Ralston v Secretary of State for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 02 May 1991 |
| Date | 02 May 1991 |
| Docket Number | No. 35. |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION.
PracticeReparationAppeal from sheriff court decree of absolvitorMotion for additional proof seeking further examination of expert witnessWitness originally examined by party litigant but not recalled by subsequently instructed counselWhether additional proof necessary in interests of justiceCourt of Session Act 1988 (cap. 36), sec. 32.1
The pursuer raised an action of damages in the sheriff court in respect of injuries said to have been inflicted upon him by prison officers. The sheriff pronounced decree of absolvitor and issued a note setting out the grounds upon which he had proceeded. The pursuer appealed to the Court of Session, contending that the sheriff had misdirected himself in various ways. In the course of advancing submissions, counsel for the pursuer encountered difficulty with the evidence of a key medical witness, and moved the court to order additional proof to clarify that evidence on the grounds that it was of critical importance to the case and so was necessary in the interests of justice, and that the circumstances were special as the pursuer had been conducting his own case when the important evidence had been led. The motion was opposed by counsel for the defender who submitted that the pursuer was merely seeking to strengthen a weak point in his case, as counsel instructed on his behalf before the original proof was closed had been supplied with a complete transcript of the evidence and could have sought recall of the witness and it was uncertain whether additional proof would help the pursuer's case.
Held (1) that although the responsibility of the court in dealing with such a motion was to consider the interests of justice, the court must be very slow to re-open a proof where both parties were legally represented at its conclusion and all matters ventilated had been determined; (2) that the appellant came nowhere near to passing the relevant test which was that discussed in Coul v. Ayr County CouncilENR 1909 S.C. 422; and (3) that a hope that an additional proof might give rise to evidence which might assist the appellant was insufficient to support such a motion; and motion refused.
Coul v. Ayr County Council 1909 S.C. 422applied.
Samuel Paul Ralston raised an action of damages in the sheriff court at Glasgow against the Secretary of State for Scotland. The pursuer sought reparation in respect of injuries said to have been inflicted upon him by prison officers whilst he had been detained in Barlinnie Prison, Glasgow. After proof, the sheriff issued an interlocutor containing findings in fact and pronouncing decree ofabsolvitor. The grounds upon which he had proceeded were set out in a note appended to the interlocutor.
The pursuer appealed to the Inner House of the Court of Session, arguing that the sheriff had misdirected himself. In the course of their submissions counsel for the appellant encountered difficulty with the evidence of an important medical witness
and made a motion in terms of sec. 32 (3) of the Court of Session Act 1988 for the taking of additional proof in order to clarify that evidenceThe motion was heard by an Extra Division, comprising Lord McCluskey, Lord Grieve and Lord Brand.
At advising on 2nd May 1991 the opinion of the court was delivered by Lord McCluskey.
Opinion Of The Court.In this action the pursuer and appellant seeks damages from the defender in respect of injuries said to have been inflicted upon him by prison officers within Barlinnie Prison, Glasgow, on 5th January 1987. After a proof extending over some five court days, the sheriff issued an interlocutor containing findings in fact and in law and pronouncing decree of absolvitor. He appended to the interlocutor a note setting out the grounds upon which he proceeded, all as required by rule 89 of the Ordinary Cause Rules.
In opening the appeal, counsel for the appellant did not submit that the sheriff had drawn the wrong conclusions in law from the findings in fact. What he submitted, as foreshadowed in the grounds of appeal, was that the sheriff had misdirected himself in various ways, with the result that his assessment of credibility was fatally flawed. The case was therefore one falling within the third principle contained in the speech of Lord Thankerton in Thomas v. ThomasSC 1947 S.C. (H.L.) 45 at p. 54. The submission was that it was plain from the note appended to the interlocutor that the sheriff had given unsatisfactory reasons for his conclusions as to credibility and reliability and that the appellate court should be satisfied that he had not taken proper advantage of his having seen and heard the witnesses. Accordingly the matter should become at large for this court. This court, it was submitted, should read the whole evidence, make certain alterations to the findings in fact and draw the conclusion that the pursuer's factual...
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