Scottish Court of Session Decisions

The Roads and Bridges (Scotland) Act 1878 provides, by section 3, that for the purposes of that Act “sheriff” shall include “sheriff-substitute,” and by section 42 that the road trustees may, after certain procedure provided in the Act, declare that any highway shall cease to be a highway within the meaning and for the purposes of the Act. “43. The determination of the trustees under the preceding section shall be final, and not subject to review in any court, or in any process or proceedings whatsoever, unless any three ratepayers who shall be dissatisfied with such determination shall, within fourteen days after the date thereof, appeal to the sheriff, who shall hear and determine the appeal in a summary way, and the decision of the sheriff shall be final, and not subject to review,” &c.

By the 11th section, sub-section 2, of the Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50) the whole powers and duties of the county road trustees were transferred to the County Council instituted by that statute.

At a general meeting of the County Council of Roxburgh, held upon 25th October 1892, the Council, after consideration of a written report from the County Road Board, declared, in virtue of the powers conferred by section 42 of the Roads and Bridges (Scotland) Act 1878, that a certain highway within the Melrose district should cease to be a highway within the meaning and for the purposes of the Act.

Certain ratepayers within the county being dissatisfied with this decision, in November presented a petition in the Sheriff Court at Jedburgh against the County Council of Roxburgh to have the defenders ordained to retain on their list of roads, highways, &c., the piece of road in question.

The pursuers averred that the decision would cause inconvenience, as the road extended beyond the county, and pleaded—“(1) Under the 42nd section of the Roads and Bridges (Scotland) Act 1878, when construed along with the other sections

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thereof, it being incompetent for the defenders, acting by themselves alone, to declare that the road in question shall cease to be a highway, the prayer of this petition should be granted. (2) They not having fulfilled the requirements of the said 42nd section, the prayer of this petition should be granted. (3) The pursuers, for the reasons stated in their condescendence, having good cause for being dissatisfied with the defenders' determination, the prayer of this petition should be granted.”

The defenders pleaded—“(1) No title to sue. (2) The action is incompetent. (3) The defenders having complied with all the requirements of the Roads and Bridges (Scotland) Act 1878 before declaring that the portion of the road referred to by them shall cease to be a highway, it is competent for them so to declare that it shall cease to be a highway, and the prayer of the petition should be refused. (4) The defenders being vested with the sole management and control of the said road, and having acted in the proper exercise of their statutory powers as condescended on, are entitled to absolvitor. (5) The averments of the pursuers are irrelevant, and insufficient to support the conclusions of the action. (6) The averments of the pursuers, so far as material, being unfounded in fact, the defenders are entitled to be assoilzied, and the pursuers should be found liable in expenses.”

Upon 15th December 1892 the Sheriff-Substitute ( Speirs) pronounced this interlocutor:—“Holds the record closed, and appoints parties' procurators to debate the case on the preliminary pleas,” &c.

Parties were heard on 16th January 1893, and after avizandum the Sheriff-Substitute pronounced this judgment:—“Finds in point of fact that the part of the road in question which the County Council of Roxburghshire desired to close as a highway is entirely situated in the county of Roxburgh: Finds in point of law that the said County Council have no powers or jurisdiction without the county of Roxburgh: Therefore repels the pleas-in-law for the pursuers and dismisses the action, &c.

“ Note.—This is an action in which the Court is asked to prevent the County Council from closing that part of the byroad ‘leading from the Railway Bridge to Gala Ford.’ As has been already stated, this portion of the road is in the county of Roxburgh (the Gala being the boundary between that county and the county of Selkirk). The Roxburgh County Road Trust (and hence the County Council) have nothing to do with the continuation of this byroad on the right bank of the Gala; it is outside the confines of their jurisdiction; they cannot even order notices to be placed on the doors of the parish church at Galashiels as suggested (condescendence 5), and in my opinion, therefore, are perfectly entitled, under sections 42 and 43 of the Roads and Bridges (Scotland) Act 1878, ‘acting by themselves alone,’ to declare that the road in question shall cease to be a highway (subject of course to the veto of the Sheriff). I have therefore repelled pleas-in-laws Nos. 1 and 2 for the pursuers. With regard to the third plea-in-law, I think the pursuers have utterly failed to show, by ‘the reasons stated in the condescendence,’ that there is any good cause for recalling the determination of the County Council. The truth is that the real objectors live in Selkirkshire and Galashiels, and it is for their benefit that the County Council of Roxburghshire are asked to spend their ratepayers' money. The defenders do not appear to have acted in a high-handed or capricious manner; the question has been thoroughly investigated by a local committee, afterwards under consideration of the County Council, and that Council have come to the conclusion that the exigencies of the case do not justify them in spending more money on a road which was so damaged by a flood in September 1891 that an almost new roadway would be required. The County Council have not actually closed this road, and judging from their offer of £60 towards the proposed bridge, I have no doubt they would meet the Selkirkshire authorities in a friendly spirit.” …

The pursuers appealed to the Sheriff, and upon 10th March he issued this interlocutor—“Recals the interlocutor of 2nd January last: Repels the first, second, and fourth pleas-in-law for the defenders, and quoad ultra appoints the case to be heard by him on a day to be afterwards fixed, reserving the question of expenses.

“ Note.—It was maintained for the respondents that the interlocutor of the Sheriff-Substitute is not appealable, but I am of opinion that this contention is not sound. It has been held in similar cases that where the decision of a sheriff-substitute does not dispose of the merits, there is a right of appeal to the sheriff. The case of Leitch v. The Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40, was very similar to the present. By the rules of the society it was provided that ‘Every dispute … shall be referred to and decided by the sheriff of the county, in manner provided for by sections, 5, 6, and 7 of 21 and 22 Vict. c. 101.’ Section 6 of that Act enacted that sections 40 and 44 of the Act 18 and 19 Vict. c. 63, should be applicable to such disputes, and by said section 40 it was enacted that ‘Every dispute… shall be decided in manner directed by the rules of the society, and the decision so made shall be binding and conclusive on all parties without appeal. The Sheriff-Substitute dismissed the action as incompetent, but the Sheriff on appeal repelled the preliminary pleas, and remitted the case back to the Sheriff-Substitute to be proceeded with. The Sheriff-Substitute allowed a proof, but this interlocutor was also appealed against, and the Sheriff recalled the order for proof, and decided the case on its merits in favour of the pursuer. An appeal was taken to the Court of Session, which was found to be incompetent, but opinions were given as to the procedure in the Court below. Lord Cowan said—‘It is apparent that the only decision on the merits of the dispute was pronounced by the Sheriff. The other interlocutors affected the procedure only, and these the Sheriff recalled and put right. The question

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is, can any appeal at all be taken under the Act? … Now, in the first place, is a judgment dismissing an action or “ordering a proof protected by this finality clause? I am of opinion that it is not. I think that the interlocutors pronounced by the Substitute on matters of that kind were clearly appealable, and that the finality clause applies only to a decision on the merits.’ Lord Benholme said—‘Finality in the Act of Parliament is attached to decision of the dispute. I ask, has there been any decision of the matter in dispute by the Sheriff-Substitute? I think clearly not. One of his interlocutors was an avoidance of judgment, the other was merely a preparation for it. The judgment of the Sheriff-Principal is the first and only decision, and it is not liable to be appealed against.’ In the Roads and Bridges Act of 1878 (41 and 42 Vict. c. 51), sec. 43, it is provided that ‘The decision of the sheriff shall be final and not subject to review.’ Following the case of Leitch, I must hold that the decision referred to in the provision just quoted means a decision on the merits, and that the interlocutors of the Sheriff-Substitute did not dispose of the merits and are appealable. The case of Bone v. The School Board of Lorne, March 16, 1886, 13 R. 768, is also in point, although there was no dismissal of the action by the Sheriff-Substitute. The Court held that the Sheriff did not exceed his jurisdiction in recalling interlocutors of the Sheriff-Substitute which did not dispose of the merits, although one of the judges thought that the appeal was irregular as well as the previous procedure. Lord Shand said—‘It is true that the Sheriff here took up the case on appeal, but at that time the Sheriff-Substitute had decided nothing. If he had, his decision of course would have been final. But the Sheriff has taken up the case at a stage when nothing has been done, and I am therefore of opinion that in the circumstances the Sheriff has not exceeded his jurisdiction, and that his judgment is final.’ Lord Adam said—‘Either the Sheriff-Substitute or the Sheriff is in my view empowered to give a final determination, but both of them might take some part in bringing the question to a final determination.’ These opinions are at variance with those of Lord Justice-Clerk Moncreiff and Lord Cowan in the case of Leitch, who held that in such cases as the present even decisions on the merits by a sheriff-substitute were appealable to the sheriff. It is unnecessary, however, in this case to determine what is the state of the law in regard to this point, because there has not yet been any decision on the merits. It would seem from his note as if the Sheriff-Substitute intended to decide the merits of the case, but the interlocutor has not that effect. The action is only dismissed. There is no absolvitor. Moreover it was premature to decide the merits. The debate was only ordered on the preliminary pleas, and the parties did not renounce probation. Further, the preliminary pleas are not disposed of in the interlocutor under appeal. But these are not the only irregularities in the procedure. There should not have been a record made up, as the Act prescribes that the appeal shall be heard summarily. Lord Cowan seems to have had a different opinion. See the case of Leitch. But in the later case of Bone the Lord President Inglis observed—‘The statute provides that the proceedings shall be summary, and that means that the sheriff, without making up a record and having a proof in ordinary form, should hear parties' statements, and at once pronounce a decision. The statute does not contemplate a record and proof in the ordinary form. What is contemplated is something quite different—a summary proceeding.’ And the other Judges concurred. An appeal then being competent, and a record having been irregularly made up, the question arises, What is now to be the procedure? Is the case to be concluded in the usual way followed in an ordinary action, or is it now to be dealt with in a summary manner? It seems to me that the latter is the most competent and expedient course to follow, but first I think it best to dispose of the preliminary pleas. The first and second were not insisted in, and I think that the remaining one—the fourth plea—is not well founded. I think that the averments as to the inconvenience caused by the road in disputenot being repaired and maintained are relevant, and quite sufficient to entitle the pursuers to have an opportunity of leading proof. This will not be a written proof, but it may be understood that at the hearing—which I think is the proper thing to order in a summary case—the parties will be at liberty to examine witnesses. I have reserved the question of expenses simply for convenience, but the appellants will be allowed expenses quoad the appeal whatever be the result of the case.”

Upon 6th April 1893 the County Council of Roxburgh raised an action in the Court of Session against the pursuers in the Sheriff Court action and against the Sheriff of the county for reduction of the note of appeal from the Sheriff-Substitute's interlocutor of 23rd January, and the Sheriff's interlocutors following thereon.

The pursuers pleaded—“(1) In virtue of the provisions of the Roads and Bridges (Scotland) Act 1878, the interlocutor of the Sheriff-Substitute, quoted in condescendence 2, was final, and not subject to review by the Sheriff-Principal. (2) In respect that the Sheriff-Principal had no jurisdiction, the said note of appeal, and his interlocutors thereon, are incompetent and inept, and decree of reduction thereof falls to be pronounced, as concluded for.”

The defenders pleaded—“(1) The action is incompetent. (2) The action is excluded by the terms of section 43 of the Roads and Bridges (Scotland) Act 1878. (3) The pursuers' statements are irrelevant and insufficient to support the conclusions of the summons. (4) The interlocutor of the Sheriff-Substitute not being a decision on the merits of the question raised by the appeal from the determination of the County Council, was not final, and was competently appealed to the Sheriff; or, separatim, the Sheriff on having the cause

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brought before him was entitled to recal the incompetent and irregular procedure that had taken place before the Sheriff-Substitute, and to proceed to deal with the cause himself de novo. (5) If the Sheriff-Substitute's judgment falls to be regarded as a decision on the merits, it was competently recalled by the Sheriff, in respect that it was incompetent and contrary to justice, and was pronounced without hearing parties on the merits, and without any proof having been led or any opportunity given to these defenders of leading proof in support of their averments.”

Upon 9th June 1894 the Lord Ordinary ( Kyllachy) gave decree in terms of the reductive conclusions of the summons.

“ Opinion.—In this action of reduction the County Council of Roxburgh, as the road authority of that county, acting in pursuance of the 42nd section of the Roads and Bridges Act of 1878, lately removed from their list of highways a certain road within the county. Against this proceeding certain ratepayers appealed to the Sheriff of the county, and did so under the provisions of the 43rd section of the Act, which provides as follows—‘The determination of the trustees under the preceding section ( i.e., declaring that a road shall cease to be a highway within the meaning and for the purposes of the Act) shall be final, and not subject to review in any court or in any process or proceeding whatsoever, unless any three ratepayers who shall be dissatisfied with such determination shall within fourteen days after the date thereof appeal to the sheriff, … who shall hear and determine the appeal in a summary way, and the decision of the sheriff shall be final and not subject to review, and the expenses of such appeal shall be in the discretion of the sheriff.’

By section 3 of the Act ‘sheriff’ includes ‘sheriff-substitute,’ and the appeal having been brought before the Sheriff-Substitute at Jedburgh, he after certain procedure pronounced the foliowing interlocutor—‘ Jedburgh, 23rd January 1893.—The Sheriff-Substitute having heard parties' procurators, and considered this case, Finds in point of fact that the part of the road in question which the County Council of Roxburghshire desire to close as a highway is entirely situated in the county of Roxburgh: Finds in point of law that the said County Council have no powers or jurisdiction without the county of Roxburgh: Therefore repels the pleas-in-law for the pursuers, and dismisses the action: Finds the pursuers liable to the defenders in expenses.’ … The appellants (the present defenders) thereupon appealed to the Sheriff-Principal, and he being of opinion that the appeal was in the circumstances competent, recalled his Substitute's interlocutor, and appointed the case to be heard before himself on a day to be afterwards fixed.

The present action is brought by the County Council to reduce this interlocutor of the Sheriff-Principal, along with the note of appeal on which it proceeded, and a previous interlocutor by which he appointed parties to be heard.

The ground of reduction is that the Sheriff-Substitute and the Sheriff having under the statute a co-ordinate jurisdiction, either had jurisdiction to dispose of the case, and that the Sheriff-Substitute having taken it upon himself to decide it, no appeal to the Sheriff was competent. The answer made is that the Sheriff-Substitute did not decide the case, or at least did not decide it on its merits, and that until he did so it was open to the Sheriff-Principal to take it up and deal with it as he has now done. The defenders' case is very distinctly stated in the note of the Sheriff-Principal. It is founded on the decisions and dicta in the cases of Fleming v. Dickson, 1 Macph. 188; Leitch, 9 Macph. 40, and Bone, 13 R. 768.

I quite agree with the Sheriff-Principal that if the Sheriff-Substitute had merely dealt with preliminary matters—as, for example, the citation of the defenders, the appointment of a hearing, or the ordering of a proof—the authorities are in favour of the Sheriff's right to interpose and take up the case if he chose to do so. It may, perhaps, also be conceded upon the authorities that the same result follows where the Sheriff-Substitute, without deciding the merits of the dispute, refuses on some technical ground to entertain the action. But I have not been able to agree with the Sheriff that the present case belongs to either of those categories. I do not say that the terms of the Sheriff-Substitute's interlocutor were quite free from ambiguity, but I cannot read it otherwise than a decision of the cause and a decision upon its merits. The petition is dismissed, the whole pleas of the pursuers (the present defenders) being repelled; and one of the pleas so repelled is to the effect that the pursuers having, for the reasons stated in the condescendence, good cause for being dissatisfied with the defenders' determination, the prayer of the petition should be granted. I take it that when the Sheriff-Substitute repelled this plea, he in effect found that the pursuers' grounds of appeal were irrelevant, or were excluded by the admitted facts, and I suppose there is no doubt that when an action is decided upon relevancy it is as much decided upon the merits as if decided after a proof. That this was the Sheriff-Substitute's view is, I think, manifest from his note, and I am not disposed to attach importance to the fact that he dismissed the petition instead of refusing it. I do not think that either of these expressions is such a vox signata as to be incapable of construction.

But if this be so, it seems conclusive of the question as to the competency of the appeal to the Sheriff-Principal. It is said, no doubt, that the procedure before the Sheriff-Substitute was irregular, because it ought to have been summary, whereas in fact a record was made up and closed. It is also said that if the Sheriff decided the merits, he did so after a hearing, which at least, according to the interlocutor appointing it, was a hearing upon preliminary pleas. But assuming that these were irregularities, and irregulari

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ties which were serious, and which affected the result, it does not, so far as I can see, follow that the Sheriff-Substitute's decision became thereby appealable to the Sheriff-Principal. Assuming it to be a decision, it was a decision which, while it stood, foreclosed any appeal. Whether it was or may yet be open to challenge by way of reduction, is a question which I do not require to consider. As the case stands, I think I am bound to hold that the case has been decided by the Sheriff-Substitute, and therefore that the appeal to the Sheriff-Principal was incompetent, and that the pursuers are entitled to decree in terms of their summons, with expenses.”

The defenders reclaimed, and argued—In the Sheriff Court action two grounds of objection to the County Council's decision were stated—(1) that they had not jurisdiction to act by themselves in shutting up a road within the county when it was really part of a larger road which ran through other counties; (2) that supposing they had jurisdiction, they had not exercised their discretion in a manner which was for the good of the community, and a review of their action was authorised by the statute. The review was sought from the Sheriff-Substitute at first, but after hearing parties on the competency of the Council's action he heard nothing more, and sustained the Council's competency, but gave no decision on the merits of the second question submitted for his review, and dismissed the action. It was stated that although the judgment of the Sheriff-Substitute on the merits of the case was declared by statute to be final, there might be an appeal in the ordinary manner on the competence of any proceeding— Leitch v. Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40. The Sheriff found that the Sheriff-Substitute had not really dealt with the merits of the case, as on the best reading of his interlocutor it only sustained the competency of the Council, and the case could be taken up either by the Sheriff or the Sheriff-Substitute. It was therefore within his province to deal with it, and he appointed parties to be heard. The action of reduction was incompetent.

The respondents argued—The County Council had exercised their discretion in a matter which was particularly within their discretion. The statute allowed review, but declared that the sheriff's decision on review should be final. The pursuers in the Sheriff Court chose to make the Sheriff-Substitute the judge of review in this case, which they were entitled to do, but they must abide by his decision. He had decided against them, and they could not carry their action any further. It was quite competent to bring an action for reduction of a Sheriff Court decree in the Court of Session.

At advising—