New Judgment: Apollo Engineering Ltd v James Scott Ltd  UKSC 37
13 Thursday Jun 2013
On appeal from:  CSIH 88
This case concerned an aspect of the Supreme Court’s jurisdiction to hear appeals in Scottish civil cases. The appellant had challenged the validity of an order – the Inner House of the Court of Session dismissed the case and refused leave to appeal to the Supreme Court.
The Court of Session Act 1988, s 40 provides that it is competent to appeal from the Inner House to the Supreme Court against either: a judgment on the whole merits of the cause; an interlocutory judgment where there is a dissenting opinion; or an interlocutory judgment that sustains a dilatory defence and dismisses the action. In McGregor Ltd v Grampian Regional Council (1994) SLT 133 it was held that an opinion of a court in a stated case did not constitute a “judgment” within the meaning of s 40. In the present case, an opinion on the legal issues in the stated case had not been given.
The Supreme Court held that in the present case Apollo could competently appeal to the Court without the leave of the Inner House against the part of the order that dismissed the stated case, so long as the appeal raised a question that could be certified by counsel as reasonable. The Administration of Justice (Scotland) Act 1972 makes no provision for the course of action the Inner House took: dismissing the stated case without giving its opinion on the questions before it.
It would be more correct to regard (for the purposes of s 40) the order dismissing the action as a judgment on the whole merits of the case, even though the Inner House did not address the issues raised, as it was not easy to characterise the order as “sustaining a dilatory defence” as it gave effect to the respondent’s motion based on the appellant’s inability to fulfil the Court’s rules.