Scottish Court of Session Decisions

This was an action brought by Daniel Gledden, contractor in Dalkeith, against William Moncrieff, contractor, Edinburgh, and James Gowans, arbiter under a sub-contract between the pursuer and Moncrieff for the construction of a certain viaduct. The object of the action was to have Gowans interdicted from entertaining a certain claim made by Moncrieif in the reference. The claim was for relief of expenses incurred by Moncrieff in defending himself against an action brought by the representatives of a party who was killed through defects in the scaffolding supplied by Gledden for the execution of the viaduct mentioned. It was maintained, on the part of Gledden, that this was a matter which did not fall within the reference.

The minute of agreement was in the following terms :—“In the event of any difference between the said parties hereto, in regard to the said work or this agreement, or the true intent and meaning thereof, the same shall be referred and submitted to the final decision of James Gowans, contractor in Edinburgh, without appeal to any court of law.” The defender had incurred a sum of £208, 17s. 3d. in defending himself against the action in question, and he lodged a minute in the reference to Mr Gowans in which he claimed these expenses and the dues of extract. This claim was entertained by the arbiter, who, after hearing parties, pronounced the following order:—“The arbiter has considered the minute for Mr Moncrieff, claimant, and answers for Daniel Gledden, respondent, dated respectively 8th and 12th December 1868; and proposes to find that the items of claim referred to in the minute for Moncrieff fall under the present reference, and ordains the parties to state within six days whether they are agreed as to the various amounts in the items of claim submitted.”

The pursuer further states:—“The said claim does not fall within the reference or submission to Mr Gowans contained in the foresaid minute of agreement, and he has no power to deal with or determine the same, as he proposes to do. The reference to him in the said minute of agreement, under which he is now acting, embraces only differences between the parties in regard to the work mentioned in the agreement and relative specifications, or the said agreement itself, or the true intent and meaning thereof. The said claim does not fall within any of the matters agreed to be submitted to Mr Gowans, and it was neither submitted nor was it meant to be the subject of reference to him under the said submission. Notwithstanding this, Mr Gowans has held, or intends to hold, that the claim is within the reference, has appointed parties to proceed on that footing, and intends to adjudicate upon the merits of the claim. The pursuer finds it therefore necessary to institute the present action, in order that it may be judicially determined that the said claim is not within the reference, and that the arbiter may be interdicted and prohibited from further dealing with or taking cognizance of the same.” This is denied by the defender, who founds on the following joint-minute lodged in the submission by the parties pending the action in question:—“Both parties agreed that all questions in relation to the accident which happened at the Victoria Viaduct on the 31st May 1867, embraced in the 9th and 11th items of the claim, shall be reserved until the decision of the question of loss or solatium to the representatives of the man killed by the accident, either in Court in the action at the instance of Robert Scott against the claimant, William Moncrieff, or by an arrangement of the parties to this reference, after which the arbiter shall proceed to investigate and dispose of their claims.” Explained further, that the 9th article of the claim so reserved is in the following terms:—“In respect of the service roadway on the top of the staging breaking down, the delay to building operations, and throwing the claimant's workmen out of work for nearly six days, and, further, the accident having caused a panic among the claimant's men, and prevented him from geting men as easily as before the accident occurred, caused a loss to him of £10, exclusive of inspection and survey of staging by Mr Bruce, C.E. It is assumed file arbiter will allow expenses of Mr Bruce, C.E., for inspecting and surveying staging after the accident for the safety of workmen;” and that the 11th claim so reserved is as follows:—“The claimant claims to be relieved by the respondent from all claims of damages and expenses, at the instance of the relatives of the workman killed, on or about the 31st of May 1867, or at the instance of the other workmen injured at the same time, by the breaking of the cross-beam on the staging or service roadway on said bridge. It is explained that the accident happened from a latent defect in the beam, and that the superincumbent weight on it at the time was not sufficient to cause the accident, except for such defect.”