Scottish Court of Session Decisions

The Roads and Bridges (Scotland) Act 1878, (41 and 42 Vict. cap. 51), section 57, enacts—“Where by the certificate of their surveyor or district surveyor it appears to the authority which is liable to repair any highway that having regard to the average expense of repairing highways in the neighbourhood extraordinary expenses have been incurred by such authority in repairing suchhighway by reason of the damage caused by excessive weight passing along the same or by extraordinary traffic thereon, such authority may recover in a summary manner before the sheriff (whose decision shall be final), from any person by whose order the excessive weight has been passed or the extraordinary traffic has been conducted, the amount of

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such extraordinary expenses as may be proved to the satisfaction of the sheriff to have been incurred by such authority by reason of the damage arising from such excessive weight or traffic as aforesaid.…

The Local Government (Scotland) Act 1908 (8 Edw. VII, cap. 62) enacts—Section 24—Section fifty—seven of the Roads and Bridges (Scotland) Act 1878 (which relates to the recovery of expenses of extraordinary traffic) shall be amended as follows:—( a) Expenses under that section may be recovered, if not exceeding fifty pounds, before the sheriff, whose decision shall be final, and, if exceeding that sum, either before the sheriff, subject to an appeal to the Court of Session, or in the Court of Session, and such expenses may notwithstanding anything in the said Act be recovered from a county council:.… ( c) There shall be substituted … for the words ‘satisfaction of the sheriff’ the words ‘satisfaction of the Court.’” Section 31—The Acts specified in the schedule to this Act are hereby repealed to the extent mentioned in the third column of that schedule, and so much of any Act as is inconsistent with this Act is also hereby repealed.

Schedule.

Enactments Repealed.

Session and Chapter.	Short Title.	Extent of Repeal.
41 and 42 Vict. cap. 51.	Roads and Brides (Scotland) Act 1878.	Section fifty-seven, the (words ‘in a summary manner before the sheriff (whose decision shall be final).’

The Thornhill District Committee of the County Council of the County of Dumfries, pursuers, brought an action in the Sheriff Court at Ayr against James M'Gregor & Son, wood merchants, Ayr, and also against R. & C. H. Dickie, grain merchants, Drumlanrig Street, Thornhill, with whom James M'Gregor & Son had entered into a contract for the haulage of wood purchased by James M'Gregor & Son, defenders, in which the pursuers sought decree against the defenders jointly and severally or severally for payment of the sum of £463, 15s. 8d., being the amount of the extraordinary expenses within the meaning of section 57 of the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51) incurred by them in repairing a portion of a road vested in their management in consequence of the extraordinary traffic conducted or excessive weight imposed thereon by the defenders.

Defences were lodged by both defenders.

On 31st January 1922 the Sheriff-Substitute ( Broun) after a proof pronounced the following interlocutor … Finds in fact … (11) that the pursuers have failed to prove to the satisfaction of the Court the amount of the extraordinary expenses incurred by them in repairing the said portion of the said district road by reason of the said damage: Finds in law that the pursuers are not entitled to decree against the defenders for the sum sued for: Therefore assoilzies the defenders from the conclusions of the initial writ, and decerns.…”

The pursuers appealed to the Sheriff ( Lyon Mackenzie), who on 23rd March 1922 dismissed the appeal as incompetent.

Note.—“An objection was taken on behalf of the defenders and respondents R. & C. H. Dickie to the competency of the appeal. They maintain that on a sound construction of the Roads and Bridges (Scotland) Act 1878, sec. 57, as amended by the Local Government (Scotland) Act 1908, sec. 24, there is no appeal from the Sheriff-Substitute to me, and that the only appeal competent is to the Court of Session. In support of that contention they referred to the following Sheriff Court decisions:— Berwickshire Road Trustees v. Martin, 1895, 1 Scot. Law Rev. 387; Commissioners of Clydebank v. Kennedy & Son, 1896, 12 Scot. Law Rev. 342; and also to Stricken Parish Council v. Goodwillie, (1908) S.C. 835, 45 S.L.R. 684; and Allen & Sons Billposting, Limited v. Edinburgh Corporation, (1909) S.C. 70, 46 S.L.R. 65.

On the other hand the pursuers and appellants maintained that the present appeal was rendered competent by the terms of section 24 of the Local Government (Scotland) Act 1908, and they referred to the Highland District Committee of Perth County v. Rattray, (1913) S.C. 794, 50 S.L.R. 531.

It is not at all clear whether section 24 (a) of the 1908 Act is to be read as modifying the actual terms of section 57 of the 1878 Act, or merely to be read as an addition thereto. I think the latter is the proper construction.

Under the Roads and Bridges Act ‘sheriff’ is defined as including sheriff-substitute, and section 57 thereof, unmodified by subsequent legislation, conferred exclusive jurisdiction upon the judge who tried any claim under the Act, and excluded review in the case of the sheriff-substitute by the sheriff.

I am of opinion that the proper interpretation of section 24 of the Local Government Act is that it in no way modifies the exclusive jurisdiction of the judge of first instance in the Sheriff Court to determine the cause except in these particulars—(1) Where the expenses recovered did not exceed £50 the decision of the sheriff, which by the principal Act means either the sheriff or sheriff-substitute, continues to be final as formerly enacted. (2) Where the expenses recovered exceed £50 before the sheriff, his decision is subject to an appeal, but only to the Court of Session. (3) Expenses exceeding £50 may be recovered by proceedings begun ab initio in the Court of Session as an ordinary action, with right to appeal from the Lord Ordinary's judgment to the Inner House.

Nowhere in section 24 has the exclusive jurisdiction of the sheriff who tries the cause in the Sheriff Court been modified, and accordingly I am of opinion that an appeal from the sheriff-substitute to the sheriff cannot be inferred by implication, especially when the procedure in an appeal to the Court of Session from such judgment is clearly defined in the amending statute.

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It does not appear to me that the view which I have expressed is in any way inconsistent with the judgment in the Highland District Committee of Perth County v. Rattray. In that case the question raised was the competency of the action, and accordingly the procedure there followed seems to have been perfectly regular, and not inconsistent with the code of legislation laid down in the Roads and Bridges (Scotland) Act 1878, as amended by the Local Government (Scotland) Act 1908, as the contention of the defenders was that the proceedings in fact were not being taken under statutory authority. This view is strengthened by the decision in Allen & Sons Billposting, Limited v. Edinburgh Corporation, supra.

“I have accordingly dismissed the appeal with expenses.”

The pursuers appealed, and argued—The appeal was competent. The Local Government (Scotland) Act 1908 (8 Edw. VII, cap. 62) did not add to but altered the terms of the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51). Section 31 of the Act of 1908 repealed the words “in a summary manner before the sheriff (whose decision shall be final),” occurring in section 57 of the Act of 1878, and section 24 of the Act of 1908, which amended section 57 of the Act of 1878, omitted the expression “in a summary manner.” Further, sub-section (c) of section 24 of the Act of 1908 substituted for the words “satisfaction of the sheriff” the words “satisfaction of the court.”

Moreover, the only applicable procedure was that laid down in the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51)—section 39 of the Act of 1907. By section 27 of the Act of 1907 an appeal to the sheriff was competent against the judgment of the sheriff-substitute and Rules 92 and 93 of the First Schedule of the Act of 1907 regulated appeals from the sheriff to the Court of Session.

Counsel for the defenders and respondents stated that they did not support the judgment of the Sheriff.