Scottish Court of Session Decisions

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Cite as: [1886] ScotLR 24_59, [1886] SLR 24_59

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SCOTTISH_SLR_Court_of_Session

Page: 59↓

Court of Session Inner House Second Division.

Tuesday, November 16 1886.

24 SLR 59

The Scottish Rights-of-Way and Recreation Society (Limited)

v.

Macpherson.

(Supra, p. 13.)

Subject_1Process
Subject_2Appeal to House of Lords
Subject_3Interlocutory Judgment
Subject_4Discretion — Act 48 Geo. III. cap. 151, sec. 15.
Facts:

The pursuer of an action of declarator of right-of-way (a society suing in the public interest) sought leave to appeal to the House of Lords against an interlocutor whereby the Inner House, reversing the decision of the Lord Ordinary, appointed “the issues in the cause to be tried before the Lord Ordinary without a jury.” Held that the fixing of the mode of trial being within the discretion of the Court, leave to appeal should be refused.

Headnote:

On 8th June 1886 the Scottish Rights-of-Way and Recreation Society (Limited) and Thomas Duncan and James Farquharson raised an action of declarator and interdict against Duncan Macpherson of Glen Doll. The action was for declarator that there was a public right-of-way over a certain road passing through the defender's land of the nature and in the direction stated in the previous report ( supra, p. 13). Defences were lodged. On 20th July 1886 the Lord Ordinary ( Lord Kinnear) issued the following interlocutor:—“The Lord Ordinary on the motion of both parties, Appoints the issues in this case to be tried by a jury within the Courtroom of the High Court of Justiciary upon Tuesday the 23d day of November next, at half-past ten o'clock forenoon,” &c.

The defender reclaimed, and on 23d October 1886 the Court pronounced this judgment—“Recal the said interlocutor: Appoint the issues in the cause to be tried before the Lord Ordinary without a jury, and remit the cause to his Lordship with instructions to proceed therein accordingly.”

Thereafter the pursuers presented a petition to the Court for leave to appeal to the House of Lords against this judgment. The Act 48 Geo. III. cap. 151, sec. 15, enacts—“That hereafter no appeal to the House of Lords shall be allowed from interlocutory judgments, but such appeals shall be allowed only from judgments or decrees on the whole merits of the cause, except with the leave of the Division of Judges pronouncing such interlocutory judgments, or except in cases where there is a difference of opinion among the Judges of the said Division.”

The petitioners stated that the question was one of public right depending on inquiry into facts, that they were advised that by the inveterate practice of the Court it ought to be tried by jury, and that they being charged with the public interest in that and similar cases had a material interest in having it so tried, rather than by proof and subsequent reclaiming-note, which would be productive of great expense. They also stated that they were advised that the said interlocutor was incompetent, as by the Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 46, the trial of a cause on issues before a Judge without a jury could
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proceed only by consent of parties, which had not here been obtained. But in respect that this was an interlocutory judgment, and none of the Judges had formally intimated dissent, leave to appeal was necessary.

Argued for the petitioners—The question raised by the case was one of public right depending solely upon an inquiry into facts, and the usual way of trying such a case was on issues before a Lord Ordinary and a jury. There was greatly increased cost and uncertainty in an inquiry by proof before a Lord Ordinary compared with the sharp decision given by a jury. As there might be other cases in which the Society would have to act in the public interest it would be well to have the proper course of trial finally sanctioned.

Counsel for the defender was not called on.

Judgment:

Lord Justice-Clerk—The question in this case when it was previously before us was, whether it was more desirable to have this case tried before a jury or by a Judge without a jury? After consideration we found it better to have the case tried before the Lord Ordinary without a jury, and we pronounced judgment accordingly. I need not state what reasons induced us to come to that decision, as they were given at the time. Now, in this matter of procedure we are asked to stop the whole proceedings in the case in order that this company may appeal to the House of Lords. I am of opinion that there is no ground for our granting the request, and think therefore it should be refused.

Lords Craighill and Rutherfurd Clark concurred.

Lord M'Laren—If it could be said that there was any fixed rule that such cases as this should be tried by a Judge without a jury I could see some reason for the petitioners' desire to appeal. But no such rule has been laid down in this Court. It is admitted that the judgment of the Court in the previous stage of this case was given in exercise of that discretion which is vested in the Judge and in the Division to say what is the proper mode of trial. But as in any appeal the House of Lords would refuse to interfere with the discretion of the Court, I see no good that can arise to the petitioners from an appeal.

Lord Young was absent.

The Court refused to grant authority to the petitioners to present a petition of appeal to the House of Lords against the interlocutor of 23d October 1886.

Counsel:

Counsel for Petitioners— Graham Murray— W.C. Smith. Agent— A. Newlands, S.S.C.

Counsel for Respondent—Sol.-Gen. Robertson, Q.C.— Asher, Q.C.— Cosens. Agents— Tait & Clichton, W.S.
1886