Scottish Court of Session Decisions

Lord Dundas—I agree with the opinion just delivered by your Lordship, and have nothing further to say about the merits of the case. I desire merely to add a few observations which occur to me, arising out of the way in which the questions of law have here been stated. They are nominally thirteen in number, but if regard is had to divisions and subheads, amount to at least two dozen. One of your Lordships, I think, remarked during the discussion that they resemble an examination-paper set to the Court more than anything else. It may be that such prodigality of interrogation (which seems to me to be growing more and more common in practice) is the outcome of an over-zealous attempt to satisfy some supposed requirement or desideratum of the Court, but I think it is both unnecessary and undesirable. There ought not to be any undue difficulty about stating the questions of law in special cases within reasonable compass if broad considerations of sense and expediency are kept in view. Each of the questions should, of course, embody a proposition of law, and not (as sometimes occurs) more or less of fact, or of mere arithmetic. The questions come substantially in place of the pleas-in-law which counsel for the various parties would have had to frame if the dispute had arisen in the form of an action of some sort. It is generally convenient that they should be capable of a categorical answer—yes or no; but this is not indispensable; and if for any sufficient reason another form is adopted, the answer can be (and often is) given by way of a finding in appropriate terms. The questions ought to raise the legal issues which the parties wish to have determined; but I do not think it is necessary or desirable for counsel to endeavour (as was perhaps intended in this case) to anticipate and cover in specific detail the whole gamut of possible contingencies which may arise as affecting the individual interests of each and every party to the case. On the other hand, it would obviously not do for counsel to table to the Court a deed or deeds of some sort, with a few relative dates and facts, and a bare general “question of law,” such as, “Upon a sound construction of the said deeds, who are the parties amongst whom the estate should be distributed, and at what time or times, and in what shares or proportions, and subject to what (if any) conditions, restrictions, or limitations?” Between the two extremes indicated, a reasonable medium must in each case be aimed at. It sometimes happens that during the arguments a suggestion from the Bench may indicate, as the true legal solution of some point, one which is not specifically covered by any of the questions stated, and the parties agree in adjusting and adding a new question to meet the situation. But I do not think it is necessarily the Court's duty or function to investigate and determine, ex proprio motu, all the possible legal aspects of a special case; it is for the parties to present the questions of law which they seek to have decided, and for the Court (primarily at least) to answer these, and these only. It would not, I apprehend, be difficult to point to reported cases where a solution—I do not say the correct solution, but at least a very plausible and attractive one—of some problem of vesting or the like has apparently escaped the notice of all concerned, and which, if the parties had suggested it, might have affected the result of the decision. The proper statement of questions in a special case, just as of pleas-in-law, or of declaratory (or other) conclusions in the summons of an action, is a matter requiring skill, care, and discrimination, but I do not see why it should present any special or peculiar difficulty. I shall say no more, and these few observations, which are, of course, merely the expression in a general way of my own individual views, are obviously not intended as an exhaustive treatment of this interesting topic of practice and procedure.

Lord Kinnear and Lord Mackenzie concurred in the foregoing observations.