O'Neil v. Blake

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor dated 3 May 2006; finds the pursuer and appellant liable to the defender and respondent in the expenses occasioned by the appeal and remits the account thereof when lodged to the Auditor of Court to tax and to report thereon; remits to the Sheriff to proceed as accords.

By motion lodged on 6 April 2006 the pursuer moved the Court: "To find the defender liable for the fees and outlays of the reporter". That motion called before Sheriff Johnston, sitting as a part-time sheriff, on 3 May 2006. The motion was refused for reasons which I shall narrate later. Within seven days the pursuer lodged a motion seeking leave to appeal the interlocutor pronounced by Sheriff Johnston on 3 May 2006. That motion was dealt with and granted by Sheriff Muirhead on 24 May 2006.

The basis of the submission on behalf of the pursuer and appellant was that what was sought was not a change to the earlier interlocutor; it was a review of the position in the light of a change of circumstances. Such a review was competent because liability for the expenses of the report was, in terms of the earlier interlocutor, specifically stated to be "in the first instance".

In these circumstances, the court having given a direction in terms of Rule 33.21(2), I do not consider that it was open to the pursuer to seek to have it "reviewed" as his solicitor suggested. In these circumstances the appeal falls to be refused.