Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0882.html
Cite as: [1913] ScotLR 882, [1913] SLR 882

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SCOTTISH_SLR_Court_of_Session

Page: 882↓

Court of Session Inner House First Division.

[Sheriff Court at Perth.

Saturday, July 12 1913.

50 SLR 882

Christie

v.

Lyburn.

Subject_1Process
Subject_2Proof
Subject_3Evidence
Subject_4Credibility of Witnesses — Weight to be Given to Opinion of Judge of First Instance — Duty of Judge of Appeal.
Facts:

Observations ( per Lord Kinnear and Lord Mackenzie) on (1) the weight to be given by a judge of appeal, before whom a question of fact is properly laid, to the opinion of the judge who has seen and heard the witnesses; and (2) the duty of the judge of appeal, taking into account the impression made by the witnesses on the judge of first instance who saw and heard them, to give his own opinion on the evidence in the case.

Headnote:

Annie Christie, pursuer, brought an action of affiliation and aliment in the Sheriff Court at Perth against James Lyburn, defender.

On 2nd March 1912 the Sheriff-Substitute ( Sym), after proof led, found that the defender was the father of the pursuer's illegitimate child.

The defender appealed to the Sheriff.

On 18th May 1912 the Sheriff (Johnston) refused the appeal.

Note.—“… In affirming the Sheriff-Substitute's interlocutor in this case I am not to be taken in giving his finding, should this case go further, the weight which the Supreme Court is sometimes disposed to attach to the concurrent judgment of both Sheriffs. If it had fallen to me to decide the case in the first instance upon the evidence as recorded, my judgment would have been the other way.… But credibility upon both sides enters very largely into this case and recent decisions of the Court of last resort do not encourage independence of judgment in a court of review when this is the case. I think that this consideration applies with special force when a single judge is called upon to review the judge of first instance without the advantage of consultation with colleagues. In the whole circumstances I do not feel that there are grounds upon which I am able to proceed with confidence in disturbing the Sheriff-Substitute's verdict.”

The defender appealed to the Court of Session.

At advising—

Judgment:

Lord Mackenzie—This action of affiliation and aliment comes up on appeal under unusual circumstances. The Sheriff-Substitute, who saw and heard the witnesses, has held the pursuer's case proved. The Sheriff on appeal has affirmed this judgment, but states in his note—“In affirming the Sheriff-Substitute's interlocutor in this case I am not to be taken in giving his finding, should the case go further, the weight which the Supreme Court is sometimes disposed to attach to the concurrent judgment of both Sheriffs. If it had fallen to me to decide the case in the first instance upon the evidence as recorded my judgment would have been the other way.” This course, as the Sheriff explains, he followed from his desire to give effect to recent decisions in the House of Lords as to the effect to be given to the opinion of the judge of first instance in dealing with questions of evidence. The Act of Parliament does, however, give litigants a right of appeal on questions of fact, and if, after giving all due weight to the impression produced by the witnesses on the Sheriff-Substitute who took the proof, the Court to whom an appeal lies considers that the case is not proved, their duty is to

Page: 883↓

give effect to this opinion.… Upon the whole matter I think that the interlocutors of the Sheriff and Sheriff-Substitute should be recalled and that we should find that the pursuer has failed to prove that the defender is the father of her child.

Lord Kinnear—I entirely agree.… I only wish to add that I agree with the view expressed by Lord Mackenzie as to the course which the learned Sheriff has thought it right to follow in this case. Whether an appeal should be allowed or not upon questions of fact is not for the Courts but for the Legislature to determine. And so long as an appeal on a matter of fact is allowed, it is the plain duty of the judge of appeal to apply his own mind to all the materials of fact which may be brought before him and to pronounce his own judgment. I do not think a judge of appeal, before whom a question of fact is properly laid, is entitled to withhold the benefit which the law gives to the person aggrieved by the judgment below and to refuse to give his own opinion upon the evidence. Of course he may attach—as we always do attach—the greatest possible weight to the opinion of the judge who has seen and heard the witnesses, and there may be particular facts upon which the Court of Appeal may reasonably accept the opinion of the judge simply because it is his, but that is only when it is apparent from the judgment that he has been moved by considerations which cannot be brought fully, if at all, before the Court of Appeal. It is a totally different thing to say that the Court of Appeal is to suppress its own perception of the ordinary probabilities of conduct and results, out of deference to an opinion which it is called upon to review.

Lord President—I agree, and I do not think it necessary to repeat what Lord Mackenzie has said.

Lord Johnston was not present.

The Court recalled the interlocutors of the Sheriff and Sheriff-Substitute, found that the pursuer had failed to prove that the defender was the father of her illegitimate child, and therefore assoilzied the defender from the conclusions of the action.

Counsel:

Counsel for Pursuer and Respondent—Solicitor‐General ( Anderson, K.C.)— Wark. Agents— Menzies, Bruce Low, & Thomson, W.S.

Counsel for Defender and Appellant— D. Anderson, K.C.— C. H. Brown. Agents— Macpherson & Mackay, S.S.C.
1913