Scottish Court of Session Decisions

Lord Trayner—The question argued before us in this case was, whether in view of the provisions of the Employers Liability Act 1880 it is competent to remove an action based upon that statute from the Sheriff Court to the Court of Session by way of appeal for jury trial under the provisions of the 40th section of the Judicature Act. The case of Paton decided that it is competent to do so. Sitting as a Court of co-ordinate jurisdiction I am of opinion that we cannot disregard that decision, but in saying so I am not to be understood as expressing any concurrence in it. So long as that decision stands I think we must give effect to it, and therefore hold the present appeal to be competent. But I wish to point out that any action founded on the Employers' Liability Act (or laid alternatively on common law) if removed from the Sheriff Court to this Court either under the provisions of the Judicature Act or the Employers Liability Act is in my opinion subject to the conditions as to expenses set forth in section 9, sub-section 2, of the Sheriff Court Act 1877, which conditions (hitherto somewhat overlooked) should in future be strictly enforced in all cases to which they have by the statute been made applicable.

Lord Moncreiff—I agree in the result arrived at by Lord Trayner. On the argument which was addressed to us I formed an opinion, apart from previous decision, against the competency of the appeal in this case; but standing the case of Paton, there is no course open to us at present but to sustain the competency of the appeal. I am the less reluctant to do so in the present case because there would have been a certain hardship if the appellants, who relied on the authority of Paton, were put to the expense of having the case reheard before a Court of Seven Judges.

But the question may come up again, and I wish to give this warning to parties who in future may seek to have an action which has been raised under the Employers Liability Act removed from the Sheriff Court to the Court of Session under the 40th section of the Judicature Act, that before doing so they should study the only terms on which such removal is allowed. The 6th section of the Employers Liability Act provides that “In Scotland any action under this Act may be removed to the Court of Session at the instance of either party in the manner provided by, and subject to the conditions prescribed by, section 9 of the Sheriff Courts (Scotland) Act 1877.” Section 9 of the Sheriff Courts Act 1877 provides (1) that the action may be removed to the Court of Session on the party taking the proper steps either before the interlocutor closing the record or within six days thereafter, and (2) “The Court of Session, or either Division thereof, or any Lord Ordinary therein, may, if of opinion that the action might have been properly tried in the Sheriff Court, allow the defender who removed the action to the Court of Session, in the event of his being successful therein, such expenses only as they may consider that he would have been entitled to if successful in the action in the Sheriff Court.” The provisions in this section regarding the removal of actions at the instance of the defender are extended by the 6th section of the Employers Liability Act to actions at the instance of either

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