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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moffat v. Sewell [1924] ScotLR 577 (27 June 1924) URL: http://www.bailii.org/scot/cases/ScotCS/1924/61SLR0577.html Cite as: [1924] SLR 577, [1924] ScotLR 577 |
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Page: 577↓
[Sheriff Court at Hamilton.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, Cap. 51) enacts—Section 30—“In Cases originating in the Sheriff Court … where the claim is in amount or value above fifty pounds and an order has been pronounced allowing proof … it shall within six days thereafter be competent to either of the parties who may conceive that the cause ought to be tried by jury, to require the cause to be remitted to the Court of Session for that purpose, where it shall be so tried: provided, however, that the Court of Session shall, if it thinks the case unsuitable for jury trial, have power to remit the case back to the Sheriff, or to remit it to a Lord Ordinary, or to send it for proof before a judge of the Division before whom the cause depends.”
The Codifying Act of Sederunt enacts—D, iv, 5—“Upon the appearance of the cause in the Single Bills of the Division to which it has been remitted, parties will be heard upon any motion made to retransmit the cause to the Sheriff Court or directed against the competency of the remission, and if the motion to retransmit be refused and the remission held competent, the mode and course of further procedure in the cause (including all questions as to its competency or relevancy) will thereafter be determined by the said Division in the Single Bills or in the summar roll as they may think fit.”
An action of damages for personal injuries was removed from the Sheriff Court to the Court of Session for jury trial under section 30 of the Sheriff Courts (Scotland) Act 1907. When the case appeared in the Single Bills the defender took no objection to the suitability of the case for jury trial, but on the case being called in the summar roll the defender moved that it should be remitted back to the Sheriff.
The Court refused the motion, in respect that ( per the Lord Justice-Clerk, Lord Ormidale, and Lord Anderson) the objection had not been taken timeously, and ( per Lord Hunter) on the ground that the case was not unsuitable for jury trial.
Mrs Margaret Sinclair or Moffat, Uddingston, pursuer, brought an action in the Sheriff Court at Hamilton against John George Sewell, writer, Glasgow, defender, for £500 damages for personal injuries.
The pursuer alleged that she fell when walking on a foot-pavement which was the private property of the defender and in his possession and control, and that the accident was due to the defective condition
Page: 578↓
of the pavement, for which the defender was responsible. The pursuer averred, inter alia— “(Cond. 3) The said foot-pavement is the property of the defender and it is open to the use of the public. The defender invites the public (including the pursuer) to walk on the said foot-pavement, and the said invitation is acted on. On or about 11th April 1923, about noon, whilst the pursuer was so using the said pavement, she inadvertently put her left foot into a hole in said pavement at a point in said pavement opposite the close numbered 82 Main Street, Uddingston. The said hole was irregular in shape, and was 9 inches or thereby in diameter and 8 inches or thereby in depth. As a result of the pursuer so placing her foot in said hole she fell to the ground and sustained serious injury to her left foot and leg, which were badly twisted. Trouble in the knee and ankle joints supervened and has resulted in a permanent impairment of movement of the knee joint. She also suffered severe shock. [The words in italics were added by way of amendment at the bar of the Second Division.] (Cond. 4) The pursuer was as from the date of the said accident confined to bed for a very considerable period as a direct consequence of her said injuries. She is still confined to the house, and it is with the greatest difficulty and pain that she is able to move about the house. It is believed and averred that the injuries sustained by the pursuer are of a serious nature and that she will be permanently disabled.… (Cond. 5) The pursuer was an employed person and was engaged going out as a daily helper. She earned an average weekly remuneration amounting to 30s., and she was the support of her son George Moffat, who is eleven years of age and is still in attendance at school. She has not earned anything since the date of the said accident, and it is believed and averred that she will never regain her full wage-earning capacity. She has also been put to considerable expenses both in the treatment of her injuries and for domestic help.”
The defender pleaded, inter alia— “The action is irrelevant.”
On 22nd May 1924 the Sheriff-Substitute ( Hay Shennan) repelled the first plea-in-law for the defender and allowed a proof.
On 24th May 1924 the pursuer required the cause to be remitted to the Second Division of the Court of Session for jury trial in terms of section 30 of the Sheriff Courts (Scotland) Act 1907.
On 11th June 1924 the Court appointed the pursuer to print and box the issue or issues proposed for the trial of the cause, and on 18th June 1924 the Court appointed the cause with the issue proposed by the pursuer to be put to the summar roll.
On 27th June 1924, when the case was called in the summar roll, counsel for the defender moved the Court to remit the case back to the Sheriff, and argued—The pursuer's averments did not disclose injuries of so serious a nature as to make the case suitable for jury trial— Greer v. Corporation of Glasgow, 1915 S.C. 171, 52 S.L.R. 109,
The nature of the injuries was not specifically averred— Monaghan v. United Co-operative Baking Society, 1917 S.C. 12, 54 S.L.R. 211, per Lord Justice-Clerk (Scott Dickson) at 1917 S.C. 14, 54 S.L.R. 212. Admittedly the motion to remit the case back to the Sheriff should have been made when the case appeared in the Single Bills, but it was not too late to make the motion when the case appeared in the summar roll. The terms of the Codifying Act of Sederunt, D, iv, 5, were not imperative. Section 30 of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) vested in the Court a discretionary power to remit back a case to the sheriff at any time, and it was pars judicis to exercise the power ex proprio motu. [Counsel also submitted an argument in support of the defender's first plea-in-law, with which this report is not concerned.]
Argued for the pursuer—The motion to remit the case back to the Sheriff came too late. In terms of the Codifying Act of Sederunt, D, iv, 5, it was imperative that the motion, if made, should be made in the Single Bills. [Counsel also submitted an argument on relevancy, with which this report is not concerned.]
The underlying idea of that provision, which I do not detain your Lordships by reading again, seems to me to be that if a case which has competently been remitted to the Court of Session is to be retransmitted to the Sheriff Court on the ground that it is unsuitable for jury trial, that matter should be determined, so to speak, at the doorway of this Court. When one considers the texture of the section as a whole, it suggests to my mind the segregation of the two topics, viz., that the topic of retransmission should be discussed and exhausted in the Single Bills, whereupon a discussion on further procedure, including, as the Act of Sederunt says, competency or relevancy, should subsequently and separately proceed. It appears to me that the terms of the section postulate the disposal of the question of retransmission in the Single Bills. That at any rate is the proper procedure, and I think it is well that litigants should know and recognise that that is so. The defender in any case is barred from taking the objection now because he did not intimate in the Single Bills (assuming that the objection could competently be considered at a later stage) that he proposed to table the objection.
Page: 579↓
I agree with your Lordship that it is. At any rate it is necessary to sound the note of objection in the Single Bills if the objection is to be competently relied upon at all. It is true that the Act of Sederunt is merely a procedure Act. The words of the Sheriff Courts Act are perfectly general. But I do not for my own part see why the enactment of the Act of Sederunt should not prevail in a matter of this sort. So long as the rule is there and acted upon I fail to see that any inconvenience can result to any litigant from the fact that on the first appearance of the case in this Court one party can prevail if he should take a particular point which he makes good. I do not mean to say that if the person taking the objection is heard upon the point the Court should of necessity hear him out. My own impression is that it is not by any means necessary to decide the question forthwith, but that the Court has the inherent power which in exceptional cases would warrant it to direct that the point which had been brought to its notice should be considered together with other questions in the summar roll. The concluding part of the section undoubtedly indicates the contrary view, because it separates questions of relevancy and questions of competency from this question whether or not the case should be sent back to the Sheriff. But at the same time, in special circumstances, provided that a party has raised the question in the Single Bills, I should not like to close the door so that if the Court found it convenient and without prejudice to either party, it should remit the question along with other questions to the summar roll for further consideration.
The Codifying Act of Sederunt in this connection is not, as I think, felicitously expressed. When the terms of D, iv, 5 are examined it is clear that what is contemplated is that a party objecting to a case being brought to the Court of Session should take his objection in the Single Bills. As your Lordship has said, it looks as though what were contemplated were two separate discussions—one as to the question of retransmitting, and then a separate discussion upon questions of relevancy and competency. If that is the proper construction of the Act of Sederunt, I think it is an unfortunate construction. It appears to me that in very many cases the whole of these questions should be discussed together at one hearing in the summar roll, and I personally can conceive of no particular advantage in separate discussions taking place.
When the phraseology of D, iv, 5 is considered it appears that what primarily falls to be discussed is the question whether the case has been competently remitted, and that that is the point which is to be determined in the Single Bills. But there is, to my mind, a separate and different question which arises under the Sheriff Courts (Scotland) Act of 1907, and that is a question involving the discretion of the Court either to send the case back to the Sheriff Court or have the case determined by a Lord Ordinary or by a member of the Division before which the case has been brought. I cannot myself see that that discretion which is conferred by Act of Parliament, and which has not, in my opinion, been taken away or limited or restricted by the Act of Sederunt, can be properly exercised unless the Court is put fully in possession of questions of relevancy and competency—I mean competency of the action as opposed to the competency of remitting the case. If what I have suggested is the real interpretation of D, iv, 5, it would still be open to the Court to exercise the discretion on the discussion in the summar roll. Under section 30 of the Sheriff Courts Act 1907 not every case that starts in the Sheriff Court can be remitted for jury trial to the Court of Session. Certain cases are excluded, and in such instances it may be right enough that the words of the Act of Sederunt should be strictly applied, and that there should be no further discussion when the matter is in the summar roll. But I think where the matter has to be dealt with under the proviso to the section, the rigid and narrow construction that is suggested of the Act of Sederunt would be an unfortunate construction and might lead to quite unnecessary expense in the way of duplication of discussion, which I cannot think was the object of the Act of Sederunt.
Therefore upon that matter, although I express no concluded opinion, I certainly do not proceed upon any hypothesis that the appellant was in any way excluded from asking us to retransmit. The ground upon which I proceed is that I think this is not a case where in the exercise of our discretion and upon the facts now before us we ought to transmit, but one in which we ought to allow the jury trial asked for.
Page: 580↓
As regards the question of relevancy, therefore, if the defender wishes to raise it after the case has been removed to this Court for jury trial, he must, in my opinion, make up his mind to assume the value of the case to be above £50, and refrain from moving in the Single Bills to have the case retransmitted in respect of its value. Only by following that course of procedure, as it seems to me, can he raise at this stage the question of relevancy.
As to the mode of trial, no reason has been assigned for refusing the pursuer the jury trial which she claims.
The Court refused the defender's motion, and approved of the proposed issue.
Counsel for the Appellant (Pursuer)— Aitchison, K.C.— Gibson. Agents— W. G. Leechman & Company, Solicitors.
Counsel for the Respondent (Defender)— Gentles, K.C.— Gilchrist. Agents— Manson & Turner Macfarlane, W.S.
