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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paterson v. Advocate General For Scotland [2007] ScotCS CSOH_112 (27 June 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_112.html
Cite as: [2007] CSOH 112, [2007] ScotCS CSOH_112

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 112

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD HODGE

 

in the cause

 

COLIN PATERSON

 

Pursuer;

 

against

 

ADVOCATE GENERAL FOR SCOTLAND

 

Defender:

 

 

ннннннннннннннннн________________

 

 

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.


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URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_112.html