Scottish Court of Session Decisions

The Solicitor — General, for the defenders, argued that no general rule could be deduced from a consideration of the authorities. Every case depended on its own circumstances—the question always being whether, on a balance of all considerations, it was more expedient to have a trial before the appeal or not. The question generally arose in cases destined to trial by jury, but it might also arise in ordinary cases. The present was a peculiar case. One reason commonly urged against the leave being granted was that the party opposing was interested in dispatch; that his interests might suffer by the delay which the appeal would occasion. The pursuer could not urge that here, for the first action was begun in 1841, and the second was brought in 1864, and the dilatory pleas stated in the first action did not come up for discussion till June 1863. The question of delay, therefore, was laid out of sight. But this action was unprecedented in the combination of pursuers and defenders which it presented, and in its conjunction of processes, and would present a novelty in jury trial. The trial would be of a most embarrassing and of a most expensive description, and it would be matter of grave regret that it should take place at all if it could in any way be avoided. That was why he wished to go to the House of Lords at this stage of the case.

The Lord Justice-Clerk observed that he could not subscribe to the doctrine advanced by the defenders that previous cases were not to be taken into view. From these cases he deduced the general rule of practice, never to grant leave to appeal at this stage of a case unless there was great and pressing expediency to recommend it. The sort of argument to support motions of this kind never varied, and the speech the Solicitor — General had delivered was just a reproduction of that which he had made in Gordon v. Davidson. What was the result of that case? The case went to trial. It certainly occupied a considerable time, but it resulted in a verdict for the defender—the Solicitor — General's own client. There was no bill of exceptions there. No appeal was taken, and the case was at an end. With regard to the preliminary defences, his Lordship did not think they were attended with great difficulty; and as to the plea of acquiescence—the only plea disposed of since the preliminary defences had been decided—it had no ground to rest upon at all. The only other matter that had been disposed of was the judgment conjoining the processes and fixing the form of the issue. That was a matter on which, with the greatest possible respect for the Court of Appeal, he thought the Court here were better judges than they. His Lordship concluded by saying he had never seen a clearer case for refusing the motion.

The other judges concurred; and leave to appeal was therefore refused.

A motion was then made on the part of the pursuers for a diligence to get access to the books of the defenders, that excerpts might be taken therefrom relative to the materials of the mills, the expenditure on buildings, returns of paper manufactured, accounts of sale, notes and invoices showing the nature and extent of the materials employed therein, and all plans and sketches of mills and works belonging to, or in the possession of, the defenders.

Mr Patton, for the pursuers, explained that the object of this diligence was to ascertain the kind and extent of the materials employed in the works, in order to arrive at specific conclusions as to how far these entered into the pollution of the river. With regard to the expenditure on buildings, that was to show the extent to which the value of the property had increased on account of these buildings.

The Lord Justice-Clerk—The defenders, you will see, will prove this. To make an impression upon the jury you are entitled to prove that the mill at such and such a place had been doubled in value, but you are not entitled to get access to the private books of the defenders. You can put one of the defenders in the box to prove this. With regard to the demand for plans and sketches of the mills, I suppose this is made on the analogy of plans for coal workings; but that is a very different matter. I think as regards these plans the demand is out of the question; and, with regard to the other documents required, we must limit the diligence to such excerpts from the books of the defenders as show the nature and quantities of the whole of the materials used in the various mills. A diligence is a valuable instrument, but it is liable to abuse as overlaying cases with irrelevant matter; and this is one of the reasons why jury trials are so tedious and expensive.

Mr Gordon, for the defenders, then asked what period should be embraced by the diligence?

The Lord Justice-Clerk—We must give it for the whole period of forty years embraced in the issue. Both parties are to blame for the extent of that period.