United Kingdom House of Lords Decisions

The Court of Session Act 1808 (48 Geo. III, cap. 151), section 15, is quoted supra in rubric.

Mrs Janet Ferguson or Beattie, wife of John Beattie, 5 William Street, Mile End, Glasgow, pursuer, brought in the Court of Session, against the Corporation of the City of Glasgow, defenders, an action to recover £500 as damages for personal injury received by her through the alleged defective lighting of the common stair at 108 Broad Street, Mile End, Glasgow, the Corporation being responsible under their Police Act of 1866 for supplying and lighting the gas in common stairs.

On 14th December 1915 the Lord Ordinary ( Anderson) allowed this issue—“Whether on or about the 9th day of August 1915, and in the stairway of the tenement at 108 Broad Street, Mile End, Glasgow, the pursuer was injured in her person through the fault of the defenders, to her loss, injury, and damage?”

On 17th May 1916 the Second Division of the Court of Session ( Lord Justice-Clerk Scott-Dickson, Lords Dundas, Salvesen, and Guthrie) unanimously adhered.

The defenders and reclaimers, Glasgow Corporation, appealed to the House of Lords. Objection was taken that the appeal was incompetent, the judgment appealed against being interlocutory.

At the conclusion of the argument on the preliminary objection—

Earl Loreburn—In this case a preliminary objection has been taken. It is that by a Statute of 1808, cap. 151, sec. 15, this House is prohibited from entertaining this appeal. The section says—“.., [ quotes, v. supra in rubric]…” In this case there has been no difference of opinion and leave has not been granted.

Now no consent or waiver would authorise this House to entertain an appeal contrary to that section, and if (which I by no means say is the case) the House has in past time entertained any such appeals, then it must have been because the House has assumed that leave had been given. Is this appeal within this prohibition? The facts alleged are that an accident took place on a staircase in Glasgow in consequence of the Corporation of Glasgow not fulfilling their statutory duty of lighting that staircase. The defence was that no wrong had been committed for which an action would lie, that there was no duty to the pursuer, and that the accident was her own fault. The order under appeal now was an order directing an issue.

Now let us look at the nature of this statutory prohibition. As I read the statute it applies, first, to interlocutory orders, by which I mean orders which in substance are interlocutory, and not merely orders which are in form interlocutory. If in substance the order appealed from finally decides a right between parties, then this part of the prohibition will not apply. The prohibition applies, secondly, where the order is not on the whole merits of the cause. If it is an order on the whole merits of the cause, then this part of the prohibition does not apply. In order to escape the prohibition the order must in substance finally decide a right, and also it must be an order on the whole merits of the cause. There may be two rights in controversy. If the order in substance finally decides only one, and deals though not finally with the other, then that escapes the prohibition. But if either the order were in substance interlocutory, or the order was not on the whole merits, then the prohibition would apply. That, I think, is the best conclusion that I can arrive at with regard to the meaning of this statute, which I do assisted by the decision of this House in a former case.

To apply that to the facts of the present case and see what the real substance of the order was, I think the order did not decide any right except the right to ascertain the facts and to have the law laid down accordingly, which is intrinsically an interlocutory order. Therefore in my opinion the House is prevented by statute from entertaining this appeal.