Scottish Court of Session Decisions

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Cite as: [1923] SLR 190, [1923] ScotLR 190

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SCOTTISH_SLR_Court_of_Session

Page: 190↓

Court of Session Inner House Second Division.

[Sheriff Court at Hawick.

Wednesday, January 10. 1923.

60 SLR 190

Jackson

v.

M'Kay.

Subject_1Process
Subject_2Sheriff
Subject_3Evidence
Subject_4Objection to Question — Objection Sustained by Sheriff-Substitute — Failure to Appeal to Sheriff — Motion for Further Proof in Connection with Questions Disallowed — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), First Schedule, Rule 75 — Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 72.
Facts:

In a proof in the Sheriff Court certain questions put to the pursuer in cross-examination were objected to and the objections were sustained by the Sheriff-Substitute. No appeal to the Sheriff was taken against the ruling as provided for by Rule 75 of the Sheriff Courts (Scotland) Act 1907, but on the case being appealed to the Court of Session on the merits the defender at the hearing moved that further proof should be allowed in connection with the questions excluded, and founded on the power conferred on the Court by section 72 of the Court of Session Act 1868 to order additional proof. Held that the defender having failed to avail himself of the appropriate remedy provided by the Sheriff Courts (Scotland) Act 1907, First Schedule, Rule 75, could not invoke section 72 of the Court of Session Act 1868.

Headnote:

The Sheriff Courts (Scotland) Act 1907. (7 Edw. VII, cap. 51), First Schedule, enacts—Rule 75—“On the proof being declared closed, or within seven days thereafter, if the Sheriff-Substitute has not in the interval pronounced judgment, it shall be competent by leave of the Sheriff-Substitute to appeal to the Sheriff upon objections
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to the admissibility of evidence taken during the course of the proof, and the Sheriff shall, with or without a hearing, dispose of such appeal with the least possible delay, and if he think that evidence accepted should not have been allowed he may delete the same from the notes of evidence, and if he think that evidence has been improperly rejected he may appoint the same to be taken before the case is advised on its merits.”

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), enacts—Section 72—“The Court may, if necessary, order proof or additional proof to be taken in any appeal under this Act. …”

Elizabeth Jackson, Newcastleton, pursuer, brought an action of affiliation and aliment in the Sheriff Court at Hawick against John M'Kay, engine driver, Riccarton Junction, defender, in respect of the birth of an illegitimate male child.

On 31st January 1922 the Sheriff-Substitute ( Baillie) after proof granted decree in favour of the pursuer. The defender appealed to the Sheriff ( Chisholm, K.C.), who on 26th April 1922 recalled the interlocutor of the Sheriff-Substitute and granted absolvitor.

The pursuer appealed to the Court of Session, and in the course of the hearing the defender moved that further proof should be allowed on certain questions put to the pursuer at the proof in cross-examination which were objected to and as to which the objections were sustained.

The following passage from the evidence gives the questions objected to:—“(Q) Is it not a fact that during the months of October and November 1920 you were keeping company with different men?—(A) No, I deny that. I was not keeping company and going for walks in the evenings with James Ferguson, Riccarton Junction, and a man Graham from Hawick. I was with Ferguson on the 31st October last year, but not on any other occasion. (Q) Were you in a railway carriage at Riccarton Junction with a man about the end of October 1920? (Question objected to and objection sustained.) … (Q) Is it not a fact you tried to put the blame on someone else? (Question objected to and objection sustained.)

Argued for the defender—The questions put should have been allowed. Under section 72 of the Court of Session Act 1868 the defender was entitled to additional proof as to these questions, otherwise a miscarriage of justice would ensue— Gairdner v. Macarthur, 1915 S.C. 589, at p. 595, 52 S.L.R. 427; Taylor v. Provan, 1864, 2 Macph. 1226; A v. B, 1895, 22 R. 402, 32 S.L.R. 297.

Argued for the pursuer—The motion was incompetent in respect that Rule 75 of the Sheriff Court (Scotland) Act 1907 (7 Edw. VII. cap. 51) provided a remedy of which the defender had not availed himself. The cases cited were thus distinguishable.

Judgment:

Lord Justice-Clerk—[ After dealing with the merits of the case]—The only remaining point in the case is that which relates to the motion made by the defender this morning, that further evidence be taken in connection with certain questions which were put to the pursuer and which were excluded by the Sheriff-Substitute. One of the questions was—“Were you in a railway carriage at Riccarton Junction with a man, about the end of October 1920?” That question was objected to, and the objection was sustained. The other question was—“Is it not a fact you tried to put the blame”—that is, the blame of paternity—“on someone else?” That question was objected to, and the objection was sustained. In my judgment these were competent questions, and the objection taken to them by the pursuer's agent was ill-advised and groundless. The Sheriff-Substitute's decision in refusing to admit the answers to these questions was, having regard to what was said in the case of A v. B, 22 R. 402, clearly wrong. They were admissible, if only for the purpose of testing the credibility of the pursuer, but even if answered they would not, or might not, in the absence of due notice being given, render competent the leading of substantive evidence to prove what was implied in the questions. At this stage, however, it is too late, in my judgment, for the defender to raise this matter. We have been referred to the Sheriff Courts Act of 1907, which provides a full and appropriate remedy, exactly fitting the situation which has arisen here, assuming that the defender's agent believed that the questions were improperly excluded. That remedy the defender's agent neglected deliberately or otherwise, and in my opinion it is too late now to ask for further evidence upon a matter which ought to have been decided upon appeal to the Sheriff at the appropriate statutory time. We have been referred to the case of Gairdner, 1915 S.C. 589, which in my opinion raises a very different question from that with which we are here concerned. There the matter emerged after the case was in the Court of Session, and it does not seem to me that that case affords the slightest guidance to the solution of this particular problem [ His Lordship dealt with another point which is not reported.]

But, as I have said, having regard to the omission by the defender's agent to take advantage of the statutory remedy provided for circumstances which exactly coincide with those which arose here, I am of opinion that the defender's motion comes too late, and that, accordingly, it should be refused.

Lord Ormidale—[ After dealing with the merits of the case]—There is only the matter dealt with by Mr Macgregor this morning. He asks us, under section 72 of the Court of Session Act of 1868, to allow additional proof. It is hardly a right description of what Mr Macgregor asks us to do to say that it is to allow his client additional proof. What he asks us to assist him in doing is to get the ruling of the Sheriff-Substitute sustaining the objections to certain questions put by the defender to the pursuer reviewed. Now there are four

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questions which Mr Macgregor dealt with. —[ His Lordship dealt with a point which is not reported.] With regard to the other two questions it seems to me impossible that we can hold that this motion falls under section 72 at all. There is a code of procedure laid down by rules 74 and 75 of the Sheriff Courts Act which deals with the very situation which we have here. I think that we should be, so far from promoting the ends of justice, tending rather in the direction of a miscarriage of justice if we allowed the matter to be inquired into now when it ought and might have been inquired into at the appropriate time. Nothing has come to light now that was not known at the time when the questions were put and the objections were taken to them and sustained. Everything that is proposed to be proved now, whatever that may be, must have or ought to have been in the mind of the defender's agent at the time. For my own part I think that the question, which at first seemed to me to be a question which it was perfectly competent for the cross-examining agent to put to the pursuer, viz., “Is it not the fact you tried to put the blame on someone else?” was a question which should have been allowed. I am not quite so certain that I remain of that opinion. It seems to me that it was really a question of a fishing character, and that its proper form would have been, “Is it not the fact that you tried to put the blame on A B or C D?” It was, however, answered by the pursuer in her immediately preceding answer, and therefore I see no ground for thinking that to have allowed the question would have been productive of any result other than that which the rest of the evidence indicates, an answer in the negative by the pursuer. Therefore I think that in no circumstances would it be expedient, even if it were competent, to allow additional proof in this matter or to remit to one of our own number to put this question again to the pursuer.

But I go upon the more particular ground that it is now too late to ask us to do what was not attempted to be done at the time. The right of appeal is given by the Sheriff Court rules to a person who objects to the way in which the Sheriff-Substitute has dealt with a question. He is given seven days from the close of the proof wherein to appeal if the Sheriff-Substitute has not already issued his judgment. The Sheriff-Substitute in this case did not issue his judgment within seven days, and that period was allowed to elapse without the appeal being taken. The defender's right to object to the ruling of the Sheriff-Substitute then came to an end.…

Lord Hunter—The averments of the parties in this case are of a singularly defective character. The proof appears to have been led in a haphazard fashion with a conspicuous disregard of the rules of evidence that are supposed to govern the taking of proofs in all Scottish Courts on the part of both parties. That unsatisfactory condition of the proof causes considerable doubt in my mind as to whether the Sheriff-Substitute would have reached the result which he did if the case had been properly presented to him. I am, however, perfectly clear that the view taken by your Lordships that we ought not to give effect to the motion for additional proof is sound. That being so, and taking the case upon the evidence as I find it recorded in the unsatisfactory and imperfect condition in which it is recorded, I am not prepared to dissent—in fact, I concur with the view on the facts taken by your Lordships.

Lord Anderson—The pursuer, being cross-examined by the defender's solicitor, was asked the two questions which have been referred to by your Lordship. The pursuer's solicitor objected to these questions being answered, and the Sheriff-Substitute sustained that objection. In my opinion the objection taken by the pursuer's solicitor was improperly stated, and the Sheriff-Substitute was wrong in sustaining that objection. It seems to me, on the authority of what was laid down in A v. B ( 22 R. 402), that it was quite competent for the defender's agent, with a view of testing the pursuer's credibility, to put the questions which were put, and that those questions ought to have been answered by the pursuer. Of course if an answer unsatisfactory to the cross-examining solicitor had been obtained it was not open to him to adduce substantive evidence in the absence of notice on record.

An objection having been improperly sustained by the Sheriff-Substitute, what was the remedy of the defender's legal adviser if he was dissatisfied with that ruling? The remedy is a statutory one, and it is prescribed by rule 75 of the Sheriff Courts Act 1907. Shortly stated it is this—his duty was, if dissatisfied with the ruling, within seven days of the closing of the proof to have obtained leave from the Sheriff-Substitute, and to have gone to the Sheriff with an appeal on that leave to get the proof put right in respect to the evidence improperly rejected. According to the interlocutor sheet the proof was closed on 11th January, and the defender's solicitor had until 18th January to pursue his statutory remedy in this matter, but he did nothing in that period. Accordingly when the case came to be debated before the Sheriff-Substitute, as it was on 25th January, I take it that it was debated upon an agreed proof, and that the defender's solicitor had made up his mind that it would not be serviceable to his client to take the appeal which he might have taken under rule 75. The case therefore was debated upon the proof as recorded before the Sheriff-Substitute, and so far as the proceedings disclose it was also dealt with in that way before the Sheriff. And it seems to me that as the case was dealt with in that way, and the statutory remedy provided by section 75 was not taken, the defender's counsel is too late now in asking this Court to allow additional evidence to be taken here before one of our own number under the provisions of section 72

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of the Court of Session Act of 1868., In my opinion that section is applicable only where the statutory remedy to which I have alluded is not applicable, and that is why it was allowed in the case of Gairdner, 1915 S.C. 589. That is what I have to say on the point of the procedure in the case. [ His Lordship then dealt with the merits of the case.]

The Court refused the defender's motion.

Counsel:

Counsel for the Pursuer and Appellant— J. S. C. Reid. Agent— W. Melvin Ross, S.S.C.

Counsel for Defender and Respondent— Macgregor. Agents— Steedman, Ramage, & Co., W.S.
1923