Scottish Court of Session Decisions

The Court of Session Act 1868 (31 and 32 Vict. c. 100) enacts:—

Section 69—“ Effect of Appeals under this Act.—Such appeal shall be effectual to submit to the review of the Court of Session the whole interlocutors and judgments pronounced in the cause, not only at the instance of the appellant but also at the instance of every other party appearing in the appeal, to the effect of enabling the Court to do complete justice without hindrance from the terms of any interlocutor in the cause, and without the necessity of any counter appeal.…”

Section 79—“ Regulation of Interim Possession Pending Appeal to the Court of Session.—In all cases where the judgment of any inferior court shall be brought under the review of the Court of Session by appeal, it shall be competent for the inferior court to regulate in the meantime, on the application of either party, all matters relating to interim possession, having due regard to the manner in which the interests of the parties may be affected by the final decision of the cause; and such interim order shall not be subject to review except by the Court at the hearing of such appeal, when the Court shall have full power to give such orders and directions in respect to interim possession as justice may require.”

James Trainer, Holm Farm, Mearns, Renfrewshire, raised an action of interdict in the Sheriff Court at Paisley against the Upper District Committee of the County Council of Renfrewshire, in which he sought interdict against the defenders discharging sewage from the village of Mearns into the Broom Burn or allowing sewage from their irrigation works to percolate into it. The Sheriff-Substitute having granted interdict the defenders appealed, and on 5th July presented a note to the Lord President craving his Lordship to move the Court, pending the decision of the appeal, to recal the interdict granted.

The note, inter alia, stated—“The defenders, who are the local authority of the district in which Newton Mearns is situated, have at great expense, involving a rate of one shilling in the pound, provided sewage purification works which they were advised by their expert engineer are of the design best suited for the purpose and the locality. Since their erection the defenders have improved these works in matters of detail, and they believe them to be thoroughly efficient. … Were the present interdict to be enforced it would become necessary to construct altogether new sewage purification works on some other principle, and would double the expense, while it is impossible to say that the pursuer would ultimately be in any way benefited thereby. Further, the erection of new purification works would take a considerable time. A new scheme would have to be devised and considered and the consent of the County Council and the approval of the Local Government Board obtained, and fresh contracts entered into, while the execution of the work itself would involve much time. All this would further involve a very great waste of public money, and it would be wholly improper that such waste should be allowed, at least until it is finally ascertained the pursuer is entitled to the remedy he seeks. Again, until new purification works were constructed there would be no means of disposing of the sewage of Newton Mearns except by diverting it unfiltered in some other direction, which might, and almost certainly would, involve a widespread nuisance, and would endanger the public health in a manner and to an extent that the defenders cannot contemplate without alarm. While as regards the public interest the danger would be great, the pursuer would meantime suffer very little damage or inconvenience. The damage said to have been sustained by him from the inception of the works till June last has been assessed by the Sheriff-Substitute at £30.”

On the note appearing in the Single Bills counsel for the appellants stated that there was no direct authority for the application now made. The nearest recent analogous case dealing with the subject was Clippens Oil Company, Limited v. Edinburgh and District Water Trustees, March 20, 1906, 8 F. 731, 43 S.L.R. 540, which dealt with the subsistence of interim interdict granted in the Bill Chamber. In appeals to the House of Lords the Division to which the cause

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belonged could on petition regulate the interim possession. The Division should regulate the possession pending the appeal, and should recall the interdict as craved. Reference was made to secs. 69 and 79 of the Court of Session Act 1868 (31 and 32 Vict. c. 100).

Counsel for respondent stated that the appellant had largely contributed to the delay by appealing to the Sheriff, and that in these circumstances the note should be refused.