Scottish Court of Session Decisions

The Rivers Pollution Prevention Act 1876 enacts (section 11)—“Any plaint entered in a County Court under this Act may be removed into the High Court of Justice by leave of any judge of the said High Court if it appears to such judge desirable in the interests of justice that such case should be tried in the first instance in the High Court of Justice and not in a County Court, and on such terms as to security for and payment of costs and such other terms (if any) as such judge may think fit.”

By section 21 (5) it is provided that in Scotland the expression “the County Court” shall mean the Sheriff of the County, and shall include the Sheriff-Substitute, and that the expression ‘plaint entered in a County Court,’ shall mean petition or complaint presented in a Sheriff Court;” and sub-section (6) that the expression, ‘the High Court of Justice,’ shall mean the Court of Session, in either Division of the Inner House thereof.”

The County Council of Midlothian presented a petition in the Sheriff Court of the

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Lothians at Edinburgh, under the provisions of the Rivers Pollution Prevention Act 1876 against the Pumpherston Oil Company, Limited, praying that the said Company be ordained to abstain from polluting the river Almond, which flows partly through Midlothian.

Similar petitions were presented in the Sheriff Court at Linlithgow by the County Council of Linlithgow against the Pumpherston Oil Company; the Oakbank Oil Company, Limited; and the United Collieries Company,. Limited, having reference to the portion of the river Almond which flows through the county of Linlithgow.

In all these petitions defences were lodged. The various defenders in these petitions presented notes to the Lord Justice General, under section 11 of the Act (quoted supra).

The prayer of the note at the instance of the Pumpherston Oil Company was in the following terms:—“May it therefore please your Lordship to move the Court to grant leave and order that the said petitions against the Pumpherston Oil Company, Limited, and the proceedings therein, be removed into the Court of Session, and to order that the processes be transmitted by the Sheriff-Clerks at Edinburgh and Linlithgow respectively to the Clerk of the First Division of the Court of Session, and that the cases be tried in the first instance in the Court of Session, and proceed henceforward as actions before the Court of Session.”

In the Single Bills counsel for the County Council submitted that the prayer of the note should not be granted, in respect that different questions might be raised by the several companies in respect of their prescriptive rights.

This interlocutor was pronounced:—

“The Lord President having heard counsel for the parties on the note for the respondents, grants leave to the respondents in the petition against the Pumpherston Oil Company, Limited, specified in the said note, to remove the said petition into the Court of Session, and to have the same tried in the first instance in either Division of the Court of Session.”

Similar interlocutors were pronounced in the notes at the instance of the Oakbank Oil Company and the United Collieries Company.

By subsequent interlocutors the Court ordered that the respective processes be transmitted by the Sheriff-Clerk to the Clerk of the First Division, and sent the case to the Summar Roll.