Scottish Court of Session Decisions

Lord President—It is always a matter for the discretion of the Court whether leave to appeal should be granted during the progress of a case. My understanding of the practice is in accordance with the view expressed by Lord Adam in the passage which has been read to us from his judgment in the case of the Edinburgh Northern Tramways Company v. Mann ( 18 R. at p. 1153). We are very far from granting leave as a matter of course at an early stage of a litigation unless the result of the appeal if successful would be to end the case, and obviate the necessity for further procedure in this Court, as, for example, if the long negative prescription was pleaded, and the effect of the plea being sustained would be to terminate the action, or as if there was some other plea the sustaining of which would obviate the necessity of a long and expensive inquiry. But it does not appear to me that any of the requisite conditions exist in this case. The defender's plea of the triennial prescription which we have repelled by the judgments which he now seeks to submit to the review of the House of Lords, would not if sustained bring the litigation to an end. It would only have the effect of limiting the modes of proof; it would not exclude inquiry. The pursuer might still prove the employment and the terms of the employment by the defender's writ or oath; the question of accounting would remain. Even if the mode of proof is not so limited, the question of employment is an exceedingly short one. It is difficult to see what other evidence than that of the two parties and their letters would be available, and the professional accounts would in any view require to be taxed by the Auditor. I can see no room for a long or complicated inquiry on any part of the case. Accordingly, there is no reason why the case should not be quickly finished here (I should think in two or three hours in so far as the proof is concerned). If the pursuer should fail to prove his case there would be an end of the matter, and if he should succeed in doing so the defender would have an opportunity of going on with his appeal. On the other hand, the appeal if allowed now could not be heard this session in the House of Lords. Evidence might be lost, and indeed as the matter must chiefly depend upon the testimony of the parties themselves, there might be a fatal loss of essential evidence by the death of either of them.

I am therefore of opinion that it would not be consistent with practice, nor with the proper conduct of judicial business, to grant leave to appeal at this stage.

Lord Adam concurred.

Lord M'Laren—I understand that your Lordships are all of opinion that the motion for leave to appeal should be refused, and accordingly my opinion will have no practical effect, but I think it right to say that I should be in favour of granting leave on the ground that the construction of the Triennial Prescription Act and its application to the accounts of law-agents raises a question of importance to the law suitable for decision in the House of Lords. As regards the conduct of the case and the convenience of parties, the considerations are nearly balanced. I appreciate those which were stated by your Lordship in the chair, but on the other hand it is for consideration that if we refuse an appeal at this stage, and if, on an appeal being taken at the end of the case, the plea of triennial prescription is sustained, then the proof which we have allowed will be thrown away.

Lord Kinnear—I agree with your Lord-ship in the chair and with Lord Adam, and I am not moved by the consideration that the question of law involved is said to be of a suitable character for decision in the House of Lords, because on a motion of this kind we must assume that the question is of such a character, because if it were otherwise the standing orders of the House would not be satisfied.

The real question which we require to consider seems to me to be, whether in a particular case it is convenient for the true interest of the parties that the case should be taken piecemeal to the House of Lords, or whether it would not be better to follow the general rule that the case should be exhausted in this Court before an appeal is allowed. In the present case it would in my view be inconvenient to allow an appeal at this stage. The Court has decided nothing except that certain evidence should be admitted at the proof. It is very much the same case as if a Lord Ordinary having allowed a proof were to be asked for leave to reclaim against a ruling admitting certain evidence in spite of objection. It is a mere question of procedure. If the parties are reasonably expeditious in carrying out what remains of the procedure in

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