandonment number 53 of
process to allow the second defender to lodge an account of expenses within
eight weeks of the date of the court's interlocutor and to remit that account
to taxation."
The latter motion was not opposed
and I granted it. Opposition was however
marked on behalf of the fourth and fifth defenders to the motion to allow the
minute of amendment to be received.
[6] In
moving the motion before me senior counsel for the pursuer accepted, in the
first place, that the new minute of amendment was seeking in substance to do
what the previous minutes of amendment had sought to achieve and that was
principally to substitute for the existing pursuer another party which was the
party which truly had the rights to pursue in the matter. Senior counsel for the pursuer submitted that
the principal question, now that the second defenders were no longer in the
process, was whether the first proposed minute of amendment which had been
allowed by Lord Wheatley, although not subsequently allowed by the First
Division, had, nevertheless, interrupted the period of prescription in respect
of any claim against the remaining defenders.
If it had, then whether or not a minute of amendment should now be
allowed to be received was a question for the discretion of the court.
[7] As
to the function of a minute of amendment in interrupting a limitation or
prescriptive period, senior counsel for the pursuers referred me to two
authorities. The first of these is Boyle v Glasgow Corporation 1975 SC 238.
That case was concerned with a personal injury action. The pursuer alleged that he had sustained
injuries in an accident which had occurred on 8 July 1969. He
raised an action, the summons in which was signetted and served on 28 August 1970. On 4
July 1972, the court granted a motion to allow a minute of amendment
on behalf of the pursuer to be received in which the pursuer, for the first
time, averred, inter alia, a ground
of fault alleging negligence on the part of an employee of the defenders. On 1
August 1972 the court allowed the Closed Record to be amended in
terms of the minute of amendment and answers.
The Lord Ordinary, after debate, excluded from probation the averments
relating to the ground of fault based on the negligence of the defenders'
employee, holding that that ground of fault as averred was time barred because
the action against the defenders had stood unaltered until the Court pronounced an
interlocutor allowing the Closed Record to be amended in terms of the proposed
minute of amendment and answers. The
pursuer reclaimed and the Second Division reversed the Lord Ordinary's decision
holding that the punctun temporis
when a minute of amendment is brought within the judicial process was when the
motion to allow the minute of amendment to be received in and answered was made
and since that had been done within the triennium, the averments were not time
barred. The case was concerned with provisions
of section 6(1) of the Law Reform (Limitations of Actions, etc) Act 1954 which
were to the following effect:
"No action of
damages where the damages claimed consist of or include damages or solatium in
respect of personal injuries to any person shall be brought in Scotland against
any person unless it is commenced (a) in the case of an action brought by or on
behalf of a person in respect of injuries sustained by that person, before the
expiration of three years from the date of the act, neglect or default giving
rise to the action."
The Lord Justice Clerk, Lord Wheatley,
analysed the role of a minute of amendment in relation to the interruption of
the limitation period provisions in section 6(1) as follows:
"The question
has to be determined on the basis that this is a 'new' case. If it were not, the question would not
arise. If this in fact was an entirely
new case, then the action would be brought when the summons had passed the
signet and had been served on the defenders (Miller v National Coal Board 1960
SC 376; Maclaren, Court of Session
Practice, 317; Alston v McDougall, 15 R 78; and Stewart v North, 17 R (HL) 60 at 63).
It should be noted that at and up to this point the Court in the person
of the Judge is in no way involved. It
seems to me therefore that the provisions of section 6(1) supra, which is designed to give fair notice to a defender that an
action has been brought against him within the prescriptive period, are
satisfied, and that the action is 'brought' within our procedure, when first
steps in the judicial process are taken, namely when the summons has passed the
signet and has then been served on the defender. As far as researches have gone, there has
been no decided case to determine what is the corresponding point where an
existing summons is amended by a Minute of Amendment. Manifestly in that situation it must be
initiated by something within the judicial process. The lodging of a Minute of Amendment brings
it into the judicial process. Intimation
to the defender of the motion to the Court asking for the Minute to be received
and answered within a specified period brings to the attention of the defender
that the Minute of Amendment has been lodged, and it is at that point available
to the defender. That seems to me to
constitute fair notice. It is true that
at that stage the amendment has not yet been allowed, and eventually may not be
allowed, by the Court; but at least the prerequisite of fair notice has been
satisfied within the judicial process in which the defender is already
involved, and if this has been done within the triennium, then that is as near
to equiparation of the service of a summons as the situation permits. In fact it goes even a step further, because
the Court in the person of the Judge is brought into the procedure at the stage
when it is asked to give authority for the Minute of Amendment to be received
and to authorise answers to be lodged within a specified period, whereas in the
case of a completely new action the Court in the person of the Judge is not
involved in the corresponding part of the procedure."(at pages 250-251).
The point underlying the court's
decision was summarised by his Lordship later on, at page 251, in the following
terms:
"When fair
notice within the judicial process and within the prescriptive period has been
given, I consider that the purposes and the provisions of section 6(1) have
been effected."
[8] The
second of the two cases cited, and relied upon, by senior counsel for the
pursuers, in the present case, was Kinnaird
v Donaldson 1992 SCLR 694, a decision
of an Extra Division in which the opinion of the court was delivered by
Lord McLuskey. That case involved
the consideration of the possible role of a minute of amendment in interrupting
the prescriptive period provided for by section 6 of the Prescription and
Limitation (Scotland)
Act 1973. Section 6(1) of the 1973 Act
(which in terms of para 1(d) of Schedule 1 applies to "any obligation arising
from....a contract") provides inter alia as
follows:
"If...an
obligation to which this action applies has subsisted for a continuous period
of five years -
(a) without any
relevant claim having been made in relation to the obligation...
then as from the
expiration of that period the obligation shall be extinguished."
Section 9 (1) of the 1973 Act,
provides inter alia:
"In section 6...
of this Act the expression "relevant claim" in relation to an obligation, means
a claim made by or on behalf of the creditor for implement of an obligation,
being a claim made -
(a)
in appropriate proceedings,..."
The proceedings, with which the
Extra Division were concerned, had commenced in the Sheriff
Court. They
involved a dispute between parties in a business partnership as to how the
assets of the partnership should be dealt with after its dissolution. The parties had in fact entered into an
agreement about these matters which had become enforceable on the 30 September 1983. An action was raised by one of the partners
against the other in 1985, in the Sheriff Court,
in which certain remedies were sought.
These proceedings made no reference to the 1983 agreement. In 1987 the pursuer in the proceedings lodged
a minute of amendment which sought to add a crave seeking implement of the 1983
agreement. The record was amended in
terms of this minute but the parties shortly thereafter jointly moved the
Sheriff to declare the interlocutor dealing with the amendment as pro non scripto, which motion was
granted. The record was, however, subsequently
amended in terms of the minute of amendment in 1989. The defender pleaded that the pursuer's claim
for payment under the 1983 agreement had been extinguished by the five year prescription
in terms of section 6 of the 1973 Act.
The Sheriff repelled that plea but the Sheriff Principal upheld it, on
appeal, holding that the claim had prescribed on the 30 September 1988. The Extra Division reversed the decision of
the Sheriff Principal holding that the lodging of a minute of amendment may
amount to the making of a relevant claim within the terms of section 9(1) of
the 1973 Act and that, in the circumstances of the present case, the lodging of
the minute of amendment in 1987 had interrupted the prescriptive period. In reaching their decision, on the matter,
the Extra Division applied the law as discussed by Lord Justice Clerk Wheatley
in the case of Boyle supra.
The essence of the matter was said to be the question of fair notice of
a claim being made within the judicial process.
That notice had been given by the lodging of the minute of amendment in
1987, whatever the position had been with regard to the motion being
subsequently held to be "pro non scripto".
[9] In
the present case the pursuers aver that the defects in the buildings were
brought to their attention for the first time in November 2000. As previously noted, the action was signetted
on 8 July 2002. The original Minute of Amendment was lodged
on 24th March 2005. Lord Wheatley allowed the record to be
amended in terms of the Minute of Amendment and answers thereto on 31 March 2006. Thus, it was submitted, on behalf of the
pursuers, following the approach of the court in the cases just referred to,
the prescriptive period of five years under section 6 of the 1973 Act had been
interrupted by the lodging of the original minute of amendment. (It has to be noted that neither the fourth
nor the fifth defenders opposed the lodging of that minute and they lodged
answers thereto). The amendment
procedure had taken some time to be completed before it was determined by Lord
Wheatley. In the foregoing circumstances,
prima facie, the position was that the prescriptive period of five years in
relation to claims against the fourth and fifth defenders had not yet expired.
[10] Senior counsel for the fourth defenders opposed the receipt of
the minute of amendment and in relation to the main point of the pursuers, at
this stage, being what the effect of the amendment procedure in 2005/2006 was,
had one point to make in response. It
was this. The authorities relied upon by
the pursuers did not avail them, it was said, in the circumstances of the
present case because the amendment in the present case had, by reason of a
decision of the First Division, not been allowed to be made. In that situation senior counsel contended
that there had been no "relevant claim" made in terms of section 9 and for the
purposes of section 6 of the 1973 Act.
Senior counsel for the fourth defender seemed to seek to derive some
support for this approach to matters from certain observations of Lord Ross in
the case of Morrison v Scotstoun Marine Limited 1979 SLT
(Notes) 76 at page 78. In that case the
Lord Ordinary raised a question over the Second Division's approach in the case
of Boyle. He did so in the following way:
"Speaking
personally and with the greatest respect I find it difficult to understand how
fair notice to a defender or a third party can be thought to have been given by
the lodging of a minute of amendment which the court may never allow to be
received and which, even if it is allowed to be received, may never be
incorporated into the pleadings by the court's allowing the record to be
amended in terms thereof. As a matter of
procedure it is well recognised that the lodging of a minute of amendment per se
achieves nothing. Before a minute of amendment
can become a part of the pleadings in a case, the court must be asked: (1) to
allow the minute of amendment to be received (and answered); and (2) to allow
the record to be opened up and amended in terms of the minute of amendment (and
answers). Unless and until motions to such
an effect are granted, the minute of amendment which has been lodged in process
has no effect on the pleadings. That
being so, I find it difficult to appreciate how such a minute of amendment can
be regarded as giving a defender or third party fair notice that a case has
been made against him and a decree sought against him. However, the Second Division have said
otherwise and their decision is binding upon me."
Whatever force there may or may not
have been in the observations of Lord Ross on the decision in the case of Boyle, it is binding on me as it was on
his Lordship. What is more, as has been
seen, it was subsequently approved of, and applied by the Inner House in the
case of Kinnaird. Senior counsel for fourth defenders apart
from pointing out the difference which existed between the situation in the
present case and the position which arose in the previous authorities, namely
that the minute of amendment was in the event not allowed, on appeal, did not
bring to my attention any further reason, in principle, why the decisions in
those previous cases should not be applied in the present case.
[11] Senior counsel for the fourth defenders submitted that if the
court were to be against him on the application of the Boyle and Kinnaird
decisions to the present situation, and the matter then became one of the court
exercising its discretion, or not, to allow the minute of amendment, then
regard should be had to the following factors in relation to the procedural
history of the case, which would point to the discretion being exercised by
refusing the motion.
[12] The original minute of amendment had been lodged in March 2005. The decision of the First Division was issued
in January 2007. The pursuers had then
taken until October 2007 to lodge a fresh minute of amendment which was, to all
intents and purposes, the same as the minute of amendment now before the
court. There had been further delay
after Lord McEwan had refused to allow that minute of amendment to be
received. There was prejudice to the
defenders due to the delay arising from the passing of time from the events
giving rise to the alleged claim. Senior
counsel for the fourth defenders, however, conceded that he was not able to say
that the minute of amendment, in any material sense, altered the basis of the
claim advanced against these defenders at the closing of the record. It could not be argued that a "radically new
claim" would be introduced if the amendment were to be allowed. If the minute of amendment was refused to be
received it may be that the pursuers would have a remedy against the legal
representatives who were responsible for the mistake which necessitated
amendment being sought.
[13] Senior counsel for the fourth defenders informed the court that
in their answers to the minute of amendment allowed by Lord Wheatley the fourth
defenders had introduced averments and a plea regarding prescription. These would be reintroduced if the proposed
minute of amendment was allowed to be received and answered.
[14] Junior counsel for the fifth defenders adopted the submissions
made on behalf of the fourth defenders and invited me to refuse the pursuer's
motion. He also advised the court that
if the minute of amendment was allowed to be received and answered it was
likely that the fifth defenders would introduce averment and pleas regarding
prescription.
[15] In reply senior counsel for the pursuers addressed the question
of delay and prejudice. He pointed out that some delay in the matter arose due
to a delay by the Lord Ordinary dealing with the first minute of amendment in
issuing his judgment in relation thereto.
Further delay was caused by the time it took for the matter to be dealt
with and decided by the First Division.
The pursuers had then sought leave to appeal to the House of Lords,
which was refused in April 2007. There
had been a change of agents for the pursuers, once the question of the original
proceedings having been raised in the name of the wrong pursuers became a live
issue. The agents now acting for the
pursuers, as from June 2007, put the other parties on notice that they may wish
to revisit the question of lodging a minute of amendment. It had been hoped that the position of the
second defenders could be dealt with by renouncing probation against them. That approach had been rejected by Lord
McEwan. The agents originally instructed
for the pursuers and their insurers had had to be kept abreast of all
developments. Discussions between the
pursuers and the second defenders as to how the second defenders might be removed
from the proceedings had taken some time but had culminated in the minute of
abandonment. These factors provided a
reasonable explanation for the delays which had arisen. Senior counsel for the pursuers recognised
that if the amendment were to be allowed the remaining defenders in answering
it, may wish to oppose the record being amended in terms of the minute of amendment
because of questions of prescription.
That should not however for the time being, prevent the court allowing
the minute of amendment to be received and answered.
Decision
[16] I have reached the conclusion that the principal point taken by
the fourth defenders, and adopted by the fifth defenders, in discussion before
me, is unsound. I cannot see any reason,
in principle, as to why the reasoning of the cases of Boyle and Kinnaird
should not be applied, as regards the effect of the original minute of amendment
being allowed to be received in March 2005.
Both of these decisions made it clear that the relevant limitation or
prescriptive period may be interrupted by virtue of fair notice being
given in existing proceedings before the court as to a new basis of claim. Those cases are clear authority to the effect
that such fair notice may be given by the lodging of a minute of amendment in
existing court proceedings. It is the
giving of the notice which interrupts the limitation or prescriptive period -
not the outcome of that notice. Just
as the raising of an action, which is subsequently dismissed, as irrelevant,
nonetheless, interrupts the prescriptive period in relation to the claim on
which it was based, so that a further action may be brought in relation to the
same claim, provided it is brought within the prescriptive period running from
the date of the bringing of the original action, so too, in my judgment,
applying the reasoning in the cases of Boyle
and Kinnaird a minute of amendment,
once lodged, can be said to have interrupted the prescriptive period, although
subsequently refused, since the appropriate notice of the claim has been
given. The submission made on behalf of
the defenders is in stark contradiction to what Lord Justice Clerk Wheatley
said in Boyle for, as will be seen
from the passage cited above, his Lordship, at page 251, acknowledged that the
lodging of the minute of amendment was sufficient to interrupt the prescriptive
period, even though it may not be subsequently allowed. This he did by remarking "it is true that at
that stage the amendment has not yet been allowed and eventually may not be
allowed by the court; but at least the prerequisite of fair notice has been
satisfied within the judicial process in which the defender is already
involved....". (emphasis added). The argument advanced by senior counsel for
the fourth defenders in the present case was similar to that unsuccessfully
advanced on behalf of the defender in the Kinnaird
case and which the court described as being "bizarre" namely that the recalling
of the original interlocutor allowing the Minute of Amendment by the Sheriff
had "de-interrupted" the prescriptive period (see the opinion of the court at
page 703 E-F).
[17] For the foregoing reasons I reject the argument advanced by the
fourth defenders and adopted on behalf of the fifth defenders, regarding the
effect of the original minute of amendment.
(I should add that senior counsel for the fourth defenders did not seek
to distinguish the present case from the position in Boyle or Kinnaird on the
footing that in neither of those cases was the minute of amendment concerned
with the substitution of a new pursuer and I express no opinion one way or the
other, as to whether that might be a point of distinction with any
materiality).
[18] I, therefore, turn to the question as to whether I should
exercise my discretion in favour of allowing the minute of amendment to be
received, on the footing that, prima
facie, on the present averments,
the claims which are made against the remaining defenders have not prescribed
and that the prescriptive period in relation to claims against the remaining
defenders has been interrupted by the lodging of the original minute of amendment. In his judgment, in the present case, the
Lord President at page 302, in dealing with an argument made on behalf of
the fifth defenders, that the original Minute of Amendment should not be
allowed because of the delay in bringing it, observed as follows:
"In my view the
argument of counsel for the fifth defenders falls to be rejected. Delay will not in itself justify the refusal
of amendment. There must be prejudice or
some other material disadvantage to the other party. In Thomson
v Glasgow Corporation the
amendment was sought after proof had been led.
In Wood, Cork v Glasgow Health Board and Britton v Central Regional Council the allowance of amendment would have
involved the discharge of an imminent proof.
Nor am I satisfied that the proposed amendments involve a basic change
in the pursuers case against the fifth defenders; it involves merely a
modification or particularisation of that case."
It has already been noted that the
Lord President clearly envisaged the possibility of the pursuers bringing a
fresh minute of amendment as they have now done (see Lord President's opinion
at page 300). That the preparation and
presentation of that fresh Minute of Amendment took as long as it did, and that
when it was originally presented it was done so when the obstacle of the second
defenders remaining as parties to the action had not been addressed, is
regrettable. Nonetheless some
explanation has been given for that state of affairs and the fact of the matter
is that counsel for the fourth defenders frankly could point to no prejudice to
the defender apart from delay, and in particular, frankly conceded that the
minute of amendment involved no basic change in the substance of the
matter. There has been no substantive
procedure in this case, such as a debate or proof. Such delay as there has been has arisen from
the necessity to seek to amend to bring in the correct pursuer and the
defenders' resistance to that. The defenders have been on notice since 2005 of
the problem with regard to the party in whose name claims have been
brought. In all the foregoing
circumstances I have reached the conclusion that it would be appropriate for me
to exercise my discretion by granting the pursuers' motion and allowing them to
lodge their minute of amendment, number 52 of process, to appoint the remaining
defenders to lodge answers, if so advised, within 28 days, and to allow a
period of adjustment on the minute of amendment and answers.
