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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cochrane v. David Traill & Sons [1900] ScotLR 38_18 (01 November 1900) URL: http://www.bailii.org/scot/cases/ScotCS/1900/38SLR0018.html Cite as: [1900] ScotLR 38_18, [1900] SLR 38_18 |
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Page: 18↓
In dealing with an application for a warrant to register an agreement under the provisions of the Workmen's Compensation Act 1897 the Sheriff is not acting as an arbitrator under the Act, and consequently it is not competent to bring his decision under review by means of a case stated for appeal under the Act.
Opinion (per Lord Adam)—That under section 8 of Schedule 2 of the Workmen's Compensation Act, and section 7 (a) of the Act of Sederunt, 3rd June 1898, the Sheriff, when the genuineness of a memorandum of agreement sent for registration is disputed,
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must confine himself to the question whether the memorandum is genuine, and that he is not entitled to insist, as a condition of registration, on payment of expenses incurred in a previous action arising out of the same accident.
David Cochrane, a lumper in the employment of David Traill & Sons, stevedores, Grangemouth, met with an accident in the course of his employment, whereby he was permanently disabled from work. He brought an action against his employers in the Court of Session, concluding for payment of the sum of £4, 4s., and of the sum of 14s. weekly so long as his disablement should continue. On March 16th 1899 this action was dismissed, and Cochrane was found liable in expenses. The case is reported as Cochrane v. David Traill & Sons, 37 S.L.R. p. 662. On 4th January 1900 Cochrane lodged with the Sheriff-Clerk at Falkirk a memorandum purporting to be a memorandum of agreement between him and David Traill & Sons, under the provisions of section 8 of Schedule 2 of the Workmen's Compensation Act 1897.
That section enacts as follows:—“When the amount of compensation under this Act shall have been ascertained, or any weekly payment varied, or any other matter settled under this Act, either by a committee or by an arbitrator or by agreement, a memorandum thereof shall be sent in manner prescribed by rules of court by the said committee or arbitrator, or by any party interested, to the registrar of the county court for the district in which any person entitled to such compensation resides, who shall, subject to such rule, record such memorandum in a special register without fee, and thereupon the said memorandum shall for all purposes be enforceable as a county court judgment, provided that the county court judge may at any time rectify such register.”
By section 14 of the same schedule it is provided—“In the application of this schedule to Scotland (a) ‘sheriff’ shall be substituted for ‘county court judge,’ ‘sheriff court’ for ‘county court,’ ‘action’ for ‘plaint,’ ‘sheriff clerk’ for ‘registrar of the county court,’ and ‘Act of Sederunt’ for ‘rules of court;’ ( b) any award or agreement as to compensation under this Act may be competently recorded for execution in the Books of Council and Session or Sheriff Court Books, and shall be enforceable in like manner as a recorded decree-arbitral.”
The Act of Sederunt, June 3, 1898, passed in virtue of the power conferred by the Workmen's Compensation Act, provides as follows—Section 7 ( a) “The memorandum as to any matter decided by a committee, or by an arbitrator other than a sheriff, or by agreement, which is by paragraph 8 of the second schedule appended to the Act required to be sent to the Sheriff-Clerk, shall be as nearly as may be in the form set forth in Schedule A appended hereto. When such memorandum purports to be signed by or on behalf of all the parties interested, or when it purports to be a memorandum of a decision or award of a committee, or of an arbitrator agreed on by the parties, and to be signed in the former case by the secretary, or by at least two members of the committee, and in the latter case by the arbitrator, the Sheriff—Clerk shall proceed to record it in the special register to be kept by him for the purpose, without further proof of its genuineness. In all other cases he shall, before he records it, send a copy … to the party or parties interested (other than the party from whom he received it) in a registered letter containing a request that he may be informed within a reasonable specified time whether the memorandum and award (or agreement) set forth therein are genuine, and if within the specified time he receives no intimation that the genuineness is disputed, then he shall record the memorandum without further proof; but if the genuineness is disputed, he shall send a notification of the fact to the party from whom he received the memorandum, along with an intimation that the memorandum will not be recorded without a special warrant from the Sheriff.”
On the Sheriff-Clerk communicating with Messrs David Traill & Sons they disputed the genuineness of the memorandum, and the Sheriff-Clerk accordingly refused to register it.
Cochrane applied to the Sheriff for a special warrant to register the memorandum.
Before the Sheriff ( Russell Bell) Messrs David Traill & Sons maintained that the application should not be sustained until Cochrane had paid the taxed expenses of his action in the Court of Session.
The Sheriff sustained that plea, and at the instance of Cochrane stated a case for appeal under the Act. The question of law was—“Whether it was competent for the Sheriff as arbitrator to make it a condition of entertaining the present application, that the expenses of the foresaid action in the Court of Session should be paid?”
Argued for the appellant—The Sheriff had no power to make payment of expenses a condition of registration; all he was entitled to do was to consider the genuineness of the memorandum. The objection to the competency of the present form of appeal was bad, because ( a) it had not been stated in the Single Bills, ( b) it had been waived by both parties revising and adjusting the special case, and ( c) it was ill—founded, because in all his actings under the Workmen's Compensation Act the Sheriff was an arbitrator, and could therefore state a case for appeal.
Argued for the respondent—1. The appeal was incompetent in the form adopted. The Act provided a stated case as the method of appeal from the decision of a sheriff as arbitrator, and it could only be used in such cases. Here the Sheriff was not an arbitrator, but an administrative officer. 2. Alternatively, if the appeal was competent, the Sheriff was right. The competency of the appeal was only conceivable on the assumption that the Sheriff in considering the registration of a memorandum of
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agreement was acting in the capacity of arbitrator. In that capacity he had equitable powers, and was entitled to insist on payment of expenses incurred in what was practically the same action— Irvine v. Kinloch, November 7, 1885, 13 R. 172— Mac—Murchy v. Maclullich, March 21, 1889, 16 R. 678. That principle was recognised in the Act in the provision (sec. 1, sub-sec. 4) whereby compensation might be assessed in the course of an unsuccessful action for damages, in which case the Court was authorised to deduct the expenses in the action from the compensation awarded. That right of the employer could not be evaded by the workman by bringing an independent application under the Act— Edwards v. Godfrey [1899], 2 Q.B. 333. At advising—
From the facts set forth in the case it appears to be a case stated in an application to the Sheriff at the instance of the pursuer (appellant) to grant warrant to record in the Special Register of Court kept for the purpose an alleged memorandum of agreement between the pursuer and defenders, sent for registration by the pursuer in terms of the said Act and relative Act of Sederunt.
It further appears that the memorandum of agreement had been sent to the sheriff-clerk for registration, but that he, after communicating with the respondents, refused to register it on the ground that its genuineness was disputed.
It further appears that the Sheriff sustained a plea to the effect that the application should not be entertained until the appellant had paid to the respondents the taxed expenses of an action in the Court of Session relating to the same matter, in which he had been unsuccessful; and the question of law which we are asked to answer is, whether it was competent for the Sheriff as arbiter to make it a con dition of entertaining the application that the expenses of that action should be paid?
The provisions which regulate the registration of a memorandum will be found in paragraph (8) of the second schedule of the Act, which enacts that where the amount of compensation under the Act shall have been ascertained, either by a committee or by an arbitrator or by agreement (as in this case), a memorandum thereof shall be sent, in manner prescribed by Act of Sederunt, by said committee or arbitrator, or by any party interested, to the sheriff-clerk of the district in which the person entitled to such compensation resides, who shall, subject to the rules prescribed by Act of Sederunt, on being satisfied of its genuineness, record such memorandum in a special register.
Section 7 ( a) of the Act of Sederunt provides that where, as is alleged in this case, the compensation has been settled by agreement, and the memorandum does not purport to he signed by or on behalf of all parties interested, the sheriff-clerk shall communicate with the other party or parties interested, and if it shall appear that the genuineness of the memorandum is disputed, shall send a notification of the fact to the party from whom he received the memorandum, with an intimation that the memorandum will not be recorded without a special warrant of the Sheriff.
The Sheriff-Clerk having ascertained that the genuineness of the memorandum was disputed, refused to register it without a special warrant of the Sheriff—hence the present application.
It appears to me to be clear that the only issue raised under such an application is the genuineness of the memorandum. It is only after the amount of compensation has been determined that the memorandum is sent for registration, and the Sheriff has no power to increase or diminish the amount, or to attach conditions to its registration. If he is satisfied of its genuineness he must grant warrant to register it.
It further appears to me that the application is in no sense an application to the Sheriff as arbitrator under the Act.
The cases in which there may be arbitration under the Act will be found in section 1 (3), where it is provided, that when any question arises as to the liability to pay compensation, or as to the amount or duration of compensation, it shall, if not settled by agreement, be settled by arbitration; in section 1 ( a) (2) of the first schedule, where it is provided that, in the case of an accident resulting in death, the amount of compensation payable to persons partially dependent on him shall, in the absence of agreement, be determined by arbitration; in section 5 of the same schedule, where it is provided that any question as to who is a dependent, or as to the amount payable to each dependent, shall, in the absence of agreement, be settled by arbitration; and in sections 12 and 13 of the same schedule, which provide respectively that in the case of a weekly payment being reviewed, or redeemed on payment of a lump sum, the amounts payable shall, in default of agreement, be settled by arbitration.
These are the only cases, so far as I know, of arbitrations under the Act, but there are no such questions raised in this case-the only question being whether a certain memorandum shall be registered or not.
The application is accordingly, in my view, simply an application to the Sheriff in the exercise of his ordinary common law jurisdiction; and the procedure therein must be regulated by the forms and rules appropriate to such proceedings. If it is sought to bring under review an interlocutor or judgment of the Sheriff, that must be done in the ordinary way. Under section 14 (c) of the second schedule it is only where an application is made to the Sheriff as arbitrator that it is competent for the parties to require him to state a case on any question of law determined by him. But, as I have already said, that is not the nature of the present application.
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I am of opinion, therefore, that this stated case should be dismissed as incompetent, and therefore that we cannot entertain the question of law which we are asked to decide. Perhaps, however, what I have had occasion to say may sufficiently indicate what my answer to the question would have been if competently before us.
The
The
The Court dismissed the appeal as incompetent, and found neither party entitled to expenses.
Counsel for the Appellant— Salvesen, Q.C.— Sandeman. Agent— W. B. Rainnie, S.S.C.
Counsel for the Respondents—Glegg— W. Thomson. Agents— Macpherson & Mackay, S.S.C.
