Scottish Court of Session Decisions

This was a stated case in an arbitration under the Workmen's Compensation Act 1897 between James Murphy, labourer, Edinburgh, and Blair & White, contractors, Glasgow, in the Sheriff Court at Linlithgow.

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), Sched. II, sec. 14 (c), provides—“Any application to the sheriff as arbitrator shall be heard, tried, and determined summarily … subject to the declaration that it shall be competent to either party within the time and in accordance with the conditions prescribed by Act of Sederunt to require the sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either division of the Court of Session, who may hear and determine the same finally and remit to the sheriff with instructions as to the judgment to be pronounced.”

The Act of Sederunt of 3rd June 1898, regulating procedure under the Workmen's Compensation Act 1897, provides, section 9 (a)—“An application to a sheriff to state a case on a question of law determined by him shall be made by minute lodged in the process within seven days after the sheriff has issued his award, and such minute shall set forth the question (or questions) of law which is (or are) proposed as the subject-matter of the case, and shall be accompanied by a deposit of £1, which shall be paid to the sheriff-clerk as his fee for preparing the case.”

At the submission to the parties' agents by the sheriff-clerk of a draft case for appeal the respondents objected that the application to state the case had not been made by the appellant in accordance with the regulations of the Act of Sederunt.

The Sheriff-Substitute ( Macleod), having repelled the objection on the ground that he possessed a discretion to grant indulgence in cases of hardship, stated a case. In it he gave the following narrative of the facts connected with the application for a case:—

“My award is dated 5th May 1905, and the appellant's only application to me to state a case was made by the writing of the following words on the interlocutor sheets at the end of the note to the award, viz.—‘Linlithgow, 12th May 1905.—The pursuer appeals against the foregoing judgment and requests a case to be stated.—(Signed) Peter Miller, for James Kidd, Pror. for Pursuer.’ It seemed to me that though the method thus adopted was unusual it might nevertheless (looking to the substance rather than to the form of the regulations) perhaps be sufficient, in respect the respondents could be in no dubiety as to the questions of law to be put to the Court, seeing that the only point of law which I decided against the appellant was clearly set forth in my judgment. Further, no deposit, as the fee for preparing the case, accompanied the said writing, but in respect the language of the above cited Act of Sederunt relative to the said fee is less absolute in its terms than the language of the corresponding statutory enactment (section III, 1 (2) of 38 and 39 Vict. c. 62) in criminal appeals it seemed to me that I might possess a discretion to grant indulgence in cases of great hardship. On the matter of hardship the facts are as follows:—At 4·45 p.m. on 12th May 1905, that being the last day allowed for taking an appeal, there was delivered at the office of the Linlithgow correspondent of the appellant's Edinburgh law-agent a telegram from the said law-agent asking his said correspondent to take an appeal. Unfortunately the said correspondent was absent in Glasgow, but his clerk took the telegram to several law offices in vain, but at last found a brother procurator who was able to attend to the matter. Just on the stroke of five o'clock (the usual closing time of the Court offices) the said brother procurator called at the Court offices, and having on his request obtained from the clerk in attendance therein the interlocutor sheets wrote thereon the minute above cited. The said clerk in attendance was asked on behalf of the appellant whether any fee was payable in connection with the taking of the appeal, and in the hurry of the emergency he replied that in respect it was in connection with a workmen's compensation matter he thought there was no fee payable. The said brother procurator, who had very little knowledge of the particular case he was dealing with, was satisfied with that assurance. There is no reason to suppose that if the liability for a fee had been present to the mind either of the said brother procurator or the said clerk in attendance it would not at once have been paid, and in these circumstances it seemed to me that it would be a great hardship to the appellant if I refused to state and sign a case. Accordingly I repelled the respondents' objection to my doing so.”

When the case came on for hearing before the Second Division, counsel for the respondents moved the Court to dismiss the case on the ground that the appellant had in his application to the Sheriff failed to comply with the provisions of the Act of Sederunt.

Page: 657↓

Argued for the respondents—All the provisions of sec. 9, sub-sec. a, of the Act of Sederunt had been violated—there was no proper minute, no question of law, no deposit. The deposit had not even yet been paid, which was in itself a sufficient ground for dismissing the case, as the Court would not consider a process in which the statutory fees remained owing.

Argued for the appellant—The regulations of the Act of Sederunt were not of so peremptory a nature as to preclude the Sheriff-Substitute from relaxing them in his discretion. There was no special form of minute required, the note on the interlocutor sheet was sufficient, and for the failure to make the deposit the clerk and not the appellant's agent was to blame. The Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62), sec. 3, sub-secs. 1 and 5, was closely analogous, and the two following decisions under that statute showed that provisions of this nature were leniently construed— Niddrie and Benhar Coal Company, Limited v. Young, March 2, 1895, 22 R. 413, 32 S.L.R. 303; Greig v. Finlay, March 4, 1901, 3 F.J.C. 36, 38 S.L.R. 545.