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The case of Robertson v Muir is a petition is brought under section 459 of the Companies Act 1985 (the predecessor of section 994 of the Companies Act 2006).    The subject matter of the petition is a dispute between shareholders in RM Supplies (Inverkeithing) Limited (“the Company”), which is engaged in the scrap metal business.   The petitioner, Alexander Robertson is a director and shareholder  in the company.   He sought an order from the court permitting him to buy the shareholding of his two fellow directors and shareholders, the brothers George Muir and Thomas Muir junior.   The petitioner claimed that he had been excluded by the Muir brothers from any material management role in the conduct of the company’s business which amounted to unfairly prejudicial conduct.   Various instances of such conduct were averred.    After a hearing on evidence the Lord Ordinary granted the petition noting that he considered that the petitioner’s contribution to the company was immeasurably greater than the Muir brothers as the petitioner was much more involved in the running of the company and had provided more valuable management services.    He considered that it was in the interests of the company, as well as being the fairest course for the petitioner, that he be allowed to purchase the Muir brothers’ shareholding, with appropriate deductions for the company’s  losses caused by the Muir brothers’ unfairly prejudicial conduct.    He pronounced an interlocutor to this effect on 17 February 2009 ([2009] CSOH 23).  No steps were taken by the Muir brothers to reclaim, with or without leave, against that interlocutor of 17 February 2009.

On 12 May 2009 parties again appeared before the Lord Ordinary. The Minute of Proceedings for that day records and agreement between the parties (as recorded in the Minute of Proceedings of 12 May) in relation to management charges but otherwise makes no further order.    The Muir brothers then sought to appeal to the Inner House reclaim against the judgment of the Lord Ordinary but their reclaiming motion was refused by the First Division (Lord President (Hamilton), Lord Hardie Lord Drummond Young) as incompetent on the basis that their reclaiming motion came to late: see [2009] CSIH 58. It was the interlocutor of 17 February 2009 which was said to be dispositive of the merits of the cause and therefore a reclaiming motion should have been marked within 21 days of that date.    At a subsequent hearing a differently constituted First Division (Lord President (Hamilton), Lord Reed, and Lady Dorrian) refused the respondents leave to reclaim out of time [2009] CSIH 59.

It would appear that it is on the basis that this decision of the Inner House is said to have disposed of the whole merits of the cause that an appeal is being advanced before the UK Supreme Court, notwithstanding that there is no substantive judgment on the merits of the original petition and the decision of the Lord Ordinary has been pronounced by the Inner House. Whether bringing this appeal to the UK Supreme Court without leave will attract the strictures of their Lordships such as we saw in Buchanan v. Alba Diagnostics Ltd. [2004] UKHL 5 and Wilson v. Jaymarke Estates Ltd [2007] UKHL 29, or instead the approval apparently expressed in Moncrieff v Jamieson  [2007] UKHL 42, remains to be seen.