Scottish Court of Session Decisions

John Nixon, dock labourer, Glasgow, brought an action in the Sheriff Court at Glasgow against William Houston, stevedore, Glasgow, in which he craved decree for £234 under the Employers Liability Act 1880, as damages for personal injuries.

The Sheriff Substitute ( Spens), by interlocutor dated 11th March 1898, before answer allowed a proof.

The pursuer appealed to the Court of Session for jury trial.

On 12th May the Court ordered issues, and on 20th May an issue was approved for the trial of the cause.

Monday 4th July was appointed as a diet for the trial of the cause before the Lord Justice-Clerk with a jury.

Upon that day, before the jury were em-pannelled, counsel for the pursuer stated that the pursuer had met with an accident on the night of Saturday 2nd July, and produced a medical certificate to the effect that the pursuer was not in a fit condition to attend at the trial. No explanation was given as to the nature of the pursuer's injuries or the circumstances under which he met with the accident. Counsel for the pursuer therefore moved that the trial should be adjourned. Counsel for the defender moved for the expenses caused by the adjournment, but the Lord Justice-Clerk intimated that he thought that question should be disposed of by the Court when the pursuer applied to have a new diet fixed for the trial. The trial was then put off.

Thereafter the pursuer gave notice for the sittings, whereupon the defender presented a note to the Lord Justice-Clerk craving that the pursuer should be found liable in the expenses caused by the adjournment of the trial, and that the trial should not be allowed to proceed until these expenses were paid, and meantime that the notice of trial given for the sittings should be discharged.

The Act of Sederunt 16th February 1841, regulating proceedings in jury causes, enacts as follows:—Section 25. “That until the jury is empannelled and sworn to try a cause, it shall be competent to apply to put off the trial on account of the unavoidable absence or sickness of a material witness, or for other sufficient cause to the satisfaction of the Court, and supported by oath or affidavit, if the Court shall so require, or, in vacation, by the Judge before whom motions are to be heard as before directed, upon payment of such expenses as shall have been incurred by the opposite party in consequence of the delay of the trial.”

On 9th July counsel for the defender moved in terms of the prayer of the note, and stated that no explanation had yet been given as to the nature or origin of the pursuer's accident. Counsel for the pursuer was in attendance and stated that he had no information on that subject. He objected to the payment of the expenses of the adjournment being made a condition of the trial proceeding,

The Court intimated that they would dispose of that matter after the expenses were taxed.

The Court pronounced the following interlocutor of date 9th July 1898:—“The Lords find the pursuer liable to the defender in the expenses caused by the adjournment of the trial on the 4th inst.: Remit to the Auditor to tax the same and to report; meanwhile discharge the notice of trial for the ensuing sittings.”

The account of expenses having been taxed, counsel for the defender moved for decree, and argued that the trial should not be allowed to proceed except upon payment of these expenses—Act of Sederunt, 16th February 1841, section 25.

Counsel appeared for the pursuer and stated that he had not been able to obtain any information as to the nature or circumstances of the pursuer's accident. Payment should not be made a condition of again proceeding to trial. The terms of the Act of Sederunt did not require such an order to be made.