Scottish Court of Session Decisions

In 1897 the Lord Provost, Magistrates, and Town Council of Edinburgh entered into a contract with John Lownie, builder, Gilmore Park, for the building of a cottage hospital. The contract contained the following clause of reference:—“Except as regards the matters hereinbefore declared to be subject to the final and conclusive directions of the first parties' (the Town Council's) architect, and not subject to appeal to the arbiter, they (the parties to the contract) hereby submit and refer to the final sentence and decreet-arbitral of Walter Wood Robertson, surveyor in Scotland to Her Majesty's Board of Works, whom failing of William Ormiston, surveyor, Edinburgh, all disputes and differences that may arise between the parties hereto regarding the true intent and meaning of any of the provisions hereinbefore written, or of the said specification and schedules of quantities, or regarding the amount, state, or condition of the said works, or of the claims of deduction or otherwise competent to the first parties against the second party (Lowmie), or of the claims for extra work or otherwise competent to the second party against the first parties, and generally all disputes and differences in any way connected with or arising out of the execution of or failure to execute the works

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hereby contracted for except as before mentioned.”

In 1898 the Town Council became dissatisfied with the progress of the building and called on Mr Ormiston to act as arbiter, Mr Robertson having refused to accept the office. Mr Ormiston accepted the office of arbiter, and in June, July, and September of that year he issued reports on the progress of the works.

In November 1898 Mr Ormiston became Dean of Guild, and as such an ex officio member of the Town Council of Edinburgh. He retained that office until November 1902, when he resigned, and thereby ceased to be a member of the Town Council.

Farther disputes having arisen between the parties as to the execution of the contract, Mr Lownie in July 1902 called upon Mr Ormiston to act as arbiter in the matter. On 2nd August Mr Ormiston issued an order appointing the parties to meet him to arrange procedure. The Town Council thereupon in September 1902 presented the present note of suspension and interdict to interdict Mr Ormiston from acting as arbiter.

The complainers averred, inter alia—“In November 1898, Mr Ormiston having been elected Dean of Guild, became ex officio a member of the Town Council, and acted as such until the beginning of November 1902. The Public Health Committee of the Council, who are in charge of the erection of the hospital, have on various occasions since Mr Ormiston entered the Council, consulted with and been advised by him on matters pertaining to the erection of the hospital and the work under Mr Lownie's contract. In particular, the said committee obtained from Mr Ormiston and Mr Morham, the city architect, a joint report on matters connected with that contract.”

The complainers pleaded, inter alia—“(1) The complainers are entitled to interdict as craved in respect that Mr Ormiston became and is disqualified to act as arbiter under the contract, by virtue of his election as Dean of Guild, which made him one of the parties to the arbitration. (2) Separatim, Mr Ormiston became disqualified by virtue of his acting as a skilled adviser of one of the parties to the arbitration, in connection with matters falling to be dealt with under the arbitration, and interdict should therefore be granted as craved.”

Answers were lodged for Lownie and for Ormiston.

On 10th January 1903 the Lord Ordinary ( Low) pronounced an interlocutor by which he granted interdict as craved.

Opinion.—“In 1897 the complainers made a contract with the respondent Lownie for the mason-work of a fever hospital. By the contract all disputes were referred to Walter Wood Robertson, whom failing to the respondent William Ormiston.

In May 1898 a question arose under the contract, and Mr Robertson declined to accept the office of arbiter. Mr Ormiston, however, did so, and disposed of the question which was then raised.

In November 1898 Mr Ormiston was elected Dean of Guild, and thereby became ex officio a member of the Town Council. He continued to be Dean of Guild until November 1902.

In July 1902 a question arose between the complainers and Lownie in regard to a claim which the latter made for extra work, and Lownie formally called upon Mr Ormiston to act as arbiter in settling the dispute. Mr Ormiston accordingly appointed parties to meet him to arrange procedure, and appointed Lownie to lodge his claim.

The complainers objected to Mr Ormiston acting as arbiter, on the ground that he was disqualified by being Dean of Guild and thereby a member of the Town Council, and ultimately they brought the present note to have the arbitration proceedings interdicted.

I am of opinion that so long as Mr Ormiston was Dean of Guild he was disqualified, because by being a member of the Town Council he was one of the parties. It was argued for Lownie that, although the objection might have been well founded if taken by him, it was not one which the complainers had any interest to raise. I am not able to give effect to that view. I think that the rule that no person can be judge in his own cause is absolute, and that the party taking the objection does not require to show any special interest.

But then it was contended that Mr Ormiston having now ceased to be Dean of Guild the disqualification has flown off, and there is no reason why he should not act as arbiter.

When the question to which this note relates was raised, and Lownie called upon Mr Ormiston to act as arbiter, the latter was still Dean of Guild, and he continued to hold that office when the note was presented. If, therefore, the competency of his acting as arbiter falls to be determined as at either of these dates, he must in my judgment, be held to be disqualified. Perhaps, however, it does not follow that interdict should be granted seeing that since the note was presented Mr Ormiston has ceased to be Dean of Guild, and if I thought that no objection could have been taken to Mr Ormiston, if the dispute had not arisen until after he had ceased to be Dean of Guild, I should be very unwilling to grant interdict. The complainers' objection, however, is not only that Mr Ormiston was Dean of Guild when the dispute arose, and was referred to him by Mr Lownie, but that while he was Dean of Guild the complainers' ‘consulted with and were advised by him on matters pertaining to the erection of the hospital, and the work under Mr Lownie's contract.’ In particular, the complainers found upon a report which they received from the city architect and Mr Ormiston in April 1899 in regard to the condition of the works at that time. Mr Ormiston admits that report, but avers that upon no other occasion did the complainers' consult him in regard to the hospital.

It appears that the work was not completed within the specified time, and the

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report deals with the causes of the delay. Now, under the contract it was provided that Lownie should pay to the complainers as liquidated damages the sum of £3 a-day for every day which the buildings remain incomplete beyond the stipulated time, unless the arbiter should be of opinion that the delay was caused by strikes of workmen or exceptional weather. The complainers say that their claim against Lownie in respect of delay in completing the work amounts to more than £3000, and as the claim is disputed by Lownie it will fall to be determined by the arbiter. The complainers, however, object to Mr Ormiston dealing with the matter, seeing that he has already expressed an opinion on the subject. I think that that is a relevant consideration, because if Mr Ormiston can competently act as arbiter in the question which has already arisen, it would be difficult for the complainers to object to any other dispute which might arise under the contract being referred to him.

It was not disputed by the respondents' counsel that the objection would have been good if taken by Lownie, because the report was to the effect that he had been to blame for the delay, but it was contended that the complainers could not take the objection, because they had no reason to fear that the arbiter would be biassed against them.

I do not imagine that there would be any danger of Mr Ormiston consciously and intentionally favouring either one side or the other. The true ground of objection seems to me to be that his judgment might unconsciously be affected by what occurred when he was Dean of Guild.

I think that that is a good objection, and I am therefore of opinion that the complainers are not bound to accept Mr Ormiston as arbiter, and I shall accordingly grant interdict.”

The respondents reclaimed, and argued—The arbiter's powers to act, if suspended while he was a member of the Town Council, revived when he ceased to be so. But the rules as to what would disqualify an arbiter were the same as those regarding declinature of a judge, and membership of a large public body was not sufficient to justify a declinature— Lord Advocate v. Edinburgh Commissioners of Supply, June 5, 1861, 23 D. 933. Nor was it sufficient to disqualify a party from acting as arbiter that he had given professional advice to one of the parties— Caledonian Railway Company v. Magistrates of Glasgow, November 17, 1897, 25 R. 74, 35 S.L.R. 67.

Counsel for the complainers (respondents) were not called upon.