Scottish Court of Session Decisions

This was an action of reduction and interdict at the instance of William Stirling & Sons and others, owners and occupiers of certain dye and print works in Dumbartonshire, against John Holm, assessor of the county of Dumbarton, the Commissioners of Supply for the said county, and the Commissioners of Inland Revenue. The action concluded for reduction—(1) of the interlocutor of Lords Ormidale and Mure (the Judges appointed under the Valuation Acts), dated 5th December 1871; (2) a deliverance of the Commissioners of Supply, 23d April 1872, fixing a diet of proof; and (3) another deliverance of the Commissioners. dated 30th April 1872, postponing the said proof and fixing a new diet. The action also concluded for interdict against the commissioners proceeding with the proof. The grounds of the action were as follows:—In making up the valuation-roll of the county of Dumbarton for the year 1870–71, John Holm, the assessor for the county, valued the pursuers' works at a greater yearly value than formerly, and they appealed to the Commissioners of Supply of Dumbartonshire against the valuation.

On 13th September 1870 the Commissioners of Supply sustained the appeal, and restricted the proposed valuations to the sums at which the works stood in the Valuation Roll of the preceding year.

The assessor being dissatisfied with this decision of the Commissioners, craved a case for the opinion of the Judges—that is of Lord Ormidale and Lord Mure—who had been appointed to decide in such matters, under 30 and 31 Vict. cap. 80, § 8. A case was accordingly stated by the Commissioners, which was duly laid before Lord Ormidale and Lord Mure.

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On 5th July 1871 Lord Ormidale and Lord Mure, after hearing counsel, pronounced an interlocutor requesting the Commissioners of Supply to give the appellants (that is the pursuers) an opportunity of proving certain facts, and requesting the Commissioners “to report the substance of what may be proved.” A proof was accordingly led by the appellants (pursuers) before the Commissioners, the substance of which was reported by the Commissioners. No proof was led by the assessor, the Commissioners observing “the remit authorises only a proof for the appellants.”

The case again came before Lords Ormidale and Mure, when their Lordships, on 5th December 1871, “before disposing of this case,” again remitted to the Commissioners to give the assessor access to certain valuations, to allow the assessor to lead evidence, and “to report the substance of what is proved.”

After the case was remitted to the Commissioners, they first fixed a diet of proof, and afterwards postponed the proof and fixed a new diet, but before this proof wasled the present action was brought.

The position taken up by the pursuers was that the interlocutor of 5th December 1871 was illegal and incompetent, in so far as it proceeded upon private and ex parte communications between the Judges and Mr Crole, the Assistant Solicitor of Inland Revenue, who had also, the pursuers alleged, pleaded the case as a party before their Lordships. The pursuers also contended that “the said interlocutor or notes were illegal, incompetent, and ultra vires of the Judges, in respect that the Lands Valuation Acts contained no warrant for the proof directed to be allowed to the assessor; and, separatim, no warrant for allowing him such a proof at the stage which the cause had reached by 5th December 1871.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 14 th January 1873.—The Lord Ordinary having considered the closed record, proceedings before the Commissioners of Supply of the county of Dumbarton, and before Lord Ormidale and Lord Mure under the Valuation Acts, and whole process, Finds that the averments made by the pursuers are not relevant or sufficient to support the conclusions of the action, or any of them, therefore dismisses the action and decerns: Finds the pursuers liable in expenses, and remits the accounts thereof when lodged to the Auditor of Court, to tax the same and to report.”

In a Note appended to this interlocutor the Lord Ordinary makes inter alia the following remarks:—

“It will be observed that Lords Ormidale and Mure have as yet decided nothing upon the original case as laid before them under the statute, the remits made to the Commissioners, and the proofs directed to be allowed, being necessarily before answer. Under the statutes, Lord Ormidale and Lord Mure will yet fall to give their opinion upon the original case of 13th September 1870.

In these circumstances, the very peculiar nature of the present action becomes apparent. It seeks to set aside certain intermediate procedure adopted by Lords Ormidale and Mure, who admittedly are the only competent Judges to give the statutory opinion upon the statutory case. Farther, that intermediate procedure is only partially brought under reduction. The pursuers propose to allow the proof led by themselves under the first remit to stand, but they propose to interdict as incompetent any counter proof to be led by the assessor Still farther, they seek to interdict the Commissioners of Supply from obeying the remit or order made to them by Lords Ormidale and Mure, although the pursuers themselves have taken advantage of and acted upon a precisely similar order or remit, under which a report has already been made to the Lords Ordinary.

Notwithstanding the able and ingenious argument submitted on the part of the pursuers, the Lord Ordinary is of opinion that the present action is wholly irrelevant and incompetent, and he has accordingly dismissed the same.

It is necessary, however, to keep in view that the action embraces several distinct and separate grounds of reduction; and as the Lord Ordinary thinks that these fall to be differently dealt with, he will explain shortly the view he takes of each.

I. There are apparently allegations of corruption, if not against Lords Ormidale and Mure, against Mr Crole, Assistant Solicitor of Inland Revenue, Edinburgh, who, it is said, had ex parte and private meetings or communications with the Judges, and suggested the terms of their interlocutors.

The counsel for the pursuers, while declining to abandon any part of the case, certainly did not insist very strongly in the pursuers' first plea in law, and he declined to ask an issue in support of the allegations on which the plea rests.

The Lord Ordinary, however, is very clearly of opinion that the pursuers have made no relevant averment, not to say of corruption, for they shrink from using that word, but even of such partial counsel or irregularity as has even the remotest semblance of what might be held to be legal corruption or irregularity in an arbiter or judge.

Supposing it to be true that Mr Crole did draft the interlocutor, or suggest its terms or alterations upon its terms, the Lord Ordinary thinks this is wholly immaterial. Mr Crole was in no sense a litigant in the cause, and had no interest whatever therein. Mr Crole represents the Commissioners of Inland Revenue, to whom the case is to be transmitted, and who are to lay it before the Judges. Mr Crole's position was really that of Clerk of Court, or at least it was more analogous to that position than to any other. Quite reasonably the Judges might have requested him either to draft the interlocutor or to suggest its form, and quite rightly the Judges might receive from him any suggestions calculated to carry out their views. The adjustment of the precise terms of an interlocutor of remit, while undoubtedly the act of the Judge, is in practice every day made with the Clerk of Court after the parties have left the bar. The pursuers ‘allegations, when carefully examined, really come to no more than this.

The Lord Ordinary cannot help regretting that the pursuers should have thought it necessary to make the allegations now in question, which have the appearance at least of being imputations against the impartiality and fair dealing of the parties concerned. For such imputations there is not the slightest foundation.

II. The more serious question, however, in the case, is that raised by the pursuers' pleas, that the proceedings of Lords Ormidale and Mure were ultra vires and incompetent under the statutes, and that the Court of Session, as the supreme Court of country, had right to set aside such proceedings, although it has no right to review the ultimate judgments.

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It was urged with great force that under the statutes a special case for the opinion of the Judges was really of the nature of a special verdict, and can only be dealt with as such. The Judges, it was said, have no right to deal with the special case as if it were an issue in fact, and to send it to proof either by commission or otherwise. Still farther, the anomalies were dwelt on which would result from proofs taken, it may be on many separate days before different meetings of the Commissioners of Supply, each meeting possibly attended by different members, and the last meeting being required, not simply to report evidence or the mere depositions of witnesses, but to report the substance of what had been proved. Indeed, the very purpose of a special case is to supersede proof, and the Legislature cannot have intended that the Lords Ordinary, who are to be the final Judges, should either lead proof themselves, or grant commission for leading proof, and, least of all, that they should grant commission for proof to such a body as the Commissioners of Supply.

The Lord Ordinary feels the full force of the pursuers' argument on this branch of their case, but he is of opinion that he cannot give effect to it either in the present process or in any process like the present.

(1.) Lords Ormidale and Mure form a statutory Court, whose judgments are in no way subject to review. They derive their authority merely and exclusively from the Valuation Acts, 17 & 18 Vict. 91, 20 & 21 Vict. 58, and 30 and 31 Vict. 80. It is expressly declared that the valuations ‘which shall have been confirmed or altered in conformity with the opinion of said Judges, shall thereafter be final and not subject to review in any manner of way.’ The judgment of Lords Ormidale and Mure is to be given by way of opinion on the special case, but when it is so given it was not pretended that it would in any way be subject to review.

(2.) Now, if the final judgment could not be touched or reviewed either by way of reduction or otherwise, the Lord Ordinary does not think that any intermediate step which the supreme and final Judges may think it necessary to take to enable them to give final judgment can be interfered with. The statutes which make the judgment of Lords Ormidale and Mure final do not prescribe any form of process. The statutes do not prohibit the Judges from making any enquiry, or from informing their minds in any way they may think reasonable. Plainly, they might receive explanations from the assessor, or from the parties, and it is thought they might call for any leases or documents bearing on the question at issue. How far they may go with such inquiries is really a question of expediency, which must be left to the discretion of the Judges themselves, and with the exercise of this discretion the Court of Session will be very slow to interfere.

(3.) The Lord Ordinary, as at present advised, cannot hold that under the Valuation Acts, or under similar statutes providing for special cases being laid before the Judges, the special cases once transmitted cannot be amended or added to. He rather thinks that it is inherent in the Judges who are finally to decide to direct that obvious errors in the special case may be corrected, and obvious omissions supplied, it being always a question of discretion how far such power of amendment shall be exercised. Probably in most cases the Judges will be unwilling to send back special cases for amendment, especially where there is no power to convene the same individuals by whom the special case was originally sent up. All this, however, is matter for the Judges themselves, and not for the Court of Session, which has no power of review.

(4.) The argument of the pursuers as to the illegality of the remit under reduction is equally applicable to the previous remit, of which the pursuers themselves took advantage. The pursuers' counsel scarcely ventured to maintain that Lords Ormidale and Mure were bound to look at evidence on one side only, and to exclude all evidence on the other side; and yet this would be the result of the pursuers prevailing in the present action; for the Lord Ordinary can only set aside the interlocutor brought under reduction, and not another interlocutor of which no one complains. It is vain to suggest that a judgment in favour of the pursuers would virtually set aside the remit of 5th July 1871. as well as that of 5th December 1871. It would need a new action to do this, and any mere expression of opinion either of the Lord Ordinary or of the Court would not be enough. Decree in terms of the libel would leave the remit of 5th July 1871, and the proof taken under it, quite untouched.

(5.) The whole remits made by Lords Ormidale and Mure are necessarily, and indeed expressly, before answer. The remit complained of expressly bears to be made ‘before disposing of this case.’ Now, in their final judgment, Lords Ormidale and Mure may possibly lay aside the remits altogether, and decide exclusively on the special case as originally returned. The present Lord Ordinary cannot anticipate the future proceedings in the cause, and he declines to prescribe, to the slightest extent, the course which the sole statutory Judges shall adopt.

Lastly, It appears to the Lord Ordinary that the remit of which the pursuers complain was really a remit made in favour of the pursuers themselves, that is, that the remit of 5th July 1871 and 5th December 1871—taking both to form, as they really do, one remit—was a remit to give the pursuers an opportunity of justifying the decision of the Commissioners of Supply. The Lord Ordinary may be wrong, but the perusal of the proceedings has produced a strong impression on his mind that Lords Ormidale and Mure were not satisfied with the decision of the Commissioners, but were inclined to return to the decision of the assessor. Accordingly, it is not to the assessor that a proof is granted in the first instance, but to the pursuers, although they held the judgment of the Commissioners. This seems to infer that unless the appellants proved something, the assessor's judgment must stand. If this view is well founded, the plea of personal bar against the present pursuers would be very strong, for what they are now doing is to seek to take advantage of the proof which they themselves have been allowed, and yet to exclude the assessor from any conjunct probation, and from all probation whatever.

While the Lord Ordinary, however, has thought it right to notice shortly the above considerations, he rests his judgment chiefly on the ground that this Court has no power to interfere with or review the proceedings of the supreme statutory Court created by the Valuation Acts.”

The pursuers reclaimed.

It was argued for them—(1) That the interlocutor and deliverances in question should be reduced

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as the interlocutor was pronounced upon private communication with a person who had argued the cause as a party, and that this was clearly an illegal and incompetent proceeding; Campbell v. M'Gowan,

3 S. 245; Manson v. Smith, 9 Macph. 492 (Lord Neavea' opinion). (2) That when the Judges under the Valuation Acts go wrong they must be put right by the Court of Session. The Judges were members of that Court, and there was an inherent right in the Court to review their proceedings. (3) That if the Judges cannot be put right by the Court of Session, at all events the Commissioners of Supply can. They were parties to the case, and therefore the Court could prevent them proceeding with an irregular proof.

The defenders were not called upon.

At advising—