Carlton Hotel Company v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 15 December 1920 |
| Date | 15 December 1920 |
| Docket Number | No. 22. |
| Court | Court of Session |
Lord Cullen, Lord Justice-Clerk (Scott Dickson), Lord Dundas, Lord Salvesen, Lord Ormidale.
Process—Petition—Order for specific performance of a statutory duty—Sufficiency of averments of failure to perform statutory duty—Application for order to have compensation fixed under Defence Act, 1842—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 91—Defence Act, 1842 (5 and 6 Vict. cap. 94), sec. 19—War—Defence of the Realm—Defence of the Realm (Consolidation) Regulations, Regs. 2 and 9.
In an action relating to an Edinburgh hotel, which had been occupied by the War Department under the powers conferred by the Defence of the Realm Regulations 1914, the Court pronounced an interlocutor finding and declaring the proprietors of the hotel ‘entitled to such compensation as may be found due to them in respect of the occupation and use [of the hotel], under and in terms of the Defence of the Realm Acts and relative Acts of Parliament.’ Thereafter the proprietors presented a summary petition for an order, under sec. 91 of the Court of Session Act, 1868, for the specific performance of a statutory duty, in which, founding on the above interlocutor, they averred that they were entitled to have the compensation fixed by a jury summoned under and in virtue of the provisions of sec. 19 of the Defence Act, 1842, and craved the Court to ordain the Lord Advocate and the Secretary of State for War ‘forthwith to take such steps to have the compensation … ascertained and fixed as may be necessary for the fulfilment of the statutory duty imposed upon the said principal Secretary of State by the Defence of the Realm Acts and relative Acts of Parliament, by causing a jury to be summoned.’
The Court dismissedthe petition as irrelevant, per Lord Dundas and Lord Ormidale (aff. the Lord Ordinary on the Bills, Lord Cullen), on the ground that the petitioners had failed to aver a sufficiently definite statutory duty on the part of the respondents, which they had failed to perform, to justify the granting of the order sought; per the Lord Justice-Clerk and Lord Salvesen, on the ground that the respondents were under no statutory duty to cause a jury to be summoned.
Opinion, per Lord Salvesen, that an order for specific performance under sec. 91 of the Court of Session Act, 1868, could competently be pronounced against a minister of the Crown. Opinion reserved per Lord Dundas.
On 2nd July 1920 the Carlton (Edinburgh) Hotel Company, Limited, proprietors of the Carlton Hotel, Edinburgh, presented a petition under section 91 of the Court of Session Act, 1868,* in which they craved the Court to order the Lord Advocate, as acting on behalf of His Majesty's Principal Secretary of State for the War Department, ‘forthwith to take such steps to have the compensation due and payable to the petitioners in respect of the occupation and use of their said hotel by the Military Authorities ascertained and fixed as may be necessary for the fulfilment of the statutory duty imposed upon him by the Defence of the Realm Acts and relative Acts of Parliament, by causing a jury to be summoned or appointing an Arbiter for the purpose of ascertaining and fixing the amount of the compensation, under such conditions and penalties, in the event of the said order not being implemented, as to your Lordships may seem proper.’
The petitioners stated, inter alia:—‘That by virtue of an order issued under the Defence of the Realm (Consolidation) Regulations, 1914,* and signed by the competent Military Authority in Scotland, possession of the petitioners' hotel was taken by the War Department as from 26th January 1917. That, in consequence of the continued possession of the said hotel by the War Department, the petitioners intimated to the Department a claim for compensation as at 26th August 1919, in the validity of which the military authorities refused to acquiesce, with the result that on 18th August 1919 the petitioners raised an action against the Right Honourable James Avon Clyde, K.C., M.P., then His Majesty's Advocate for Scotland, as acting on behalf of His Majesty's Principal Secretary of State for the War Department. The summons in the said action concluded, inter alia, “(3) Alternatively it ought and should be found and declared that the sum due to the pursuers as compensation falls to be ascertained and determined by arbitration in the manner prescribed by either the Lands Clauses Consolidation Acts, 1845 and 1860, or the Defence Acts, 1842 to 1875, or the Military Lands Acts, 1891 to 1903.” Defences were lodged on behalf of the War Department to the said action, the record and the various interlocutors pronounced in which are respectfully referred to. That, after sundry procedure, the following interlocutor was pronounced by their Lordships of the Second Division, with the addition of four Judges of the First Division:—“Edinburgh, 4th June 1920.—The Lords of the Second Division, with the addition of the four Judges of the First Division, having considered the reclaiming note for the pursuers against Lord Anderson's interlocutor of 20th May 1920 with closed record as amended, and heard counsel for the parties, in conformity with the unanimous opinions of the seven Judges, find and declare that the pursuers, as proprietors of the Carlton Hotel, North Bridge Street, Edinburgh, are entitled to such compensation as may be found due to them, in respect of the occupation and use thereof by the competent Military Authority in Scotland, under and in terms of the Defence of the Realm Acts and relative Acts of Parliament: Find it unnecessary to dispose of any of the other conclusions of the summons (other than the conclusion for expenses): Dismiss the same accordingly, and decern: Find the pursuers entitled to expenses in the cause against the defender, and remit the account thereof, when lodged, to the Auditor to tax and to report. Charles Scott Dickson, I.P.D.” That the petitioners are entitled to have the compensation due to them, in respect of the occupation and use of their said hotel by the competent Military Authority, ascertained and fixed by a jury summoned under and in virtue of the provisions
of section 19 of the Defence Act, 1842, or, alternatively, in the option of the War Department, by arbitration, as provided for in section 11 (1) of the Ranges Act, 1891. … That notwithstanding the terms of the said interlocutor of 4th June 1920 and the fact that the petitioners have called upon the Lord Advocate as representing the War Department to take steps to summon a jury or appoint an arbiter to adjudicate upon the said claim, the Lord Advocate either refuses or delays to do so. …’
Answers were lodged by the Lord Advocate, who denied that he had refused or delayed performance of any statutory duty incumbent upon him. He further stated:—‘Explained that the War Department ceased to occupy the said hotel on or about 15th January 1920. Explained further that since the date of the interlocutor of the Court mentioned (which in turn was consequent on a recent decision of the House of Lords—Attorney-General v. The De Keyser's HotelELR, [1920] A. C. 508), the position of the War Department and other Government Departments concerned, as representing the Crown, in relation to very numerous claims advanced against the Crown by claimants in the same or similar situations to that of the petitioners, and the procedure to be adopted in relation thereto, has been, and is being, considered. There has been no unnecessary or unjustified delay. Explained further that the said claim does not conform to, and is not warranted by, the provisions of the said Defence Act of 1842. The respondent submits that the present petition should be dismissed upon, inter alia, the following grounds:—(1) That the petition is incompetent, in respect (a) that the Crown is not subject to the jurisdiction of the Court under section 91 of the Court of Session Act, 1868, or otherwise at common law in relation to any such order as is in this petition craved; and (b) that the respondent as representing the War Department under the Crown Suits (Scotland) Act, 1857 (20 and 21 Vict. cap. 44), is not subject to any such order; (2) that the statements in the petition are irrelevant to infer any failure in a statutory duty incumbent on the respondent; (3) that the said statements are unfounded in fact; and (4) that in any event no such order as is craved should be issued, in respect that the interlocutor founded on is not final, but is subject to appeal to the House of Lords.’
On 30th July 1920 the Lord Ordinary officiating on the Bills (Cullen) dismissed the petition.
Lord Cullen's opinion.—[After dealing with a question of procedure not here reported, his Lordship proceeded]—Passing to the prayer of the petition, it craves that the respondent be ordered to have the compensation payable to the petitioners ascertained and fixed, alternatively, by causing a jury to be summoned, or appointing an arbiter for the purpose. The second alternative is intended to refer to the Ranges Act, 1891, section 11. It was pointed out, however, by the Solicitor-General that section 11 of that Act only applies ‘where any land is acquired,’ and that in the present case the claim is not in respect of land being acquired, but in respect of a temporary occupation and use of the petitioners' premises. Prima faciethis criticism would seem to be well founded. No answer was made to it by the petitioners' counsel, who said he was content to have the crave of the petition regarded as limited to the first alternative, viz., procedure under the Defence Act of 1842, section 19. When one turns to that enactment one finds some difficulty in applying its machinery to the present case. It provides that, in default of treating, or where the parties do not agree, the principal officers may require two or more justices, &c., to put them into immediate possession...
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