D. C. Thomson & Co., Ltd v. W. V. Bowater & Sons, Ltd

Subject_1 Process Subject_2 Reclaiming Note Subject_3 Competency Subject_4 Diligence for Recovery of Documents — Refusal of Diligence — Reclaiming Note without Leave after Leave Refused — Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 28 and 54. Facts: Held , in an action of damages for breach of contract, that an interlocutor in so far as it disallowed certain items of a specification of documents, for the recovery of which diligence was sought, was reclaimable without leave of the Lord Ordinary in respect that it imported a disallowance of proof.

Observations per Lord Johnston and Lord Mackenzie as to the proper method of indicating items disallowed in a specification.

D. C. Thomson & Company, Limited, pursuers , brought an action against W. V. Bowater & Sons, Limited, defenders , concluding for £12,000 damages for breach of contract.

On 8th February 1918 the Lord Ordinary ( Anderson ) pronounced the following interlocutor:—“… Grants diligence against havers at the instance of the pursuers and defenders respectively for recovery of the documents and others mentioned in the specifications for them, as amended at the Bar, and commission … to take the oaths and examination of the havers and receive their exhibits and productions …, and to report quam primum .”

The amendment of the specifications consisted of deletions initialled by counsel for the parties of certain articles in the specifications which had been disallowed by the Lord Ordinary. The defenders moved for Page: 294 ↓