Scottish Court of Session Decisions

The C.A.S., L, xiii, enacts—Section 11 (2)—“An award by a Sheriff under the Act, or a certified copy thereof, shall be forthwith recorded by the sheriff-clerk in the said register as if it were a memorandum, and written notice of such recording and of the terms of the award shall be forthwith sent by him to the parties interested.” Section 17 ( a)—“An application to a Sheriff to state a case on a question of law determined by him shall be made by minute lodged in the process within seven days after the Sheriff has issued his award. …”

James Hoolachan, petitioner, presented a petition craving an order on the Sheriff-Substitute at Hamilton to receive a minute on his behalf asking for a Stated Case in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58).

The facts of the case were—On 3rd August 1915 the petitioner sustained personal injury by accident arising out of and in the course of his employment with the Bent Colliery Company, Limited, coalmasters, Bent Colliery, Hamilton, and claimed

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compensation from the said Bent Colliery Company, Limited, under the Workmen's Compensation Act 1906. Thereafter arbitration proceedings under the said Workmen's Compensation Act were commenced by the petitioner before the Sheriff-Substitute of the county of Lanark at Hamilton for an award of compensation. On 24th July 1915 the said Sheriff-Substitute awarded the petitioner compensation at the rate of £1 weekly in respect of his total incapacity for work. Compensation at the said rate of £1 per week was thereafter paid to the petitioner by the said Bent Colliery Company, Limited, down to 14th August 1916, when they refused to make any further payment at the full rate. On 11th September 1916 application was made to the said Sheriff-Substitute by the said Bent Colliery Company, Limited, for review of the amount of the weekly payment of compensation to the petitioner. On 11th November 1916 the arbitrator issued his award diminishing the compensation payable to the petitioner to the sum of 17s. 6d. per week as from 9th September 1916. No notice of the said award was sent to the petitioner or his law agents. On 13th November 1916 a copy of the said arbitrator's award was handed to a clerk in the employment of the petitioner's law agents, in the office of the Sheriff-Clerk at Hamilton, by one of the assistants of the said Sheriff-Clerk, with the remark that it had been issued that day. The said copy award was blank as to date, and the said clerk thereupon filled in the date as of 13th November 1916. This was done in the presence and with the knowledge of the Sheriff-Clerk's said assistant. The petitioner was dissatisfied with the terms of the said award, and on being advised that the same was appealable on point of law by way of Stated Case he gave instructions to lodge and proceed with an appeal. On 20th November 1916 a minute was lodged in the said proceedings by the law agent for the petitioner craving the said arbitrator to state a case for appeal to the Court of Session on the question of law therein set forth, but the arbitrator refused to state a case at the instance of the petitioner in respect that the application for a Stated Case was not made until the 20th November 1916, whereas it should have been made at latest on 18th November 1916, as the award was issued on 11th November 1916. The whole circumstances were explained to the said arbitrator, but he held that he had no power to dispense with the provisions of the Codifying Act of Sederunt 1913, cap. xiii, sec. 17 ( a).

The prayer Of the petition was—“To appoint this petition to be intimated on the walls and in the minute book in common form, and to be served upon the said Bent Colliery Company, Limited, and upon the Sheriff-Clerk, Robert George Slorach, and to ordain them to lodge answers hereto, if so advised, within eight days after service; and to ordain the Sheriff-Clerk of the County of Lanark, at Hamilton, forthwith to transmit the whole process in the said arbitration proceedings between the petitioner and the said Bent Colliery Company, Limited, under the Workmen's Compensation Act 1906, to the Clerk of the First Division of the Court of Session; and thereafter, on resuming consideration hereof, with or without answers, together with the said whole process, to ordain the said Sheriff-Substitute, as arbitrator foresaid, to receive the said minute on behalf of the petitioner, and to accept the same as timeously lodged, and thereafter to proceed as accords; and to retransmit the said process to the Sheriff-Clerk of the County of Lanark at Hamilton.”

No answers were lodged.

Argued for the petitioner—The C.A.S., L, xiii, 11 (2) and 17 ( a) had not been complied with by the Sheriff-Clerk. It was his duty to record the award, and to notify the petitioner of such recording and of the terms of the award. He had not done so. Further in the circumstances the petitioner was entitled to believe that the date of issue of the award was the 13th November, for until that date the day of issue had not been fixed. Unless the award was dated and signed by the arbitrator and notice thereof given to the petitioner, the award could not be held to be issued, for if those things were not done the seven days allowed for lodging a minute craving a stated case would be rendered useless. In England and Ireland the Court had a discretionary power to extend that time— Henneberry v. Doyle Brothers, 1911, 46 Ir.L.T. 61 ( per L.C. Barry at p. 62). The case was similar to cases under the Bankruptcy Statutes, where the Court in exercise of the nobile officium had provided a remedy when statutory requisites had not been observed per incuriam, but the petitioner's position was stronger, for there was no incuria on his part. The Court's powers with reference to its own Acts of Sederunt were described in Govan v. M'Killop, 1909 S.C. 562 ( per Lord Low at p. 565), 46 S.L.R. 416. The prayer of the petition should be granted.

At advising—