Introduction

The case of Wojciech Kosno versus Dean Robertson ([2021] CSOH 79) adjudicated by the Scottish Court of Session addresses critical procedural aspects concerning the reclamation of interlocutors under the Rules of Court. This case arose from a motorbike collision on September 30, 2016, where the pursuer claimed significant injuries due to the defender's alleged negligence. Disputes over liability and procedural missteps in the application for interim damages under Rule 43.11 formed the crux of the judicial examination.

Summary of the Judgment

On June 4, 2021, the pursuer sought interim damages of £80,000 under Rule 43.11. The defender failed to formally oppose this motion by the prescribed deadline, resulting in the court granting the interim damages on June 21, 2021. The defender subsequently requested the court to reconsider this interlocutor, citing procedural oversight. However, the court, led by Lord Weir, declined to recall the interlocutor, emphasizing the restrictive application of Rule 2.1 and the finality of interim damages under the Court of Session Act 1988. Consequently, the defender's motion was refused, and no interest was awarded to the pursuer.

Analysis

Precedents Cited

Lord Weir referenced several key precedents to elucidate the court's stance:

• Semple Cochrane plc v Hughes (2001 SLT 1121): Highlighted the court's discretion under Rule 2.1 to excuse procedural non-compliance when justice necessitates.
• Little Cumbrae Estate v Rolyat 1 Ltd [2014] CSOH 163: Supported the notion that genuine oversight could warrant relief from procedural failures.
• MBR (Iran) v Secretary of State for the Home Department [2013] CSIH 66: Clarified the limited circumstances under which interlocutors could be treated as pro non scripto.

These precedents collectively underscore the judiciary's cautious approach in extending procedural flexibility, ensuring that discretion under Rule 2.1 is not broadly applied to override established procedural norms.

Legal Reasoning

The court meticulously analyzed the interplay between the Court of Session Act 1988 and the Rules of Court, particularly focusing on:

• Section 18 of the Court of Session Act 1988: Stipulates the finality of interlocutors in the Outer House, subject only to review by the Inner House.
• Rule 2.1 of the Rules of Court: Empowers the court to relieve procedural non-compliance under specific, limited conditions.
• Rule 43.11 and 43.12: Govern the awarding and adjustment of interim damages.

Lord Weir concluded that Rule 2.1 does not confer an unlimited power to recall interlocutors. The defender's failure to oppose was deemed an oversight, but without a specific rule permitting the recall of interlocutors for interim damages, the court could not exercise discretion to amend the decision. The distinction between interlocutors and final decrees was pivotal, reinforcing that interim measures possess a degree of finality not easily overturned.

Impact

This judgment serves as a clarifying precedent on the limitations of Rule 2.1 concerning interlocutors related to interim damages:

• Procedural Rigor: Parties must adhere strictly to procedural timelines and requirements when seeking interim remedies.
• Limited Discretion: The court's discretionary powers under Rule 2.1 are not to be expansively interpreted to override established procedural frameworks.
• Finality of Interlocutors: Interim interlocutors, especially those involving monetary awards, are treated with a level of finality that restricts their alteration post-issuance.

Future litigants and legal practitioners must recognize the boundaries of procedural flexibility to avoid inadvertent forfeiture of rights due to procedural lapses.

Complex Concepts Simplified

To enhance comprehension, several intricate legal concepts within the judgment are elucidated below:

• Interlocutor: A temporary court order addressing specific issues within a case, not a final judgment on the entire matter.
• Pro Non Scripto: A legal term meaning "for what is not written," typically referring to acknowledging an absence of objection or evidence.
• Rule 2.1 Dispensing Power: Grants courts the discretion to overlook minor procedural errors to ensure justice, but within narrowly defined parameters.
• Reclaiming Motions: Procedures allowing parties to challenge or alter previous interlocutors under specified conditions and timeframes.

Understanding these terms is essential for navigating procedural aspects of litigation and ensuring adherence to court protocols.

Conclusion

The KOSNO v ROBERTSON judgment delineates the confines of procedural discretion within the Scottish Court of Session. By affirming the limited applicability of Rule 2.1 in revising interlocutors, especially those pertaining to interim damages, the court reinforces the necessity for meticulous adherence to procedural mandates. This decision not only upholds the integrity of the court's procedural framework but also serves as a cautionary exemplar for legal practitioners to vigilantly manage procedural obligations to safeguard their clients' interests.