Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 28, as amended by the Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28), section 2, enacts—Section 28—“(1) Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment

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either of a sheriff or of a sheriff-substitute if the interlocutor appealed against is a final judgment: … Provided that no appeal shall be competent where the cause does not exceed fifty pounds in value, exclusive of interest and expenses, or is being tried as a summary cause, unless the Sheriff, after final judgment by him, on an appeal on the motion of either party made within seven days of the date of the final interlocutor, certifies the cause as suitable for appeal to the Court of Session. …” First Schedule, Rule 124—“On sufficient caution being found … the Sheriff may sist diligence, order intimation and answers, and proceed to dispose of the cause [ i.e., a summary suspension] in a summary manner.”

The Summerlee Iron Company, Limited, Coatbridge, pursuers, brought an action in the Sheriff Court at Hamilton against Robert Duff, miner, High Blantyre, defender, craving the Court to suspend “the charge following upon the extract registered award under the Workmen's Compensation Act 1906 in the action at the instance of the defender against the pursuers, which award was recorded in the special register kept in the Sheriff Court of Lanarkshire at Hamilton, under the Workmen's Compensation Act 1906, on the 21st day of December 1912 years, under which the pursuers were found liable to pay to the defender the sum of 18s. per week, and under which the pursuers were charged on the 11th day of October 1919 to pay to defender the sum of £9, 18s. sterling.”

The interlocutors in the cause were—“ Hamilton, 11th October 1919.—Caution having been found—Grants warrant to cite the defender by serving a copy of the writ and warrant upon an induciæ of seven days; and appoints him to answer within the Sheriff Court-House, Hamilton, on Friday, the 31st day of October 1919, at 10 o'clock forenoon, under certification of beingheld as confessed: Meantime sists diligence.—Hay Shennan, Sheriff-Substitute.” “ Hamilton, 31 st October 1919.—Appoints parties to debate on 18th November 1919, at 10·15 a.m.—Hay Shennan.” “ Hamilton, 18 th November 1919.—Having heard parties' procurators makes avizandum.—Hay Shennan.” “ Hamilton, 21st November 1919.—The Sheriff-Substitute suspends the charge as craved: Finds the suspenders entitled to expenses on the lower scale.”

The defender appealed.

Counsel for the pursuers objected to the competency of the appeal, and argued—The appeal was incompetent, as there was no certificate that the case was suitable for appeal as required by the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 28, as amended by the Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28), section 2; and (1) the value of the cause did not exceed £50; and also (2) the action had clearly been treated as a summary cause. Section 3 (i) of the 1907 Act was not an exhaustive definition of summary causes, but it did expressly exclude actions which the parties consented to being tried summarily. Here there was undoubtedly implied consent, for there had been throughout no objection to the procedure, and the procedure was that appropriate to a summary cause. Thus the warrant for citation was that appropriate to a summary cause—First Schedule, Rule 4, and Form B. Form C was appropriate to an ordinary action. The record had not been closed, which was competent in a summary cause—Rule 41, as amended by the Act of 1913—but incompetent in an ordinary action—Rule 52, as amended by the Act of 1913. Expenses were given on the lower scale. A suspension was a cause—section 3 ( d), as amended by the Act of 1913—and in 1907 for the first time suspensions became competent in the Sheriff Court, but only where the value was less than £50—section 5 (5). If therefore the action was competent in the Sheriff Court it was necessarily a summary cause—section 3 (i), as amended by the Act of 1913. In the Rules suspensions were called summary—Rules 123–125—and the Sheriff, apart from consent of parties, had power to deal with the cause in a summary manner. Rule 124, and section 8, were referred to. On the question of value, Wilsons and Clyde Coal Company, Limited v. Cairnduff, 1911 S.C. 647, 48 S.L.R. 500, was referred to.

Argued for the defender—The appeal was competent. The action was not in itself a summary cause, nor had it been so treated. The Sheriff had a right to adopt an expeditious form of procedure in suspensions analogous to the Bill Chamber procedure—section 5 (5), which expressed that by enacting that such cases might be tried in a summary manner, but did not make such actions “summary causes” in the sense of the Act. Those formed a quite well-known and definite class of cases enumerated in section 3 (i). The defender had not consented to the cause being tried summarily. The procedure here was indecisive. It was appropriate either to a summary cause or to trying in a summary manner. The form of warrant was immaterial. It was written on by the Sheriff-Clerk, and he could not decide the nature of the cause. Lewis, Sheriff Court Practice, pp. 40, 42, was referred to. On the question of value— Paisley Parish Council v. Glasgow and Row Parish Councils, 1907 S.C. 674, 44 S.L.R. 520; Hamilton v. Hamilton, 1877, 4 R. 688, 14 S.L.R. 448; Aitchison v. M'Donald, 1911 S.C. 174, 48 S.L.R. 185; James Nimmo & Company v. Myles, 1917 S.C. 522, 54 S.L.R. 465.