Mc Intosh v British Railways Board

Sec. 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 enacts that:"The Court of Session may in relation to an action before it which could competently have been brought before a sheriff remit the action to the sheriff within whose jurisdiction the action could have been

The pursuer raised an action for damages under the optional procedure in the Court of Session in respect of alleged loss, injury and damage sustained to him as a result of an accident at work. The injuries were of a minor nature and the sum sued for was 3,000. It was not obvious from the pleadings that if this action were to be successful the pursuer could not recover more than 1,500 (that being the limit of the privative jurisdiction of the sheriff court) as total damages if there was no finding of contributory negligence. In these circumstances, the defenders enrolled a motion to remit the cause to the local sheriff court under and in terms of sec. 14 of the 1985 Act. The Lord Ordinary (Prosser) granted this motion. The fact that the claim in the present case was small and straightforward had been decisive so far as the Lord Ordinary was concerned. His Lordship had been satisfied that a remit would be appropriate unless some counter-bearing consideration could be discovered which would suggest that the Court of Session would be the more appropriate forum. His Lordship rejected the pursuer's argument that the Court of Session was appropriate because it was the practice of the pursuer's trade union to bring all actions of reparation against the defenders in the Court of Session, albeit that there was a substantial advantage in terms of speed, cost and efficiency. His Lordship's reasons for doing this were that the defenders had chosen not to acquiesce in this practice in this case, and he did not think that a remit in this case would jeopardise the general advantages of the practice to which the pursuer had referred. The pursuer reclaimed to the Inner House of the Court of Session.

Held (rev. judgment of Lord Prosser) (1) that the only criteria which sec. 14 provided was that "the nature of the action" made it appropriate to remit the action to the sheriff court and not that the power to remit was to be available where the Lord Ordinary was of the opinion that the smallness or simplicity of the case made it appropriate for the sheriff court; (2) that the power to remit was available in what might be described as larger and more difficult cases as well as small and simple ones and, whatever might be the ground of action or the remedy sought, so long as the action could competently have been brought in the sheriff court and the nature of the action made it appropriate to do so; (3) that the lack of definition made it difficult to identify exactly what the section was designed to achieve, but the order of words suggested that the reference to the nature of the action was there to ensure that actions whose nature made them inappropriate for the sheriff court were not remitted there, rather than that all actions appropriate for the sheriff court were sent to that court and that the power could be seen as having been introduced to meet the needs of particular cases, not to effect a general redistribution of work from one court to another; (4) that the proper approach to this section was that, except in extreme cases, the fact that the claim was small and straightforward was not enough to justify a remit to the sheriff court; (5) that, if the pleadings shewed that the pursuer could possibly recover more than the upper limit of privative jurisdiction in the sheriff court, then the action should be regarded as appropriate for the Court of Session unless some other factor was present which shewed that the nature of the particular case was such that it was appropriate for it to be dealt with in the sheriff court; (6) that, in considering a motion for remit, the court ought to have regard to any practical or procedural advantages to be found in adopting one forum rather than another and that, so long as the claim was competent in the Court of Session, litigants should not be deprived of procedures only available in that court, such as the optional procedure and the right to a civil jury trial, mainly because the claim was small and simple; and (7) that, although the Lord Ordinary had had regard to the practical and procedural advantages of the action remaining in the Court of Session, he had placed too much reliance on the factors of smallness and simplicity and had not given proper regard to the pursuer's right to choose the forum in which to pursue his claim, and that he had, accordingly, misdirected himself in law; and reclaiming motion allowed.

Observed, that the power of the court to modify an award of expenses to a pursuer at the end of a case to the sheriff court ordinary of summary cause scales provided a valuable safeguard to a defender against him being exposed to claims in the Court of Session where the award was trivial in relation to expenses, and that sec. 14 should not be used as a means to the same end.

Sec. 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 enables the Court of Session to remit an action to the sheriff court where "the nature of the action makes it appropriate to do so".

The pursuer raised an action of damages against his employers in respect of an accident at work under the optional procedure in the Court of Session. The defenders enrolled a motion under and in terms of sec. 14 of the 1985 Act to remit the cause to the local sheriff court. The Lord Ordinary granted this motion but was reversed on a reclaiming motion to the Inner House. The defenders thereafter sought leave to appeal to the House of Lords.

Held (1) that the questions which were raised in the reclaiming motion were concerned intimately with Scottish practice and procedure; (2) that it was not for the House of Lords to give directions to the Court of Session as to how it should exercise its discretion in questions of the kind raised by sec. 14; and, accordingly, (3) that it was not appropriate that the defenders should be granted leave to appeal to the House of Lords in this case; and leave to appealrefused.