Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1916/54SLR0037.html
Cite as: [1916] ScotLR 37, [1916] SLR 37

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SCOTTISH_SLR_Court_of_Session

Page: 37↓

Court of Session Inner House Second Division.

Tuesday, June 6. 1916.

54 SLR 37

Henderson and Another Petitioners.

Subject_1Poor's Roll
Subject_2Senior Counsel
Subject_3Authority to Act for Poor Litigant
Subject_4C.A.S., 1913, A, x, 13.
Facts:

It is unnecessary to obtain the authority of the Court to enable senior counsel to appear on behalf of a litigant who has obtained the benefit of the poor's roll.

Headnote:

C.A.S., A, x, 13, enacts—“No other advocate or agent than those appointed as herein provided shall be employed, or allow their names to be used in any stage of the cause, unless, on application to the Lord Ordinary or the Court by note, to be signed by the advocate or agent already appointed, the assistance of one of the other counsel or agents for the poor shall be specially authorised; …”

Mrs Janet Henderson and another, pursuers, brought in the Court of Session an action of damages for personal injuries against the Musselburgh and District Electric Light and Traction Company, defenders The Lord Ordinary ( Ormidale) having assoilzied the defenders, the pursuers lodged a reclaiming note, and thereafter applied for and were admitted to the benefit of the poor's roll. They then presented a note to the Lord Justice-Clerk, in which they stated that a senior counsel had offered to appear with Mr Inglis, to whom the case had been remitted as one of the counsel for the poor, and craved the Court to authorise the said senior counsel to act in the cause. On the note appearing in the Single Bills of the Second Division counsel for the petitioners referred to C.A.S., 1913, A, x, 13, and moved the Court to grant the prayer of the note. The Court having desired that the motion should be further heard, the case was put out for hearing in the Single Bills of 6th June 1916.

Judgment:

The Dean of Faculty (Clyde), who appeared at the Bar, having been requested to address the Court, argued that as under the Acts of Sederunt of June 16, 1819, and December 21, 1842 (which were in the same terms as C.A.S., 1913, A, x, 13), it had been decided that senior counsel were entitled to give their services in cases on the poor's roll without requiring the authority of the Court— Garvie v. Hammermen of Perth, 1832, 10 S. 755, at p. 758, note; Bell v. Murray, 1833, 12 S. 187—notwithstanding the reenactment by the C.A.S. of the provisions of the earlier Acts of Sederunt which had been open to question, the same rule should be adhered to. He also stated that while it had been laid down that the senior acting for a poor litigant in a case on the poor's roll must do so gratuitously— Robertson v. Finlay, 1849, 12 D. 393; Wark v. Russell & Wardrop, 1850, 12 D. 1074—in more recent practice fees to senior counsel had been allowed.

The Court being of opinion that the authority of the Court was not required to enable senior counsel to appear in the cause, found it unnecessary to deal with the note.

Counsel:

Counsel for the Petitioners— E. O. Inglis. Agent— W. K. Lyon, W.S.
1916

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