Scottish Court of Session Decisions

This was a note of suspension and interdict presented by the Caledonian Railway Company against the Corporation of Glasgow and William Robertson Copland, civil engineer, to have Mr Copland interdicted from acting as arbitrator between the complainers and the Corporation under the Glasgow Central Railway Act 1888 (51 and 52 Vict. cap. cxciv).

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The complainers averred that in March 1892 Mr Copland had been appointed by them and by the Corporation arbitrator under section 41 (p) of that Act. which is in the following terms:—“If the Corporation … and the company shall differ upon or with reference to any plans, elevations, sections, or other particulars which, under the provisions hereinbefore contained, are to be delivered by the company to the Corporation … or as to the mode of carrying out the same, or as to any other matter or thing arising out of the said plans, elevations, sections, or particulars, or any of the provisions of this and the two next preceding sections of this Act, every such difference shall, on the application of the company or of the Corporation … be referred to the determination of an arbitrator, to be mutually agreed upon by the Corporation … and the company, before the construction of the railway and works hereby authorised are commenced, and failing such agreement, as may be appointed on the requisition of either of them by the Board of Trade; and such arbitrator shall have power to determine the matter in difference, and the costs of and incidental to the reference shall be paid by the company.”

They further averred that certain railways authorised by that Act and by subsequent Acts (which contained a similar clause as to arbitration, and under which Mr Copland acted as arbitrator) had been constructed, and proceeded:—“The railways so far as they pass through the city, are for the greater part constructed in tunnel at a greater or lesser depth below the surface of the streets, and it has accordingly been necessary, in connection with the construction of the railways, to remove the sewers and drains and gas and water pipes belonging to the Corporation so far as these were in the intended line of the railway, and large sums of money have been expended by the complainers in this work.”

They then recited the following sub-sections of section 41 of the Act of 1888:— “(K) Nothing in this Act contained shall prevent the Corporation at any future time from carrying out any public improvement, or any alterations, developments, or extensions of the existing or contemplated works in connection with any department administered by them, either above or below the level of the railway, and wherever the same are, or but for the construction of the railway might have been, carried across the railway, the company shall pay to the Corporation any additional expense the Corporation may reasonably incur or be put to in the carrying out of the same by reason of the making or maintaining of the railways and works, or by any of the operations of the company, nor shall anything in this Act entitle the company to any compensation for any damage occasioned by such operations of the Corporation, unless such damage shall have been occasioned by the default or neglect of the Corporation. (L) Where any of the works to be done under or by virtue of this Act shall or may pass over, or under, or by the side of, or so as to interfere with any sewer, drain, water-course, defence, or work under the jurisdiction or control of the Corporation, or shall in any way affect the sewage or drainage of the district under their control, the company shall make good any damage which may be done by their operations to any of the sewers, and shall clean out the same should they get silted up in consequence of any of the operations of the company during or after the construction of the company's works, and shall provide by new, altered, or substituted works, including outfall sewers, in such a manner as the Corporation may deem necessary (and for the construction of which they shall be bound to afford all reasonable facilities and communicate their powers so far as necessary) for the proper protection of and for preventing injury or impediment to the sewers and the works hereinbefore referred to, by or by reason of the said intended works, or any part thereof, and shall save harmless the Corporation against all and every expense to be occasioned thereby; and all such works may be done by or under the direction, superintendence, and control of the Corporation, at the costs, charges, and expenses in all respects of the company; and all reasonable costs, charges, and expenses thereby occasioned shall be paid by the company on demand; and if any dispute shall arise as to the amount of such costs, charges, and expenses, the same shall be settled as hereinafter provided; and when any new, altered, or substituted works as aforesaid, or any works or defences connected therewith, shall be completed by or at the costs, charges, and expenses of the company under the provisions of this Act, the same shall thereafter be as fully and completely under the direction, jurisdiction, and control of the Corporation as any sewers or works now or hereafter may be; and nothing in this Act shall, except as hereinbefore provided, extend to prejudice, diminish, alter, or take away any of the rights, powers, or authorities vested or to be vested in the Corporation, but all such rights, powers, or authorities shall be as valid and effectual as if this Act had been passed.”

The complainers further averred that by the Glasgow Corporation Sewage Act 1896 (59 and 60 Vict. cap. ccxxxiv.) the Corporation had been authorised to construct certain sewers near to the railways and the new, altered, or substituted sewers constructed by the complainers under the Act of 1888 and subsequent Acts. They continued—“The respondents the Corporation of Glasgow have appointed Mr Copland to be their consulting engineer in connection with the said sewage scheme authorised by the Act of 1896, and he has for some time past held and is now holding that appointment, and has been discharging the duties of the said appointment. The position of statutory arbitrator under the said Acts of 1888 and 1890, and the position of consulting engineer to the Corporation of Glasgow in

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connection with the said sewage scheme, both of which Mr Copland has now come to hold are quite incompatible with each other. The works under the Acts of the complainers and the Glasgow Corporation (Sewage) Act] 1896 are so related that questions as to the construction of such works, and the rights and obligations of the complainers and the Corparation in relation thereto, under the Glasgow Central Railway Act 1888 and the Caledonian Railway (Additional Powers) Act 1890, in which the interests of the Corporation and the complainers mutually conflict, must arise from time to time in the ordinary course of execution of the respective undertakings. In these circumstances Mr Copland has become incapacitated from discharging the duties of statutory arbitrator between the complainers and the Corporation.”

The defenders denied that Mr Copland was their consulting engineer in connection with the sewage scheme, and explained that they had only used Mr Copland's advice in promoting their Sewage Act in Parliament. They further denied that he was incapacitated from acting as statutory arbitrator; and averred that the complainers' railways had all been completed.

The pursuers pleaded— “The respondent Mr Copland having become disqualified and incapacitated from acting as statutory arbitrator between the complainers and the respondents the Corporation of Glasgow, the complainers are entitled to interdict as craved.”

The defenders pleaded— “The respondent Mr Copland being the statutory arbitrator between the complainers and these respondents, duly appointed, and not having become disqualified and incapacitated from acting, the note should be refused with expenses.”

In the Inner House the following plea was added by the defenders—“In respect that any differences that may arise between the parties in connection with the execution of the sewage scheme authorised by the Glasgow Corporation Sewage Act 1896 will fall to be dealt with by the arbiter to be appointed under said Act, and not by the arbiter appointed under the Glasgow Central Railway Act 1888, and the Caledonian Railway Acts 1890 and 1894, the present application is uncalled for and ought to be dismissed.”

The Glasgow Sewage Act 1896, sec. 11, contains certain provisions for the protection of the Caledonian Railway Company with regard to the sewers and works authorised by that Act. It provides, inter alia— (6) “Nothing in this section shall prejudice or affect the rights, powers, and immunities reserved to and conferred on the Corporation and the Caledonian Company by sec. 41 of the Glasgow Central Railway 1888, and any Acts public or private, or any agreements with or relating to the Caledonian Company conferring rights, powers, and immunities, and imposing liabilities, duties, and obligations upon the Corporation and the Caledonian Company with reference to any sewers, property, and works of the Corporation, and to any railways and works of the Company.” (7) “If any difference shall at any time arise between the Corporation and the Caledonian Company or their engineers with respect to any of the matters referred to in this section, such difference shall be referred to and determined by an arbiter to be agreed on.”

After a proof, from which it appeared that there was a possibility of the Corporation sewage works coming in contact with the drains constructed by the Company at more than one point, and the import of which otherwise is sufficiently indicated in the Lord Ordinary's opinion, the Lord Ordinary (Low) on 16th March 1897 dismissed the note.

Note.—“Mr Copland is standing arbiter in certain classes of questions between the complainers and the respondents under the Glasgow Central Railway Act 1888 and the Caledonian (Additional Powers) Act 1891.

In 1896 the respondents obtained an Act of Parliament authorising them to construct a new system of sewers for part of Glasgow. The new sewers at one or two points come in contact with the complainers' railway, or with drainage works which they constructed when they made the railway, and it is extremely probable that, if and when the new sewage scheme is gone on with, questions will arise between the complainers and the respondents. If such questions arise, it is said that under the Act of 1896 they will fall to be determined by the standing arbiter under the earlier Acts.

The complainers' case is that Mr Copland is disqualified from acting any longer as arbiter. They aver that the respondents have appointed him ‘to be their consulting engineer in connection with the said sewage scheme of 1896, and he has for some time past held, and is, now holding, that appointment, and has been discharging the duties of that appointment.’

The complainers have not proved that averment. Mr Copland has not been appointed consulting engineer in connection with the sewage works. He was, however, connected with the promotion of the bill in Parliament, and the complainers contend that that is sufficient to disqualify him.

What happened was this: The respondents authorised their engineer, when preparing plans in view of the bill, to consult Mr Copland, and accordingly the latter revised the plans and other details. His name appeared also upon the plans which were laid before Parliament as ‘consulting engineer,’ and he gave evidence in favour of the scheme.

Now, if the sewage works had been commenced and a question had arisen between the complainers and the respondents in regard to them, I think that it would have been very difficult to say that Mr Copland was not disqualified from acting as arbiter.

But although I suppose there is no doubt that the sewage scheme will be carried into effect, it has not as yet been begun; and it is possible, although not

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probable, that no question may ever arise under it.

The complainers do not contend that Mr Copland so identified himself with the respondents when the Sewage Bill was before Parliament that he is disqualified from acting as arbiter between them upon questions not connected with the new sewage scheme. Their argument is that he must either be qualified to deal with all the questions which may come before him as standing arbiter, or disqualified to deal with any of them. As he is disqualified to deal with questions under the new sewage scheme, he can no longer act as standing arbiter.

I think that that view is sound to this extent, that if and when questions arise of a kind with which Mr Copland cannot deal, the complainers will be entitled to demand that a new standing arbiter shall be appointed. But the sewage works, in regard to which alone such a question can arise, not having been commenced, and it being possible that such a question may never arise, I do not see why Mr Copland should be interdicted from disposing of questions which have been submitted to him and in regard to which no disqualification is alleged.

Accordingly I am of opinion that the application is premature, and should be dismissed.”

The complainers reclaimed, and argued—The Lord Ordinary was wrong. The complainers did not contend that Mr Copland was primarily disqualified from acting as arbiter on every point that might arise under the Act of 1888. Their contention was that he would be disqualified from adjudging on questions arising under that Act in consequence of operations authorised by the Sewage Act of 1896, and that, being so disqualified, he could not act as arbiter on any question under the Act of 1888, the policy of which, as regards arbitration, was to secure continuity of judgment. The general principle as to arbiters was that they should not “mix themselves up” in the matter— Mackenzie v. Clark, December 19, 1828, 7 S. 215, per L. J.-C. Boyle. Mr Copland's relations to the Corporation and their Act of 1896 put him in an inconsistent position when called upon to decide points that arose in connection with the new sewage works. It was erroneous to hold that the Acts of 1888 and 1896 were absolutely exclusive of one another, and that no questions could arise under the former now that the railway was completed. It would be much more correct to say that they were complementary of one another, the one safeguarding the rights of the Corporation, the other those of the company. The policy of the 1896 Act as shown in sec. 11 was to reserve the Act of 1888, and quoad ultra to make a similar provision for settling disputes. The Sewage Act of 1896 was certain to bring about the very state of matters contemplated by section 41, sub-section (K), of the Act of 1888.

Argued for the respondents—The complainers had failed to show that Mr Copland was disqualified from acting under the Act of 1888. He might, indeed, be disqualified from acting as arbiter under the Act of 1896, but that was a very different matter. The two Acts were mutually exclusive, and no question could arise under the one which was affected by the other. All questions connected with the sewage scheme would be determined under the Act of 1896, and that being so there was nothing to constitute disqualification on Mr Copland's part from exercising the totally distinct jurisdiction conferred by the Act of 1888— Addie & Sons v. Henderson & Dimmack, October 24, 1879, 7 R. 79, and Trowsdale & Son v. North British Bailway Company, July 12, 1864, 2 Macph. 1334, referred to.

At advising—