Scottish Court of Session Decisions

Lord Craighill—I am of opinion that the case should be allowed to proceed. I think the question of the competency of the appeal ought to be determined according to the value of the cause at the time when the action is brought into Court and the parties have joined issue. When the defender has appeared I do not think the right of appeal can be cut off by any operation on the part of the pursuer in restricting the value of the cause to a smaller amount than the pursuer was called on to meet and has met. I do not enter on any technical question as to when the parties are to be held to have joined issue or when litiscontestation takes place. I think that when defences are lodged, and the parties have met in Court on the footing that the cause was of the value of £50, then appeal is competent though the pursuer has since restricted his claim to £20.

Lord Rutherfurd Clark—I am sorry to be of a different opinion. It was competent for the pursuer to restrict the amount concluded for before litiscontestation—that is to say, before the closing of the record. The pursuer has exercised that right, and restricted the sum to £20, and he having done so, no judgment could have been pronounced in his favour beyond that sum. So that this is a case in which the parlies have joined issue, or rather in which there has been litiscontestation—for that is the proper expression in our law—in a cause which is of less value than £25. I therefore think the appeal is incompetent.

Lord Young—I agree with Lord Rutherfurd Clark without difficulty, and certainly without regret at the result, because I think the policy of the statute is to exclude trumpery cases from this Court, and to protect parties in such cases from the costs of litigation. The language of the statute [sec. 22] is that “any cause not exceeding the value of £25 sterling” shall not be appealable to this Court. It leaves the Court to determine what is the value of the cause. The reason and policy and sense of this provision is to keep out of this Court causes which are not truly of the value of £25, and to save to litigants the expense of useless litigation. There are some judgments no doubt admitting appeals in certain cases which would seem to be against the plain sense of the statute, but I do not think-there is anything to hinder us from interpreting it according to its sense and plain meaning here. I should just like to put this question—If, for example, a workman asks damages from his employer for injuries received in his service—if he asks £25, and, on the occasion of the first meeting of the parties before the Judge, restricts his claim to £20, and the cause is thereafter proceeded in as one of the value of £20, is that a cause of the value of more than £25, and therefore appealable, or is it not? I think there can be only one answer to that question. And if it be argued that defences were given in on the footing that the cause was of greater value than £25, I would ask in what respect could the defence have been different if the cause had been of the value of £20 originally? Or does the party say he would not have defended at all if it had been of the value of £20 originally? In what respect could the defence have been in any way different had the cause been of the larger or smaller value originally? None was suggested, and no one can suggest any. The pursuer had it in his power to make the cause a £20 one, and he exercised his legal right before litiscontestation, and made it a cause of that nature without any prejudice to the defender. Then why is it to be dealt with as a cause of the value of £25? Is it not still a cause “not exceeding £25 in value?”

I therefore think we would be giving effect to the reason and policy—and the only intelligible and stateable reason and policy—of the Act as to the competency of appeals by finding this appeal incompetent. It is true that if you litigate, and take a judgment in a cause of higher value than £25, and something—say the death of a party—intervenes, and the value is afterwards restricted—as in Buie's case—other considerations come in. I do not say now how I might decide in such a case. In Buie's case the Judges who had to decide such a question differed in opinion, and delivered opinions extending over many pages. But we have no case of that kind here. The facts here simply are that before litiscontestation—according to my view—the pursuer has exercised his right to restrict his conclusion from £50 to £20, and the proceedings have been conducted and the judgment given on that footing.

I agree with Lord Rutherfurd Clark that the objection to the competency of this appeal is well founded.

The Lord Justice-Clerk was absent.