Scottish Court of Session Decisions

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Cite as: [1882] SLR 20_16_1, [1882] ScotLR 20_16_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, October 21. 1882.

[ Lord M'Laren, Ordinary.

20 SLR 16_1

Thomson

v.

Munro.

(Sequel to Thomson v. Munro, et e contra, reported ante, 28th June 1882, vol. xix. p. 739.)

Subject_1Arbiter
Subject_2Corruption
Subject_3Process
Subject_4Reduction of Decree-Arbitral — Jury Trial — Discretion of Court in allowing Proof or Jury Trial.
Facts:

The pursuer of an action of reduction of a decree-arbitral averred that the arbiters whose award he sought to reduce had acted in a manner inconsistent with their duty as arbiters in refusing to him as one of the parties to the submission a hearing upon various points connected with the case, and in taking certain evidence outwith his presence, and in determining by lot various points on which they had differed. He pleaded that these acts and omissions amounted in law to corruption. He moved the Court to appoint the cause to be tried by jury as being a question of fact. Held ( aff. judgment of Lord M'Laren) that the mode of trial being in the discretion of the Court, and the question for decision depending on the legal import of the facts which might be proved, the case was unsuited for jury trial, and ought to be sent to proof before the Lord Ordinary.

Headnote:

In the previous actions between these parties (reported ante, vol. xix. p. 739) the First Division of the Court on 28th June 1882 adhered to the interlocutor of the Lord Ordinary ( M'Laren) in so far as it dealt with and contained findings in regard to expenses, but quoad ultra superseded consideration of the reclaiming—note for Thomson (the pursuer in the present action), in order that
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he might, if so advised, state in the form of a reduction certain objections to the award of the arbiters which the Lord Ordinary and the Court held could not be stated as defences to an action for sums due under the award, or in an action for repetition of sums already paid under the contract in the course of the reference on the ground that they were not legally due.

Thomson raised the present action against Munro for reduction of the award of the arbiters, alleging that they had acted ultra fines compromissi, and had acted corruptly in various matters, and in particular in refusing the pursuer a hearing upon numerous questions which came before them, and also in refusing to take evidence on certain points, and in taking evidence on other points in the absence of the pursuer and without notice to him. He averred that their decision on some points which came before them was arrived at by tossing and casting lots. The defender denied all the material averments of the pursuer.

The pursuer pleaded, inter alia—“(2) The pursuer is entitled to have decree of reduction as concluded for, in respect that the acts and omissions of the arbiters condescended on amount in law to corruption.” He moved the Lord Ordinary to order issues in order that the questions raised in the reduction be tried by jury.

The Lord Ordinary allowed the parties a proof before answer under the Evidence (Scotland) Act 1866, and fixed a day for taking the evidence.

The pursuer reclaimed, and argued that he was entitled to have the case tried by jury instead of by the Lord Ordinary, because the matter at issue was a question of fact, that question being whether the arbiters had acted in the manner condescended on. If that was made out by the verdict of the jury, the consequence that the award was corrupt in law immediately followed.

Counsel for the respondent were not called upon to reply.

Judgment:

At advising—

Lord President—I think that the Lord Ordinary is right in the conclusion at which he has arrived. No doubt if a case such as this had occurred ten or twelve years ago it would have been sent to a jury, but a different practice now prevails. It is a matter entirely in the discretion of the Court, in circumstances like the present, to consider what mode of investigation is best for determining the matter at issue between the parties.

The ground of reduction here is an averment of corruption, in the ascertainment of which the pursuer's counsel says are involved some questions of fact; on that account he claims that the case should be sent to a jury. But it appears to me that this is not merely a question of fact, but that a great deal will depend upon the character of the facts. The second plea-in-law for the pursuer is in these terms:—“The pursuer is entitled to have decree of reduction as concluded for, in respect that the acts and omissions of the arbiters condescended on amount in law to corruption.” The issue to be answered therefore is, whether the acts of the arbiters did amount to legal corruption? This to my mind is a question of law much more suited for the decision of a judge than for determination by a jury.

Lords Mure and Shand concurred.

Lord Deas was absent.

The Court adhered.

Counsel:

Counsel for Reclaimer— J.C. Smith. Agent— W. Elliot Armstrong, S.S.C

Counsel for Respondent— Mackay. Agents— Andrew Clark, S.S.C.
1882