Scottish Court of Session Decisions

Lord President—An application of this kind is always an appeal to the discretion of the Court, and in dealing with such applications the Court are influenced by a variety of considerations according to the circumstances of each particular case, but there is one consideration which is always present to the mind of the Court in disposing of such a question, and that is, that there must not be, if possible, two appeals in the same case. Now, from what we have heard here, it is, I think, obvious that if we should grant leave to appeal now there would be the risk of there ultimately being two appeals instead of one, for there cannot be any doubt that in the accounting which has been ordered questions of importance may arise which may be made the subject of a second appeal if an appeal at the present stage is allowed. On the other hand, what will be the position of the parties if the case is allowed to remain here? The parties will have an opportunity of going on with the accounting, and of obtaining our judgment on any questions that arise with reference to it, and so exhausting the cause before it is taken to appeal. I think it will be for the advantage of both parties that it should be so exhausted, and I am therefore for refusing leave to appeal.

Lord Adam—I am of the same opinion. The question of granting leave to appeal is a question of discretion in each case, but in exercising that discretion one of the main things to be kept in view is whether or not it is probable that there will be a second appeal if leave should be granted. It appears to me to be very undesirable that there should be two appeals. I think that every cause should be exhausted in this Court before it goes to the House of Lords, except in very special circumstances. Here the interlocutor which we pronounced is to be followed by an accounting, and it is said that it is desirable to have the questions of law finally determined before going into that accounting. Now, it does not appear to me, as far as I understand the facts, that this accounting will involve any very grave or prolonged inquiry. It therefore does not seem to me to be any ground for allowing leave to appeal. On the other hand, it is said that it may involve questions of principle which may be considered important enough to take to the House of Lords, so that if we should grant the leave which is here prayed for, there would in that event be a second appeal. I therefore agree in thinking that leave to appeal should be refused.

Lord M'Laren—If this matter were now arising for the first time, I should be inclined to think that the only question for consideration would be this, whether the judgment which it is sought to appeal involves a question of such a character as to be a proper subject of appeal at the particular stage at which the case stands, the object of requiring leave being to prevent frivolous appeals. But I see from the cases which were cited that one ground for refusing leave to appeal is found in the probability of there being a second appeal. Now, I must say for myself that I am totally unable to form an opinion as to the probability of there being a second appeal, for that depends on the reasonableness of the parties quite as much as on the importance of the case. If I may form any opinion from my knowledge of the present case, I should say that no question remains which might suitably form the subject of a second appeal. I should incline therefore to grant leave to appeal at this stage. At the same time, I do not wish to express dissent, but rather to suggest whether it may not be possible to lay down a better canon for the determination of these questions than the probability of a second appeal.

Lord Kinnear concurred with the Lord President and Lord Adam.

The Court refused the petition.

On 30th June the Lord Ordinary ( Low) ordained the defenders to lodge in process on the second day in vacation the accounts referred to in Lord Trayner's interlocutor of 18th July 1890. The defenders did not obtemper the order contained in the above interlocutor, but after the petition for leave to appeal had, as above stated, been refused, they presented a petition of appeal to the House of Lords. Before an order of service had been issued the pursuers lodged a petition with the Clerk of the House of Lords objecting to the competency of the appeal, and craving that an order of service should not be issued until the question of the competency of the appeal was determined. Notwithstanding the pursuers' petition, however, an order for service was issued, and the appeal was served upon them.

On 16th October the pursuers craved the Lord Ordinary to pronounce a peremptory order upon the defenders to implement the order contained in his interlocutor of June 30th, and the defenders answered that they were not free to do so, in respect that the service of the appeal to the House of Lords had stopped further procedure in the Court of Session.

The question being a novel one the Lord Ordinary reported it to the First Division.

Argued for the pursuers—By presenting their petition for leave to appeal, the defenders had partially admitted that the judgment was an interlocutory one. The progress of the case must therefore not be interrupted, and in order to expedite the case it was necessary that a further order should be pronounced. The matter was with the Court, and they had power to pronounce the order craved.

Argued for the defenders—The question of the competency of the appeal was for the Judicial Committee of the House of Lords. All further procedure in this Court was stopped by the service of the appeal. That was the rule of the House of Lords, and the question was concluded by authority— Tulloch v. Davidson's Executors, July 17, 1858, 20 D. 1319; Lindsay v. Lindsay, July 11, 1811, F.C.

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