Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 30, enacts—“In cases originating in the sheriff court … where the claim is in amount or value above fifty pounds, and an order has been pronounced allowing proof … it shall, within six days thereafter, be competent to either of the parties who may conceive the cause ought to be tried by jury, to require the cause to be remitted to the Court of Session for that purpose, where it shall be so tried: Provided, however, that the Court of Session shall, if it thinks the case unsuitable for jury trial, have power to remit the case back to the sheriff.”

Michael Fitzgibbon, pursuer, brought an action in the Sheriff Court at Glasgow against James Howden & Company, Limited, Glasgow, and others, defenders, concluding for £100 damages for personal injuries.

The pursuer averred that he was touched on the clothing by a motor vehicle driven by servants of the d efenders; that he jumped back in alarm, breaking his leg in so doing; that the accident took place in a public street in Glasgow, and was due to the fault and negligence of the servants of the defenders, for which they were liable.

He further averred—“(Cond. 5) Pursuer was taken to the Glasgow Royal Infirmary on the date of the accident, and remained there until 1st December 1915. He was resident in the Royal Infirmary for six weeks and was at a convalescent home afterwards for two weeks. His health has been impaired since and he has not been able to earn what he would have earned if the accident had not happened, and he is permanently injured by the accident. Pursuer estimates his loss of earnings and the damage caused him at the sum of £100.”

He pleaded—“1. Pursuer having been injured by the negligence of both defenders' employees in driving vehicle for them as aforesaid is entitled to decree with expenses.”

On 16th December 1916 the Sheriff-Substitute (A. S. D. Thomson) allowed a proof. The pursuer required the case to be remitted to the Court of Session for jury trial.

In the Single Bills counsel for the defenders moved that the case be remitted back to the sheriff, and argued—The case was unsuitable for jury trial as the averments were involved, and the relevancy of the action was doubtful. Further, the averments as to injuries were not such as to form reasonable grounds for an award of over £50. Jury trial was therefore unsuitable— Barclay v. Smith & Company, 1913 S.C. 473, 50 S.L.R. 308. “Unsuitable” covered more than “not appropriate,” which was the terminology of the Judicature (Scotland) Act 1825 (6 Geo. IV, cap. 120), section 28— Greer v. Corporation of Glasgow, 1915 S.C. 171, per Lord Johnston at p. 172, 52 S.L.R. 109—and the purpose of the proviso in the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 30, was to save expense in small cases— per the Lord Justice-Clerk Macdonald in Barclay's case ( cit.) at p. 474. The expense and trouble arising under the present conditions, and necessarily entailed in a trial by jury, rendered this case unsuitable for that form of process.

Argued for the pursuer—The case was suitable for jury trial. A proof had been allowed, and the averments as to injuries—particularly the averments as to permanency of the injury and the length of time the pursuer had been incapacitated—were such that, if proved, would reasonably lead to an award of damages exceeding £50. “Suitable for jury trial” referred to the nature of the case and not to a state of affairs wholly external to the case.

At advising—