Dumfries County Council v Langholm Magistrates
| Jurisdiction | Scotland |
| Judgment Date | 05 December 1912 |
| Date | 05 December 1912 |
| Docket Number | No. 43. |
| Court | Court of Session |
Lord Dundas, Lord Salvesen, Lord Guthrie.
ProcessAppealCompetencyAppeal against interlocutory judgment under Rivers Pollution Prevention Act, 1876 (39 and 40 Vict. cap. 75), sec. 11Leave to appealSheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sec. 28.
The Rivers Pollution Prevention Act, 1876, sec. 11, enacts that either party in any proceedings under the Act may appeal in the form of a special case from the decision of the Sheriff in point of law or on the merits, or in respect of the admission or rejection of any evidence; and that all enactments relating to appeals from decisions of Sheriffs and to the conditions of such appeals shall apply to an appeal in proceedings under the Act in the same manner as if such appeal related to a matter within the ordinary jurisdiction of the Court.
The Sheriff Courts (Scotland) Act, 1907, sec. 28, has the effect of excluding appeal to the Court of Session against an interlocutory judgment of a Sheriff, unless, inter alia, leave to appeal has been granted by him.
Held (diss. Lord Salvesen) that the provisions of the latter section apply to appeals in proceedings under the Rivers Pollution Prevention Act, 1876; and that, accordingly, an appeal by special case against a decision of the Sheriff repelling certain preliminary pleas in such proceedings was incompetent as, although the Sheriff had himself stated the special case, leave to appeal had not been formally obtained.
The County Council of the County of Dumfries brought an action in the Sheriff Court at Dumfries against the Provost and Magistrates of the burgh of Langholm. The pursuers craved the Court to find that the defenders were committing an offence within the meaning of the Rivers Pollution Prevention Act, 1876, by permitting sewage to flow into the River Esk or its tributaries, and to ordain them to abstain from doing so.
The defenders pleaded, inter alia;(1) No title to sue. (2) The action is irrelevant. (3) The pursuers' statements regarding pollution are lacking in specification, and ought not to be remitted to proof.
On 29th January 1912 the Sheriff-substitute (Campion) pronounced an interlocutor repelling these pleas and granting leave to appeal; and, the defenders having appealed, the Sheriff (Fleming), by interlocutor dated 29th February 1912, adhered.
Against this interlocutor the defenders appealed by special case to the Court of Session. As the pursuers declined to adjust the special case with the defenders, it was adjusted by the Sheriff on the application of the defenders.
The question of law in the case was:Was I right in repelling the first, second, and third pleas in law for the defenders and appellants, or any and which of them?
The respondents having objected to the competency of the appeal,*
the case was sent to the Short Roll under reservation of the question of competency. Counsel were heard on the competency of the appeal and on the merits before the Second Division (without the Lord Justice-Clerk) on 13th November 1912.
Argued for the respondents;The appeal was incompetent. (1) Section 11 of the Rivers Pollution Prevention Act, which allowed appeal, but only in the form of a special case, applied only to summary orders restraining the commission of an offence, pronounced in terms of section 10 of the Act. There was no appeal competent against interlocutory judgments; if it were otherwise, the door would be open to deliberate obstruction by means of a multiplicity of appeals. In the case of County Council of Lanark v. Magistrates of AirdrieSC,1 on which the appellants founded, the appeal was from a decision as to the substantial merits of the case. It afforded no authority for the view that appeal might be taken from interlocutors that were not final; and that view was inconsistent with the policy of the Act. (2) In any case, section 11 of the Act provided that all the enactments as to Sheriff Court procedure should apply to such appeals; and this introduced section 28 of the Sheriff Courts (Scotland) Act, 1907.2 By that section, as the appellants had not obtained leave to appeal, the appeal was incompetent. The fact that the Sheriff had settled the special case on the application of the appellants was not equivalent to obtaining leave to appeal; and the appeal had not been noted as required by the Sheriff Courts Act.3
Argued for the appellants;(1) Section 11 of the Rivers Pollution Prevention Act did not exclude appeals against interlocutory judgments; and the observations in the opinions in County Council of Lanark v. Magistrates of AirdrieSC,1 and the subsequent history of that case4 showed that the right of appeal under the Act was not in any
way limited except as to the mode of appealing. (2) The provisions of section 28 of the Sheriff Courts Act1 did not apply to the appeals specially provided for under the Rivers Pollution Prevention Act, and leave to appeal, therefore, was not required. The present appeal was in the same position as an appeal under the Workmen's Compensation Act, 1906,2 and leave to appeal was not required in that case. But even if leave to appeal were held to be necessary, the settlement of the case by the Sheriff on the application of the appellants was equivalent to the granting of leave to appeal.
At advising on 5th December 1912,
Lord Dundas.We have here an appeal in the form of a special case stated by the Sheriff of Dumfries and Galloway under the Rivers Pollution Prevention Act, 1876. The respondents (pursuers in the Sheriff Court proceedings) are the County Council of the county of Dumfries. The defenders (appellants) are the Provost, Magistrates, and Councillors of the police burgh of Langholm. An objection to the competency of the appeal is taken by the respondents. The interlocutor of the learned Sheriff which the appellants seek to bring under our review is dated 29th February 1912. The Sheriff thereby adhered to an interlocutor of the Sheriff-substitute (which repelled certain preliminary pleas for the defenders directed against the pursuers' title to sue, and the relevancy and specification of their averments), and remitted the case to the Sheriff-substitute to proceed. The objection to the competency is that this interlocutory appeal, though it is in the form of a special case as directed by the Rivers Pollution Act, cannot be entertained because it is brought without leave asked of and granted by the Sheriff. I think the objection is well founded, and must be sustained.
The Rivers Pollution Act, 1876, which, though applicable to Scotland, is conceived to a great extent in language presumably more familiar to an English than to a Scots lawyer, enacts (section 10) that the County Court (Sheriff Court) having jurisdiction in the place where any offence against the Act is committed, may by summary order require any person to abstain from the commission of such offence, and may require him to perform any statutory duty in respect of which he is in default, subject to such conditions as the said Court may think right to insert in the order, with power to the Court, previous to granting such order, to remit to skilled persons to report. Section 11 enacts that if either party in any proceedings before the County Court (Sheriff Court) under this Act feels aggrieved by the decision of the Court in point of law or on the merits, or in respect of the admission or rejection of any evidence, he may appeal to either Division of the Court of Session. The appeal shall be in the form of a special case; and there are further provisions, which I shall presently quote, as to the mode of procedure in such appeal. Reading these sections, I should infer the policy of the Act to be that the appeal in the form of a special case is intended to bring up the decision of the lower Court, with all or any of the pleas in law, or on the facts as found by the Sheriff, after the substance of the case has been determined. The
decision is to be by summary order. It is...
To continue reading
Request your trial