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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shankland & Co. v. Robinson & Co. [1918] ScotLR 107 (13 December 1918)
URL: http://www.bailii.org/scot/cases/ScotCS/1918/56SLR0107.html
Cite as: [1918] SLR 107, [1918] ScotLR 107
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
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v.
Facts:
The Courts (Emergency Powers) Act 1917, section 1 (2), enacts—“Where upon an application by any party to any contract whatsoever the court is satisfied that … owing to the acquisition or user by or on behalf of the Crown for the purposes of the present war of any ship or other property any term of the contract cannot be enforced without
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serious hardship, the court may, after considering the circumstances of the case and the position of the parties to the contract …, suspend or annul the contract, or stay any proceedings for the enforcement of the contract or any term thereof or any rights arising thereunder on such conditions (if any) as the court may think fit.” Held ( dis. Lord Guthrie) that an application in the sense of the Courts (Emergency Powers) Act 1917, section 1, sub-section (2), meant an independent application, and that the Act could not be invoked by means of a plea-in-law and relative averments by the defenders in the record in an action at the instance of the other parties to the contract.
The Courts (Emergency Powers) Act 1917 (7 and 8 Geo. V, cap. 25), sec. 1 (2), is quoted supra in rubric.
Shankland & Company, merchants and contractors, Glasgow, pursuers, brought an action against John Robinson & Company, Wigan, defenders, for payment of the sum of £587, 10s., the price of a traction engine alleged to have been purchased by the defenders from the pursuers at a sale by auction on 17th January 1918. It was not disputed that at the sale the defenders made a bid for the traction engine of £587, 10s., and that the hammer fell on their bid.
The defenders averred, inter alia—“(Stat. 8) On 19th January the defenders wrote to the auctioneers asking them to instruct the pursuers to have the goods loaded on railway immediately, and also wrote the Traffic Department at Cupar Station to see the goods forwarded. The Traffic Department replied on 21st January that the ‘traction engine awaits permit from military.’ The defenders wrote the auctioneers, as the pursuers' agents, on 24th January—‘We have a note … saying that the traction engine cannot be removed until permit is obtained from the military authorities, and we understood that the same could be removed right off.’… (Stat. 9) In point of fact the Government authorities on behalf of the Army Council and/or the Ministry of Munitions had forbidden, under the powers of the Defence of the Realm Regulations, that the traction engine in question should be removed by the pursuers from the place of sale, and the pursuers were never in a position to, and did not ever in fact, tender delivery to the defenders. Following on their embargo on removal the said authorities commandeered or ‘impressed’ the engine, and it is now the property of the Government and at work in their service in Scotland. The said engine when so commandeered was still the property of the pursuers. In any event it is no longer in the power of the pursuers to implement the bargain by tendering the real subject of sale at said auction, namely, a traction engine capable of being put to the defenders' uses, which in the full knowledge of the pursuers were commercial uses in England.”
The defenders pleaded, inter alia— “8. The defenders being in any event entitled to have the alleged contract of sale annulled under provisions of the Courts (Emergency Powers) Act 1917, section 1, sub-section (2), decree of absolvitor should be pronounced.’
On 22nd November 1918 the Lord Ordinary (
Ormidale ) repelled, inter alia, the eighth plea-in-law for the defenders, and quoad ultra allowed the parties a proof of their averments, the defenders to lead in the proof.In a note the Lord Ordinary stated—“The effect of the Courts (Emergency Powers) Act 1917, section 1 (2), cannot in my judgment be considered in these proceedings.”
The defenders reclaimed, and argued—There was before the Court an application in the sense of the Courts (Emergency Powers) Act 1917 (7 and 8 Geo. V, cap. 25), section 1 (2). The action for the price was an application by a party to the contract, viz., the pursuers, and in that application the defenders had competently pleaded the Act. Alternatively, the defenders' eighth plea-in-law could itself be regarded as an application in the sense of the Act. The defenders' averments in support of the plea-in-law were therefore relevant. The words “application” and “court” were used in the Courts (Emergency Powers) Act 1914 (4 and 5 Geo. V, cap. 78), and as used there were construed with reference to the relative Act of Sederunt dated 28th September 1914, but no Act of Sederunt had been passed with reference to the Act of 1917, and the Court was not therefore restricted in its interpretation of the Act. No benefit could ensue from the duality of proceedings involved in a separate application, the sole warrant for which was an interpretation by the Court of the word “application” without the warrant of an Act of Sederunt. There was no hardship in raising the question by a plea-in-law without the artificial severance of proof involved in a separate application. Indeed, standing the Lord Ordinary's interlocutor repelling the defenders' eighth plea, it seemed more than doubtful that the question could be subsequently raised by a separate application. The present was a typical case for the application of the Act, seeing that hardship had resulted to the defenders in respect that they were asked for payment without the concurrent condition implied by the Sale of Goods Act, viz., delivery, being fulfilled.
Argued for the respondents—There was here no proper application before the Court nor anything to show on what grounds it was made. The defenders should either have presented an application to the Inner House before the action was raised or have lodged a minute in the process craving the Lord Ordinary to grant relief under the Act. In Charles Schofield & Company, Limited, v. Maple Mills, Limited, 1918, 34 T.L.R. 423, where the Act was invoked, it appeared that there was an independent application before the Court. In any event the present case was not a suitable one for the application of the Act. The intervention contemplated by the Act was to a contract which was still in process of performance, and not, as in the present case, to a contract which had been entirely fulfilled. The defenders had not set forth on record any serious hardship
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peculiar to them, and the result of applying the Act in their favour would only be to transfer the same hardship to the pursuers. This was not the kind of case contemplated by the Act. As a matter of fact, however, there was no restriction as to proof in the interlocutor reclaimed against and the defenders were not prejudiced thereby.
But then Mr Moncrieff presented an argument founded upon the terms of section 1 (2) of the Act of 1917, which enacts that “Where, upon an application by any party to any contract whatsoever, the Court is satisfied” of certain things, it may do certain other things, and he contended with force that in this case there was an application to the Court in respect that the pursuer, the seller, had raised an action for payment of the price, and that that action was an application to the Court in the sense of the statute. Then he said that that being an application to the Court he was entitled to raise any question under the Defence of the Realm Act 1917 which he thought proper, to state such facts as he thought necessary to enable the point to be raised—with a proper plea—to get a proof upon these facts, and to ask the judgment of the Lord Ordinary upon that aspect of the case if in the end it became necessary to do so.
While recognising the force of the argument I have come to be of opinion that it is not sound. I do not think that “application” in the 1917 Act can bear the interpretation which Mr Moncrieff seeks to put upon it. On the contrary, I think “application” means an independent application by a person who wants to take the benefit of the 1917 Act, and who, professing to proceed under that Act, asks the remedy which the Act gives him so far as he thinks necessary. Therefore I do not think that the appropriate form of bringing before the Court the question whether the contract by reason of the Act of 1917 should be annulled has been taken by the defenders in this action. I think that if we gave effect to the view contended for the result would be that the merits of the question of whether the annulling of the contract under that Act were justified or not would be subject to review first from the Lord Ordinary to this Court and then from this Court to the House of Lords.
I do not think that the questions which are raised under these emergency statutes were intended to result in ordinary forms of litigation in which there are pleadings and proofs and appeals. I think it was intended to dispose of such questions summarily on the statements of the parties and on the views which the Court took of the facts so far as they could be gathered from those statements. In my opinion the Lord Ordinary was right in repelling the plea as he did. But, on the other hand, I think it right to say that, as I read the interlocutor, so far as the allowance of proof is concerned, the whole of the averments of the parties were remitted to probation. It was conceded by Mr Watson that according to his view that was so, and that the interlocutor of the Lord Ordinary as it stands infers no limitation of the proof, but that both parties, while certain of their pleas are repelled, are not in any way to be restricted in the amount of the proof to be allowed, except as they would be in an ordinary case, by the averments which they have made.
I also think it right to say that in repelling plea 8 I do not think we are interfering in the least with what appears to me to be the undoubted right of the defenders to apply to the Court to have the point as to the effect of the Act of 1917 considered and, so far as the Court think proper, given effect to according to the nature of the application which may be made to the Court, and the view which the Court takes of what in the circumstances is the proper course to follow in regard to it.
The result therefore, in my opinion, is that, subject to the views I have expressed as to the allowance of proof and as to the power of the defenders to make an application, if and when they think proper under the 1917 Act, I think the reclaiming note ought to be refused.
Mr Moncrieff maintained that the action now depending before us was in itself an “application” within the meaning of the Act of 1917. I do not think that will do. He maintained, alternatively, that the eighth plea-in-law for the defenders constituted in itself an application in that sense. I do not think that will do either. It seems to me that the “application” referred to must be an application under the 1917 Act; but then, as your Lordship has pointed out, there is nothing to prevent Mr Moncrieff, if so advised, from making such an application—and he might conveniently do so—to the Lord Ordinary before whom the case is depending in the Outer House. It is not necessary for us to define or assert the exact form in which such an application should be made—whether it should be by way of note or minute in the process of this action, or by way of a separate document bearing to be an application in terms of the 1917
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The respondents raised an action for payment, and in their reply the reclaimers said—first, no breach of contract; secondly, the contract was induced by misrepresentation; and thirdly, and in any case, they were protected by the 1917 Act. The first two matters have been remitted to probation. The Lord Ordinary thinks the third question does not arise in these proceedings, and he has repelled plea 8. He does not say how the remedy of the 1917 Act is to be carried out whether by minute to the Inner House or by petition to the Lord Ordinary; but he must, I suppose, have had one or other of these courses in view.
Taking the interlocutor as it stands, without the assurance given to us from the bar, I am not satisfied that the reclaimers can trust to being able to bring out all the facts necessary to raise their case under the 1917 Act, and that leads to the construction of the Act. Differing from your Lordships, it seems to me that while agreeing that the Act is not easy to construe in respect that it is framed not for the United Kingdom but on the lines of English procedure, and uses an expression which is not a technical one in Scotland—namely, “application”—it is, as I read it, expressed so as to include an application by any party to any contract whatsoever. Now Mr Watson's client is a party to this particular contract, and it seems to me that the statute is capable of being read, and should be read, so as to include under “application” an action at his instance, and so as to warrant the other party to the contract invoking its aid either in the way in which that has been done in this case—by averment and relative plea-in-law—or by a separate application.
If the eighth plea is repelled, the question cannot arise strictly in these proceedings, but it will be open to the reclaimers at the end of the day to apply under the 1917 Act. If, however, it is understood that the whole facts which are founded on by the reclaimers are to come out, and if it is open to them after they have come out still to put in their minute or petition, the difference between us becomes really academic.
The Court refused the reclaiming note and remitted the case to the Lord Ordinary.
Counsel for the Pursuers (Respondents)— W. T. Watson. Agents— Whigham & MacLeod, S.S.C.
Counsel for the Defenders (Reclaimers)— Moncrieff, K.C.— A. M. Mackay. Agents— Fraser & Davidson, W.S.