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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kane v. Singer Manufacturing Co. [1904] ScotLR 41_571 (21 May 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0571.html
Cite as: [1904] SLR 41_571, [1904] ScotLR 41_571

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SCOTTISH_SLR_Court_of_Session

Page: 571↓

Court of Session Inner House Second Division.

[Sheriff Court of Lanark at Glasgow.

Saturday, May 21. 1904.

41 SLR 571

Kane

v.

Singer Manufacturing Company.

Subject_1Process
Subject_2Appeal
Subject_3Removal of Cause to Court of Session
Subject_4Competency — Employers Liability Act 1880 (43 and 44 Vict. cap.42), sec.6, sub-sec. 3.
Facts:

The Employers Liability Act 1880 enacts—Section 6 (3) … “In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section 9 of the Sheriff Courts (Scotland) Act 1877.”

The Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. cap. 50), enacts, with regard to actions removed from the Sheriff Court to the Court of Session, section 9 (2)—“The Court of Session, or either Division thereof, or any Lord Ordinary therein, may, if of opinion that the action might have been properly tried in the Sheriff Court, allow the defender who removed the action to the Court of Session, in the event of his being successful therein, such expenses only as they may consider

Page: 572↓

that he would have been entitled to if successful in the action in the Sheriff Court.”

The case of Paton v. Niddrie and Benhar Coal Company, January 14, 1885, 12 R. 538, 22 S.L.R. 345, decided that section 6 of the Employers Liability Act 1880 did not by implication abolish the right of either party to an action in the Sheriff Court to have it removed to the Court of Session with a view to jury trial under the 40th section of the Judicature Act 1825 (6 Geo. IV, cap. 120).

Held that any action founded on the Employers Liability Act, if removed from the Sheriff Court to the Court of Session, is subject to the condition as to expenses set forth in section 9 (2) of the Sheriff Court Act 1877, whether its removal to the Court of Session is under the provisions of the Employers Liability Act or of the Judicature Act, in pursuance of the decision in Paton v. Niddrie and Benhar Coal Company, cit. sup., which decision doubted.

Headnote:

This was an action raised in the Sheriff Court at Glasgow by Archibald Kane, docker, 17 Grace Street, Anderston, Glasgow, against The Singer Manufacturing Company, Kilbowie, Clydebank, in which the pursuer sought to recover damages for personal injury under the Employers' Liability Act.

On 10th December 1903 the Sheriff-Substitute ( Mitchell) allowed a proof before answer.

The pursuer appealed to the Court of Session for jury trial.

At the calling of the appeal the question was raised per curiam whether the appeal was competent in view of the provisions of section 6 of the Employers Liability Act 1880 (43 and 44 Vict. cap. 42). The provisions referred to are quoted in the rubric.

Argued for the respondents—Section 6 of the Employers Liability Act prescribed a special mode of removal to the Court of Session for actions under that Act, and that special mode should be held to exclude all others. It had been held not to exclude removal under the Judicature Act for jury trial, but that was in the case of an action founded not only on the Employers Liability Act but alternatively on common law— Paton v. Niddrie and Benhar Coal Company, January 14, 1885, 12 R. 538, 22 S.L.R. 345.

Argued for the appellant—The provisions of the Act were to be read along with the established rule of practice which had been fixed by the case of Paton v. Niddrie and Benhar Coal Company, cit. sup. Standing that decision the respondents' contention could not receive effect.

At advising—

 Judgment:

Lord Trayner—The question argued before us in this case was, whether in view of the provisions of the Employers Liability Act 1880 it is competent to remove an action based upon that statute from the Sheriff Court to the Court of Session by way of appeal for jury trial under the provisions of the 40th section of the Judicature Act. The case of Paton decided that it is competent to do so. Sitting as a Court of co-ordinate jurisdiction I am of opinion that we cannot disregard that decision, but in saying so I am not to be understood as expressing any concurrence in it. So long as that decision stands I think we must give effect to it, and therefore hold the present appeal to be competent. But I wish to point out that any action founded on the Employers' Liability Act (or laid alternatively on common law) if removed from the Sheriff Court to this Court either under the provisions of the Judicature Act or the Employers Liability Act is in my opinion subject to the conditions as to expenses set forth in section 9, sub-section 2, of the Sheriff Court Act 1877, which conditions (hitherto somewhat overlooked) should in future be strictly enforced in all cases to which they have by the statute been made applicable.

Lord Moncreiff—I agree in the result arrived at by Lord Trayner. On the argument which was addressed to us I formed an opinion, apart from previous decision, against the competency of the appeal in this case; but standing the case of Paton, there is no course open to us at present but to sustain the competency of the appeal. I am the less reluctant to do so in the present case because there would have been a certain hardship if the appellants, who relied on the authority of Paton, were put to the expense of having the case reheard before a Court of Seven Judges.

But the question may come up again, and I wish to give this warning to parties who in future may seek to have an action which has been raised under the Employers Liability Act removed from the Sheriff Court to the Court of Session under the 40th section of the Judicature Act, that before doing so they should study the only terms on which such removal is allowed. The 6th section of the Employers Liability Act provides that “In Scotland any action under this Act may be removed to the Court of Session at the instance of either party in the manner provided by, and subject to the conditions prescribed by, section 9 of the Sheriff Courts (Scotland) Act 1877.” Section 9 of the Sheriff Courts Act 1877 provides (1) that the action may be removed to the Court of Session on the party taking the proper steps either before the interlocutor closing the record or within six days thereafter, and (2) “The Court of Session, or either Division thereof, or any Lord Ordinary therein, may, if of opinion that the action might have been properly tried in the Sheriff Court, allow the defender who removed the action to the Court of Session, in the event of his being successful therein, such expenses only as they may consider that he would have been entitled to if successful in the action in the Sheriff Court.” The provisions in this section regarding the removal of actions at the instance of the defender are extended by the 6th section of the Employers Liability Act to actions at the instance of either

Page: 573↓

party. These are the conditions, and, as I think, the only conditions, on which an action brought under the Employers Liability Act may be removed from the Sheriff Court to the Court of Session, although I think that in recent cases they have not received sufficient attention. The Employers Liability Act imposed a fresh liability on employers, and in return imposed in his favour these restrictions on the right of appeal or removal. I know that this is contrary to the view taken by the Court in the case of Paton, but I am not satisfied that in that case all the provisions of the Sheriff Courts Act of 1877 were fully before the Court.

My object in making these observations is to say that it is not impossible or improbable that this question, if it comes before us again, may be remitted to a larger Court with the view of having the case of Paton reconsidered; and parties will be well advised if in future they comply strictly with the conditions imposed in the Act of 1880.

Apart from the condition as to expenses provided by reference in that Act, I may say that I think that this Court has in all cases an inherent power of modifying or disallowing expenses should they think such a course proper.

Lord Justice-Clerk—I have had the opportunity of seeing the opinion which has been read by Lord Trayner, and I concur in it. I also agree with Lord Moncreiff in what he has said on the matter of expenses.

Lord Young was absent.

The Court then heard counsel on the merits of the cause, to which it is unnecessary to refer for the purposes of this report.

 Counsel:

Counsel for the Pursuer and Appellant— Trotter. Agent— J. Struthers Soutar, Solicitor.

Counsel for the Defenders and Respondents— Younger. Agents— J. W. & J. Mackenzie, W.S.

 1904

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