Court of Session Act 1825

5 Of the disposal of the dilatory defences.U.K.

It shall be the duty of the lord ordinary, at the first calling of the cause before him, to hear the parties on the dilatory defences, with power to reserve consideration on such dilatory defences as require probation, until the peremptory defences shall be pleaded, and the record adjusted in the manner herein-after directed; and if the lord ordinary shall sustain the dilatory defences, or any of them, to the effect of dismissing the action, he shall at the same time determine the matter of expences; but if, on the contrary, the said ordinary shall repel the dilatory defences, the cause shall then, with the exception herein-after to be mentioned, proceed in its due course of preparation, without any separate interlocutor being pronounced respecting expences, reserving this part of the expence to be disposed of along with the rest of the expence in the final decision of the cause; and the judgment of the lord ordinary on the dilatory defences shall be final, unless the pursuer, where the defences have been sustained and the action dismissed, shall, within twenty-one days from and after the date of the lord ordinary’s judgment, apply by a note in manner herein-after directed to have such judgment reviewed by the judges of the inner house, or unless, in the case where the lord ordinary shall have repelled the defences, the defender shall, at the time of pronouncing judgment as aforesaid, give notice of his intention to bring the judgment under review, in which case the lord ordinary, instead of proceeding with the preparation of the cause, shall forthwith give judgment for the expence of that preliminary discussion; and the defender shall then be entitled, at any time within twenty-one days from the date of the interlocutor, to apply by note to the inner house for a review of the lord ordinary’s judgment; and if the defender shall not avail himself of the right thus to bring the judgment of the lord ordinary under review, an interim decree, with expence of extract, shall be allowed to go out for the expences for which judgment shall have been given as aforesaid, and in reviewing the lord ordinary’s judgment, and adhering to or altering the interlocutor by him pronounced, the court shall also dispose of the matter of expences relative to that preliminary discussion; and if the interlocutor of the lord ordinary repelling the defence shall be adhered to an interim decree shall be pronounced for the expences decerned for by him, with the additional expence in the court, if such shall be allowed, on which interim decree execution may proceed; and it shall not be competent to appeal to the House of Lords against the interlocutory judgment, where the action is not dismissed, unless express leave be given by the court, reserving the effect of the defence if an appeal should afterwards be taken in the cause when finally decided.