Scottish Court of Session Decisions

Brian Gavin, pitheadman, Baillieston, commenced proceedings in the Sheriff Court of Lanarkshire at Airdrie, to obtain compensation under the Workmen's Compensation Act 1897 for an accident suffered by him while in the employment of the United Collieries, Limited.

The defenders pleaded serious and wilful misconduct on the part of Gavin, but ultimately withdrew that plea, and the Sheriff-Substitute ( Muir) appointed a diet of proof for 22nd December 1898.

At the proof the agent for the pursuer was present, with four witnesses on his behalf, but no appearance was made for the defenders. The Sheriff-Substitute, without taking evidence, pronounced the following interlocutor:—“Finds, in terms of the prayer of the petition, that compensation is due to the pursuer by the defenders, and ordains the defenders to pay to the pursuer compensation at the rate of 14s. 6d. per week from and after the 10th day of August 1898, and to continue the said weekly payments until the further orders of Court, with the legal interest on each weekly payment from the time the same falls due till paid.” With regard to their non-appearance the defenders made certain averments as to an alleged undertaking by the Sheriff to send

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notice to them of the date of proof, the import of which is fully stated in the opinion of the Lord Ordinary.

A charge on the decree being threatened by Gavin, the United Collieries Company brought a suspension in which they pleaded—“(1) The said decree being unjust and oppressive in the circumstances ought to be suspended, with expenses. (2) The said decree having been pronounced in absence induced by the undertaking foresaid it ought to be suspended as oppressive. (3) The conduct of the said arbiter being ultra vires, illegal, and corrupt, the said award ought to be suspended. (4) The said arbiter having pronounced said award without having heard any evidence, and said award being based upon no proved facts, it ought to be suspended.”

The respondent pleaded—“(1) The present action being incompetent the note should be refused, with expenses. (2) No relevant case. (3) The decree sought to be suspended being in all respects legal and regular the note should be refused, with expenses. (4) The Sheriff-Substitute's actings in the matter libelled being competent, regular, and within his powers, the decree ought not to be suspended. (5) A diet of proof in the action referred to having been duly fixed and intimated by interlocutor of 1st December 1898, and defenders having, through their own fault or neglect, failed to appear at said diet, the Sheriff-Substitute was entitled to pronounce decree for the sum craved in the petition, and the present suspension should be refused, with expenses.”

The Workmen's Compensation Act 1897 provides, sec. 1, sub-sec. 3— “If any question arise in any proceedings under this Act as to the liability to pay compensation under this Act, … the question, if not settled by agreement, shall … be settled by arbitration, in accordance with the second schedule to this Act.”

By article 14 of schedule 2 it is provided—“In the application of this schedule to Scotland, … any application to the Sheriff as arbitrator shall be heard, tried, and determined summarily in the manner provided by the 52nd section of the Sheriff Courts (Scotland) Act 1876.”

Section 52 of the Sheriff Court Act 1876 provides as follows—“In every case of an application, whether by appeal or petition, made to the Sheriff under any Act of Parliament which provides, or according to any practice in the Sheriff Court which allows, that the same shall be disposed of in a summary manner in the Sheriff Court without record of the defences or evidence, and without the judgment being subject to review, but which does not more particularly provide in what form the same shall be heard, tried, and determined, … the Sheriff shall appoint the application to be served and the parties to be heard at a diet to be fixed by him, and at that diet, or an adjourned diet, summarily dispose of the matter after proof led, when necessary, and hearing parties or their procurators thereon, and shall give his judgment in writing.”

On 13th July 1899 the Lord Ordinary ( Kincairney) pronounced an interlocutor refusing the suspension.

Opinion.—“This is a note of suspension of a threatened charge on a decree pronounced in the Sheriff Court at Airdrie in an action under the Workmen's Compensation Act (60 and 61 Vict. cap. 37), concluding for compensation in consequence of injuries sustained by the pursuer (now respondent) when in the employment of the defenders, who are the complainers in this note of suspension. By the Sheriff's decree, dated 22nd December 1898, the complainers are ordained to pay the respondent compensation at the rate of 14s. 6d. per week from 20th August 1898, to continue until the further orders of Court, and the complainers are by the decree found liable in expenses. This decree bears to be pronounced ‘on the motion of the agent for the pursuer’ (present respondent), ‘who was present with four witnesses, two of whom were medical gentlemen, and was prepared to go on with the proof, and in respect that there is no appearance on behalf of the defenders at the diet of proof fixed for to-day.’

It seems to be clear that under the Workmen's Compensation Act the judgment or award of the Sheriff is not open to review on the merits, except on a case stated as provided by the 14th article of the 2nd schedule to the Act, and section 9 of the relative Act of Sederunt. I do not understand this to be disputed by the complainers, who profess not to ask for a review or recall of the Sheriff's judgment, but who seek to be relieved from it as wholly irregular and incompetent.

Now a certified copy of the interlocutors pronounced in the Sheriff Court has been produced, and it does not disclose any irregularity of procedure. The complainers cannot say that the irregularity of which they complain can be detected by merely reading these interlocutors. By interlocutor of 1st December, the Sheriff fixed 22nd December as a diet for the trial of the cause, and granted diligence against witnesses and havers, and on that latter date he pronounced a judgment, which is in terms of the conclusions of the summons. Perhaps the interlocutor of 22nd December may not be quite accurately worded, but it is a decree on default, which, prima facie, the respondent was entitled to ask and the Sheriff was entitled, although, it may be, not bound to grant, and it may be regrettable in the circumstances that the respondent's agent asked it and that the Sheriff granted it. I would be somewhat anxious to suspend the threatened diligence until the complainers should bring an action of reduction if I could see that the complainers could succeed in such an action. But on the face of the interlocutor-sheet there seems no irregularity which could justify reduction or suspension of diligence. The suspension cannot be supported except on grounds which the interlocutors do not disclose.

Suppose the complainers’ absence had been purely accidental—as if, for example,

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their attendance had been prevented by some irregularity of a railway train or some similar cause—yet if the Sheriff and the respondent knew no more than that they had failed to attend, it appears to me that a decree on default could not have been set aside as incompetent,—would have been to be regretted as possibly involving injustice, but it would, I fear, have been a misfortune for which, under the Workmen's Compensation Act, there would have been no complete, although there would have been a partial remedy.

If that be so, then the only question is whether the reason which the complainers give for their absence at the diet of proof is such as will entitle them to have the decree suspended or set aside, and I think it is not. It is a very singular reason. They say that their agent was absent because he did not know of the diet, and the reason for that they aver to be, that at the previous diet the Sheriff had intimated that he would consider whether he should allow a proof or remit to a medical referee, and had promised and undertaken—such is the complainers’ averment—that intimation would be given to the complainers’ procurator by post of the next diet, especially if a proof were allowed, that ‘in breach or disregard or forgetfulness of the understanding of parties’ no intimation of the diet was made to him by the Sheriff or Sheriff-Clerk, and that the agent, being resident in Edinburgh, was therefore not aware of it.

At this stage of the cause I am bound to assume the truth of the complainers’ averments, however improbable. But if I do so, I do not think they make a relevant case. Such a promise by the Sheriff was not a judicial act. It can be regarded as nothing but the promise of a private individual, and I cannot think that the other party, pursuer of that action, could be deprived of what would otherwise have been his right because the Sheriff in his private capacity made a promise which he forgot to keep. As my assumption that the Sheriff made this promise and did not keep it is insufficient for the complainers’ case, I prefer not to make the assumption, but to suppose—what is no doubt the case—that the complainers’ agent misunderstood the Sheriff and supposed that he had made this irregular promise when in truth he did not. It is easy to imagine how this might happen.

The complainers say that their agent wrote Mr Bradley, the respondent's agent, inquiring whether any order had been pronounced by the Sheriff (an inquiry which, by the way, suggests that he was not relying on the Sheriff's promise), and that Mr Bradley gave him no answer. If this be so, I would not think Mr Bradley's conduct to be wholly commendable, but it is impossible to say that he was under any legal obligation to answer, or that his mere silence misled the complainers or their agent.

“Whether the complainers’ agent misunderstood the Sheriff or not, it would appear that he was not aware of the diet of proof, and that his absence was due to some misunderstanding or mistake not involving much fault on his part. It seems hard that his clients should lose their right on account of that accident, and I would be anxious to give a remedy if I could, but I am unable to see that there is any complete remedy under the statute. There seems to be a somewhat incomplete remedy under the 12th article of the first schedule, which authorises revisals of awards of compensation at any time. So that, if the complainers think that the amount awarded is too high, they can still have a remedy for that. But I think that this suspension must, in the circumstances averred, be refused.”

The United Collieries Company reclaimed, and argued—The duty of the Sheriff as an arbitrator was to apply his mind to the case brought before him. Here he had not done so, but had given effect to the motion of one party. The whole scope of the Workmen's Compensation Act pointed to a friendly arbitration, not to a litigation; and on an arbitration a decree by default was out of place. An arbitrator must take evidence, unless the circumstances were within his own knowledge— Sharp v. Bickerdyke, Feb. 24, 1815, 3 Dow 102; Macdonald v. Macdonald, Dec. 8, 1843, 6 D. 186; Mowbray v. Dixon, June 2, 1848, 10 D. 1102. It was true that section 14 of Schedule 2 referred to section 52 of the Sheriff Court Act 1876 (quoted supra), but there was nothing in that section to make it competent, far less obligatory, on the Sheriff to grant decree by default. Section 20 of the Sheriff Court Act 1876 was not applicable, because the word “action” there meant ordinary action, not summary action. The power to grant decree by default proceeded on the presumption that the non-appearing party was confessed, but an arbiter had no power to make such an assumption. Such decrees were only granted in exceptional cases in the Court of Session—Ersk. iv. 2, 17—and were incompetent in the Sheriff Court except under the express provisions of statute—[The Lord President cited Duff v. Stewart, Jan. 17, 1882, 9 R. 423, per Lord President Inglis at p. 425]. The Sheriff might have the power in ordinary actions, where the party against whom the decree was given might be reponed, not in a case where, as here, the decree was final. The remedy suggested under section 12 of Schedule 1 of the Workmen's Compensation Act (which gives power to the arbitrator to review the weekly payment) was probably not applicable here, where it would require the Sheriff to go back on his previous proceedings and take a proof. There was nothing unreasonable or contrary to the spirit of the Act of 1897 in an employer preferring to trust the case to the discretion of the Sheriff.

Argued for the respondent—This was not an ordinary arbitration, but a proceeding to be carried on in the form provided by section 52 of the Sheriff Court Act 1876. It was therefore a litigation, and the Sheriff had power to grant decree by default— Dove Wilson's Sheriff Court Procedure, p. 280. That was not necessarily final, because

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there was a power to alter the amount awarded (Schedule I, sec. 12). Section 20 of the Sheriff Court Act 1876, which declares that the Sheriff shall grant decree in a contested action when one of the parties fails to appear, applied to actions under section 52 of that Act, and therefore to arbitrations under the Workmen's Compensation Act.