Scottish Court of Session Decisions

This was an action at the instance of Evelyn Stuart Parker, owner of the ship “Genista” of Liverpool, against the North British Railway Company, as proprietors of the dock, harbour, and jetty of Silloth, in the county of Cumberland.

The pursuers concluded (1) that the summons in the present action should be conjoined with an action then in dependence before the Court between the same parties (being the case which is reported ut supra); and (2), “the said summonses being so conjoined or whether the same shall be conjoined or not,” for payment of the sum of £8000 as damages for the stranding of his ship “Genista” at Silloth, which was due, as he alleged, to the fault of the defenders, but under deduction from that sum of such sum as should be decerned for under the original action, in which he had concluded for payment of £5000 only; or otherwise for payment of £3000.

The summons in the present supplementary action was signeted on 4th March 1899.

The summons in the original action was signeted on 9th July 1896. By interlocutor in that action dated 27th October 1896 the Lord Ordinary ( Stormonth Darling) allowed the parties a proof of their averments. It was thereafter agreed between the parties that the question of liability should be decided first, leaving the amount of loss and damage to be ascertained subsequently. Proof was accordingly led in the action on the question of liability, and on 18th March 1898 Lord Stormonth Darling pronounced an interlocutor, which was adhered to by their Lordships of the Second Division, of date 1st July 1898, finding that on 28th March 1896 the “Genista” went aground on a

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sandbank within the harbour of Silloth, and that the defenders were liable for the damage thereby occasioned, and continuing the cause in order that the amount of damage might be ascertained. A diet of proof was accordingly fixed for 13th December 1899 to determine the amount of damage.

The pursuer in his condescendence to the present action set forth the facts upon which he founded in the original action, and the procedure in that action as above narrated, and further averred as follows—“(Cond. 8) In the said action the pursuer concluded for payment of the sum of £5000 in name of loss and damage sustained. At the date of raising the said summons it was impossible for the pursuer to form an accurate estimate of the loss and damage sustained by him, as many of the accounts incurred in connection with the repair of the vessel were not paid nor even rendered at the said date. It was necessary to raise the action in considerable haste in order to secure the evidence of the third officer, who was about to sail on a long voyage. Since the raising of said action the pursuer has discovered that the loss and damage he has sustained amounts to not less than £8000, the sum now sued for. To recover this additional sum of £3000 the present supplementary summons has thus been rendered necessary.”

The defenders pleaded, inter alia—“(1) Lis alibi pendens; and (2) The action is incompetent and ought to be dismissed inasmuch as the whole claims competent to the pursuer against the defenders in respect of the stranding of said vessel are embraced in the action already raised against them at his instance.”

The defenders also stated pleas upon the merits of the action including the question whether they were liable for any damages at all.

The Court of Session Act 1868 (31 and 32 Vict. c. 100), section 29, enacts as follows:—“The Court or the Lord Ordinary may at any time amend any error or defect in the record or issues in any action or proceeding in the Court of Session upon such terms as to expenses and otherwise as to the Court or Lord Ordinary shall seem proper; and all such amendments as may be necessary for the purpose of determining in the existing action or proceeding the real question in controversy between the parties shall be so made: Provided always, that it shall not be competent, by amendment of the record or issues under this Act, to subject to the adjudication of the Court any larger sum or any other fund or property than such as are specified in the summons or other original pleading, unless all the parties interested shall consent to such amendment.” …

On 17th May 1899 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Repels the first two pleas-in-law for the defenders, in so far as they are stated as preliminary pleas to exclude the action on the ground of incompetency, reserving their effect quoad ultra to be considered along with the merits of the case; Allows the parties a proof of their averments, appoints the same to be taken on Wednesday, 13th December next, at ten o'clock forenoon, and grants diligence for citing witnesses and havers.”

The defenders reclaimed, and argued—This action was incompetent. No new item of damage was alleged. A supplementary action brought for the sole purpose of increasing the amount of damages recoverable under the original action was incompetent— Bryan v. Glasgow & South-Western Railway Company, March 18, 1869, 6 S.L.R. 445. Such an action was simply an attempt to evade the provisions of section 29 of the Court of Session 1868 as to amendment. The only competent way in which the pursuer could now claim larger damages than he originally concluded for was by abandoning the original action and paying the expenses incurred by the defenders therein. The case of Roy v. Hamiltons & Company, February 15, 1868, 6 Macph. 422, was distinguished from the present. There the record had not been closed, and the defenders' pleas were merely reserved to be discussed after a record had been adjusted. Moreover, in that case the additional sums claimed were for separate and additional items, and the pursuer might have brought a separate action to recover them. It was distinctly laid down in that case that such a supplementary action as the present was incompetent— see per Lord Deas at page 425. They also referred to Young v. Mitchells, June 12, 1874, 1. R. 1011. In this case the allowance of this supplementary action would be peculiarly inconvenient, because at the diet of proof which had been fixed the proof in the original action would be confined to the question of amount, whereas in the present action evidence could and would be led on the whole question including the question whether the defenders were liable for any damages at all.

Argued for the pursuer and respondent—The course followed by the Lord Ordinary was correct. The present case was ruled by Roy v. Hamiltons & Company, cit. This was not properly an objection to competency. The question whether in the circumstances of any particular case such a supplementary action was allowable or not could not be determined until there had been inquiry into the merits of the additional claim— see per L. P. Inglis in Roy v. Hamiltons & Company, cit., at page 425. in the present case no proof as to the amount of damage had been led, and that question was still quite open.