Hamish McLeod Prentice v. Richard Allan Sandeman [2011] CSOH 18

The pursuer sought damages for professional negligence arising out of the alleged mishandling of his unfair dismissal claim by his solicitor. At this debate, the defender submitted that the pursuer's action was incompetent, and was moreover irrelevant and lacking in specification. The defender submitted that the pursuer's failure to lodge a closed record in proper form could justify dismissal of the action under Rule 22.3(2) of the Rules of Court.

In reply, the pursuer (who had been unrepresented throughout the action) noted that the General Department of the court had provided him with copies of the relevant Rules of Court, but that he did not have access to the annotated versions which were relied upon by counsel for the defenders. He also submitted that he did not have access to any textbooks providing guidance on the format of the closed record, nor did he have any examples of such a closed record in its proper format.

Noting that the pursuer's pleadings were currently “a mess” and “idiosyncratic”, the court noted that it was not possible to make a determination on the action on the basis of the closed record as it currently stood, however the Lord Ordinary noted that the action generally was not totally without competence. The court deemed that the interests of justice would be best served by giving the pursuer another opportunity to put his pleadings in order and to amend their form and substance. The court that noted the substantive justice of the situation called for this and ordained the pursuer to lodge a closed record in proper form.