Scottish Court of Session Decisions

The Evidence Act 1866 (29 and 30 Vict. cap. 112) provides, sec. 4—“If both parties consent thereto, or if special cause be shown, it shall be competent to the Lord Ordinary to take proof in the manner above provided in section first hereof in any cause which may be in dependence before him notwithstanding of the provisions contained in 69 Geo. IV. cap. 120, sec. 28, and the provisions in 13 and 14 Vict. cap. 36, sec. 49; and the judgment to be pronounced by him after such proof shall be subject to review in the like manner as other judgments pronounced by him.”

The former of the enactments referred to in the above section (6 Geo. IV. cap. 120, sec. 8) enumerates the causes appropriate to the Jury Court, and included “actions on account of injury to the person.” The latter, (13 and 14 Vict. cap. 36), sec. 49, provides that “it shall be competent for the Court to allow proof on commission in any of such enumerated causes where the action is not an action for libel, or for nuisance, or properly and in substance an action of damages.”

Joseph Vallery, labourer, brought an action in the Sheriff Court of Lanarkshire, at Glasgow, against Robert M'Alpine & Sons, contractors, in which he sued them for £160, 11s. under the Employers' Liability Act 1880 for damages for personal injuries sustained by him while working in their employment.

The action was on a note at the instance of the defenders transmitted to the Court of Session under the provisions of sec. 6, sub-sec. 1, of the Employers' Liability Act 1880, and sec. 9 of the Sheriff Courts (Scotland) Act 1877.

The pursuer moved the Lord Ordinary to adjust issues with a view to the trial of the cause before a jury. The defenders opposed this motion, and moved that the cause be tried by proof before the Lord Ordinary. On 14th March 1905 the Lord Ordinary refused the pursuer's motion and ordered a proof to be taken before him.

Opinion.—“My opinion is that this case ought to go to proof. I rest that opinion on the ground that in some respects the averments are of doubtful relevancy, and further, that there may be difficulty in distinguishing between the averments which are relevant and those which are not. In this I find sufficient special cause for not sending the case to trial.”

The pursuer reclaimed, contending that he was entitled to have the case tried by a jury.

Argued for the pursuer and reclaimer—Actions of damages for personal injury had always been considered specially jury cases—Court of Session Act 1825 (6 Geo. IV, c. 120), sec. 28, and Court of Session Act 1850 (13 and 14 Vict. c. 36), sec. 49—and it was only by consent of parties, “or if special cause be shown”—Evidence Act 1866 (29 and 30 Vict. c. 112), sec. 4—that it was competent to the Lord Ordinary to allow a proof. The fact that in some respects the averments might be of doubtful relevancy, or that there might be difficulty in distinguishing those which were relevant from those which were irrelevant was not a “special cause.” The Court therefore were not being asked to interfere with the exercise of the Lord Ordinary's discretion, for in the present case he had none to exercise— M'Avoy, &c. v. Young's Paraffin Oil Co., Limited, November 5, 1881, 9 R. 100, 19 S.L.R. 61; Morrison v. Baird & Co., December 2, 1882, 10 R. 271, 20 S.L.R. 87; M'Intosh v. Commissioners of Lochgelly, November 3, 1897, 25 R. 32, 35 S.L.R. 50; M'Mullen v. Newhouse Coal Co., May 27, 1896, 23 R. 759, 33 S.L.R. 598; M'Natty v. King's Trustees, October 27, 1886, 4 R. 8, 24 S.L.R. 15.

Argued for the defenders and respondents—This case was for all purposes to be regarded as a case originating in the Court of Session. A judge of that Court had already exercised his discretion as to the mode of trial, and it was settled law that the Court would not interfere with that discretion except upon the most serious grounds— Weir v. Grace, March 10, 1898, 25 R. 739, 35 S.L.R. 566; Edinburgh Railway Access and Property Co. v. John Ritchie & Co., January 7, 1903, 5 F. 299, 40 S.L.R. 244. Cases arising out of appeals from the Sheriff Court for jury trial under the 40th section of the Judicature Act 1885, where the

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Court had allowed jury trials, were hardly in point owing to the possible reluctance of the Court to send the case hack to the Sheriff Court for proof, and also to the fact that the allowance of jury trial in them did not involve the overruling of the discretion of a judge of the Court of Session. Difficulty as to the relevancy or irrelevancy of averments was distinctly a “special cause,” and the case was peculiarly one suited for proof— Jack v. Rivet, Bolt, and Nut Co., Limited, March 10, 1004, 6 F. 572, 41 S.L.R. 429; M'Nab v. Fyfe, July 5, 1904, 6 F. 925, 41 S.L.R. 736.