Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1888/25SLR0601.html
Cite as: [1888] SLR 25_601, [1888] ScotLR 25_601

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SCOTTISH_SLR_Court_of_Session

Page: 601↓

Court of Session Inner House Second Division.

Wednesday, July 4. 1888.

25 SLR 601

Paterson Petitioner

v.

Subject_1Process
Subject_2Poor's Roll
Subject_3Poverty.
Facts:

An application for admission to the poor's roll by a party with a probabilis causa litigandi, granted (diss. Lord Rutherfurd Clark) in the case of a person with a weekly wage of 27s. a-week who had a wife and four children.

Headnote:

George Paterson, blacksmith, Linlithgow, presented an application for admission to the poor's roll in order to enable him to carry on an action of damages for personal injuries against the Police Commissioners of the burgh of Linlithgow. When the application was moved in the Single Bills the respondents objected that the applicant's circumstances were not such as to entitle him to the benefit of the poor's roll. On 22nd June the Court remitted to the reporters on the probabilis causa litigandi to inquire and report whether be had a probable cause, and also whether in the circumstances he was otherwise entitled to the benefit of the roll. On 29th June the reporters reported that “in our opinion the applicant has a probabilis causa litigandi. We beg further to report that the applicant's wages amount to 27s. per week, but that he has dependent upon him a wife and four children, the eldest of whom is nine years of age, and the youngest six weeks.”

On 4th June, in the Single Bills, the counsel for the Burgh Commissioners again opposed the application, and contended that the applicant was not qualified by poverty. The practice of the Court had always been to refuse admission to a man who had so high a wage as 27s. a-week. There was no specialty in the case to take it out of the general rule.

Authorities— Collins v. King & Company, February 28, 1867, 39 Scot. Jur. 257; Robertson, July 8, 1880, 7 R. 1092, per Lord President.

Counsel for the applicant was not called on.

At advising—

Judgment:

Lord Justice-Clerk—I am for admitting the applicant.

Lord Young—I also am for admitting him. I have read with surprise certain observations in these cases, and I own that they have appeared to me to proceed on an erroneous consideration of the matter. Professional bodies here—voluntarily, or at all events under a benignant law, but a law which they always gladly obey— appoint members of their respective professions to act as agent and counsel for poor people who cannot afford the ordinary costs of litigation, but on the condition that no person is to have the benefit unless it is ascertained that be has a probable cause of litigation and is in poor circumstances. That is for their protection and for nothing else, because in the case of any litigant suing for an alleged wrong it is infinitely better for the defender that be should be in the hands of the agent and counsel for the poor than in the hands of agents who take up his case only for speculation. Therefore the report upon probabilis causa and poverty is really to protect professional bodies against gratuitous assistance being given to persons who are well able to afford the cost of litigation or who have no probabilis causa. Now, there is in the present case both probable cause and poverty. The applicant here has a wife and family, and earns 27s. a-week. Is a man in such circumstances able to pay a law agent and counsel? I must say I think be is not, and I cannot concur with any observations, wherever made, to the effect that a man only earning 23s. a-week is able to pay such expenses.

I therefore, without any hesitation, am of opinion that he is entitled to admission.

Lord Rutherfurd clark—I should prefer to follow what has been the practice of the Court in the matter, and refuse the motion. I do not think that we ought to establish a practice inconsistent with that of the other Division. There may no doubt be cases of exceptional circumstances which may prompt the relaxation of the ordinary rule of practice, but this is not such a case, and I am therefore for refusing the application.

The Court, in respect of the report, found the applicant entitled to the benefit of the poor's roll.

Counsel:

Counsel for the Applicant— Davidson. Agent — James D. Turnbull, S.S.C.

Counsel for the Respondents— J. Mackintosh Agent— J. C. S. Millar, W.S.
1888

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