Scottish Court of Session Decisions

At advising—

Lord President—It is not very easy for a Judge sitting in this Court to place himself in the position of a Sheriff sitting in the Small Debt Court or in the Court called the Debts Recovery Court, and I daresay one's first inclination is to think that the Sheriffs go too fast and do not give sufficient indulgence to the parties. I am always inclined, whenever there is the least appearance of a litigant having been taken up too sharply, to restore him if possible to his rights; and certainly there is at first sight the appearance of undue haste here in the case of a man defending himself without legal advice. If it had appeared that the appellant was so poor a man as not to be able to afford legal advice, that would have made the case the stronger. But nothing of that sort appears here. We must assume that the appellant is a man of means, for he has sent his son to school at a considerable cost. He was surely able to employ a law-agent. But he did not choose to do so, until after the case had been decided against him; and the question is, whether there has been such injustice done that we can upset the Sheriff's judgment? I am not inclined to think that there is. If an account in the Small Debt Court appears on the face of it to be prescribed under the statute, I am of opinion that it is the duty of the judge to give effect to the objection whether it is pleaded or not, because in that Court parties are not entitled to the protection of an agent against their own ignorance of law. But that is not the case in the Debts Recovery Court, for there parties can have law-agents, and, as I said before, the appellant here was able to employ an agent. I think, therefore, he must take the consequences of his own neglect. And I am the more ready to come to this conclusion from the consideration that it appears to me that it would be very difficult to sustain the plea of prescription which the appellant now puts forward. There is one item indeed—for board and washing—which is subject to prescription, but as regards the others they appear to be small cash advances, as to which it is, to say the least, doubtful whether they are prescribed.

On the whole matter, therefore, I think that we should dismiss the appeal and let the Sheriff's interlocutor stand.

Lord Mure—I concur. The cases on which the appellant founds were cases in which the parties could not have the benefit of legal advice. Here the appellant is a man of means, who was entitled to have the advice of an agent. I am not prepared to extend the rule laid down in the Small Debt Court cases to cases like the present.

Lord Curriehill—There is a clear distinction between cases under the Small Debt Act and cases like the present. In the Small Debt Court most cases, as your Lordships are aware, are disposed of at one diet. There is usually no chance of a second appearance. Here, on the other hand, the defender appeared and pleaded that the debt was paid. The Sheriff-Substitute noted that plea, and appointed the case to be tried on a subsequent day; so that the defender had thus two opportunities of informing himself as to the facts and the law, and he did not avail himself of them. I also agree that this is not a case to which prescription clearly applies. There was, therefore, no obligation on the Sheriff-Substitute to notice that plea of his own motion.

Lord Deas and Lord Shand were absent.