Scottish Court of Session Decisions

On 15th March 1898 a petition was presented to the Dean of Guild Court by Mr George Somerville, Procurator-Fiscal of that Court, against the Directors of the Assembly Rooms, Edinburgh.

The petition proceeded on the narrative “That it has been reported by the Burgh Engineer to the petitioner that the arrangements in said hall for ventilation and means of access and exit are not in a satisfactory condition, and it is accordingly desirable in the interest of public safety that the building should be inspected by the Court and such means directed to be taken as they may consider necessary for proper ventilation, for providing of proper means of access and exit, and also for protection from fire and other dangers to the public as to the Court shall seem fit, in terms of the Edinburgh Municipal and Police Act 1879, section 161, as amended by the Edinburgh Municipal and Police Amendment Act 1891, section 80, sub-section (8).”

The petitioner craved the Court to serve the petition on the respondents and “to cite them to appear in Court to be heard viva voce thereon; thereafter to appoint a visit to the said building for the purpose of inspecting the same, and thereafter to pronounce such orders as may be deemed necessary, with a view to provide for proper ventilation of same, and proper means of access and exit, and protection from fire and other dangers to the public; as also to find the said respondents liable in the expenses of process, and to do further or otherwise as to your Lordship and Honours shall seem proper.”

On the 17th March 1898 the Dean of Guild Court pronounced the following interlocutor:—“Before further answer appoints a visit to the premises for the purpose of inspecting the same, upon Thursday, 24th March current, at half-past two o'clock afternoon, reserving to both parties all their pleas.”

On 20th May the Dean of Guild Court pronounced this further interlocutor:—“Having resumed consideration of this petition, and having heard counsel for the respondents, who moved that the Procurator-Fiscal be appointed to lodge a condescendence stating the defects of which he complains and the means of remedy suggested, and that the respondents be appointed to answer the same, Finds it unnecessary to pronounce an order in terms of said motion; and having visited the premises in presence of the parties, finds that the existing stairs and passages do not provide proper means of access to and exit from the said Music Hall, George Street, Edinburgh, and are not sufficient for the protection of the public in the event of fire or panic, and in the meantime appoints the respondents, within twenty-eight days, to lodge a minute setting forth any objections they may have to state to an order being pronounced on them directing them to provide proper means of access to and exit from the premises, and stating the nature of the operations which they are prepared to carry out, if any, for the purpose of making the means of access and exit in question sufficient for the protection of the public.”

Objections to this interlocutor were lodged by the respondents on June 16th, in which they objected to the competency of the petition and to the procedure that had taken place. In particular they averred—“The Court then pronounced the interlocutor of 17th March 1898. Thereafter, and in order to acquaint themselves with the nature of the defects complained of, the respondents applied for permission to borrow up the Burgh Engineer's report referred to in the petition, but this was refused. The inspection appointed to take place upon 24th March was made by the Lord Dean of Guild and other members of his Court, and there were also present certain representatives of the respondents. The members of the Court were afforded every opportunity of examining the premises, but no indication was given to the respondents of the nature of the alleged defects or the means suggested for their remedy. No further communication was made to the respondents until 18th May 1898, when intimation was given to the respondents by the petitioner that the case had been enrolled for the following Friday,20th May, ‘for an interlocutor or further procedure.’ At the calling of the case upon that day counsel for the respondents repeated his motion for a condescendence and answers if the petition was to be proceeded with further, but this motion was refused. Without giving the respondents any opportunity of being heard upon the competency of the proceedings, or the averments made in the petition, the Court pronounced the interlocutor of 20th May 1898. This had been prepared before the meeting of the Court, and was, along with a note appended to it, then and there read.”

The respondents denied that there was any necessity for making any changes in their premises, but offered to execute a scheme of improvement which had been suggested by their architect.

On 7th July 1898 the following interlocutor was pronounced:—“Having considered the objections lodged by the respondents, with the relative plan, and heard counsel

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for the respondents, Finds that the alterations proposed by the respondents and shown on said plan will not be sufficient to provide proper means of access to and exit from the said Music Hall or for protection from fire, and continues the cause for a week to enable the respondents, if so advised, to confer with the burgh engineer with a view to the adjustment of satisfactory proposals.”

With reference to this interlocutor the following minute was lodged by the respondents on July 11th:—“Cook for the minuters stated, with reference to the interlocutor bearing to have been pronounced upon 7th July 1898, that the case was enrolled for that day (being an ordinary Court day) by the respondents for further procedure:—When the case was called neither the Lord Dean of Guild nor any of his Court were present. The bench was occupied by the Junior Legal Assessor for the city. No appearance was made for the petitioner. The Junior Legal Assessor stated that the Court was to pronounce an interlocutor in the terms of that above referred to. The draft interlocutor had been previously prepared, and it was then read by the Junior Legal Assessor. Counsel for the respondents protested against this proceeding, and stated that the motion which he was instructed to make was that in respect of the offer contained in the objections for the respondents the petition should be dismissed. The Junior Legal Assessor stated that the motion would be refused, and he also refused to record that any such motion had been made. Counsel for the respondents was not heard upon the objections. The Dean of Guild Court heard nobody in connection with the case upon the day in question. The proceedings bearing to be recorded in the said interlocutor never took place, and it was incompetent and illegal for the Lord Dean of Guild to pronounce any such interlocutor.”

Certain interviews took place between the respondents' architect, the burgh engineer, and the Junior Assessor. Thereafter, by interlocutor of 21st July, the respondents were allowed to see the report by the Burgh Engineer and to lodge a note of objections thereto.

On 26th July a minute was lodged by the respondents, in which, while maintaining their whole objections to the competency of the proceedings, they offered to execute certain operations.

On 28th July the Dean of Guild Court pronounced the following interlocutor:—“Having resumed consideration of this petition, with the report by the burgh engineer and the minute for the respondents, and heard counsel for the respondents, Ordains the said respondents, the Directors of the Assembly Rooms, Edinburgh, to carry out the following operations on the Music Hall, George Street, viz.—(1) To make and construct emergency egresses as shown on the plan lodged by the respondents, widening the proposed staircase to four feet in place of three feet; (2) to slap out a door on each side of the gallery into the adjacent cloak-rooms; (3) to take off or remove five sitting spaces next the doors of the orchestra side rooms; (4) subject to obtaining the consent of the tenants, or failing such consent at the expiry of the present lease, to instal electrical light into the premises occupied by Messrs J. & J. Richardson & Company; and (5) at the expiry of the present lease of the front shop, to widen the outlet to George Street by the addition of at least one door: Appoints the work to be done at the sight and to the satisfaction of the Burgh Engineer, and in so far as regards the operations under the heads 1, 2, and 3 hereof to be completed by 1st April 1899, and decerns, and continues the cause.”

The respondents appealed to the First Division, and argued—(1) The appeal was competent. It was not expressly excluded, and the powers given to the Dean of Guild Court under section 161 of the 1879 Act, being powers similar to those which they already possessed, and the exercise of them not being expressly protected against review, might be reviewed in the same way as their former powers. This was not an appeal upon a technical point but against grave irregularities, which the Court had inherent power to redress. The history of the proceedings showed that there had been oppressive and illegal procedure which had produced a grave miscarriage of justice.

Argued for respondents—(1) The appeal was incompetent. The section under which these powers were exercised by them contained no provision for appeal. They had not exceeded their jurisdiction, and therefore there could be no review on what was merely a question of procedure. (2) The procedure had been in accordance with the provisions of the section. It provided for (1) an application by the procurator-fiscal, (2) inspection, (3) the hearing of parties, and (4) the pronouncing of an order. Everything else was left to the discretion of the Dean of Guild. All these four steps had been scrupulously taken. It was quite clear from the section that the Court were only bound to hear the parties at the stage at which they had been prepared to do so.