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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Niddrie and Benhar Coal Co. v. Young [1895] ScotLR 32_303 (2 March 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0303.html
Cite as: [1895] ScotLR 32_303, [1895] SLR 32_303
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SCOTTISH_SLR_Court_of_Session
Page: 303↓
Court of Session Outer House First Division.
Sheriff Court of Edinburgh.
v.
Facts:
Objections were taken to the competency of an appeal under the Summary Prosecutions Appeals Act of 1875, on the ground that the appellants had failed to comply with the provisions of section 3 of the act, in respect (1) that they had not consigned a sum to cover the costs of the appeal within three days after the sheriff's decision, and (2) that notice of the appeal had not been given to the respondent.
The appellants explained (1) that they had lodged a minute within the statutory period craving the Sheriff to fix the amount to he consigned, but that owing to the illness of the Sheriff the amount had not been fixed and consigned until the day after the statutory period had elapsed; and (2) that notice of the appeal had been given to the respondent's agent.
The Court dismissed the appeal as incompetent, on the ground that intimation to the respondent's agent was not a sufficient compliance with the Act, which provides that notice shall be given “to the respondent.”
Observed by Lord M'Laren that, the appellants having done all in their power to carry out the statutory requirements with regard to timeous consignation, he would not have been prepared to sustain the first objection had it been necessary to consider it.
Opinion on this point reserved by Lord Adam and Lord Kinnear.
The Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62) provides,
Page: 304↓
section 3—“On an inferior judge hearing and determining any cause, either party in the cause may, if dissatisfied with the Judge's determination as erroneous in point of law, appeal thereagainst, notwithstanding any provision contained in the Act under which such cause shall have been brought excluding appeals against or review in any manner of way of any determination, judgment, or conviction, or complaint under such Act, by himself or his agent applying in writing within three days after such determination to the inferior judge to state and sign a case, setting forth the facts, and the grounds of such determination, for the opinion thereon of a superior court of law as hereinafter, provided; and on any such application being made the following provisions shall have effect:— 1. The appellant shall not be entitled to have a case stated and delivered to him unless within the said three days he shall (1) lodge in the hands of the clerk of court a bond with sufficient cautioner for answering and abiding by the judgment of the superior court in the appeal, and paying the costs should any be awarded by that court, or otherwise, in the discretion of the inferior judge, shall consign in the hands of the clerk of court such sum as may be fixed by the inferior judge to meet the penalty awarded, if any, and the said costs of the superior court. 5. The appellant shall within three days after receiving the case give notice of appeal in writing, together with a copy of the ease, to the respondent, and shall within the same time transmit the case by post to, or cause it to be lodged with, one of the clerks of the superior court, together with a certificate under the hand of himself or of his law—agent of intimation, as herein required, having been made to the respondent.” A complaint was presented in the Sheriff Court of Edinburgh under the Summary Jurisdiction (Scotland) Acts of 1864 and 1881 by the Niddrie and Benhar Coal Company, Edinburgh, stating that Joseph Young, checkweigher at the complainers' mine, had contravened the Act 50 and 51 Vict. cap. 58, sec. 13, and craving the Sheriff to make a summary order for his removal from the office of checkweigher at said mine.
On 4th February 1895 the Sheriff-Substitute ( Rutherfurd) dismissed the complaint.
On 6th February the complainers lodged a minute requiring the Sheriff-Substitute to state and sign a case for appeal to the Court of Session, and to fix the sum to be lodged by the complainers in terms of the Act of 1875. On 8th February the sum of £10, 10s., as fixed by the Sheriff-Substitute, was consigned by the complainers.
A case in appeal was stated by the Sheriff Substitute, as required by the appellants' minute of February 6th.
Within the statutory period a letter containing intimation of the appeal was sent to the respondent's agent, but not to the respondent himself.
The respondent objected to the competency of the appeal on the ground that the appellants had not satisfied the requirements of the Statute of 1875, section 3, subsections 1 and 5, and argued—(1) Consignation had only been made on the fourth day after the decision of the Sheriff-Substitute, and, as it was one of the conditions on which a party was entitled to have a case stated, that he should find caution or make consignation, as fixed by the inferior judge, within three days, the appeal must be dismissed — Hutton v. Garland, June 13, 1883, 10 R. (Just. Cas.) 60; M'Gregor v. Bose, November 3, 1887, 15 R. (Just. Cas.) 10. In Thom v. Caledonian Bailway Company, November 12, 1886, 10 R. (Just. Cas.) 5, the objection to competency had not been taken till after the discussion on relevancy, and that was the reason why it was not sustained. (2) The intimation of appeal required by sub-section 5 must be made to the party himself, and it was not enough to give notice to his agent as had been done here— Gairns v. Main, November 10, 1887, 1 White, 521. Up to sub-section 5 the statute allowed an alternative, “the party or his agent,” but here it gave no alternative, but said the notice must be given to the “respondent.”
Argued for the appellants—(1) They had done their best to comply with the requirements of the statute, and it was through no fault of theirs, but owing to the illness of the Sheriff, that they had failed to do so. It had been laid down by Lord Young in Thom v. Caledonian Bailway Company, that in such a case the Court might give relief against the mishap. (2) As notice had been given to the agent in charge of the case, it had to all intents and purposes been given to the respondent, who had suffered no prejudice thereby. The process was alive till the appeal was settled, and so the agent represented the party, and notice to him was sufficient.
At advising—
The facts of the case raising the questions before us areas follows—On the 4th February 1895 the Inferior Judge determined the cause, and thereupon the agent for the appellant made application to him to fix the amount to be consigned by him as a condition of having a case stated in terms of sub-section 1 of section 3 of the Act. This application was therefore made within the statutory three days, and a further application was made by the appellant's agent within that period to see if the amount had been fixed. It was not, however, till the 8th of February, or the 4th day after the Sheriff's judgment had been pronounced, that the amount to be consigned was ascertained and duly consigned.
The answer made by the appellant to this objection is, that it was through no
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The second objection taken is, that no notice or intimation of the appeal was given to the respondent, as required by sub-section 5 of section 3 of the Act, the fact being that notice was given to the respondent's agent, and not to the respondent himself.
I think that this second objection is well founded. The fifth sub-section specifies clearly that the notice must be given to the respondent, and not to his agent, and I would point out that in many of the cases contemplated by the Act an alternative choice is given, e.g., this very sub-section speaks of “a certificate under the hand of himself or his agent.” Again, in sub-section 2 the Clerk of Court is required to submit the case in draft “to the parties or their agents.” I think it is not hard to see why the Act requires the intimation of appeal to be made to the party personally, the reason being that after the preparation of the case all the proceedings in the Inferior Court are at an end. There is now a different tribunal, and therefore any intimation to the agent is dispensed with, and, there being now a new litigation, intimation must be made to the respondent himself, who, if he wishes to do so, may instruct an agent in the Supreme Court to carry on his case.
As regards the first objection, I am not clear about it, and prefer to reserve my opinion.
I am therefore of opinion that the objection should be sustained, and that the appeal is incompetent.
If we are agreed in maintaining the second objection it is not necessary, perhaps, to give a definite opinion on the first, but as the point has been argued I think it is right to say that, as at present advised, I should not be able to sustain the first objection. The statute does not attach any nullity as a condition to finding consignation within three days, but merely provides that the penalty for failure to do so is that the appellant shall not be entitled to have a case delivered to him. If I were sitting as a judge in the Inferior Court, and consignation were offered but not made because of unavoidable delay on my part in not fixing the amount, I should certainly deliver a case, and then, as a judge sitting in the Court of Appeal, I should hold that the inferior judge had followed a perfectly correct course, and that the Court was not entitled to refuse the appeal as incompetent.
The party has done all that it was possible for him to do to satisfy the requirement of the statute, and the requirement of the statute is matter of regulation only, and does not affect the merits of the appeal.
On the second objection I agree with Lord Adam. There may be cases where it is sufficient to give notice to the agent and not to the party, especially where the matter in hand affects only the conduct of a going case. But it is impossible to take that view here where the statute has itself drawn the distinction, for the certificate, it is provided, may be in the hand of the party himself or of his law agent. I can see a reason why the notice or intimation should be made to the party himself, when the notice refers to the commencement of an entirely new process or appeal, and I need hardly point out that there can be no decree in absence, as in an ordinary action, in an appeal under the Summary Jurisdiction Act of 1875, and therefore it is quite right that the respondent should himself get notice in order that he may consider whether he should support the judgment by counsel, or whether he should leave his case in the hands of the Court. Now, in the present case, as personal intimation was not given, although in the circumstances that omission may be of little moment, I think that the objection, critical as it is, is a good objection and should be sustained.
The Court dismissed the appeal as incompetent.
Counsel for the Appellants — Craigie — Trotter. Agent— C. K. Harris, Solicitor.
Counsel for the Respondent.— Wilton. Agents— Gray & Handyside, S.S.C.