Gairdner v. Macarthur [1915] ScotLR 427 (09 March 1915)

Gairdner v. Macarthur [1915] ScotLR 427 (09 March 1915)

The Court held that section 72 of the Court of Session Act 1868 allows additional proof in Sheriff Court appeals if necessary for the ends of justice. In this case, the appellant's specific and substantiated allegations of perjury, supported by expert evidence and a criminal complaint, constituted exceptional circumstances justifying the reopening of proof. The Court distinguished this case from others where mere allegations of perjury or fault by the party's agent would not suffice, emphasizing the need to prevent a miscarriage of justice before final judgment.

Citation
[1915] ScotLR 427
Parties
Pursuer/respondent: Charles Dalrymple Gairdner, C. A., Glasgow, liquidator of John Scott Engines, Limited, Lonend Motor Works, Paisley; Defender/appellant: Captain A. J. Macarthur
Jurisdiction
Scotland
Judgment Date
09 March 1915
Procedural Posture
Sheriff Court Appeal to Court of Session / Appeal—application for Amendment and Additional Proof Prior to Final Judgment
Outcome
Application granted; amendment and additional proof allowed.
Legal Topics
Additional Proof, Res Noviter, Perjury of Witnesses, Court of Session Act 1868 S.72, Amendment of Record, Sheriff Court Appeal
Civil Procedure Evidence Commercial Law Additional Proof Res Noviter Perjury of Witnesses Court of Session Act 1868 S.72 Amendment of Record +1 more

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Parties

Charles Dalrymple Gairdner, C. A., Glasgow, liquidator of John Scott Engines, Limited, Lonend Motor Works, Paisley

Pursuer/respondent

Captain A. J. Macarthur

Defender/appellant

Procedural Posture

Sheriff Court Appeal to Court of Session / Appeal—application for Amendment and Additional Proof Prior to Final Judgment

Legal Issues

  1. 1 Whether additional proof should be allowed on the ground of alleged perjury by key witnesses after judgment in the Sheriff Court but before final judgment in the Court of Session.
  2. 2 Interpretation of 'if necessary' in section 72 of the Court of Session Act 1868 regarding additional proof in appeals from the Sheriff Court.

Ratio Decidendi

The Court held that section 72 of the Court of Session Act 1868 allows additional proof in Sheriff Court appeals if necessary for the ends of justice. In this case, the appellant's specific and substantiated allegations of perjury, supported by expert evidence and a criminal complaint, constituted exceptional circumstances justifying the reopening of proof. The Court distinguished this case from others where mere allegations of perjury or fault by the party's agent would not suffice, emphasizing the need to prevent a miscarriage of justice before final judgment.

Court Disposition

Application granted; amendment and additional proof allowed.

Orders

  • Record opened up and amendment allowed as proposed by both parties.
  • Additional proof allowed on the defender's averments of perjury and physical impossibility.