Scottish Court of Session Decisions

A note of suspension and interdict was presented by Alexander George Moore, coalmaster, 142 St Vincent Street, Glasgow, against Andrew Kirkwood M'Cosh, ironmaster, Cairnhill, Airdrie, and James M'Creath, civil and mining engineer, Glasgow, in which the complainer sought to have the respondent M'Cosh interdicted from in any manner of way following up and proceeding with pretended references to the respondent James M'Creath.

The complainer had been tenant under two leases of certain minerals and of a tramway connected therewith which belonged to the respondent M'Cosh.

Each of these leases contained an arbitration clause in the following terms:—“Further, it is hereby specially agreed that in the event of any misunderstandings or disputes arising in regard to the true intent and meaning of these presents, or any of the terms and provisions hereof, or the rights or obligations of either party, or in any way in relation to the premises, all such are hereby referred to the amicable decision and final sentence of … James M'Creath, civil and mining engineer in Glasgow, as sole arbiter in the premises, whose decision both parties bind themselves to implement and abide by.”

The leases also contained provisions by which the tenant was taken bound (1) to leave a body of solid coal under a farmsteading; (2) to make up and pay all damage occasioned by sits or sinks; and (3) before the expiry of the lease to restore the land occupied by him, and to render the same fit for purposes of agriculture.

After the expiry of the complainer's leases, and after he had finally quitted possession, the respondent M'Cosh made certain claims founded upon the tenant's said obligations under the leases. In 1902 he called upon Mr M'Creath to act as arbiter with regard to these claims. Thereafter he lodged two condescendences and claims referring to the obligations in the two leases respectively.

In his condescendences M'Cosh alleged failure on the part of the tenant to implement his said obligations under the leases.

The claim relating to the lease of the minerals was as follows:—“That the respondent should be ordained to perform the operations necessary to restore the several areas of land before referred to, and to render the same arable, and as suitable and fit for the purposes of agriculture or any other purpose in every respect as they were before being originally interfered with by the respondent or his predecessors, as also to restore the drains and watercourses, to securely and properly fence the open pit shafts, and to make good to the claimant the loss and damage occasioned by sits, and by the working out of the whole coal under and around the farmsteading on Garrockhill; and in the event of the respondent failing to do so within a limited period, to find that the respondent is liable in the cost of such restoration, &c., as the loss and damage occasioned to the claimant's property by the workings of the respondent.”

The other claim was to the same effect, and the concluding alternative claim was in identical terms.

In the present note of suspension and interdict the complainer pleaded—“The complainer is entitled to interdict as craved, in respect that (a) the questions submitted by the respondent Andrew Kirkwood M'Cosh to the respondent James M'Creath do not fall within the scope of the clauses of reference in the said leases, (b) even if they do fall within the scope of the clause of reference, they cannot be insisted on in respect that the complainer had yielded up possession of the subjects let before the claims were made, and (c) the claims made by the respondent Andrew Kirkwood M'Cosh are for damages, and the said clauses of reference do not authorise the respondent James M'Creath to assess damages.”

The respondent M'Cosh pleaded—“(2) The action should be refused, in respect the matters submitted to the arbiter fall

Page: 692↓

within the clauses of reference in the said leases. (3) All disputes under the said leases, as defined by the clauses of reference, having been referred to the arbiter, it is his duty to proceed intra fines compromissi, and the action should accordingly be refused.”

On 20th December 1902 the Lord Ordinary ( Pearson) pronounced an interlocutor in the following terms:—“Meantime interdicts, prohibits, and discharges the compearing respondent from following up and proceeding with the references mentioned in the prayer of the note so far, but only so far, as regards the respondent's claims lodged therein.”

“ Opinion.—… . The complainer in moving that the note should be passed asked for interim interdict in terms of the prayer against either of the references being proceeded with. The respondent maintained that the note should be refused on the ground that both references are prima facie good under the respective leases, and that in any view this application is premature, seeing that the arbiter has had no opportunity of applying his mind to the subjects submitted… .

I see no reason for stopping the references generally, for although the statement of the disputes on the part of the respondent is open to criticism, I think it may be quite capable of being brought within the scope of the arbitration clause when it comes to be formulated in a claim. But the respondent has tabled a condescendence and claim in each reference, and on these claims he insists, and as in my judgment these claims are outside the respective reference clauses, I think the complainer is entitled meanwhile to have the respondent interdicted from proceeding with the references so far as regards these claims as set forth in the documents produced.”

The respondent reclaimed, and argued—The arbiter had not yet considered the claim submitted to him, and the Court would not assume that he would entertain a claim which was not in form, but would leave him to consider whether it was so— Farrell v. Arnott, July 14, 1857, 19 D. 1000. The case was one in which the Court would be slow to interfere, the question being one under the contract between the parties, and not under statutory provisions— Sinclair v. Clyne's Trustee, December 17, 1887, 15 R. 185, 25 S.L.R. 172; Bennet v. Bennet, January 31, 1903, 40 S.L.R. 341; Dumbarton Water Commissioners v. Lord Blantyre, November 12, 1884, 12 R. 115, 22 S.L.R. 80. All that the arbiter was asked to do was to assess the cost of fulfilling the tenant's obligations, and the respondent could, if necessary, raise an action for the recovery of the cost so ascertained— Allan's Trustees v. Allan & Sons, December 1, 1891, 19 R. 215, 29 S.L.R. 180.

Argued for the complainer—The leases under which the reference was made being at an end the arbiter could pronounce no order ad factum prœstandum, and the respondent's only remedy was the recovery of damages— Sinclair v. Caithness Flagstone Company, March 4, 1898, 25 R. 703, 35 S.L.R. 541. The arbiter could not assess damages; the arbitration proceedings would therefore be useless, and the Court would interfere, ab ante, to interdict them— Glasgow and South-Western Railway Company v. Caledonian Railway Company, November 3, 1871, 44 Scot. Jur. 29, Lord Neaves, p. 31; Dumbarton Water Commissioners v. Lord Blantyre, cit. sup., Lord President, 12 R. 119. An arbiter could not assess damages unless he was expressly empowered to do so— Mackay & Son v. Leven Police Commissioners, July 20, 1893, 20 R. 1093, 30 S.L.R. 919.

At advising—