OUTER HOUSE, COURT OF SESSION
[2007] CSOH 112
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OPINION OF LORD HODGE
in the cause
COLIN PATERSON
Pursuer;
against
ADVOCATE GENERAL FOR
SCOTLAND
Defender:
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Pursuer:
Miss Devaney (29 May): Ms Hood (12 June); Thompsons
Defender: Mr Thomson (29 May):
Mr
Webster (12 June);
Morton Fraser
27 June 2007
[1] On 29 May 2007 I refused a motion by the defender seeking to remit
this case to Dumbarton Sheriff Court. On 13 June 2007 I granted a motion by the
defender seeking leave to reclaim my interlocutor of 29 May. I set out in this opinion the basis of my
decisions to refuse to remit and to grant leave to appeal.
Factual background
[2] The
pursuer in this action seeks damages for an injury to his ankle which he
sustained during the course of his employment as a Ministry of Defence police
officer when he was moving between two launches which were tied together beside
a pontoon at HM Naval Base Clyde. He avers that
there should have been a gangway between the launches as that would have
prevented him from tripping when one launch rose as a result of movement of the
water. The pursuer concludes for г5,000
in damages which he claims for solatium, loss of
overtime when he was off work for six weeks and for his wife's assistance to
him when dressing and in doing housework with which otherwise he would have
assisted her. The pursuer bases his
action on negligence and breach of statutory regulations. The defender pleads contributory negligence.
Remit: the relevant statutory provision
[3] Section
14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 provides:
"The Court of Session may in
relation to an action before it which could competently have been brought
before a sheriff remit the action (at its own instance or on the application of
any of the parties to the action) to the sheriff within whose jurisdiction the action
could have been brought, where, in the opinion of the Court, the nature of the
action makes it appropriate to do so."
The motion to remit
[4] On 29 May 2007 Mr Thomson, advocate, on behalf of the defender
invited me to remit the case to Dumbarton Sheriff Court for three reasons. He founded on the simplicity of the facts and
law in the action, its relatively low value, and the comparative benefits of
litigating in the Court of Session or in the sheriff court. In relation to the second reason, he
suggested that the value of the claim would be perilously close to the limit of
the privative jurisdiction of the sheriff even if one were to ignore the case
of contributory negligence. In relation
to the third reason, he submitted that, while the pursuer had the benefit of
the personal injuries procedure in the Court of Session with a diet of proof
scheduled for February 2008, a significantly earlier proof diet would be
available in the sheriff court within about two months of a remit. Mr Thomson referred me to the opinion of
the First Division in McIntosh v British Railways Board 1990 SC 338,
which he recognised was not strongly in his favour, and to the opinion of
Temporary Judge Macdonald QC (now Lord Uist) in McKay v Lloyds TSB Mortgages Ltd 2005 SCLR 547, in which, he suggested,
the temporary judge took account of the pressure of business in the Court of
Session which had resulted in proof diets being discharged in high-value cases
due to a lack of judicial resources.
[5] Ms Devaney, advocate, for the pursuer submitted that it was
not obvious from the pleadings that the value of the claim would fall within
the privative jurisdiction of the sheriff court and her assessment of the claim
materially exceeded that limit. She
submitted that the pursuer suffered symptoms for about twelve months. Secondly, the relatively low value of the
claim did not, on the authority of McIntosh,
justify a remit to the sheriff court.
Where the court considered that a claim was modest it could award
expenses on the sheriff court scale in appropriate cases. Thirdly, the case was not a simple one either
factually or legally, involving as it did two statutory cases as well as a case
in negligence. Finally, again founding on McIntosh,
she submitted that the pursuer was entitled to chose
the forum in which he pursued his claim and to obtain the benefit of legal
advisers with expertise in using the procedures of chapter 43 of the Rules of
the Court of Session.
[6] In
refusing the motion to remit, I considered that I was bound by the decision of
the First Division in McIntosh to
take the view that, where a claim was not demonstrably within the privative
jurisdiction of the sheriff court, the smallness and simplicity of a case were
not of themselves sufficient reasons for remitting the case. There required to be some other factor which
showed that the nature of the particular case was such that it was appropriate
for it to be heard in the sheriff court.
It was not clear to me that the possibility of an earlier proof diet in Dumbarton Sheriff Court was such a factor as it did
not appear to relate to "the nature of the action" of which section 14
speaks. In giving the opinion of the
court in McIntosh the Lord President
(Hope) stated (at pp.343-344):
"The pursuer is entitled to
avail himself of the jurisdiction of whichever court
he finds more convenient or appropriate to his own circumstances. It is not for the court to deprive him of his
choice on grounds which could apply generally to every case of that type. No doubt this right is subject to the power to
remit which each court has under the relevant statute, but that power should
only be exercised on grounds which are particular to the case. There may well be sound practical reasons for
choosing one court as against another, and unless Parliament directs otherwise
the court which is chosen must deal with the case which is before it".
Having regard to the First Division's interpretation
of section 14, which was binding on me, I did not consider in any event that
the availability of an earlier diet of proof in the sheriff court in this case,
or in any similar case, was a sufficiently weighty factor in addition to the
relative smallness and simplicity of the claim to justify a remit to the
sheriff court which would deprive the pursuer of his choice. If a successful claim proved to be both
simple and of low value, the defender could seek that expenses be awarded on
the sheriff court scale. It also
appeared to me that any advantage to the pursuer of an earlier proof diet in
the sheriff court might be offset by the efficiency of a centralised processing
of such personal injury cases in Edinburgh resulting in cost savings
to him or his trade union. The pursuer's
choice of forum therefore was not irrational from his perspective, although I
recognised that in some cases, which are conducted on behalf of pursuers in the
Court of Session on a speculative basis, substantial expense may be imposed on
defenders which might have been avoided in the sheriff court.
[7] In
reaching the view that I should not remit the case I had regard to Temporary
Judge Macdonald's opinion in McKay which
was a case concerning a claim for г10,000 arising out of damage to the
pursuer's flat allegedly caused by water coming from the defenders' vacant
flat. In my opinion that case could be distinguished
from the present case where a pursuer is seeking to obtain the benefits of the chapter 43
procedure. Further it was not clear to
me that it would have been consistent with the First Division's approach in McIntosh for me to have treated as a relevant
consideration the pressure of business in the Court of Session as I was invited
to do, except in so far as that pressure had an impact on the pursuer's
case. I observe that the temporary judge
in McKay referred to that
consideration not in his principal decision but only in his determination of
the motion for leave to reclaim.
The application for leave to
reclaim
[8] Mr Webster,
advocate, in seeking leave to reclaim explained that the defender sought to
argue before the Inner House that McIntosh
had been wrongly decided. He submitted
that the First Division had erred in law in that case in unduly fettering the
discretion conferred on the court by section 14. The correct interpretation and application of
that section were matters of general interest to the defender who faced many
claims from employees of the Ministry of Defence. He wished to raise the issue of the correct
interpretation of section 14 as his primary argument but Mr Webster also
reserved the right to challenge my exercise of discretion. He recognised that a reclaiming motion would
delay the determination of the pursuer's claim but pointed out that the only
way in which the defender could pursue a challenge to the authority of McIntosh was by reclaiming a refusal to
remit by an Outer House judge.
[8] Miss
Hood, advocate, for the pursuer opposed the motion. She submitted that in considering the motion
to remit the court should have regard to the interests of all the parties to a
litigation: MacPhail,
"Sheriff Court Practice" (3rd ed) paragraph
18.50. In this case the proof diet in
February 2008 would inevitably have to be discharged and the pursuer would be
put to considerable expense by the reclaiming motion in his case which was
admittedly a modest claim.
[9] It was
clear to me that the defender had an interest, which was not confined to this
case, in mounting a legal challenge to an important Inner House decision, which
arguably put a restrictive gloss on the statutory words, and that it was
appropriate to grant leave to reclaim.
In granting leave to reclaim I observed that, having regard to the
defender's wish to pursue the reclaiming motion as a test case, it would
inequitable to make the pursuer bear the costs of that exercise. It was clear that both the pursuer's agents
and the defender had a wider interest in the issue and that they could discuss
how the debate was to be funded. In any
event the Inner House had a discretion in awarding
expenses. I therefore concluded that the
possible exposure of the pursuer to expense in relation to the reclaiming
motion should not dissuade me from granting leave to appeal.