Scottish Court of Session Decisions

On 23rd June 1891 the Lord Ordinary ( Stormonth Darling) repelled these two pleas, and the defenders having reclaimed, the First Division adhered on 18th July 1891, and thereafter Friday 13th November was fixed as the diet of proof.

The defenders now presented a petition for leave to appeal to the House of Lords against these interlocutors.

The petitioners argued in support of the application—The clause of reference on which they founded in the pleas which had been repelled was in a form in general use by insurance companies, and it was of the utmost importance that the question raised as to its effect should be finally settled by a judgment of the House of Lords. This was the only question of importance raised in the case, and it was obvious that neither party would have an interest to make a second appeal at a later stage. The present was not a mere question of procedure, as in some cases where leave had been refused— Scottish Rights-of-Way and Recreation Society v. Macpherson, November 16, 1886, 14 R. 74; Stewart v. Kennedy, February 26, 1888, 16 R. 521. The proper time therefore for presenting an appeal was the present.

The respondent argued—The question of the construction of the clause of reference could be argued in the House of Lords when the case was concluded. If leave to appeal were granted, it might lead to there being two appeals to the House of Lords, while if leave were refused, the necessity for an appeal might pass away. The proof was fixed for Friday, and had already been prepared for. It might be a convenience to the petitioners to go to the House of Lords now, but it would be a great hardship to the respondent, who had no interest in the question of the construction of the clause of reference except as it affected his case, to expose him to the chance of there being two appeals. There was therefore no reason for departing from the ordinary rule— Stewart v. Kennedy, February 26, 1888 (opinions of the Lord President and Lord Adam), 16 R. pp. 522–3.

At advising—

Lord President—If we were to have regard solely to the interest of the insurance company, and to its convenience in the conduct of its business, there is probably no doubt that we ought to grant the prayer of this petition, as they would thus be enabled to have a question of great general importance finally settled. But we are bound to keep in view also the interests af the insured, who is quite unconcerned in general questions of law, and wants to get his claim settled as soon as may be. Now, it is to be observed that the petitioners have not evidenced any anxiety to save expense to the opposite party by bringing this application timeously, and before preparations for the proof had to be made. Indeed, this petition is presented to us on the eve of the proof, and does not therefore come before us favourably when our duty is to determine upon a balance of convenience. But further, I think we should be slow to interfere with the progress of the action where we see that one result of the proof now impending may be that the defenders are found liable in so moderate a sum that on reflection they may consider that they have no adequate interest on this occasion to appeal to the House of Lords. I think we shall best exercise our jurisdiction to-day by refusing this petition for leave.

Lord Adam concurred.

Lord M'Laren—If leave to appeal had been asked at an earlier stage, I am inclined to think that this would have been a strong case for granting an application of this kind, but the leading consideration must be the progress of the case, and I agree that it would be inexpedient on the eve of the proof to interfere with what till now both parties appear to have considered the proper mode of conducting the case.

Lord Kinnear—Mr Ure has stated that in certain circumstances his clients might eventually have no interest to appeal this case to the House of Lords. If that is so, it appears to me that the pursuer has a very strong argument for maintaining that he ought to be allowed an opportunity of having the whole case considered before he is compelled to go to the House of Lords. If this question had been raised sooner I agree we should have had a different matter for our consideration, but as the case now stands I think with your Lord-ships that it would not be expedient to grant the leave craved.