Old Davy's Appeal

David Stevenson was not happy with Lord Moncrieff’s judgment. He felt that he had been treated unfairly and unjustly. He thought that he had done nothing wrong and that he should not be held liable for something he had no control over.

He decided to appeal Lord Moncrieff’s judgment to the Inner House of the Court of Session, the appellate division of the court. He instructed George Morton to continue to represent him and to challenge every aspect of May Donoghue’s claim.

Morton prepared a detailed and elaborate appeal. He repeated and refined his preliminary objections to May’s writ. He also added new arguments and authorities to support his case. He argued that Lord Moncrieff had erred in fact and in law, and that he had misinterpreted and misapplied the principle of negligence based on foreseeability and proximity. 

He argued that Moncrieff had ignored or disregarded the established rules and precedents of Scots law i.e. that there was no duty of care between manufacturers and consumers, that there was no negligence on Stevenson’s part, that there was no causation or damage on May’s part, and that there was no privity of contract between Stevenson and May.

He asked the three judges of the Inner House, Lord Anderson, Lord Hunter, and Lord Mackenzie, to reverse Lord Moncrieff’s judgment and to dismiss May’s writ as incompetent and irrelevant. On 21 March 1930, the three 'not so wise judges' ruled that Lord Moncrieff had got it wrong.

They held that there was no legal basis for May’s claim, that there was no duty of care between manufacturers and consumers, that there was no negligence on Stevenson’s part, that there was no causation or damage on May’s part, and that there was no privity of contract between Stevenson and May. In boxing terms, it was a second-round knockout.

But the three unwise judges were not finished there. They rejected the principle of negligence based on foreseeability and proximity, claiming that this principle was novel and dangerous and would create uncertainty and confusion in the law.

Their verdict in simple terms? Stevenson had no case to answer and May had no case to pursue. Stevenson’s legal appeal was granted and May’s writ was dismissed as incompetent and irrelevant.

David Stevenson and George Morton were relieved and pleased with the judgment. They felt vindicated and victorious. They thought that they had won the fight. They had! But little did they know that Walter and May had a sliver of a chance for a rematch and the 'snail in a bottle' case was far from over.

May Donoghue and Walter Leechman were devastated with the judgment. They thought that they had lost everything. But, they were determined not to give up. They knew they were in the right, so they decided to seek the right to appeal to the House of Lords in London, the highest court of appeal in the United Kingdom. 

They instructed William Milligan, a distinguished advocate who had experience in appealing to the House of Lords, to represent them. He agreed to take their case on a no-win, no-fee basis. He was confident that he could win their case and make legal history.

Milligan explained to them the procedure and the prospects of appealing to the House of Lords. He told them that they needed to obtain leave to appeal from either the Inner House of The Scottish Court of Session or the House of Lords itself. He advised them that they needed to show that their case involved either a point of law of general public importance or a point of Scots law requiring clarification by the House of Lords.

Smart man that he was, Milligan told them that he would argue that their case involved both points. He would argue that their case involved a point of law of general public importance because it concerned consumer rights and the duties of manufacturers concerning defective products. And, he would also argue that the case involved a point of Scots law requiring clarification by the House of Lords because it concerned the application and development of negligence law in Scotland.

Milligan was confident he could set a new legal precedent because he believed that it was time for there to be a new principle in tort law: The principle of negligence based on foreseeability and proximity.

Seems reasonable, don't you think? Well, unfortunately...