Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas) Ltd

A special case may determine only a question of law arising from facts upon which the parties have agreed. It must contain every factual admission needed to establish that the question requires decision.

Where there is no privity of contract, a party seeking to enforce a real burden must establish a patrimonial interest giving it title to sue. Patrimonial interest is a question of fact. If a special case neither admits nor determines that interest, the court cannot decide the validity of the burden and must dismiss the special case.

The appellants sought a determination that a declaration in a 1910 disposition imposed an effective restriction on the use of the Tivoli Theatre. The parties placed the dispute before the Second Division of the Inner House by special case under section 63 of the Court of Session (Scotland) Act 1868.

The Inner House pronounced an interlocutor on the special case, from which the appellants appealed. Before the House of Lords, both parties accepted that the case contained no admission that the appellants possessed a patrimonial interest. The central issue became whether the House could decide the validity and enforceability of the alleged real burden when that essential factual foundation for the appellants' title had not been agreed.

1. Appeal allowed unanimously. Viscount Simon LC held that the interlocutor of the Second Division should be recalled and the special case dismissed. Lord Thankerton agreed entirely, while Lord Romer and Lord Porter also agreed or concurred.

2. Per Viscount Simon LC, section 63 of the Court of Session (Scotland) Act 1868 permits a special case where interested parties are agreed upon the facts and dispute only the applicable law. The special case must therefore contain every factual admission and agreement necessary to raise the question of law submitted to the court.

3. The House of Lords will not answer an abstract question of law merely at the parties' invitation. The agreed or established facts must show that deciding the question is necessary to resolve a properly constituted dispute. The present special case was ambiguous because it did not establish whether the appellants had the interest required to raise the question concerning the restriction.

4. Per Lord Thankerton, there was no privity of contract between the parties. It was consequently essential for the appellants to aver and prove their patrimonial interest, or to obtain an admission of it in the special case. Without that interest, they had no title to challenge or enforce the alleged real burden.

5. Lord Thankerton regarded patrimonial interest as a pure question of fact. Although evidence might raise an issue about whether such an interest had been established, the resulting finding would remain factual. It could not be left for determination as a question concerning only the law under section 63.

6. The existence of patrimonial interest was distinct from the legal question whether a restriction arising from a commercial bargain could constitute a valid real burden. Since the indispensable factual issue had neither been admitted nor decided, the House could not enter upon the merits of the latter question. There was no order for the costs of the appeal to the House; the parties' agreement governed costs below.

1. House of Lords: The appeal was allowed unanimously. The interlocutor was recalled and the special case dismissed because it omitted an agreed finding on the appellants' patrimonial interest.

2. Second Division of the Inner House of the Court of Session: The court pronounced the interlocutor under appeal upon a special case concerning the enforceability of a restriction in a disposition. The precise terms of its disposition are not stated in the judgment.