Scottish Court of Session Decisions

On 12th December 1904 the Summerlee Iron Company, Limited (formerly the Summerlee and Mossend Iron and Steel Company, Limited), pursuers, raised an action against the Caledonian Railway Company, defenders.

The following narrative of the history of the action and the course of proceedings is taken from the opinion of Lord Salvesen—“The summons in this case was signeted as far back as 12th December 1904, but from various causes which it is not necessary to detail the conclusions which it contains have not yet been disposed of. These conclusions were, briefly, for declarator that the defenders were bound to make and maintain at their own expense a level-crossing across their railway where it passes through the pursuers' land, so as to afford the pursuers access from the ground belonging to them on either side of the railway to the other side, and for decree ordaining them to construct such crossing at a given point. On record the defenders professed their willingness to construct the level-crossing; but questions arose as to the nature of the crossing which they had undertaken to make, and as to their liability for the expense of connecting the crossing with the pursuers' line of railway. In June 1905 Lord Low found that the defenders were bound to make and maintain a level-crossing for the pursuers' use, and appointed the defenders to lodge a minute stating what steps they proposed to take for its construction, and at what date they proposed to commence the work of construction. Great delay took place, until the matter came before myself as Lord Ordinary (Lord Low having in the meantime become a Judge of the Second Division) in the beginning of 1908, when I pronounced an interlocutor decerning the defenders to complete the levelcrossing, which had by that time been partially constructed, so as to make it available as a connection between the lines of railway constructed by the pursuers on their own lands on each side of the defenders' railway. That interlocutor was brought under review of the Second Division, who on 5th February 1909 recalled it, but reaffirmed the interlocutor of Lord Low, with the additional finding that the defenders were bound to construct such catch-points, signals, stop-blocks, or other adjuncts or appliances as the Board of Trade might prescribe as necessary to secure the safety of the public and of the traffic on the railway, whether such crossing required to be constructed on the defenders' own land or on land belonging to the pursuers. With this finding the case was continued, in order that the matter might be laid by the parties before the Board of Trade and the approval of that Board obtained with all reasonable despatch to the construction by the defenders, with a view to its use, of the level-crossing in question.

Up to this point parties proceeded on the footing that the Board of Trade's sanction would be obtained provided the appliances which they deemed necessary for the safety of the public were duly constructed.

Following on this interlocutor, parties proceeded to adjust plans with a view to laying them before the Board of Trade, and a long correspondence followed, with the result that on 25th March 1910 a Mr Marwood on behalf of that body addressed a letter to the defenders enclosing a report made to them by Colonel Yorke, one of their officials, and directing the defenders to postpone the opening of the crossing in question for a period of one calendar month from that date. In the report Colonel Yorke stated that the level-crossing was practically in the same condition as described in the report which he had issued on 28th February 1909; that no safety catch-points had been inserted on the mineral line, and no other works had been carried out except a reduction of the gradient of the pursuers' mineral line, which had been effected at their expense. Accordingly he stated his opinion that owing to the incompleteness of the works the use of the level-crossing would be attended with danger to the public using the railway of which the said level-crossing was a part, and that he was unable to recommend the Board of Trade to sanction its use. So far this new report was on the lines of the previous report referred to. Colonel Yorke, however, added that although the work to which he referred would reduce the danger it would not be

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entirely removed, and that he was unable to suggest any means whereby the crossing could be made sufficiently safe to justify him in recommending the Board of Trade to authorise its use.

It is unfortunate that this suggestion should have been made so late in the day, after much expense had been incurred by both parties in constructing the crossing so as to satisfy the requirements of the Board of Trade; but as that body is quite autocratic and irresponsible the parties recognised the statement of the Board's attitude as introducing a new and serious element into the case. The defenders conceived that it entitled them to have the action dismissed; and they lodged a minute in July 1910 which set forth what had taken place after the date of the interlocutor of the Second Division, and concluded with a crave that the Court should find that the defenders were under no obligation to construct further works, and to dismiss the action. This minute was answered by the pursuers at the time; but when the case was put out for discussion they tendered a minute of amendment of their original summons, in which they asked leave to add an alternative conclusion for damages, based upon the view that owing to the attitude of the Board of Trade they might not be in a position to ask the Court to grant a decree for specific implement. The remainder of the proposed amendment consists of averments in support of this alternative conclusion. Answers were lodged on behalf of the defenders, and the pursuers have amplified their averments in view of these answers. The defenders now maintain that we should refuse to allow the record to be amended in the manner proposed, because (1) such an amendment is incompetent, (2) assuming its competency, the Court in the exercise of their discretion should not in the circumstances allow it to be made, but should dispose of the action as originally framed.”

Argued for pursuers—If the defenders took up the position that owing to the action of the Board of Trade they could not make a level-crossing for the pursuers' use, the whole complexion of the case was altered; it would or might be impossible to enforce the decree of specific implement — Stewart v. Kennedy, February 17, 1890, 17 R. (H.L.) 1 (Lord Chancellor at p. 5 and Lord Watson at p. 10), 27 S.L.R. 469. The pursuers were accordingly entitled to add a conclusion for damages. They could raise a supplementary action, but the Act of Sederunt of 20th March 1907 was passed in order to obviate, inter alia, the necessity for bringing supplementary actions. The remedy now sought was undoubtedly different, but section 2 ( g) of the Act of Sederunt made it competent. The amendment was necessary for the purpose of determining the real question between the parties, which was as to the right of the pursuers to obtain the declarator. The conclusion for specific implement was merely executory thereto.

Argued for defenders—The amendment was incompetent. The pursuers could not convert the action from one of specific implement into an action of damages when they found they were unable to obtain implement. Section 2 ( g) of the Act of Sederunt of 20th March 1907 ( sup. cit.) did not help the pursuers. It was not necessary for the determination of the real question—which was whether the pursuers were entitled to get specific implement of an admitted obligation—to have a conclusion for damages. The Act of Sederunt did not allow a party to make a pecuniary action out of one which was not pecuniary. The Act of Sederunt altered well-established procedure. The canon of construction that fell to be applied to it was therefore a strict one.

At advising—