SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Drummond Young Lord Osborne	[2011] CSIH 42 A2759/02 OPINION OF THE COURT delivered by LORD JUSTICE CLERK in the cause MRS KATHLEEN MARY SELENA McLEAN or TORREMAR Reclaimer and Motioner; against CGU BONUS LIMITED Defenders and Respondents: _______

For the reclaimer and motioner: Party

For the defenders and respondents: I G Armstrong, QC, O'Brien; The Reid Cooper Partnership, Glasgow

15 June 2011

[1] This action relates to a claim by the reclaimer against the respondents who were the insurers of the Bunrannoch Hotel, Kinloch Rannoch, Perthshire. The reclaimer and her late husband, Christen Arne Torremar, were the proprietors of the hotel. On 27 May 2000 the hotel was extensively damaged by fire. The reclaimer sues as an individual and as executor dative of her late husband. She seeks to enforce an obligation of indemnity under the insurance policy. The respondents deny liability. They allege that the reclaimer set the hotel on fire. The Lord Ordinary has found for the respondents.

[2] One of the contentious factual issues was whether the source of ignition of the fire was a sauna heater. The sauna heater was a production in the action (No 6/21 of Process). On 21 October 2008 it was borrowed up by the respondents. The reclaimer alleges that when it was borrowed up the heater was intact. According to the inventory of process it was returned on 10 November 2008. The heater was later borrowed up by the reclaimer. She alleges that by then the outer casing of it was missing. She says that she did not notice that at the time. She accepts that the experts whom she consulted in relation to the cause of the fire each examined the heater when it was still intact. She says that she has now been in touch with a new expert who considers that he cannot offer an opinion on the cause of the fire unless he can examine the heater complete with its casing. We understand that this requirement relates to the possibility of there being some theory of corrosion affecting the heater that could explain the occurrence of the fire.

[3] The reclaimer has today moved a motion in the following terms:

"For the Defenders to return or produce the outer casing of the sauna machine."

[4] When addressing the court today the reclaimer alleged that the outer casing of the heater is in the custody of the respondents, who are wilfully retaining it, and submitted that the court should order them to hand it over.

[5] Counsel for the respondents told us that the respondents resent the allegation made by the reclaimer. They say that they do not have the missing item and have no idea as to its whereabouts. Counsel added that in any event there was a doubt whether the casing was even attached to the heater at the time of the proof. The respondents are convinced, from their own enquiries, that what was borrowed up by them in October 2008 was a red storage box which contained the parts of the heater but not the casing. Counsel added that in any event the present whereabouts of the casing are irrelevant since it has never been suggested so far that the casing had anything to do with the occurrence of the fire.

[6] We refuse the motion. The reclaimer has not produced cogent evidence that would warrant our concluding that the item that she seeks to recover is in the possession of the respondents or that they have any knowledge of its whereabouts. We therefore have no reason to doubt the representations on the point made on behalf of the respondents.

[7] We consider that an order on the respondents to return the item would be futile and inappropriate.

[8] In any event, the purpose of the motion is apparently to support an attempt to lead further evidence before the Inner House. There is no ground of appeal relating to fresh evidence; nor has the reclaimer persuaded us that any evidence that she would seek to lead would fall to be treated as res noviter veniens ad notitiam. For that reason, the present application is irrelevant.