Scottish Court of Session Decisions

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Cite as: [1913] ScotLR 67, [1913] SLR 67

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Wednesday, November 26. 1913.

[ Lord Hunter, Ordinary.

51 SLR 67

Frame

v.

Caledonian Railway Company.

Subject_1Process
Subject_2Proof or Jury Trial
Subject_3Appeal to House of Lords
Subject_4Leave to Appeal.
Facts:

Leave to appeal to the House of Lords against an interlocutor appointing a
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case to be disposed of by way of proof and refusing a jury trial refused.

Headnote:

The Evidence (Scotland) Act 1866 (29 and 30 Vict. cap. 112), sec. 4, enacts—“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.…”

On 14th February 1913 Gregor Macgregor Frame, produce merchant and commission agent, London, pursuer, brought an action of damages against the Caledonian Railway Company, defenders, for £3000 for personal injury caused him by the defenders not having supplied artificial heat to the carriage in which he travelled from Aberdeen to London on 30th September 1911.

On 28th May 1913 the Lord Ordinary ( Hunter) pronounced this interlocutor—“The Lord Ordinary having considered the cause, finds that the same is one more suitable to be disposed of by way of proof before his Lordship than by a jury: Therefore refuses the issue proposed: Allows to the parties a proof of their respective averments on record, and appoints the same to proceed on a day to be afterwards fixed.”

The pursuer having reclaimed, the Second Division, on 12th July 1913, refused the reclaiming note.

The pursuer then presented a petition for leave to appeal to the House of Lords against the interlocutors of the Lord Ordinary and the Inner House. The petition stated, inter alia—“That the petitioner having been advised that the said interlocutors of 28th May and 12th July 1913 are erroneous and contrary to law, proposes now to appeal to the House of Lords against the same; but as your Lordships were unanimous, and as the conclusions of the said action are not exhausted by the said interlocutors, it becomes necessary to obtain leave to appeal in terms of the Act 48 Geo. III, cap. 151, sec. 15. That the petitioner is advised that the leave to appeal craved ought to be granted, for the following among other reasons:—Because the action being one of damages in respect of personal injury, the pursuer is entitled to trial by jury, there being no special cause shown to the contrary.”

Argued for the petitioner—The Lord Ordinary and the Court were wrong in assuming that they had a discretionary power to refuse a jury trial. The action raised a pure question of fact. There was no legal question involved, and therefore, since the respondents had shown no “special cause,” the petitioners were of right entitled to a jury trial.

Argued for the respondents—The question as to whether the action should go to proof or jury trial was a question of procedure to be determined by the discretion of the Court, and in such a case as the present the discretion of the Court ought not to be brought under review by the House of Lords. Admittedly, if the Lord Ordinary and the Court had exercised their discretion in an arbitrary fashion, and had refused a jury trial without giving their reasons for so doing, there might have been a case for interference, but the respondents here had satisfied them that there was a “special cause” why the case should not go to a jury— Hope v. Hope's Trustees, December 15, 1898, 36 S.L.R. 220; Pringle v. Dunsmure, June 1, 1877, 14 S.L.R. 498.

Judgment:

Lord Justice-Clerk—This case in its present stage relates to procedure and to procedure only. We had an opportunity, when the case was heard before us at considerable length, of considering the question whether we would interfere with the discretion of the Lord Ordinary, who held that it was a case more suitable for a proof before himself than to be sent to a jury; and we were unanimous in deciding that we ought not to interfere with the discretion of the Lord Ordinary in the matter.

I think it is an established principle that except upon very strong grounds the Court will not interfere with the discretion of the Lord Ordinary in fixing the mode in which proof in the case is to be taken. It is quite certain that if the Lord Ordinary stated in his note some ground upon which he proceeded, which in no way gave reasons for exercising his discretion in substituting roof for jury trial, it would be the bounden duty of the Court to interfere in the matter. But we have been of opinion that that is not the case here. The Lord Ordinary has stated grounds which are sufficient to prevent us from interfering with the judgment which he has pronounced.

In those circumstances the question is whether the pursuer is to be allowed to appeal to the House of Lords on the question whether we have properly exercised our discretion. I do not think this is a petition which ought to be granted, and therefore I am for refusing it.

Lord Dundas—I quite agree. When this case was before us I thought it seemed to be a very peculiar one. It seemed to me that the facts were very special, and that they might, probably would, raise difficult questions of law at the inquiry. The Lord Ordinary, in the exercise of a discretion which he thought he had, and which I think he had, thought fit to send the case to proof and refused an issue. We adhered to that interlocutor, and, as your Lordship has said, it is not the custom of either Division of the Court lightly to interfere with the discretion exercised by a Lord Ordinary in such matters. But it is now said by the learned Solicitor-General that we and the Lord Ordinary exercised our discretion wrongly, or rather that we and the Lord Ordinary assumed a discretion which we had not, because no special cause had been shown why the case should not be tried by a jury. I think there was ample ground for holding that there was special cause why that procedure should not be resorted to. I am against granting leave to appeal to the House of Lords against our interlocutor. The precedents are against our doing so; similar motions have been not infrequently made and always refused. I do not think there is any general question

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of law raised, or indeed any question of law at all. I regard the matter as one of procedure and discretion. In some of the cases a consideration has been adverted to about the possibility of two appeals; and, for what it is worth, that element is here against the Solicitor-General, because if we were to grant him leave now to appeal, and he were unsuccessful, for aught we know there might be a second appeal at the end of the matter after proof had been taken. On the whole matter I am of opinion that this is a petition which we ought not to grant.

Lord Salvesen—I agree. One matter that certainly was in my mind when we adhered to the judgment of the Lord Ordinary was, that assuming that the contract had been broken, a difficult question of law might arise as to what damages reasonably and naturally flowed from that breach of contract. A jury, of course, is quite unable to appreciate matters of that kind, and is in the way of assessing damages in a very rough and ready way indeed. Apart from that specialty, which led me to concur in affirming the Lord Ordinary's interlocutor, there are other grounds upon which this may be treated as more or less a special case—indeed, we were not referred to any case that was at all like it. The question we have to decide now is merely, not whether we were right in affirming the Lord Ordinary's interlocutor, but whether we should give facilities to have the matter taken further.

If this be, as I think it is, a matter of procedure only, not touching any legitimate rights that the pursuer has, but merely the mode in which these rights are to be ascertained, and, if ascertained, to be converted into money, then I think we should be stultifying ourselves and acting against the long-established practice of this Court if we granted leave to appeal. That practice has existed since 1866, and has been consistently followed since then. I think this Court is presumably as well able to judge of the procedure that is proper for dealing with cases before it as even the House of Lords. Accordingly I agree with your Lordship that we should refuse this application.

Lord Guthrie—I agree. I think the way in which the petitioner has stated his application is sufficient for its disposal. He says, “there being no special cause shown to the contrary.” He does not deny that special cause is alleged. The Lord Ordinary has dealt with two matters which he thought amounted to “special cause,” and we agree with him. If this motion were granted, the application would be a very frequent one. The reports show that similar applications have come into Court raising exactly the same question—that is to say, whether the special cause that is alleged is or is not sufficient. These applications have all been refused, and refused by both Divisions, and I think we should follow the practice of the Court in this matter.

The Court refused the petition.

Counsel:

Counsel for the Petitioners— Morison, K.C.— Lippe. Agents— Dalgleish, Dobbie, & Company, S.S.C.

Counsel for the Respondents— Clyde, K.C.— Wark. Agents— Hope, Todd, & Kirk, W.S.
1913