Scottish Court of Session Decisions

Lord President—I cannot understand on what ground the pursuers resist the sisting of the Clyde Trustees in this process. It seems to be their clear interest to have that party sisted; but whether it be their interest or not, it is the duty of the Court to see that all parties asserting a right should have an opportunity of establishing their claim. If the pursuer's case is a good one, and he prevails, he can have a more effective judgment if all parties are convened, for he would then have a decree which would be valid against all. The peculiarity of this case is that both parties, the present defenders and those who ask to be sisted along with them, represent the public. The Dean of Faculty has said that the Crown stands only in a fiduciary position, while the Clyde Trustees are, and have been for nearly a century, in possession of the Clyde, and more effectually represent the public. If the pursuers are right, their decree will affect the public, and from every point of view it is desirable that the Clyde Trustees should be sisted.

In the conclusion of the summons there is a reservation that the finding and declarator asked shall be “subject always to any rights of navigation or other rights which the public may have over the same, and subject also to any rights conferred upon the Trustees of the Clyde Navigation by their Acts of Parliament.” Mr Balfour admits that this was not intended to be a reservation of a claim of property, and it is not a reservation of such a claim as the Clyde Trustees are now maintaining.

The first plea in law for the defenders must be sustained.

Lord Deas—It is an important rule of practice, laid down in the House of Lords, and affirmed here, that it is pars judicis to give an opportunity of appearing to any party that the Court sees in the course of the process to be interested in the result. In the present instance the deep interest of the Clyde Trustees is apparent, and seeing that, it is pars judicis to direct that they be called. The clause of reservation in the summons is the introduction to various statements on the part of the pursuers that the Clyde Trustees are interested in this action; and in the condescendence the pursuers think it necessary to set forth as part of their case that no right of property was conferred on the Clyde Trustees by their Acts of Parliament. But it is not necessary for the Court to consider whether this would entitle the Trustees to appear, for the first plea in law for the Crown, and their statement of facts, are enough for us to decide the point, and if anything further is necessary we find it in the minute which the Trustees have lodged.

I have no more doubt than your Lordship of the regularity and expediency of this course than of the abstract right.

Lords Ardmillan and Mure concurred.