Scottish Court of Session Decisions

Lord President—This is one of those causes which were well known in former times as the enumerated causes “under the Judicature Act (6 Geo. IV. cap. 120, sec. 28), and with reference to these it is provided by section 4 of the Evidence (Scotland) Act 1866 that—[ reads the section]. This is a case in which both parties consent to that course being adopted, or rather they apply to the Lord Ordinary to have the cause tried without a jury. That being the state of matters, it is competent to the Lord Ordinary to order the case to be so tried, but it is not compulsory, and the statute leaves it in the discretion of the Lord Ordinary to do what he thinks right in the circumstances. I am of opinion (and I believe your Lordships are so also) that in these circumstances it is not desirable to interfere with the discretion of the Lord Ordinary. He ought to be left to determine in which way the cause shall be tried, under the power given to him under the 4th section of the Evidence Act 1866.

Lord Deas and Lord Mure concurred.

Lord Shand—I am of the same opinion, but I must add, that so far as I am concerned, I think that if as Lord Ordinary in the cause I had to exercise the discretion, I should have yielded to the desire of the parties. The parties and their advisers are, I think, quite capable of judging for themselves as to the comparative advantage of a trial before a judge alone and a trial before a judge with a jury, and if both parties say that they desire to have a case of this kind tried before a judge alone, it appears to me there should be strong reasons against it to induce the judge or the Court to refuse their joint request. As to this particular class of cases, we know that for some years they have been almost invariably tried by a judge sitting alone, and as the parties desire it in this case, I should have thought it a proper exercise of discretion to have yielded to their desire. It is said sometimes that a judge alone is not a suitable tribunal for such questions. In that view I do not agree, and I can only say that if it were sound it would appear to strike very deeply at the whole system of the administration of justice in Sheriff Courts in Scotland, in which questions, sometimes of large importance, and questions of this very class, are tried invariably by a judge sitting alone. But while that is my view as to the course which I think should have been adopted in this case, I quite agree with your Lordships that it was entirely in the discretion of the Lord Ordinary, and I am not prepared to interfere with that discretion or to undo what he has done.

Lord President—I ought to mention that we have taken this course after conferring with the Judges of the Second Division, who are of the same opinion, that the discretion is in the Lord Ordinary. But I may say that I do not think the circumstance of the Lord Ordinary having by this interlocutor assigned a day for the adjustment of issues would preclude the parties from making their motion to his Lordship again.

The Court adhered.

On the motion being renewed before the Lord Ordinary, his Lordship pronounced an interlocutor dispensing with the adjustment of issues and allowing the parties a proof of their respective averments. He added this note—

“ Note.—When this case came before the Lord Ordinary both parties moved for a proof. The Lord Ordinary was not unwilling to accede to the motion. But the Court have on more than one occasion very strongly disapproved of mere questions of fact being tried by a judge, and therefore the Lord Ordinary conceived that he was bound to order issues.

The parties reclaimed, and the interlocutor of the Lord Ordinary has been affirmed, on the ground that the form of the trial was a matter within his discretion, with which the Court would not interfere. But while the Court affirmed the interlocutor, one of the Judges plainly said that the Lord Ordinary had exercised his discretion wrongly, and the Lord President intimated that notwithstanding of the judgment the parties were not precluded from moving for a proof—an intimation which the Lord Ordinary can only construe to mean that he should accede to the wishes of the parties. None of the Judges said that the Lord Ordinary was right, and in abstaining from any expressions of approval they must have desired to indicate that the Lord Ordinary was wrong.

The Lord Ordinary regrets that the Court have not more explicitly decided that questions of fact shall be tried in the form which the parties desire when no exceptional reason exists to the contrary. The discretion of the Lord Ordinary is subject to the discretion of the Court, and the Lord Ordinary finds it difficult to understand why the Court have not explicitly told him whether he was right or wrong. But in the absence of any approval, and in the presence of expressions or intimations of disapproval, he can draw no other inference than that though his interlocutor was affirmed it really was wrong. He conceives, therefore, that he obeys the wishes of the Court in dispensing with issues and ordering a proof.”