JOHN MALARKEY DUFF v. EAST DUNBARTONSHIRE COUNCIL &c
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord President Lord Kirkwood Lord Marnoch | A2110/01 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION in the cause JOHN MALARKEY DUFF Pursuer and Reclaimer; against (FIRST) EAST DUNBARTONSHIRE COUNCIL, (SECOND) MRS JEAN MARGARET STIRLING or GRAHAM, MRS MARJORY MARIGOLD ANNE STIRLING or LANGLEY, DAVID STIRLING LANGLEY and ELIZABETH GLORIANA STIRLING Defenders and Respondents: _______ |
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Act: Caldwell, Q.C., Illius; Digby Brown (Pursuer and Reclaimer)
Alt: Shand; Biggart Baillie, W.S. (1st Defenders and Respondents): Jones, Q.C., Gilmore; Simpson & Marwick, W.S.
28 June 2002
[1]I concur with the Opinion delivered by Lord Kirkwood, and accordingly agree that this reclaiming motion should be allowed, the interlocutor of the Lord Ordinary dated 1 June 1999 recalled, and a proof before answer allowed.
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord President Lord Kirkwood Lord Marnoch | A2110/01 OPINION OF LORD KIRKWOOD in RECLAIMING MOTION in the cause JOHN MALARKEY DUFF Pursuer and Reclaimer; against (FIRST) EAST DUNBARTONSHIRE COUNCIL, (SECOND) MRS JEAN MARGARET STIRLING or GRAHAM, MRS MARJORY MARIGOLD ANNE STIRLING or LANGLEY, DAVID STIRLING LANGLEY and ELIZABETH GLORIANA STIRLING Defenders and Respondents: _______ |
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Act: Caldwell, Q.C., Illius; Digby Brown (Pursuer and Reclaimer)
Alt: Shand; Biggart Baillie, W.S. (1st Defenders and Respondents): Jones, Q.C., Gilmore; Simpson & Marwick, W.S.
28 June 2002
[1]This is a reclaiming motion against the interlocutor of the Lord Ordinary dated 1 June 1999 dismissing the pursuer's action for damages.
[2]In the action the pursuer seeks damages for personal injuries which he sustained as a result of an accident which occurred on 29 April 1994. The first defenders are East Dunbartonshire Council and the second defenders are the executors nominate of the late Elizabeth Stirling.
[3]The pursuer averred that he was making his way home on foot at about 3 o'clock in the afternoon from the Craigfoot Inn, Milton of Campsie. When he reached the town centre he began to walk in the direction of the bridge over the river Glazert. On his left was a car park which was easily accessible from the main road and was in constant use by members of the public. The edge of the car park nearest the river was delineated by concrete kerbstones which projected four inches or thereby above the tarmac surface of the car park. Immediately beyond the line of kerbstones there was a barrier constructed from old railway sleepers which was approximately two feet high. At the end of the car park nearest the main road there was a gap of about one metre between the end of the railway sleeper barrier and the boundary wall which afforded ready pedestrian access to the embankment beyond. The first defenders were the occupiers and had possession and control of the car park, while the second defenders owned, occupied and had control of the embankment. The pursuer felt the need relieve himself and he entered the car park and proceeded on to the embankment via the gap between the end of the railway sleeper barrier and the boundary wall, following the line of the boundary wall until he was hidden from view. He then lost his footing and fell down the embankment over the wall which had been constructed at the foot and on to the rocks below. The pursuer's case of fault against each of the defenders was based on their alleged breach of statutory duty in terms of section 2 of the Occupiers Liability (Scotland) Act 1960. Both defenders had general pleas to the relevancy. The case was sent to procedure roll and after hearing the submissions of the parties the Lord Ordinary sustained the first plea in law for both defenders and dismissed the action as laid against both of them as irrelevant.
[4]In her opinion the Lord Ordinary stated that counsel for the first defenders had submitted that the pursuer's pleadings did not identify the existence of any danger on the land alleged to be occupied by the first defenders. The danger which was averred to have caused the accident was the sudden slope of the embankment which was on land occupied and controlled by the second defenders. The drop which the pursuer offered to prove gave rise to the hazard was three or four yards beyond the boundary of the first defenders' land. On a fair reading of the pursuer's pleadings it was not the exit from the first defenders' land which was dangerous. The omission complained of was the first defenders' failure to prevent the pursuer passing from their land on to that of the second defenders but that did not give rise to any immediate hazard. In that situation the Lord Ordinary did not consider that the provisions of section 2 were apt to import liability on the part of the first defenders in that the danger averred to have caused the pursuer's accident was not, in any ordinary sense of the words, due to anything done or omitted to be done on their premises.
[5]Before the Lord Ordinary counsel for both defenders had presented a further attack on the relevancy of the pursuer's pleadings based on the assertion that the danger which was averred, namely the sudden slope of the embankment, was a natural feature of the land and an obvious danger. The pursuer's averments in relation to the nature of the danger to which he averred he was exposed were in the following terms:
"The embankment presented a danger for person proceeding beyond the edge of the car park. After three or four yards of generally level terrain, suddenly and without warning of any sort, the embankment sloped sharply downwards towards the river. At the foot of the embankment a wall had been constructed to a height of approximately six feet. Said wall formed part of the embankment and served to retain the earth behind it. Rocks that formed part of the river bed lay at the foot of the wall. It was an obvious place of danger for anyone who walked there. Any such person was liable to lose their footing, fall and slip down the embankment towards, and possibly into, the river."
The pursuer admitted in his pleadings that he was aware that an embankment lay beyond the line of the railway sleeper barrier, under explanation that "he was unaware of the inherent danger created by the existence of the sudden drop down to the foot of the ravine". Having considered the submissions of the parties, the Lord Ordinary stated that, while a source of danger arising from a physical feature of the land was presumed to constitute an obvious and usual danger, the existence of such a presumption did not preclude the possibility of the pursuer establishing that in the particular circumstances the danger was not obvious. There was, however, nothing in the pursuer's pleadings in this case to suggest that he was offering to prove that the sudden sharp slope was hidden or in any way concealed from the view of a person walking on the embankment. The Lord Ordinary stated that it seemed to her to be an inescapable conclusion from the pursuer's averment that the sudden drop occurred after three or four yards of generally level terrain, that when he was crossing the level ground in broad daylight it must have been obvious to him that he was approaching a point beyond which he could not see clearly what lay ahead. She found it impossible to conclude other than that the sudden drop was patent and obvious and that the hazard was one against which a person such as the pursuer might reasonably be expected to protect himself.
[6]The Lord Ordinary considered two other arguments presented on behalf of the defenders, namely (1) an argument that the pursuer's case was irrelevant because the same duties were pled against both defenders and (2) criticisms of the relevancy of the pursuer's averments in relation to the nature of the precautions which it was said ought to have been taken by the defenders, but observed that she would not, on the basis of either of those arguments, have refused probation.
[7]After the reclaiming motion had been marked the pursuer was, in September 2001, allowed to amend his pleadings. Shortly before the hearing of the reclaiming motion the pursuer was allowed to make further amendments. It is not necessary for me to narrate the amendments. It is sufficient to state that averments were added inter alia to the effect (1) that there was a drop of about nine metres from the top of the embankment to the river below; (2) that on the embankment there were trees and shrubs, and the surface underfoot consisted of earth, fallen leaves and debris; (3) that the three or four yards of generally level terrain sloped very gently in the direction of the river; (4) that from the generally level area of the embankment the steep slope and the sheer drop to the river from the top of the wall were not obvious; (5) that the top of the embankment was a place of danger for anyone who walked there and (6) that a wooden fence should have been erected of such structure and proportions as would create a reasonable deterrent to persons from entering on the embankment. The pursuer also averred for the first time that the first defenders were occupiers and had possession and control of the three or four yards of generally level terrain and the top of the embankment, while the second defenders owned, occupied and had control of the remainder of the embankment.
[8]At the hearing of the reclaiming motion, counsel for the pursuer submitted that the Lord Ordinary had been wrong to dismiss the action and, in particular, that she had reached the wrong conclusion in relation to the issue of obvious danger. Counsel further submitted that, having regard to the amendments which had been made, the appropriate course was to allow a proof before answer. The Lord Ordinary had held that the pursuer had not averred the existence of a danger on the first defenders' land, but the pursuer now averred that the first defenders owned the three or four yards of generally flat terrain so that the hazard was now said to be on the first defenders' land as well as the second defenders' land. While the Lord Ordinary had held that the danger constituted by the sudden drop had been obvious, it was now averred that it had not been obvious to the pursuer from the top of the embankment. An averment had also been added about the conditions underfoot. In the circumstances the pursuer's case as now amended should be sent to a proof before answer.
[9]Counsel for the first defenders submitted that the Lord Ordinary had been right to dismiss the action as originally pled and that the amendments which had been made to the pursuer's pleadings had not had the effect of making his case relevant. The first defenders were not insurers: their duty under section 2 of the 1960 Act was to exercise such care as was reasonable "in all the circumstances of the case". The pursuer could not succeed unless he could establish that the accident had been due to a concealed hazard, but there was no averment to that effect. It was not sufficient for the pursuer simply to aver that the danger was not obvious. The pursuer must be expected to be aware of the nature of the terrain on which he was walking unless there was a concealed danger. It was not said that the presence of trees and shrubs had concealed the drop. Further, there was no hint in the pursuer's pleadings as to how the alleged danger had caused the accident. It was not averred how far down the slope he had gone before he lost his footing, or why he had lost his footing. In any event, even if there had been a concealed danger, there was no averment that the first defenders were aware of that danger or that they should have been aware of it. If the first defenders had known of the existence of the nine metre drop, the pursuer should have known of its existence as well. Counsel went on to submit that the precautions desiderated by the pursuer were irrelevant and, in particular, that the averments regarding a duty to erect a fence were wholly lacking in specification. It was not made clear what the pursuer is alleging would constitute a reasonable deterrent. While the pursuer also averred that there was a duty to erect warning notices, there was no averment as to what the notices should contain, or how many notices would be required. Counsel also submitted that the same duties were averred against both defenders and that two defenders could not be under the same duty at the same time (Allison v. Isleburn Ltd. and Eurolink Ferries Ltd. 1997 S.C.L.R. 791). The Lord Ordinary had been wrong to take the view that she would not have refused to admit the pursuer's averments to probation on this ground. In any event, if precautions had to be taken, it was logical that they should be taken by the second defenders as it was clear that the steep slope was on their land. In the circumstances the reclaiming motion should be refused.
[10]Counsel for the second defenders adopted the submissions made on behalf of the first defenders in so far as they were relevant to the pursuer's case against the second defenders. The statutory duty under section 2 of the Act related to the particular person who had entered on to the premises. The accident had occurred in broad daylight and there had been a two foot high barrier made of old railway sleepers, indicating that entry beyond that barrier to the embankment was not being encouraged. The pursuer was a local man, and he had admitted that he was aware that an embankment lay beyond the line of the barrier, and that there was a river running under the bridge. He did not aver that he had been unable to see the sudden drop, and he must have known that he was at a much higher level than the river. Counsel submitted that liability depended on culpa and that there was no duty to fence dangers which were due to natural features (Dumbreck v. Addie & Sons (Collieries) Limited 1928 S.C. 547 and Graham v. East of Scotland Water Authority 2002 S.C.L.R. 340). A source of danger arising from a physical feature of the land is presumed to constitute an obvious and usual danger. The pursuer had to aver that the accident had been due to a concealed danger but he had not done so. It was not enough for him to aver that the danger was not obvious. Further, if the pursuer was unaware of the steep drop, there was no reason why the second defenders, who were executors, should have known of it. It was for the pursuer to aver that the second defenders knew or ought to have known of that danger, but there was no such averment. Such knowledge on the part of the second defenders could not be presumed (Holbeck Hall Hotel Limited v. Scarborough Borough Council [2000] K.B. 836). While the pursuer now averred that the steep drop was not obvious, he did not say that the trees and shrubs prevented him from seeing it. Counsel went on to submit that the pursuer's averments did not allege that the accident had taken place on the second defenders' land. Further, there was no averment that the second defenders knew or ought to have known that the pursuer was liable to lose his footing and fall down the embankment. It was essential for him to aver where he fell and what caused him to lose his footing. In addition, the averments of a duty to erect a fence, and put up warning notices, were lacking in specification. The pursuer's amended averments were still irrelevant and the reclaiming motion should be refused.
[11]In the course of the hearing reference was made to, inter alia, Stevenson v. Glasgow Corporation 1908 S.C. 1034, Taylor v. Glasgow Corporation 1922 S.C. (H.L.) 1 and Titchener v. British Railways Board 1984 S.C. (H.L.) 34.
[12]The court heard a full debate directed particularly to the issue of whether or not the pursuer's amended pleadings were irrelevant or whether a proof before answer should be allowed. In these circumstances it is not strictly necessary for me to conclude whether the Lord Ordinary was right to dismiss the action: only brief submissions were made to us in relation to that question. In my opinion, however, the Lord Ordinary was justified in dismissing the action. The pursuer's original averments were sketchy and did not properly address the two issues on the basis of which the Lord Ordinary decided to dismiss the action. However, the pursuer has now amended his pleadings in a number of significant respects and the question is whether he has relevantly averred a risk against which each of the defenders had a duty to take precautions. So far as the nature and extent of the danger is concerned, the pursuer originally averred that suddenly and without warning the embankment sloped sharply downwards towards the river, but he now avers that there was a drop of about nine metres from the top of the embankment to the river below. He also avers that the steep slope and the sheer drop from the top of the retaining wall were not obvious from the generally level area at the top of the embankment, and he has introduced averments about the nature of the conditions underfoot. Further, he now avers that it was the first defenders who were occupiers of the three or four yards of generally level terrain at the top of the embankment. Having considered all the submissions which were made to us, I have reached the conclusion that the pursuer has now made sufficient averments against both defenders to entitle him to a proof before answer. In the circumstances I consider that it is undesirable to reach a concluded view on the relevancy of the pursuer's case until after the facts have been established.
[13]Before the Lord Ordinary, and before this court, counsel for both defenders proceeded on the basis that the danger which was averred, namely the sudden slope near the top of the embankment, was a natural feature of the land. It was suggested that if the pursuer was unaware of the presence of that slope, there was no reason to suppose that the defenders were aware of it, and that it was necessary for the pursuer to aver that the defenders knew, or should have known, of its existence. In my opinion, there is no merit in that particular submission because an owner will normally be presumed to have knowledge of any natural physical features which are present on his land. The defenders also renewed their attack on the relevancy of the pursuer's case on the basis (1) that the same duties of care had been pled against both defenders and (2) that the averments relating to the precautions which should have been taken were lacking in specification. But, like the Lord Ordinary, I have not been persuaded that either of these submissions justifies a refusal of probation. As I am satisfied that an enquiry into the whole facts should take place, I do not consider that it is appropriate to comment further on the detailed submissions which were made to us.
[14]For the foregoing reasons, I would allow the reclaiming motion, recall the interlocutor of the Lord Ordinary dated 1 June 1999 and allow a proof before answer on the whole case.
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord President Lord Kirkwood Lord Marnoch | A2110/01 OPINION OF LORD MARNOCH in RECLAIMING MOTION in the cause JOHN MALARKEY DUFF Pursuer and Reclaimer; against (FIRST) EAST DUNBARTONSHIRE COUNCIL, (SECOND) MRS JEAN MARGARET STIRLING or GRAHAM, MRS MARJORY MARIGOLD ANNE STIRLING or LANGLEY, DAVID STIRLING LANGLEY and ELIZABETH GLORIANA STIRLING Defenders and Respondents: _______ |
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Act: Caldwell, Q.C., Illius; Digby Brown (Pursuer and Reclaimer)
Alt: Shand; Biggart Baillie, W.S. (1st Defenders and Respondents): Jones, Q.C., Gilmore; Simpson & Marwick, W.S.
28 June 2002
[1]In this reparation action it is averred by the pursuer that on his way home from a public house in Milton of Campsie he had reached a public car park in the town centre when he felt the need to relieve himself. He accordingly passed through a gap at the end of a two feet high railway sleeper barrier on to an adjacent embankment which, "after three or four yards of generally level terrain, suddenly and without warning of any sort,... sloped sharply downwards towards the river" (the River Glazert). The pleadings go on to narrate that at the foot of the embankment a wall had been constructed to a height of approximately six feet and that rocks forming part of the river bed lay at the foot of the wall. The pursuer then goes on to aver that he "lost his footing and fell down the embankment over the wall and on to the rocks", thereby sustaining serious injuries. On the pleadings, as they were before the Lord Ordinary, it was averred that the first defenders were the occupiers of the car park and that the second defenders were the occupiers of the embankment but before this court the pursuer was allowed to amend to the effect that the first defenders' occupation extended to the top of the embankment. In terms of duties said to have been incumbent on both defenders it was, and remains, averred that under Section 2 of the Occupiers Liability (Scotland) Act 1960 it was their duty to erect a fence "of such structure and proportions as would create a reasonable deterrent to persons, such as the pursuer, intent on entering onto the embankment."
[2]In light of the above narrative one might be forgiven for thinking that this was a fairly straightforward action of reparation in which it is claimed that, in the exercise of reasonable care under the 1960 Act, one or other or both of the defenders should have erected a fence such as would prevent persons mounting the embankment in question - an embankment which was dangerous in the sense that if persons on it lost their footing they were liable to fall a considerable distance on to rocks forming part of the river bed below. Unfortunately, however, what might loosely be termed the "fault condescendences" made no reference to it being foreseeable that persons mounting the embankment might lose their footing and fall. Instead, all the emphasis was placed on such persons being unaware of the "sudden drop" as described above. In that, as it seems to me, rather misleading context the Lord Ordinary was persuaded that the principal question in the case came to be "whether the sudden sharp slope of this embankment can reasonably be regarded as presenting other than an obvious, natural hazard to a person such as the pursuer". In answering that question she derived from the authorities cited to her a "presumption" that a source of danger arising from a physical feature of land was indeed an "obvious" one and, in the event, she held that it must have been obvious to the pursuer that "he was approaching a point beyond which he could not see clearly what lay ahead." She went on to say this ...
"In the situation described in the pleadings, I find it impossible to conclude other than that the sudden drop was patent and obvious and that the hazard was one against which a person such as the pursuer may reasonably be expected to protect himself. The obvious change in the landscape ought to have been obvious to him from the ordinary process of looking ahead as he walked and paying due attention to where he placed his feet. I cannot hold other than that the embankment as described in the pleadings falls to be regarded as a natural, physical feature of the land, the dangers of the resort to which are plain and which despite being capable of causing dangers to careless persons, does not require to be guarded by protective measures. To hold that this embankment constitutes a concealed danger which ought to have been fenced would in my view defy common sense. The logical extension of such a finding would be that every path along an embankment or cliff edge would require to be fenced in order to guard against a fall by a person going too near the edge and loosing his footing."
[3]Having read all the authorities and dicta cited to the Lord Ordinary in this context - and, indeed, with one exception, to this court - it seems to me that they are dealing with the type of case where the existence of the physical feature giving rise to the danger (e.g. a river) is known to the person injured, and that, I think, would probably also be true of the example figured by the Lord Ordinary, namely that of a path which proceeds along an embankment or cliff edge. In such situations it is, of course, plain that persons of ordinary intelligence should give a wide berth to whatever danger is presented. Alternatively, they must be taken to have accepted whatever risk is involved. In my opinion, however, it is a very different matter to say that a "change in the landscape" - which ought to have been obvious to the pursuer "looking ahead as he walked and paying due attention to where he placed his feet" - is a feature about which he, the pursuer, cannot now be heard to complain. The sort of consideration referred to by the Lord Ordinary is clearly relevant to the plea of contributory negligence but it does not, in my opinion, take the present case anywhere near the type or category of case which was the subject of citation. In any event, I cannot, for myself, see anything in the pleadings which suggests that the pursuer even should have seen the "drop" in question. His position, as I understand it, is that he simply lost his footing while on the embankment and then fell down it, over the wall and on to the rocks. The real, and essentially straightforward, question in the case, as it seems to me, is whether in the exercise of reasonable care either or both of the defenders should have erected a fence to prevent that sort of accident happening. In that connection I refer, only to distinguish it, to the case of Prentice v. Assets Co Ltd, (1890) 17 R 484 (being the one exception referred to above) where the proprietor of a quarry about 200 yards from a public road was assoilzied of liability to the representatives of an adult who had fallen into it. In the course of his opinion Lord President Inglis pointed out that the quarry in question was "not near a public road" and distinguished the case from the much earlier authority of Black v. Cadell M. 13, 905. In that case, according to Lord President Inglis, liability was held to be established in a situation where the "unfortunate person" fell into a "pit" situated "within four feet of the road on which he was walking". Somewhat remarkably, we were not taken to the case of Black but it seems to have been close on its facts to the present case. What is more, it was decided at a time when, as I understand it, contributory negligence would have been a complete defence.
[4]In the result, I am respectfully of opinion that the Lord Ordinary erred in dismissing the action on the basis outlined above, and I should perhaps add, for the avoidance of doubt, that I have reached that opinion on the unamended pleadings which were before the Lord Ordinary. I should add, also, that in the course of the debate before us the defect in the "fault condescendences" to which I have drawn attention came to be founded on as a separate matter by counsel acting for each of the respondents. In my opinion, however, while that defect is a reason for ordering enquiry by way of proof before answer, it is not a reason for dismissing the action.
[5]For the reasons above indicated I do not, myself, find it necessary to find in the pleadings any averments to the effect that the "drop" constituted some form of concealed danger or trap. Its significance in the present case, as I see it, lies only in the severity of the consequences to persons who, like the pursuer, trip and fall on the embankment. If, however, I were wrong about that, then I respectfully agree with all that has fallen from Lord Kirkwood on this aspect of the case.
[6]There was, of course, a further ground on which the Lord Ordinary dismissed the action as against the first defenders, namely that any hazard was present not on their land but on land occupied by the second defenders. As to that matter, even on the pleadings before the Lord Ordinary I would myself have been inclined to allow a proof before answer. As the Lord Ordinary accepted, there can be a breach of section 2 of the Occupiers Liability (Scotland) Act 1960 where, as she puts it, the "exit" from the land in question is unsafe. On the pleadings before the Lord Ordinary there were "three or four yards of generally level terrain" between the boundary of the first defenders' land and the point where the embankment sloped sharply downwards. In my opinion proof was necessary before it could be asserted with confidence that that strip of land was, as it were, sufficient to absolve the first defenders of all responsibility. In any event, the amendment allowed by this court makes it even clearer that there must be enquiry on this branch of the case.
[7]What I have said so far disposes of the arguments which found favour with the Lord Ordinary. However, counsel for both respondents took advantage of the reclaiming motion to advance certain additional arguments to the effect that the pursuer's pleadings were irrelevant and that the action should be dismissed. I deal with each of these briefly in turn.
[8]In the first place, both Miss Shand, for the first named defenders, and Mrs. Gilmore, for the second named defenders, submitted that there were no averments to the effect that either occupier knew of the danger presented by the "drop" to which I have referred. In support of that submission counsel seemed to suggest that if the pursuer was unaware of the "drop" there was likewise no reason to suppose that the defenders were aware of it. In my opinion, this is plainly a complete non sequitur. For the rest, it seems to me equally plain, as a matter of common sense, that the occupier of land must be taken to know of its permanent features and, in particular, those which are proximate to public places. All the cases cited by Miss Shand were concerned with temporary or transitory dangers and are accordingly quite clearly distinguishable.
[9]In the second place, counsel for both defenders submitted that certain further averments of fault (in part added by amendment) regarding the putting up of warning signs were essentially lacking in specification. Although, however, I consider that a question of doubtful relevancy does arise in relation to the pleading of such a duty cumulatively with the duty to erect a fence, I am of opinion that there is absolutely no substance in the argument anent lack of specification. As to the matter of doubtful relevancy, I consider that, while it might merit enquiry by way of proof before answer, it certainly does not justify dismissal of the action.
[10]In the third place, Miss Shand submitted, as she did before the Lord Ordinary, that it was irrelevant for the same duty of care to be pled against both defenders. The only authority cited in support of that submission was the decision of Lord MacFadyen in Allison v. Isleburn Limited and Eurolink Ferries Limited 1997 S.C.L.R. 791. In my opinion, however, this submission does not bear examination. Very frequently the same or very similar duties of care are averred against more than one defender and the decision in Allison proceeded on the much narrower basis that, in the absence of very special circumstances, a pursuer cannot aver that more that one person or body is responsible for instituting and maintaining for him a safe system of working. Very sensibly, in my view, this argument was abandoned by counsel acting for the second defenders.
[11]For all the foregoing reasons I respectfully agree that this reclaiming motion must be allowed and that enquiry should be ordered by way of proof before answer.