“Where any parties interested, whether personally or in some fiduciary or official character, in the decision of a question of law shall be agreed upon the facts, and shall dispute only on the law applicable thereto, it shall be competent for them, without raising any action or proceeding, or at any stage of an action or proceeding, to present to one of the Divisions of the Court a special case, signed by their counsel, setting forth the facts upon which they are so agreed, and the question of law thence arising upon which they desire to obtain the opinion of the Court.”
There can be no question that that is the well-understood and well-authorised procedure.
In this appeal, however, the special case, though it concludes by a question of law, does not, as learned counsel at the bar have both conceded, contain an admission as to interest, which is a question of fact. The question of law as formulated at the end of the special case is:—
“Whether the said declaration contained in the disposition of 3rd, 4th and 14th January 1910 expresses an effective restriction enforceable by the second parties against the first parties upon the use which the first parties or the third parties or their successors are entitled to make of the Tivoli Theatre.”
It has been laid down again and again in your Lordships’ House, not only in Scottish appeals, but also in appeals arising in England, that the House of Lords cannot be used as a body which will answer questions of law—possibly difficult and abstruse questions of law—unless the facts agreed or established between the parties make it necessary so to decide. I recall an observation of one of my predecessors on the woolsack, Lord Halsbury, which was to the effect that the House of Lords is not prepared to answer an examination paper on questions of law at the invitation of the parties, unless the House be first shown that it is necessary to do so in order to determine a dispute which is brought properly to your Lordships’ House. It is manifest from the section, the words of which I have quoted, that that is the strict rule in Scotland. A special case on a question of law is a machinery, and it may be a most convenient machinery, for deciding a question of law when all the facts necessary to raise that question are admitted. Here it emerges that the special case contains an ambiguity. It is not clear from the special case whether the appellants have any title to raise the issues of law. They cannot have such a title, as learned counsel on both sides here admit, unless they have a patrimonial interest to do so, and whether that interest exists or does not exist is left entirely undetermined by the language of the case.
In those circumstances I conceive that your Lordships’ House has no other course than to recall the interlocutor, to allow the appeal, and to dismiss the special case. I think there should be no costs of the appeal to this House. As regards the costs below, there is already an agreement between the parties which disposes of that matter.
LORD THANKERTON .—I very much regret that this case should have proceeded so far without this point having emerged more clearly than it appears to have done in the Court below. I think that was partly due to, or may be explained by, two things: first of all, that the case itself is not drawn clearly; and, secondly, I should guess that neither party had in view at the time when it was drawn that there was any solid question as to the appellants having a patrimonial interest.
Now, this is a case in which there is no privity of contract between the parties, and therefore it is essential that the appellants should aver and prove, or get admitted if it is a special case, their patrimonial interest. It is necessary that that admission should be made before any of the questions of law with regard to the validity of the real burden can be entered upon before the Court, because, if the appellants have no patrimonial interest, they have no title to raise the question and they have no right to be here at all. Therefore it is quite clear that it is an essential preliminary that the question of patrimonial interest should be either decided or, if it is a special case, admitted. The case of Lawson’s Trustees v. Lawson, to which I have referred counsel, seems to me to be very much in point, especially when you bear in mind the terms of section 63 of the Court of Session (Scotland) Act, 1868, to which my noble and learned friend on the woolsack has just referred.
I would add that, in my view, as indeed in my experience, the question of patrimonial interest is a pure question of fact and nothing else. There may be a question, the evidence having been led, as to whether the evidence is sufficient to establish the finding that there is a patrimonial interest, but that is not, in my view, a question of law; that is the finding of fact which follows on the evidence led; and I again repeat that, in my opinion and experience, that is a pure question of fact. If it is so, then no question can be asked in a special case about what the findings should be on the evidence, because that is not a question “only on the law,” to use the words of section 63.
Further, I think that the terms of the special case, which are by no means clear, are also reflected in at least two of the opinions in the Second Division; because it does seem to me (for we have had them read to us) that two of the opinions, at any rate, show some signs of confusion between two quite distinct questions. In referring to the possible view that this was purely a commercial bargain or a commercial interest which was being dealt with, it is important to bear in mind the distinction between that as bearing on the validity of the real burden, which is a pure question of law, and that question as bearing on the question of patrimonial interest. The two issues are quite distinct, but I confess that it seems to me that at least two of the opinions below do bear signs of confusion on these two questions.
On the whole matter I agree entirely with what has been said and with the course proposed by my noble and learned friend on the woolsack.
LORD ROMER .—I too agree.
LORD PORTER .—I concur.