Scottish Court of Session Decisions

The County Council of Lanark, who were empowered under the Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), to enforce the provisions of the Rivers Pollution Prevention Acts 1876 and 1893 within the county of Lanark, raised an action in the Sheriff Court at Hamilton against the Commissioners of the Burgh of Motherwell to have them ordained to abstain from polluting certain streams within the district of the pursuers.

On 6th March 1901, after various procedure, the Sheriff-Substitute ( Davidson) pronounced an interlocutor in which he repelled the defences and made a remit to a man of skill to report as to the best means of preventing the pollution complained of.

The defenders appealed to the Sheriff ( Berry), who appointed parties to debate on the appeal on 20th May 1901.

On 1st June 1901 the Sheriff pronounced an interlocutor in the following terms:—“On the motion of counsel for respondents (the pursuers), there having been no appearance by or for the appellants at the diet for hearing parties on the appeal, dismisses the appeal,” &c.

The defenders appealed to the Court of Session.

They presented a note in the appeal, in which they explained that the appeal was taken for the purpose of being reponed, and craved the Court to dispense with printing of the notes of evidence. They stated as follows:—“Owing to the appellants' agent being absent in London until the day before the hearing, the appellants were unaware that the case had been put out for debate, and no appearance was made for them at the hearing. Further,

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the list of appeals which is put up at the Hamilton Court-House did not contain this case in the list of Hamilton cases. It was placed by error in the list of Glasgow cases. It thus escaped the notice of the appellants' agent's clerk.”

The respondents lodged a minute, in which, with reference to the statement in the appellants' note quoted above, they explained as follows:—“(1) That the printed roll above referred to is not the authorised roll of Court, but is one privately provided by the Faculty of Procurators in Glasgow. (2) The said appeal appeared in said roll for hearing before the Sheriff on the date in question. It was not, however, put under any special heading. The Hamilton cases are generally taken on a Wednesday. In this case the Sheriff allowed a special diet for debate, and fixed a Monday. The case therefore was not among the other Hamilton cases under the heading of ‘Hamilton,’ but was on the general roll, which is not limited to Glasgow cases. (3) That the appeal was duly entered for debate on the date in question in the ‘Act Book’ of the Hamilton Sheriff Court, which is the official record. (4) That on 17th May 1901, three days prior to the date fixed for the debate, the agents for the respondents communicated by telephone with the agent of the appellants reminding him that the case was put out for hearing.”

The respondents also intimated an objection to the competency of the appeal.

On 19th July 1901 the First Division pronounced the following interlocutor:—“The Lords having heard counsel for the parties, Appoint the cause to be put to the summar roll, reserving the question of the competency of the appeal; meantime remit to the Sheriff to report to this Court in regard to the practice followed in fixing diets and publishing or intimating to agents the orders for the hearing of cases coming before him on appeal from Hamilton.”

The Sheriff, under the remit contained in the above interlocutor, reported as follows:—“Lists of diets in appeal cases, including cases from all the districts of the county of Lanark, are made up at short intervals, generally about once a month, and a copy of each list when prepared is sent to the different sheriff-clerks-depute at the district seats of Court, including the Sheriff-Clerk Depute at Hamilton, in order that entries may be made in the Act Book of Court of each district of all diets fixed in appeals from that Court during the currency of the list. Any diets that may have to be fixed in the intervals between the issues of these lists are also, for the same purpose of publication in the Act Book, intimated to the Sheriff-Clerk-Depute of the district to which each case belongs respectively.

“With regard to the case in connection with which the present remit has been made, and in which the diet was fixed for 20th May 1901, I have made inquiry and find that the list containing it was posted to Hamilton on Saturday the 27th April, and was received by the Sheriff-Clerk-Depute there on the morning of Monday following, viz., the 29th of April. Entries of the case in question and the other Hamilton cases on the list were on the date last mentioned made in the Act Book of that Court. It will thus be seen that publication was made in the Act Book, which is open to inspection during office hours, three weeks before the diet.

For a number of years it has been the practice of the Glasgow Faculty of Procurators to print for the use of the members of the Faculty the lists of cases made up as above mentioned, and it has been usual for the copies of these prints as they appear to be exhibited on the notice boards at each of the district sheriff-clerk's offices. This was done in the present instance. These printed lists bear on their face to be printed for the Faculty of Procurators, and are unofficial. Publication in the Act Book is the official intimation on which parties and agents must depend.”

At the hearing the respondents raised in the summar roll the question of the competency of the appeal, relying on the Rivers Pollution Prevention Act 1875 (39 and 40 Vict. c. 75), sec. 11, which provides for appeals by way of stated case. The question of competency, however, was not considered, the Court desiring first to hear parties on the question of reponing.

Argued for the appellants—Reponing was a question of circumstances, and in this case there had been no gross negligence, the only fault consisting in relying on the accuracy of the printed lists. The appellants were willing to make good the expenses caused by the default, and on condition of doing so they were entitled to be reponed— Brown's Trustees v. Milne, July 17, 1897, 24 R. 1139, 34 S.L.R. 863; M'Carthy v. Emery, February 27, 1897, 24 R. 610, 34 S.L.R. 455; Morrison v. Smith, October 18, 1876, 4 R. 9, 14 S.L.R. 17.

Argued for the respondents—Negligence on the part of a party's agent was no ground for reponing— M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085, 14 S.L.R. 648; Stevenson, &c. v. Hutcheson and Anderson, May 12, 1885, 12 R. 923, 22 S.L.R. 613; Bain v. Lawson & Son, Feb, 16, 1899, 1 F. 576, 36 S.L.R. 417. The appellants had had twelve days to offer sufficient excuse for their failure to appear, and the decree by default was statutory—Sheriff Court Act 1876 (39 and 40 Vict. c. 70), sec. 20.