Scottish Court of Session Decisions

The Act of Sederunt Regulating Proceedings in Jury Causes, of date 16th February 1841, enacts—Section 41—“That all the regulations as to notices of trial … as to not proceeding to trial … and all other matters and things herein provided for regulating the conduct of parties as to trials, shall be the same in the case of a new trial as in the case of an original trial.” Section 46—“That if … the pursuer … shall not proceed to trial within twelve months after issues have been finally engrossed and signed, the Court shall proceed therein as in cases in which parties are held as confessed, unless sufficient cause be shown for the delay to the satisfaction of the Court.…”

In August 1907 Archibald Smith raised an action in the Sheriff Court at Hamilton against William Dixon Limited, concluding for damages at common law, and alternatively for a sum under the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42), in respect of the death of the pursuer's son, who was in the defenders' employment. Proof having been allowed, the pursuer, on 7th October 1907, appealed to the Court of Session for jury trial. On 30th November 1907 amendments for the pursuer and the defenders were allowed and an issue approved. The trial took place on 23rd and 24th March 1908, when the jury returned a verdict for the pursuer and assessed the damages at £100. On 3rd November 1908 a new trial was allowed on the motion of the defenders. Thereafter the pursuer again proposed to amend his record, and on 21st May 1909 the amendment was allowed, and in respect thereof the defenders were found entitled to expenses since 30th November 1907.

On 21st December 1909, these expenses not having been paid and no further steps having been taken by the pursuer, the defenders presented a note to the Lord Justice-Clerk, praying his Lordship to move the Court, in respect of the failure of the pursuer to go to trial within a year and day of the granting of the new trial, to assoilzie the defenders.

Argued for the defenders—There was no doubt that section 46 of the Act of Sederunt, 16th February 1841, was in virtue of section 41 applicable to the case where a new trial had been granted— Russell v. M'Knight's Trustee, January 26, 1900, 2 F. 520, 37 S.L.R. 380. The defenders were therefore entitled to absolvitor, unless the pursuer could show sufficient cause for his failure to proceed, and he had not done that. It was true that the defenders' account of expenses had not been taxed, but they were not bound to incur the expense of taxation when they had been informed by the agents who formerly represented the pursuer that the pursuer would not be able to find the money to pay the account.

Argued for the pursuer — The pursuer could not proceed without paying the expenses in which he had been found liable to the defenders. It was not possible for the pursuer to raise the necessary funds unless he was given time to do so. That was sufficient cause within the meaning of the Act of Sederunt for not proceeding to trial, and the motion should therefore be refused.