Scottish Court of Session Decisions

Lord Justice-Clerk—This motion raises a question as to the certification of the skilled witnesses for special fees. The application for that certification was made in proper time. Unfortunately the Sheriff-Substitute has not dealt with it at the proper time, but I do not see why the defenders should suffer through this.

I think our proper course is to remit to the Sheriff-Substitute who tried the case to grant the certificate either for or against the application. If the Sheriff-Substitute wishes to refresh his memory he can have the proof and the interlocutor sheet sent to him. I am for granting the motion.

Lord Salvesen—I am of the same opinion. I think it is desirable that the construction of the section of the Act of Sederunt which has been referred to here should be authoritatively settled. [ His Lordship here read section X, 5 ( b).] I am quite clear that that provision does not make it incumbent on the judge to grant the certificate within eight days after the date of the final interlocutor. It is enough if the application is made within that period. It is not possible for the party to secure that the judge shall grant the certificate; all that he can do is to apply for such a certificate. There may be excellent reasons why the judge cannot immediately apply his mind to such a motion, as, for instance, his absence from home—as happened in this case—or illness: and the suggestion that the successful party forfeits his right to obtain the certificate by not thereafter reminding the judge of his failure to grant it does not commend itself to my mind.

According to the practice in the Sheriff Court the judge who tried the case does not deal with such a certificate if, before it is brought to his notice, he finds that an appeal has been taken to a higher Court. I do not in the least suggest that it is incumbent on him to deal with it even although he has not the interlocutor sheet before him; but it was quite natural that the litigants here should, in view of that practice, not have thought it proper or decent to make any further application to the Sheriff-Substitute other than that which they had already made, and which was strictly in terms of the Act of Sederunt. No inconvenience really is caused by the judge's failure to deal with the matter at the time except in so far as he himself may have to refresh his mind with regard to the facts of the case so as to enable him to deal with it judicially. The practical question arises only when there has been a final interlocutor and an account falls to be taxed.

Accordingly, I think there is no doubt that the appellants here are entirely within their rights, and that we should adopt the course which your Lordship in the chair has proposed, of remitting to the Sheriff-Substitute to deal with the application, which it would have been better if he had dealt with at the time it was made.

Lord Guthrie—I am of the same opinion. I desire only to add that I am sure the Court does not wish to give countenance to the idea that an application of this kind should not be dealt with at once by the Judge. He is obviously in a much better position to deal with it if he does so at once. I am bound to say that in one's own experience in the Outer House I often found it difficult after the lapse of some time to apply one's judgment to the question of how many and which witnesses should be certified.

Lord Justice-Clerk—I should like to add, as regards the interpretation of the section of C. A. S. referred to, that the words “within eight days” apply to the application, and have nothing whatever to do with the time of the decision as to the certificate.

Lord Dundas was not present, being engaged in the Extra Division.