Scottish Court of Session Decisions

An action of damages for libel at the instance of Charles Stewart Parnell, M.P., against John Walter and George Wright, was dismissed by the Lord Ordinary ( Kinnear) on the ground of want of jurisdiction on 5th February 1889, and a reclaiming-note was thereafter presented by the pursuer to the First Division.

During the dependence of the reclaiming-note an action of damages for the same alleged libels was raised by Mr Parnell against the same defenders in the High Court of Justice in Ireland, and an order for service was granted by that Court. Mr Walter and Mr Wright thereafter applied to have the order for service set aside on the ground of the dependency of the action in the Court of Session.

This was a petition by Mr Walter and Mr Wright in which they prayed the Court to direct the principal Clerk of the Division to sign an authenticated copy of the proceedings in the action before the Court of Session, which they averred was necessary in order to support their application in the Irish Court.

It appeared that the Clerk had pronounced himself unable to give the certificate required, as he knew of no authority which bound or entitled him to do so.

By the Act 50 Geo. III., cap. 112, sec. 14, it is provided:—“Provided always, and be it enacted, that it shall and may be lawful for any party to require, and the said assistants respectively are hereby required, to furnish to such party authenticated copies of all or any part of the proceedings in any cause, signed by one of the principal Clerks of Session, and which copy the principal Clerks of Session are hereby respectively required to sign, but no fee whatever shall be paid or payable for such copy (save and except the ordinary charge for copying paid at the time in the Court of Session).”

Counsel for the petitioners founded on this section, which he maintained could not be held to have been repealed by the Statute Law Revision No. 2 Act (35 and 36 Vict. cap. 97), sec. 1, schedule, although in terms that was done. The section in question did not fall within the preamble of the Statute Law Revision Act, and the enacting clause of that Act bore that the Act should not “affect any form or course of pleading practice or procedure.” Even without any statutory authority the Court must have power to direct some method of certifying such proceedings—Dickson on Evidence (2nd ed.) 1255.

At advising—