Scottish Court of Session Decisions

The pursuers, who are contractors at Stockton-on-Tees, have the contract for the formation of the Peebles and Galashiels line, belonging to the system of the North British Railway. Under the contract, part of the work was to be completed on 1st July 1864 and the remainder on 1st January 1865. The contract contains a reference of all questions which might arise betwixt the contractors and the company to Charles Jopp, C.E., who was in the employment of the company.

Last year the pursuers raised an action of suspension and interdict, the object of which was to have Mr Jopp interdicted from acting under the submission clause in the contract. This interdict was asked on the ground that Mr Jopp was an officer of the company; and that in consequence of certain mistakes which had been committed by him, considerable delay was caused; that the contractors had an interest in the consequences of that delay by reason of the penalties provided in the contract for non-completion of the work within the stipulated period; and that the arbiter having himself caused the delay, could not impartially act as arbiter. Lord Barcaple refused the interdict, and the Second Division adhered.

The pursuers thereupon raised this action of declarator and interdict for the purpose of having it declared that the submission clause had become inoperative, but having Mr Jopp interdicted from acting under it. The ground of this action was substantially the same as that of the suspension and interdict; but, in addition, it was averred that Mr Jopp was disqualified because he had, before the contract was entered into, made for the railway company, as their engineer, a probable estimate of the expense of the line, and that the pursuers were not aware that he had done so when they signed the contract.

The defenders pleaded that the action was irrelevant. Lord Jerviswoode sustained this plea, and dismissed the action. To-day the Court adhered. It was held that there was no allegation that Mr Jopp had acted corruptly. If he does so, his award will be set aside; but it was not to be assumed at this stage that an arbiter, whom the parties themselves had selected because they had confidence in him would be guilty of corruption. In regard to the averment as to Mr Jopp having made an estimate, that was a thing which might be averred in every case of the kind, because an estimate was always made beforehand by the railway engineer.