Scottish Court of Session Decisions

On 2nd July 1920 the Carlton (Edinburgh) Hotel Company, Limited, petitioners, presented a petition under section 91 of the Court of Session Act 1868 in which they craved the Court to ordain the Lord Advocate as representing the War Department to take steps to summon a jury or to appoint an arbiter to fix the amount of compensation payable to them in respect of the occupation by the War Department of their hotel.

The petition stated—“The petitioners are a company carrying on business at Edinburgh and are the proprietors of the hotel known as the Carlton Hotel, North Bridge Street, Edinburgh. By virtue of an order issued under the Defence of the Realm (Consolidation) Regulations 1914, and signed by the competent Military Authority in Scotland, possession of the petitioners' hotel was taken by the War Department as from 26th January 1917. In consequence of the continued possession of the said hotel by the War Department, the petitioners intimated to the Department a claim for compensation as at 26th August 1919, in the validity of which the Military Authorities refused to acquiesce, with the result that on 18th August 1919 the petitioners raised an action against the Right Honourable James Avon Clyde, K.C., M.P., then His Majesty's Advocate for Scotland, as acting on behalf of His Majesty's Principal Secretary of State for the War Department. The summons in the said action concluded inter alia (3) ‘ Alternatively it ought and should be found and declared that the sum due to the pursuers as compensation falls to be ascertained and determined by arbitration in the manner prescribed by either the Lands Clauses Consolidation Acts 1845 and 1860, or the Defence Acts 1842 to 1875, or the Military Lands Acts 1891 to 1903.’ Defences were lodged on behalf of the War Department to the said action, the record and the various interlocutors pronounced in which are respectfully referred to. After sundry procedure the following interlocutor was pronounced by their Lordships of the Second Division, with the addition of four Judges of the First Division:—‘ Edinburgh, 4 th June 1920.—The Lords of the Second Division, with the addition of the four Judges of the First Division, having considered the reclaiming note for the pursuers against Lord Anderson's interlocutor of 20th May 1920 with closed record as amended, and heard counsel for the parties, in conformity with the unanimous opinions of the Seven Judges, Find and declare that the pursuers as proprietors of the Carlton Hotel, North Bridge Street, Edinburgh, are entitled to such compensation as may be found due to them in respect of the occupation and use thereof by the competent Military Authority in Scotland, under and in terms of the Defence of the Realm Acts and relative Acts of Parliament: Find it unnecessary to dispose of any of the other conclusions of the summons (other than the conclusion for expenses): Dismiss the same accordingly, and decern: Find the pursuers entitled to expenses in the cause against the defender and remit the account thereof when lodged to the Auditor to tax and to report.— Charles Scott Dickson, I.P.D.’ The petitioners are entitled to have the compensation due to them in respect of the occupation and use of their said hotel by the competent Military Authority ascertained and fixed by a jury summoned under and in virtue of the provisions of section 19 of the Defence Act 1842, or alternatively, in the option of the War Department, by arbitration as provided for in section 11 (1) of the Ranges Act 1891. Following upon the said interlocutor dated 4th June 1920 the petitioners' law agents, on 15th June 1920, wrote to the law agent for the War Department requesting that all necessary steps might forthwith be taken to have the compensation fixed, and submitting a copy of the petitioners' claim against the War Department brought up to date. … Notwithstanding the terms of the said interlocutor of 4th June 1920, and the fact that the petitioners have called upon the Lord Advocate as representing the War Department to take steps to summon a jury or appoint an arbiter to adjudicate upon the said claim, the Lord Advocate either refuses or delays to do so. …’

Answers were lodged for the Lord Advocate as acting on behalf His Majesty's Principal Secretary of State for the War Department, in which the respondent denied that he had refused or delayed performance of any statutory duty incumbent upon him.

He further averred—“Explained that the War Department ceased to occupy the said hotel on or about 15th January 1920. Explained further that since the date of the interlocutor of the Court mentioned, which in turn was consequent on a recent decision of the House of Lords ( Attorney-General v. The De Keyser's Hotel, 1920 AC 508), the position of the War Department and other Government Departments concerned as representing the Crown in relation to very numerous claims advanced against the Crown by claimants in the same or similar situations to that of the petitioners, and the procedure to be adopted in relation thereto, has been and is being considered. There has been no unnecessary or unjustified delay. Explained further that the said claim does not conform to and is not warranted by the provisions of the said Defence Act of 1842. The respondent submits that the present petition should be dismissed upon, inter alia, the following grounds—(1) That the petition is incompetent in respect ( a) that the Crown is not subject to the jurisdiction of the Court under section 91 of the Court of Session Act 1868, or otherwise at common law in relation to any such order as is in this petition craved; and ( b) that the respondent as representing the War Department under the Crown Suits (Scotland) Act

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1857 (20 and 21 Vict. cap. 44) is not subject to any such order; (2) That the statements in the petition are irrelevant to infer any failure in a statutory duty incumbent on the respondent; (3) That the said statements are unfounded in fact; and (4) That in any event no such order as is craved should be issued, in respect that the interlocutor founded on is not final but is subject to appeal to the House of Lords.”

On 30th July 1920 Lord Cullen, the Lord Ordinary officiating on the Bills, dismissed the petition.

Opinion.—“This petition, which is one under section 91 of the Court of Session Act 1868, was presented during the session to Lord Anderson on 2nd July last. Answers were ordered and lodged, but the petition had not been further dealt with by Lord Anderson when the Court rose. Section 91 provides that such a petition may be presented to any Lord Ordinary, or in time of vacation or recess to the Lord Ordinary on the Bills. It further provides that where the petition is presented to the Lord Ordinary on the Bills it may, after the ordinary sittings of the Court have commenced, be transferred to one of the Lords Ordinary in the Outer House in manner provided with respect to Bill Chamber proceedings. There is, however, no express provision for proceedings under a petition presented to a Lord Ordinary during session being continued by the Lord Ordinary on the Bills. This being so, it is maintained for the respondent that as the Lord Ordinary on the Bills I have no power to entertain the present petition, although if it had been withdrawn and another petition in the same terms had been presented to the Lord Ordinary on the Bills during vacation I would have power to deal with the latter. This is an exceedingly technical objection. It does not appear to me to be well founded. I think that on a fair construction of section 91 it is implied in it that a petition presented to a Lord Ordinary during session and not finally disposed of by him shall, when vacation or recess ensues, be taken up by the Lord Ordinary on the Bills.

Passsing to the prayer of the petition, it craves that the respondent be ordered to have the compensation payable to the petitioners ascertained and fixed, alternatively, by causing a jury to be summoned or appointing an arbiter for the purpose. The second alternative is intended to refer to the Ranges Act 1891, section 11. It was pointed out, however, by the Solicitor-General that section 11 of that Act only applies ‘where any land is acquired,’ and that in the present case the claim is not in respect of land being acquired but in respect of a temporary occupation and use of the petitioners' premises. Prima facie this criticism would seem to be well founded. No answer was made to it by the petitioners' counsel, who said he was content to have the crave of the petition regarded as limited to the first alternative, viz., procedure under the Defence Act of 1842, section 19. When one turns to that enactment one finds some difficulty in applying its machinery to the present case. It provides that in default of treating, or where the parties do not agree, the principal officers may require two or more justices, &c., to put them into immediate possession, to which end the said justices, &c., shall issue their warrants commanding possession to be so delivered, ‘and shall also issue their warrants to the Sheriff of the county, &c., to summon a jury,’ who are to find the compensation to be paid. Thus the function of issuing warrants for the summoning of the jury lies with the justices, &c., consequent upon the granting by them of warrants for taking possession required from them by the principal officers. There is no express provision for the case where no such warrants for taking possession are required and granted, or as to the persons with whom lies the power and duty of summoning a jury in such a case. As I understand the judgment in the De Keyser case—and counsel for both the present parties agreed as to this—the declaration made of the petitioners' right to have compensation fixed and paid had reference to section 19 of the Act of 1842, and I think therefore I must take it that with some adaptation of its terms the machinery for fixing compensation by a jury falls to be applied in a case like the present. Even so, however, it is not plain with whom lies the duty or the power of taking steps to have the jury summoned, or what is to be the modus operandi. On this matter the somewhat brief discussion which I heard afforded no light. Nor does the petition deal with the difficulty, which apparently had not been considered by the petitioners. It merely tables the section and craves in general terms that the respondent be ordered to cause a jury to be summoned. In the absence of a clearly defined duty laid on the respondent by the statute I doubt whether the case is one suitable for the application of the summary procedure provided by section 91 of the 1868 Act. It is a possible view that the petitioners having right to be paid compensation are themselves entitled to take steps for having warrants issued for the summoning of the jury by whom the compensation falls to be assessed.

It was submitted by the Solicitor-General that the power given to the Court under section 91 to issue a mandamus or order for performance of a statutory duty does not apply to the Crown, and that no such order can competently be made under the section against officers of the Crown. It was also submitted that, on the opposite assumption, the petition was ill founded in asking an order on the respondent in respect that in any event no duty of causing a jury to be summoned under section 19 of the Act of 1842 fell to be performed directly by the respondent, and that an order for performance of a statutory duty under sanction of penalties should always be addressed to the person or persons with whom directly lies the duty and the power of performance. The Crown Suits (Scotland) Act 1868, it was submitted, does not authorise the order here asked being made on the respondent. These are important and difficult questions,

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and had it been necessary to decide them I should have desired a much fuller argument than that which I heard. But if it be assumed that these propositions are not well founded, and also that there exists the duty on the officers of the Crown under section 19 of the Act of 1842 which the petitioners urge, it appears to me that the power of the Court to issue a mandamus is not one to be exercised unless in the case of a clearly ascertained refusal, or a determined course of abstention from action equivalent to such a refusal, to perform the duty; and in the case of a duty lying on the officers of the Crown in the matter of giving effect to a patrimonial right which has already been authoritatively declared by the Court, I think I am bound to make every presumption that they intend to act as the law requires, unless and until it is quite clearly demonstrated that for some reason difficult to suppose they in fact refuse to do so, and in this respect the petitioners' averments appear to me to fail of relevancy. Some weeks have elapsed since the petitioners obtained decree of declarator in their favour. The petitioners are, it appears, in urgent need of the money, and any delay is, no doubt, felt by them to be hard and seems to them inexcusable. But with the statement before me made by the respondent in his answers, which I feel bound to accept, and having in view the difficulty already referred to which arises under section 19 of the Act of 1842, I am unable to hold that there is here made out such a case of refusal of performance of duty as would justify the making of an order under section 91. I shall accordingly dismiss the petition.”

The petitioners reclaimed.

The respondent obtained leave to amend his answers by adding the following words:—“It is further explained that any claim the petitioners may have for compensation in respect of the occupation and use of their hotel by the competent military authority now falls to be made to and assessed by the War Compensation Court, as provided by section 2 of the Indemnity Act 1920.”

In answer thereto the petitioners obtained leave to add to the petition the following amendment:—“In view of the fact that the said interlocutor was a final interlocutor, and was not the subject of a pending appeal at the date of the passing of the Indemnity Act 1920, the petitioners' claim to compensation is excluded from the scope of the said Act by the terms of section 1 (4) thereof, and falls to be dealt with, not by the War Compensation Court set up under section 2 of the said Act, but by a jury summoned under and in virtue of the provisions of section 19 of the Defence Act 1842.”

On 9th November 1920, on the motion of counsel for the petitioners, the Court allowed the petition to be further amended by the insertion in the prayer thereof of a crave against the Right Honourable Winston Spencer Churchill, His Majesty's Secretary of State for War and Air, to have him forthwith ordained to perform the acts set forth in the prayer, and appointed service of the petition as then amended to be made on the said Right Honourable Winston Spencer Churchill.

Answers were lodged for the Right Honourable Winston Spencer Churchill submitting that the petition should be dismissed on the following grounds:—“(1) That the respondent is not subject to the jurisdiction of the Court of Session; (2) that the petition is incompetent in respect ( a) that the Crown is not subject to the jurisdiction of the Court under section 91 of the Court of Session Act 1868, or otherwise at common law in relation to any such order as in this petition craved, and ( b) that the respondent is not subject to any such order; (3) that the statements in the petition are irrelevant to support the crave of the petition as against this respondent; (4) that the present proceedings by way of petition and summary order thereunder are inept; and (5) that the claim of the petitioners for compensation falls to be dealt with under the provisions of section 2 of the Indemnity Act 1920.”

At the hearing in the short roll the reclaimers argued—(1) The Indemnity Act 1920 (10 and 11 Geo. V, cap. 48) did not apply to the case. (2) The compensation fell to be fixed under the Defence Act 1842 (5 and 6 Vict. cap. 94), sec. 19— Attorney-General v. De Keyser's Royal Hotel, [1920] AC 508, per Lord Dunedin at 528, Lord Atkinson at 541, 542, 543, 544, Lord Moulton at 550, and Lord Sumner at 560, 561, 562. The machinery of the Act of 1842 had to be set in motion by the Secretary of State for War, because section 19 imposed on the principal officers of Ordnance the statutory duty of summoning the jury. As the Secretary of State for War had not fulfilled this statutory duty the petitioners were entitled to an order under the Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 91. Such an order was the equivalent of a mandamus—Court of Exchequer (Scotland) Act 1856 (19 and 20 Vict. cap. 56), sec. 15—and the petitioners were entitled to such an order primarily against the Secretary of State for War, whom failing against the Lord Advocate—Court of Exchequer (Scotland) Act 1856, sec. 22; Crown Suits (Scotland) Act 1857 (20 and 21 Vict. cap. 44), sec. 1. Where the ministers of the Crown had failed to fulfil a statutory duty an order on them could competently be obtained under the Court of Session Act 1868, sec. 91— Duke of Atholl v. Postmaster—General, 1870, 8 S.L.R. 66; Somerville v. Lord Advocate, 1893, 20 R. 1050, 30 S.L.R. 868, per Lord M'Laren at 20 R. 1075, 30 S.L.R. 884; Reg. v. Commissioners of Woods and Forests, 1850, 15 Ad. & El. 761, per Lord Denman, C.J., at 767 (foot-note); Reg. v. Commissioners for Special Purposes of the Income Tax, 1888 L.R., 21 QBD 313, per Lord Esher, M.R., at 317, and Lindley, L. J., at 322; Nireaha Tamaki v. Baker, [1901] AC 561, per Lord Davey at 576; Rex v. Commissioners for Special Purposes of Income Tax, Dr Barnardo's Homes, National Incorporated Association, Ex parte, [1920] 1 K.B. 26, per Earl of Reading, C.J., at 37; Attorney-General v. De Keyser's Royal Hotel ( cit.), per Lord Parmoor at 575.

Argued for the respondents—(1) The Indemnity Act 1920 applied. (2) The petition

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was incompetent in respect that an order under section 91 of the Court of Session Act could not be obtained against the Crown. The penalties of fine and imprisonment imposed by the section were inappropriate to the case of the Crown. The Crown was never put under an obligation unless expressly in a statute. The remedy against the Secretary of State for War was a vote of no confidence in the House of Commons— Reg. v. Secretary of State for War, [1891] 2 QB 326, per Esher, M.R., at 338, and Kay, L.J., at 339; Rex v. Commissioners for Special Purposes of Income Tax, Dr Barnardo's, Homes National Incorporated Association, ex parte; Attorney-General v. De Keyser's Royal Hotel, cit. In any event the petition was irrelevant in respect that it did not relevantly aver any failure on the part of the Lord Advocate or the Secretary of State for War to perform a statutory duty. Section 19 of the Defence Act 1842 did not lay upon the principal officers of Ordnance any duty of summoning a jury. The duty of the officers of Ordnance ended with the taking of possession of the lands. The Ordnance Board Act 1855 (18 and 19 Vict. cap. 117), sec. 1, and the Defence Act 1842, secs. 36 and 37, were also referred to.

At advising—