Scottish Court of Session Decisions

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Cite as: [1894] SLR 31_774, [1894] ScotLR 31_774

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SCOTTISH_SLR_Court_of_Session

Page: 774↓

Court of Session Inner House First Division.

Thursday, June 28. 1894.

[ Lord Kincairney, Ordinary.

31 SLR 774

Mann and Beattie

v.

Edinburgh Northern Tramways Company.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Competency
Subject_4Leave to Reclaim — Court of Session Act 1868, secs. 27, 28, and 54.
Facts:

The record in an action of accounting was closed in 1889 and a proof allowed. In 1894 the Lord Ordinary remitted to the Taxing Master of the House of Commons to report on certain objections to the accounts. Against this interlocutor a reclaiming-note was presented within six days, but without the leave of the Lord Ordinary.

Held that the reclaiming-note was by sec. 54 of the Court of Session Act 1868 incompetent, as the interlocutor reclaimed against was not pronounced under sec. 27 of that Act.

Headnote:

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), by sec. 27 enumerates what interlocutors as to future procedure the Lord Ordinary may pronounce at the closing of the record. Section 28 provides that against an interlocutor pronounced under section 27, a reclaiming-note may be presented within six days without leave of the Lord Ordinary, and section 54 enacts that against all other interlocutory judgments a reclaiming-note can only be presented with leave.

The record in an action of accounting brought by the Edinburgh Northern Tramways Company against Mann and Beattie—see June 26, 1891, 18 R. 1140, and H. of L. November 29, 1892, 20 R. (H. of L.) 7—was closed in 1889 and a proof allowed.

Upon 13th June 1894 certain objections to the defenders' accounts having been lodged by the pursuer, the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—… “Remits also to C. W. Campion, Taxing Master of the House of Commons, to report on objection XI.” …

Against this interlocutor the pursuers reclaimed without leave upon 19th June.

They argued—(1) The reclaiming-note was competent, because it was virtually an interlocutor fixing the mode of proof— Quin v. Gardner & Sons, Limited, June 22, 1888, 15 R. 776. This was really a new litigation in which new facts had to be ascertained. (2) The Taxing Master of the House of Commons was not a suitable person in the circumstances. He had not the necessary experience, and would pass the accounts as a matter of form. A civil engineer should have been nominated.

Argued for respondents—The reclaiming-note was incompetent, as the leave of the Lord Ordinary had not been obtained—Court of Session Act of 1868, secs. 27, 28, and 54, and A.S., March 10, 1870.

At advising—

Judgment:

Lord President—In the Single Bills notice was taken by the counsel for the respondents in the reclaiming-note that this reclaiming-note was in his judgment incompetent, and we sent the case to the roll, reserving that objection. That objection falls now to be disposed of. In my opinion it is well founded. The reclaiming-note is presented without leave of the Lord Ordinary, and that raises the question whether it is a reclaiming-note falling under section 28 of the Court of Session Act 1868; because, if it is not, then it is excluded by the 54th section of that Act as being without leave. Now, the question whether it is a reclaiming-note under section 28 seems to me to be very easily decided. Section 28 provides that any interlocutor pronounced by the Lord Ordinary under the 27th section shall be reclaimable without leave within six days of its date. I have stated it shortly, but that is the substance of the provision. Accordingly, unless this interlocutor is an interlocutor pronounced under section 27, this reclaiming-note against it is not competent under section 28. Now, the broad facts of this case seem to preclude the idea that this is an interlocutor under section 27. Section 27 is dealing with that stage of the case at which the record is being closed, and the future procedure in the case determined. At that stage parties are allowed to reclaim against an interlocutor of the Lord Ordinary without leave. But then we find in the present case that so long ago as 1889 the closing of the record stage of the case was reached and passed, and the Lord Ordinary in actually closing the record pronounced an interlocutor sending the whole cause to probation. It seems to me that that was the first, last, and only interlocutor reclaimable under section 28 of the Court of Session Act in this case. It is true that the interlocutor reclaimed against is but a mode of ascertaining certain facts; but it may very well happen that in the incidental stages of a case, which has gone to proof and been judged of after proof, there will arise certain matters of detail to be ascertained, and these are just the kind of cases where it seemed very proper that the leave of the Lord Ordinary should be required before another appeal is taken to the Inner House. But it seems to me that while the reason of the Act applied to cases which have somewhat detailed procedure is entirely sound, the more direct and conclusive reason for refusing this reclaiming-note is that on the terms of sections 28 and 27, compared with section 54 of the Act of 1868, this is not a reclaiming-note under section 28.

Page: 775↓

Lord Adam—I am of the same opinion. It is very clear that this is not an interlocutor pronounced by the Lord Ordinary as provided for in the 27th section of the Act, and it therefore follows that a reclaiming-note under the 28th section is not competent.

Lord M'Laren—If I had been considering the question of practice which the Lord Ordinary has disposed of, I should not have had the smallest hesitation in making a remit to Mr Campion, if I believed him to be the most suitable person, without asking the consent of the parties; because in this interlocutor the direction to remit to an engineer is merely administrative, and a proposal to remit to an unnamed person can never fetter the discretion of the Court when the actual remit comes to be made. But I agree with your Lordship that this reclaiming-note is not competent, because the leave of the Lord Ordinary has not been obtained as required by the statute. I mentioned my impression about the authority of the Lord Ordinary in order that Mr Salvesen's clients may not think that they have suffered any prejudice by the circumstance that their agent had not taken the necessary steps to have obtained the Lord Ordinary's leave.

Lord Kinnear—I agree with your Lordship that the reclaiming-note is incompetent for the reasons which your Lordship has stated.

The Court refused the reclaiming-note as incompetent.

Counsel:

Counsel for Pursuers and Reclaimers— Salvesen. Agents— Graham, Johnston, & Fleming, W.S.

Counsel for Defenders and Respondents— Johnston. Agents— A. & G. V. Mann, S.S.C.
1894