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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Broatch v. Jackson [1900] ScotLR 37_748 (08 June 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0748.html
Cite as: [1900] SLR 37_748, [1900] ScotLR 37_748

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SCOTTISH_SLR_Court_of_Session

Page: 748↓

Court of Session Inner House First Division.

Friday, June 8. 1900.

37 SLR 748

Broatch

v.

Jackson.

( Ante May 30, 1900, 37 S.L.R. 707.)


Subject_1Appeal to House of Lords
Subject_2Leave to Appeal
Subject_3Interlocutory Judgment
Subject_4Possibility of Second Appeal.
Facts:

In an action at the instance of an agent concluding for payment of two sums as remuneration for professional services, the defender pleaded the triennial prescription in answer to the claim made in one of the conclusions, while with regard to the claim made in the other conclusion it was conceded by the parties that a proof was necessary. The Court having repelled the plea of prescription the defender petitioned for leave to appeal. The Court ( diss. Lord M'Laren) refused the petition.

Headnote:

(This case is reported ante, ut supra.)

The defender presented a petition craving leave to appeal to the House of Lords against the interlocutor of the First Division pronounced on 30th May 1900 and the interlocutor of Lord Kincairney dated 20th February 1900, whereby the plea of prescription was repelled and the cause quoad ultra continued. The facts which are relevant to the present question are sufficiently narrated in the opening paragraphs of the Lord Ordinary's opinion quoted ante at page 708.

The grounds set out by the petitioner in support of the petition were—“That the plea of prescription contended for by the defender raises a question of importance and

Page: 749↓

difficulty upon which the authorities are divided; that the question of proof falls to be regulated by the decision of the said plea; that it would operate great hardship to the defender were the cause to proceed to proof before the final determination of the said plea; and that the pursuer, having neglected to sue upon the said accounts for fourteen years, is likely to suffer no hardship from delay incident to the proposed appeal.”

The pursuer opposed the application, and argued—It would be very inconvenient to allow an appeal at this stage, for there might hereafter be a second appeal. The interlocutors only dealt with part of the conclusions in the action, and it was contrary to practice to allow an appeal where the conclusions were not exhausted, and there was the possibility of another appeal. Only a small proof would be needed, and the pursuer would suffer no prejudice from the trifling delay, while if an appeal were allowed much time might be wasted, and evidence lost thereby— Caledonian Insurance Company v. Gilmour, November 10, 1891, 19 R. 64; Edinburgh Northern Tramways Company v. Mann, July 14, 1891, 18 R. 1140.

 Judgment:

Lord President—It is always a matter for the discretion of the Court whether leave to appeal should be granted during the progress of a case. My understanding of the practice is in accordance with the view expressed by Lord Adam in the passage which has been read to us from his judgment in the case of the Edinburgh Northern Tramways Company v. Mann ( 18 R. at p. 1153). We are very far from granting leave as a matter of course at an early stage of a litigation unless the result of the appeal if successful would be to end the case, and obviate the necessity for further procedure in this Court, as, for example, if the long negative prescription was pleaded, and the effect of the plea being sustained would be to terminate the action, or as if there was some other plea the sustaining of which would obviate the necessity of a long and expensive inquiry. But it does not appear to me that any of the requisite conditions exist in this case. The defender's plea of the triennial prescription which we have repelled by the judgments which he now seeks to submit to the review of the House of Lords, would not if sustained bring the litigation to an end. It would only have the effect of limiting the modes of proof; it would not exclude inquiry. The pursuer might still prove the employment and the terms of the employment by the defender's writ or oath; the question of accounting would remain. Even if the mode of proof is not so limited, the question of employment is an exceedingly short one. It is difficult to see what other evidence than that of the two parties and their letters would be available, and the professional accounts would in any view require to be taxed by the Auditor. I can see no room for a long or complicated inquiry on any part of the case. Accordingly, there is no reason why the case should not be quickly finished here (I should think in two or three hours in so far as the proof is concerned). If the pursuer should fail to prove his case there would be an end of the matter, and if he should succeed in doing so the defender would have an opportunity of going on with his appeal. On the other hand, the appeal if allowed now could not be heard this session in the House of Lords. Evidence might be lost, and indeed as the matter must chiefly depend upon the testimony of the parties themselves, there might be a fatal loss of essential evidence by the death of either of them.

I am therefore of opinion that it would not be consistent with practice, nor with the proper conduct of judicial business, to grant leave to appeal at this stage.

Lord Adam concurred.

Lord M'Laren—I understand that your Lordships are all of opinion that the motion for leave to appeal should be refused, and accordingly my opinion will have no practical effect, but I think it right to say that I should be in favour of granting leave on the ground that the construction of the Triennial Prescription Act and its application to the accounts of law-agents raises a question of importance to the law suitable for decision in the House of Lords. As regards the conduct of the case and the convenience of parties, the considerations are nearly balanced. I appreciate those which were stated by your Lordship in the chair, but on the other hand it is for consideration that if we refuse an appeal at this stage, and if, on an appeal being taken at the end of the case, the plea of triennial prescription is sustained, then the proof which we have allowed will be thrown away.

Lord Kinnear—I agree with your Lord-ship in the chair and with Lord Adam, and I am not moved by the consideration that the question of law involved is said to be of a suitable character for decision in the House of Lords, because on a motion of this kind we must assume that the question is of such a character, because if it were otherwise the standing orders of the House would not be satisfied.

The real question which we require to consider seems to me to be, whether in a particular case it is convenient for the true interest of the parties that the case should be taken piecemeal to the House of Lords, or whether it would not be better to follow the general rule that the case should be exhausted in this Court before an appeal is allowed. In the present case it would in my view be inconvenient to allow an appeal at this stage. The Court has decided nothing except that certain evidence should be admitted at the proof. It is very much the same case as if a Lord Ordinary having allowed a proof were to be asked for leave to reclaim against a ruling admitting certain evidence in spite of objection. It is a mere question of procedure. If the parties are reasonably expeditious in carrying out what remains of the procedure in

Page: 750↓

the case, they will get a final interlocutor, against which it will be open to the defender to appeal to the House of Lords with as good a prospect of success as he would have in an appeal presented at this stage. On the other hand, all necessity for appeal may he obviated by a judgment on the merits in favour of the party who complains of the judgment on the question of proof, or else by the production of writ which may satisfy the statute. If we granted leave now, the case might be hung up for an indefinite period, during which time evidence might be lost. Accordingly, I think that the balance of advantage is on the side of refusing leave to appeal.

The Court refused the petition.

 Counsel:

Counsel for the Petitioner— Sandeman. Agent— W. B. Rainnie, S.S.C.

Counsel for the Respondent— M'Lennan. Agent— Party.

 1900

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URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0748.html